UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(1)	Beneficial ownership of the common stock of DUSA Pharmaceuticals, Inc. (“Issuer”) referred to herein is being reported solely because Sun Pharmaceutical Industries Limited (“Sun Pharma”), Sun Pharma Global, Inc. (“Sun Global”), Caraco Pharmaceutical Laboratories, Ltd. (the “Parent”), Caraco Acquisition Corporation (“Purchaser”) and Dilip S. Shanghvi may be deemed to have beneficial ownership as a result of the Support Agreements (described further in Items 3, 4 and 5 of this Schedule 13D) by and among Parent, Purchaser and certain shareholders of Issuer (“Supporting Shareholders”) and the irrevocable proxies associated therewith, of 4,464,746 shares of Issuer common stock. The 4,464,746 shares are comprised of 862,096 shares of Issuer common stock, 2,053,650 shares issuable upon the exercise of options to purchase Issuer common stock, and 1,549,000 restricted shares.  The filing of this Schedule 13D shall not be construed as an admission that either Sun Pharma, Sun Global, the Parent, Purchaser or Mr. Shanghvi is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, the beneficial owner of any of such shares of Issuer.
(2)	Based on 25,027,683 shares of common stock outstanding as of November 8, 2012 (as represented in the Merger Agreement discussed in Items 3 and 4 of this Schedule), 2,053,650 options to purchase Issuer common stock, and 1,549,000 restricted shares beneficially owned by the Supporting Shareholders.

 

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(1)	Beneficial ownership of the common stock of Issuer referred to herein is being reported solely because Sun Pharma, Sun Global, the Parent, Purchaser and Dilip S. Shanghvi may be deemed to have beneficial ownership as a result of the Support Agreements (described further in Items 3 and 4 of this Schedule 13D) by and among Parent, Purchaser and Supporting Shareholders and the irrevocable proxies associated therewith, of 4,464,746 shares of Issuer common stock. The 4,464,746 shares are comprised of 862,096 shares of Issuer common stock, 2,053,650 shares issuable upon the exercise of options to purchase Issuer common stock, and 1,549,000 restricted shares. The filing of this Schedule 13D shall not be construed as an admission that either Sun Pharma, Sun Global, the Parent, Purchaser or Mr. Shanghvi is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, the beneficial owner of any of such shares of Issuer.
(2)	Based on 25,027,683 shares of common stock outstanding as of November 8, 2012 (as represented in the Merger Agreement discussed in Items 3 and 4 of this Schedule), 2,053,650 options to purchase Issuer common stock and 1,509,000 restricted shares beneficially owned by the Supporting Shareholders.

 

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(1)	Beneficial ownership of the common stock of Issuer referred to herein is being reported solely because Sun Pharma, Sun Global, the Parent, Purchaser and Dilip S. Shanghvi may be deemed to have beneficial ownership as a result of the Support Agreements (described further in Items 3 and 4 of this Schedule 13D) by and among Parent, Purchaser and Supporting Shareholders and the irrevocable proxies associated therewith, of 4,464,746 shares of Issuer common stock. The 4,464,746 shares are comprised of 862,096 shares of Issuer common stock, 2,053,650 shares issuable upon the exercise of options to purchase Issuer common stock, and 1,549,000 restricted shares. The filing of this Schedule 13D shall not be construed as an admission that either Sun Pharma, Sun Global, the Parent, Purchaser or Mr. Shanghvi is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, the beneficial owner of any of such shares of Issuer.
(2)	Based on 25,027,683 shares of common stock outstanding as of November 8, 2012 (as represented in the Merger Agreement discussed in Items 3 and 4 of this Schedule), 2,053,650 options to purchase Issuer common stock and 1,509,000 restricted shares beneficially owned by the Supporting Shareholders.

 

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(1)	Beneficial ownership of the common stock of Issuer referred to herein is being reported solely because Sun Pharma, Sun Global, the Parent, Purchaser and Dilip S. Shanghvi may be deemed to have beneficial ownership as a result of the Support Agreements (described further in Items 3 and 4 of this Schedule 13D) by and among Parent, Purchaser and Supporting Shareholders and the irrevocable proxies associated therewith, of 4,464,746 shares of Issuer common stock. The 4,464,746 shares are comprised of 862,096 shares of Issuer common stock, 2,053,650 shares issuable upon the exercise of options to purchase Issuer common stock, and 1,549,000 restricted shares. The filing of this Schedule 13D shall not be construed as an admission that either Sun Pharma, Sun Global, the Parent, Purchaser or Mr. Shanghvi is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, the beneficial owner of any of such shares of Issuer.
(2)	Based on 25,027,683 shares of common stock outstanding as of November 8, 2012 (as represented in the Merger Agreement discussed in Items 3 and 4 of this Schedule), 2,053,650 options to purchase Issuer common stock and 1,509,000 restricted shares beneficially owned by the Supporting Shareholders.

 

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(1)	Beneficial ownership of the common stock of Issuer referred to herein is being reported solely because Sun Pharma, Sun Global, the Parent, Purchaser and Dilip S. Shanghvi may be deemed to have beneficial ownership as a result of the Support Agreements (described further in Items 3 and 4 of this Schedule 13D) by and among the Parent, Purchaser and Supporting Shareholders and the irrevocable proxies associated therewith, of 4,464,746 shares of Issuer common stock. The 4,464,746 shares are comprised of 862,096 shares of Issuer common stock, 2,053,650 shares issuable upon the exercise of options to purchase Issuer common stock, and 1,549,000 restricted shares. The filing of this Schedule 13D shall not be construed as an admission that either Sun Pharma, Sun Global, the Parent, Purchaser or Mr. Shanghvi is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, the beneficial owner of any of such shares of Issuer.
(2)	Based on 25,027,683 shares of common stock outstanding as of November 8, 2012 (as represented in the Merger Agreement discussed in Items 3 and 4 of this Schedule), 2,053,650 options to purchase Issuer common stock and 1,509,000 restricted shares beneficially owned by the Supporting Shareholders.

 

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Item 1.         Security and Issuer

 

The class of equity securities to which this Schedule 13D relates is the common stock, no par value per share, of DUSA Pharmaceuticals, Inc. (the “Shares”), a New Jersey corporation (“Issuer”). The principal executive office of Issuer is located at 25 Upton Drive, Wilmington, MA 01887.

 

Item 2.         Identity and Background

 

This Schedule 13D is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by Sun Pharmaceutical Industries Limited, a company organized under the laws of India (“Sun Pharma”), Sun Pharma Global, Inc., a company incorporated under the laws of the British Virgin Islands and a wholly owned subsidiary of Sun Pharma (“Sun Global”), Caraco Pharmaceutical Laboratories, Ltd., a Michigan corporation and a wholly owned subsidiary of Sun Pharma and Sun Global (the “Parent”), Dilip S. Shanghvi, the controlling shareholder of Sun Pharma, and Caraco Acquisition Corporation, a New Jersey corporation and wholly owned  subsidiary of the Parent (“Purchaser,” and together with Sun Pharma, Sun Global, the Parent and Mr. Shanghvi, the “Reporting Persons”). The address of the principal business and the principal office of Sun Pharma and Mr. Shanghvi is 17/B, Mahal Industrial Estate, Mahakali Caves Road, Andeheri (East), Mumbai 400 093, India.  The address of the principal business and the principal office of Sun Global is c/o SuGandh Management Consultancy, Woodstock Asia Pacific DMCC, Office No. 406, The Business Center, OPP Burjuman Centre, Mashreq Bank Bldg., Bank Street, P.O. Box 12850 Dubai, United Arab Emirates.  The address of the principal business and the principal office of the Parent and Purchaser is 1150 Elijah McCoy Drive, Detroit, MI 48202.  Sun Pharma and its affiliates operate as an international, integrated, specialty pharmaceutical company.  Purchaser was formed for the sole purpose of merging with and into Issuer.

 

The name, business address, present principal occupation or employment and citizenship of each director and executive officer (including a director and officer who may be a controlling person) of Sun Pharma, Sun Global, the Parent and Purchaser is set forth on Schedule A. During the last five years, neither Sun Pharma, Sun Global, the Parent, Purchaser nor, to the knowledge of Sun Pharma, Sun Global, the Parent or Purchaser, any of the persons listed on Schedule A, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3.         Source and Amount of Funds or Other Consideration

 

Merger Agreement

 

On November 8, 2012, Issuer, Sun Pharma and Purchaser entered into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Purchaser agreed to commence a tender offer (the “Offer”) to acquire all of the outstanding Shares, at a purchase price of $8.00 per Share (the “Offer Price”), net to the tendering shareholder in cash, without interest and less any required withholding taxes, subject to the satisfaction or waiver of the conditions to the Offer set forth in the Merger Agreement. Upon successful completion of the Offer, and subject to the terms and conditions of the Merger Agreement, Purchaser will merge with and into Issuer (the “Merger”), and Issuer will survive the Merger as a wholly owned indirect subsidiary of Sun Pharma (the “Surviving Corporation”).

 

On November 16, 2012, Sun Pharma assigned the Merger Agreement and all of its rights and obligations therein to the Parent. Pursuant to the terms of the Merger Agreement, notwithstanding the assignment, Sun Pharma is not relieved of any liability or obligation under the Merger Agreement.

 

The transactions are expected to be completed by year end 2012.  The consummation of the Offer and Merger are subject to various closing conditions, including the tender of a majority of the Shares, the expiration of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and other customary conditions.  The Offer is not subject to a financing condition.  The Merger Agreement also includes customary termination provisions for both the Issuer and the Parent and provides that, in connection with the termination of the Merger Agreement under specified circumstances, the Issuer will be required to pay Parent a termination fee of $9,000,000.

 

In the Merger Agreement, Issuer has granted to Purchaser an irrevocable option (the “Top-Up Option”) exercisable only in accordance with the terms and subject to the conditions set forth in the Merger Agreement, to purchase at a price per Share equal to the Offer Price, that number of newly issued Shares equal to the lowest number of Shares, that when added to the number of Shares collectively owned by the Parent or Purchaser at the time of such exercise, constitutes one Share more than 90% of the sum of the then outstanding Shares. The maximum number of Shares issuable pursuant to the Top-Up Option is equal to the maximum number of Shares authorized and unissued or held in the treasury of Issuer. The Reporting Persons disclaim beneficial ownership of these Shares.

 

The foregoing summary description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement listed as Exhibit 2.1 hereto, which is hereby incorporated herein by reference.

 

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Support Agreements

 

Concurrently with the execution and delivery of the Merger Agreement, and as a condition and inducement to Sun Pharma’s willingness to enter into the Merger Agreement, Sun Pharma and Purchaser entered into a Support Agreement (the “Support Agreements”) dated as of the date of the Merger Agreement with the directors and executive officers of the Issuer (each a “Supporting Shareholder”). The purpose of the Support Agreements is to facilitate the consummation of the transactions contemplated by the Merger Agreement. The Supporting Shareholders own an aggregate of 4,464,746 Shares representing approximately 15.6% of the 25,027,683 Shares outstanding as of November 8, 2012 (as represented by Issuer in the Merger Agreement), 2,053,650 options to purchase Issuer common stock, and 1,549,000 restricted shares beneficially owned by the Supporting Shareholders. None of the Supporting Shareholders were paid any additional consideration in connection with entering into the Support Agreements.

 

On November 16, 2012, Sun Pharma assigned the Support Agreements and all of its rights and obligations therein to the Parent. Pursuant to the terms of the Support Agreements, notwithstanding the assignment, Sun Pharma is not relieved of any liability or obligation under the Merger Agreement.

 

The names of the Supporting Shareholders and the number of Shares and the percentage ownership that are subject to the Support Agreements are set forth in Schedule B hereto which is hereby incorporated herein by reference. The foregoing summary description of the Support Agreements does not purport to be complete and is qualified in its entirety by reference to the form of Support Agreement listed as Exhibit 2.2 hereto, which is hereby incorporated herein by reference.

 

Pursuant to the Support Agreements, each of the Supporting Shareholders, among other things, agrees to tender all of their Shares, including any additional Shares acquired prior to the Effective Time of the Merger (as defined in the Merger Agreement) or the termination of the Merger Agreement in accordance with its terms, in the Offer as promptly as practicable after commencement of the Offer (and in any event on or before the 10th business day thereafter), and not to withdraw such Shares from the Offer unless the applicable Support Agreement is terminated or, without the consent of the Issuer, the Purchaser amends the Offer to reduce the offer price, reduce the number of Shares subject to the Offer, change the form of consideration payable in the Offer, or amends or modifies a term or condition of the Offer or Merger Agreement that is adverse to any shareholder of the Issuer.

 

The Supporting Shareholders also, among other things, agree to vote (a) in favor of adoption of (1) the Merger Agreement and all the other transactions contemplated by the Merger Agreement, including the Merger, and (2) any other matter that is required to facilitate the consummation of the other transactions contemplated by the Merger Agreement; and (b) against (1) any Takeover Proposal and any agreement or arrangement related to such Takeover Proposal, and (2) any action or agreement that would impair the ability of Parent and the Purchaser to complete the Offer or the Merger, or the ability of the Company to consummate the Merger, in any material respect or that would otherwise be inconsistent with or prevent, impede or delay the consummation of the transactions contemplated by the Merger Agreement in any material respect. The Supporting Shareholders grant an irrevocable proxy appointing Parent and any designee of Parent as such Supporting Shareholder’s attorney-in-fact and proxy to vote with respect to the Merger and related matters.  The Supporting Shareholders agree, subject to certain exceptions, not to (a) transfer their Shares that are subject to the Support Agreement, (b) grant any proxies or powers of attorney, deposit any Shares into a voting trust or enter into a voting agreement with respect to any Shares, (c) take any action that would cause any representation or warranty of the Supporting Shareholder to become untrue or incorrect or have the effect of preventing or disabling the Supporting Shareholder from performing his or her obligations thereunder; or (d) commit or agree to take any of the foregoing actions. Other than with respect to the matters described in, and subject to the limitations set forth in, the Support Agreements, Parent and Purchaser do not have the right to vote or direct the vote of, or to dispose or to direct the disposition of, any of the Shares subject thereto.

 

The Support Agreements will terminate upon the earliest of (a) the Effective Time, (b) the mutual written agreement of the parties thereto, (c) the termination of the Merger Agreement in accordance with its terms, (d) a Company Adverse Recommendation Change (as defined in the Merger Agreement) and (e) the occurrence of any of the events permitting a Supporting Shareholder to decline to tender or withdraw its Shares.

 

Item 4.         Purpose of Transaction

 

As described in Item 3 above, this Schedule 13D relates to the Offer, the Merger, the Support Agreements and the Top-Up Option, the purpose of which are to assist the Parent and Purchaser acquiring control of, and ultimately, the entire equity interest in Issuer.

 

Upon completion of the Offer, Purchaser has the right to designate a number of directors on Issuer’s board of directors (and each committee of Issuer’s board of directors and the boards of directors and each board committee of its subsidiaries) that will give Purchaser representation on such boards of directors and committees proportional to the number of Shares purchased by Purchaser as compared to the number of Shares outstanding. The Issuer has agreed to take all actions reasonably necessary to seek and accept the resignations of incumbent directors to provide Purchaser with this level of representation, and to cause the designees of Purchaser to be elected.

 

Upon the consummation of the Merger, (i) the Surviving Corporation will become a wholly owned direct subsidiary of the Parent and indirect wholly owned subsidiary of Sun Pharma and (ii) each outstanding share of Issuer’s common stock (other than Shares held in the treasury of Seller or owned by Parent or Purchaser) will be converted into the right to receive the Offer Price. The directors of Purchaser immediately prior to the effective time of the Merger will be the directors of the Surviving Corporation, each to hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation. The officers of Issuer immediately prior to the effective time of the Merger will be the officers of the Surviving Corporation, until their respective successors are duly elected or appointed and

 

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qualified or until their earlier death, resignation or removal. The officer and director of Purchaser was appointed by Parent and is identified in  Schedule A.

 

At the Effective Time, the certificate of incorporation of DUSA will be amended as provided in the Merger Agreement, and as so amended, will be the certificate of incorporation of the Surviving Corporation.  Furthermore, at the Effective Time, the bylaws of the Surviving Corporation will be amended to be identical to the bylaws of the Purchaser, as in effect immediately prior to the Effective Time.

 

Following the Merger, the Issuer will not continue to be publicly traded, and the registration of the Shares under the Exchange Act will be terminated. The foregoing summary description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement listed as Exhibit 2.1 hereto, which is hereby incorporated herein by reference.

 

Except as set forth in this Schedule 13D and in connection with the Offer and the Merger described above, the Reporting Persons have no plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Parent intends to continue reviewing Issuer’s assets, corporate structure, dividend policy, capitalization, operations, properties, policies, management and personnel as part of a comprehensive review with a view to optimizing development of Issuer’s potential in conjunction with Sun Pharma’s existing business. This planning process will continue throughout the pendency of the Offer and the Merger.

 

Item 5.         Interests in Securities of the Issuer

 

(a) - (b) As a result of the Support Agreements, the Reporting Persons may be deemed to have shared voting power and shared dispositive power with respect to 4,464,746 Shares, subject to the conditions and limitations of the Support Agreements, and thus, for the purpose of Rule 13d-3 promulgated under the Exchange Act, the Reporting Persons may be deemed to be the beneficial owners of an aggregate of 4,464,746 Shares. All Shares that may be deemed to be beneficially owned by the Reporting Persons constitute approximately 15.6% of the issued and outstanding Shares as of November 8, 2012 (as represented by Issuer in the Merger Agreement) and including the number of outstanding options to purchase Issuer common stock held by the Supporting Shareholders and restricted shares beneficially owned by the Supporting Shareholders.

 

In the event Purchaser exercises the Top-Up Option described in Item 3 above, the Reporting Persons will have sole voting power and sole dispositive power over the Shares issued upon exercise.

 

The Reporting Persons (i) are not entitled to any rights as a shareholder of Issuer as to the Shares covered by the Support Agreements, except as otherwise expressly provided in the Support Agreements, or as to the Shares subject to the Top-Up Option, and (ii) disclaim all beneficial ownership of such Shares.

 

Except as set forth in this Item 5, none of the Reporting Persons, or, to the knowledge of the Reporting Persons, any persons named in Schedule A, beneficially owns any Shares.

 

(c) Except for the agreements described above, none of the Reporting Persons, or, to the knowledge of the Reporting Persons, any persons named in Schedule A, has effected any transaction in securities of Issuer reported herein during the past 60 days.

 

(d) To the knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of Issuer reported herein.

 

(e) Not applicable.

 

Item 6.         Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Except for the agreements described in Items 3, 4 and 5 above, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of Issuer, which would be required to be reported under this Item.

 

Item 7.         Material to be Filed as Exhibits

 

Exhibit		Title
Exhibit 2.1		Agreement and Plan of Merger, dated November 8, 2012, by and among Sun Pharmaceutical Industries Limited, Caraco Acquisition Corporation and DUSA Pharmaceuticals, Inc. (incorporated herein by reference to Exhibit 2.1 to DUSA Pharmaceutical, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 8, 2012).

 

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Exhibit 2.2		Form of Support Agreement
Exhibit 99.1		Joint Filing Agreement between Sun Pharmaceutical Industries Limited, Sun Pharma Global, Inc., Caraco Pharmaceutical Laboratories, Ltd., Mr. Shanghvi and Caraco Acquisition Corporation dated as of November 19, 2012

 

SIGNATURE

 

After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: November 19, 2012
	CARACO ACQUISITION CORPORATION
	By:	/s/ Mukul Rathi
	Name:	Mukul Rathi
	Title:	President
	SUN PHARMACEUTICAL INDUSTRIES LIMITED
	By:	/s/ Dilip S. Shanghvi
	Name:	Dilip S. Shanghvi
	Title:	Managing Director
	SUN PHARMA GLOBAL, INC.
	By:	/s/ Harin Mehta
	Name:	Harin Mehta
	Title:	Managing Director
	CARACO PHARMACEUTICAL LABORATORIES, LTD.
	By:	/s/ Mukul Rathi
	Name:	Mukul Rathi
	Title:	Interim Chief Financial Officer
	DILIP S. SHANGHVI
	/s/ Dilip S. Shanghvi
	Dilip S. Shanghvi

 

ATTENTION

 

Intentional misstatements or omissions of fact constitute Federal Criminal Violations (See 18 U.S.C. 1001).

 

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SCHEDULE A

ADDITIONAL INFORMATION CONCERNING THE REPORTING PERSONS

 

SUN PHARMACEUTICAL INDUSTRIES LTD.

 

Name of Directors of Reporting Person		Principal Address(1)		Principal Occupation(2)		Citizenship
Dilip S. Shanghvi		Sun Pharmaceutical Industries Limited		Managing Director		India
Israel Makov		Sun Pharmaceutical Industries Limited Acme Plaza, Andheri Kurla Road, Andheri (East), Mumbai – 400 059. India.		Chairman		Israel
Sudhir V. Valia		Sun Pharmaceutical Industries Limited Acme Plaza, Andheri Kurla Road, Andheri (East), Mumbai – 400 059. India.		Director		India
Sailesh T. Desai		Sun Pharmaceutical Industries Limited		Director		India
S. Mohanchand Dadha		Sun Pharmaceutical Industries Limited 10, Jeypore Nagar, Chennai - 600 086. India.		Director		India
Hasmukh S. Shah		Sun Pharmaceutical Industries Limited 402, 4th Floor, R. K. Centre, Fatehgunj Main Road, Baroda – 390 002. India.		Director		India
Keki Minu Mistry		c/o Housing Development Finance Corporation Limited, Ramon House, 5th Floor, H. T. Parekh Marg, 169, Backbay Reclamation, Churchgate, Mumbai – 400 020. India		Director		India
Ashwin S. Dani		Asian Paints (India) Limited, 6-A, Shanti Nagar, Santacruz (East), Mumbai – 400055. India.		Director		India

 

(1) Unless otherwise indicated the Principal Address of each person is the Principal Address of Sun Pharmaceutical Industries  Limited, 17/B, Mahal Industrial Estate, Mahakali Caves Road, Andeheri (East), Mumbai 400 093, India.

 

(2) Unless otherwise indicated the Principal Occupation of each person is employment by Sun Pharmaceutical Industries Limited.

 

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Name of Executive Officers of Reporting Person		Principal Address(1)		Principal Occupation(2)		Citizenship
Rakesh Mehta		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai — 400 059 Maharashtra, India		Sr. Vice President, International Marketing		India
Abhay Gandhi		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai — 400 059 Maharashtra, India		Exec. Vice President, International Marketing		India
T. K. Roy		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai — 400 059 Maharashtra, India		Sr. Vice President Marketing & Sales		India
Sharda Crishna		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai — 400 059 Maharashtra, India		Sr. Vice President Marketing & Sales		India
Kirti Ganorkar		Sun Pharmaceutical Industries Limited		Sr. Vice President Business Development		India
Vipul Doshi		Sun Pharmaceutical Industries Limited SPARC, Tandalja, Vadodara-390 020, Gujarat, India		Vice President Quality Exec.		India
MVN Rao		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai — 400 059 Maharashtra, India		Senior Vice President Global HR		India
Dr. Ratnesh Shrivastava		Sun Pharmaceutical Industries Limited		Vice President Intellectual Property Cell		India
Sampad Bhattacharya		Sun Pharmaceutical Industries Limited, Halol Baroda Highway, Halol- 389 350, India		Vice President Operations		India
Uday Baldota		Sun Pharmaceutical Industries Limited		Sr. Vice President Accounts and Finance		India
A. H. Khan		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai — 400 059 Maharashtra, India		Vice President Human Resources Development		India
Dinesh R. Desai		Sun Pharmaceutical Industries Limited		Accounts Vice President		India
Sunil Ajmera		Sun Pharmaceutical Industries Limited		Sr. General Manager Operations, Compliance Officer & Company Secretary		India

 

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Name of Executive Officers of Reporting Person		Principal Address(1)		Principal Occupation(2)		Citizenship
Ashok I. Bhuta		Sun Pharmaceutical Industries Limited		Deputy General Manager Legal & Secretarial & Compliance Officer		India
Pabitra Kumar Bhattacharya		Sun Pharmaceutical Industries Limited, 401-404, The Eagle’s Flight, Dr. Suren Road, Off Andheri-Kurla Road, Chakala, Andhari (East) Mumbai – 400 093, India		Vice President Process Eng. & Environmental Compliance		India
B. F. Shirude		Sun Pharmaceutical Industries Limited, A-8, MIDC Industrial Area, Ahmednagar 414 111 India		Vice President Operations (API)		India
R. S. Vasan		Sun Pharmaceutical Industries Limited, Acme Plaza, Andheri Kurla Road, Andheri (E) Mumbai 400 059 Maharashtra, India		Sr. Vice President Marketing & Sales		India
Kailash Pathak		Sun Pharmaceutical Industries Limited, SPARC, Tandalja, Valdodora-390 020, Gujarat, India		Senior Vice President Operations (API)		India
Dr. Deepak Haldankar		Sun Pharmaceutical Industries Limited, SPARC, Tandalja, Valdodora-390 020, Gujarat, India		Vice President Corporate Quality		India

 

SUN PHARMA GLOBAL, INC.

 

Name of Directors of Reporting Person		Principal Address(1)		Principal Occupation(2)		Citizenship
Harin Mehta		Flat No. 3, 1 Elmunkas Street Tiszavasvari, Hungary 4440		Managing Director		India
Sunil Gandhi		SuGandhManagement, Consultancy, Woodstock Asia Pacific DMCC, Office No. 406, The Business Centre Opp, Burjuman Centre, Mashreq Bank Bldg. Bank Street, P.O. Box 12850, Dubai-UAE		Director, Secretary and Financial Consultant		India
Surendra Joshi		PO Box 696, Muttrah, Post Code No. 114, Sultanaté of Oman		Director and Tax Consultant		India

 

CARACO PHARMACEUTICAL LABORATORIES, LTD.(1)

 

Name of Directors of Reporting Person		Principal Address		Principal Occupation		Citizenship
Subramanian Kalyansundaram		c/o Taro Pharmaceutical U.S.A., Inc., Three Skyline Drive, Hawthorne, NY  10532		Chief Executive Officer and Director		New Zealand
Jayesh M. Shah		c/o Elijah McCoy Drive Detroit, MI  48202		Director – Commercial And Director		India

 

(1)  In addition, Dilip S. Shanghvi, Sudhir Valia and Harin Mehta are directors of Parent.  Information about them is set forth above under “Sun Pharmaceutical Industries Limited” and “Sun Pharma Global, Inc.”

 

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Name of Directors of Reporting Person		Principal Address		Principal Occupation		Citizenship
Gurpartap Singh Sachdeva		c/o Elijah McCoy Drive Detroit, MI  48202		President and Director		United States
Mukul Rathi		c/o Elijah McCoy Drive Detroit, MI  48202		Interim Chief Financial Officer		India
Robert Kurkiewicz		c/o Elijah McCoy Drive Detroit, MI  48202		Senior Vice President – Regulatory		United States

 

CARACO ACQUISITION CORPORATION

 

Name of Directors of Reporting Person		Principal Address		Principal Occupation		Citizenship
Mukul Rathi		Caraco Acquisition Corp. 1150 Elijah McCoy Drive, Detroit, MI 48202		Director, President, Treasurer and Secretary		India

 

14

 

SCHEDULE B

SUPPORTING SHAREHOLDERS

 

Name of Supporting Shareholder		Issuer Common Stock		Options		Restricted Shares
Alfred Altomari		10,000		15,000		10,000
David M. Bartash		52,125		80,000		11,875
Mark C. Carota		39,085		192,100		149,200
Alexander W. Casdin		206,000		35,000		10,000
Richard C. Christopher		66,862		227,050		209,150
Robert F. Doman		158,036		555,900		528,400
Jay M. Haft		84,750		70,000		13,750
Paul J. Hondros		6,000		15,000		10,000
Scott L. Lundahl		61,014		203,600		149,200
Stuart L. Marcus		29,919		185,100		83,200
Magnus Moliteus		46,625		50,000		11,875
William F. O’Dell		53,560		254,600		219,150
Michael J. Todisco		37,120		155,300		133,200
David M. Wurzer		11,000		15,000		10,000
All Supporting Shareholders as a group (consisting of 14 persons)		862,096		2,053,650		1,549,000

 

15

 

EXHIBIT INDEX

 

Exhibit		Title
Exhibit 2.1		Agreement and Plan of Merger, dated November 8, 2012, by and among Sun Pharmaceutical Industries, Limited, Caraco Acquisition Corporation and DUSA Pharmaceuticals, Inc. (incorporated herein by reference to Exhibit 2.1 to DUSA Pharmaceutical, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 8, 2012).
Exhibit 2.2		Form of Support Agreement
Exhibit 99.1		Joint Filing Agreement between Sun Pharmaceutical Industries Limited, Sun Pharma Global, Inc., Caraco Pharmaceutical Laboratories, Ltd., Mr. Shanghvi and Caraco Acquisition Corporation dated as of November 19, 2012

 

16

Exhibit 2.2

 

FORM OF

 

SUPPORT AGREEMENT

 

This SUPPORT AGREEMENT (this “Agreement”), is dated as of November 8, 2012 by and among Sun Pharmaceutical Industries Limited, a corporation incorporated under the laws of India (“Parent”), Caraco Acquisition Corporation, a New Jersey corporation and an indirect wholly owned subsidiary of Parent (“Merger Sub”), and [                     ] (“Shareholder”) in his capacity as a shareholder of DUSA Pharmaceuticals, Inc., a New Jersey corporation (the “Company”).  Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Merger Agreement (defined below).

 

RECITALS

 

1.                                      As of the date hereof, Shareholder is the beneficial owner of the number of shares of Company Common Stock listed in Annex A hereto (excluding shares of Company Common Stock deemed to be beneficially owned as a result of holding Options) (such shares in Annex A, together with any shares of Company Common Stock acquired by Shareholder after the date hereof, whether as a result of the exercise of Options, the vesting of Restricted Shares or otherwise (which are also listed in Annex A hereto), “Owned Common Shares”);

 

2.                                      Parent, Merger Sub, and Company are simultaneously with the execution of this Agreement entering into an Agreement and Plan of Merger, (as it may be amended from time to time in accordance with its terms, the “Merger Agreement”), providing for, among other things, Merger Sub to commence a cash tender offer (the “Offer”) to acquire all of the outstanding Shares of Company, followed by the subsequent merger of Merger Sub with and into Company, with Company surviving the merger as a wholly owned subsidiary of Parent, in each case, on the terms and subject to the conditions set forth in the Merger Agreement;

 

3.                                      As a condition to Parent’s and Merger Sub’s willingness to enter into and perform its obligations under the Merger Agreement, Parent and Merger Sub have required that Shareholder and Shareholder has agreed, on the terms and subject to the conditions set forth herein, (i) to tender in the Offer (and not withdraw) all of Shareholder’s Owned Common Shares, and (ii) that, in the event that a vote of Company’s shareholders is required in furtherance of the Merger Agreement or the Other Transactions contemplated thereby, including the Merger, Shareholder will vote all of Shareholder’s Owned Common Shares (to the extent any Owned Common Shares are not purchased in the Offer) in favor of the approval of the Merger and the adoption of the Merger Agreement; and

 

4.                                      Shareholder desires to express his support for the Merger Agreement and the Other Transactions contemplated thereby, including the Offer and the Merger.

 

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration given to each party hereto, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

 

1.                                      Agreement to Tender and Vote; Irrevocable Proxy.

 

1.1                               Agreement to Tender.  Shareholder agrees that, in his capacity as a shareholder of Company, as promptly as practicable after the commencement of the Offer, and in any event no later than the tenth Business Day following the commencement of the Offer, Shareholder shall irrevocably tender into the Offer all of the Owned Common Shares owned by Shareholder, free and clear of all Liens. If Shareholder acquires any Owned Common Shares after the tenth Business Day following the commencement of the Offer (including during any subsequent offering period, if any), then Shareholder shall irrevocably tender into the Offer such Owned Common Shares within three Business Days after the date that Shareholder shall acquire such Owned Shares. Shareholder agrees that, once the Owned Common Shares are tendered into the Offer, Shareholder shall not withdraw the tender of such Owned Common Shares unless this Agreement is terminated in accordance with its terms under Section 5; provided however, that Shareholder may decline to tender, or may withdraw, any and all of the Owned Common Shares if, without the consent of Shareholder, Merger Sub amends the Offer to (i) reduce the Offer Price, (ii) reduce the number of shares of Company Common Stock subject to the Offer, (iii) change the form of consideration payable in the Offer, or (iv) amend or modify any term or condition of the Offer or the Merger Agreement in a manner adverse to Shareholder.

 

1.2                               Agreement to Vote. Shareholder hereby agrees that, in his capacity as a shareholder of Company, during the Term of this Agreement, (1) at any meeting of the shareholders of Company (including the Company Shareholders Meeting), however called, or any adjournment or postponement of such meeting, Shareholder shall be present (in person or by proxy) and vote (or cause to be voted) or grant a consent or approval with respect to all of the Owned Common Shares (to the extent the Owned Common Shares are not purchased in the Offer) and (2) Shareholder will grant a consent or approval in any action by written consent of the shareholders of Company:

 

(a)                                 in favor of adoption of (1) the Merger Agreement and all the Other Transactions contemplated by the Merger Agreement, including the Merger, and (2) any other matter that is required to facilitate the consummation of the Other Transactions contemplated by the Merger Agreement and, in connection with the Merger Agreement, to execute any documents which are necessary or appropriate in order to effectuate the foregoing; and

 

(b)                                 against (1) any Takeover Proposal and any agreement or arrangement related to such Takeover Proposal, and (2) any action or agreement that would impair the ability of Parent and the Merger Sub to complete the Offer or the Merger, or the ability of Company to consummate the Merger, in any material respect or that would otherwise be inconsistent with or prevent, impede or delay the consummation of the transactions contemplated by the Merger Agreement in any material respect.

 

1.3                               Irrevocable Proxy.  Shareholder , in his capacity as a shareholder of Company, hereby irrevocably grants to, and appoints, Parent and any designee of Parent and each of Parent’s officers, as Shareholder’s attorney, agent and proxy with full power of substitution and resubstitution, to the full extent of the Shareholder’s voting rights with respect to the Owned Common Shares (to the extent not purchased in the Offer), to vote all the Owned Common Shares or grant a consent or approval, at any meeting of the shareholders of Company (including

 

2

 

the Company Shareholders Meeting) and in any action by written consent of the shareholders of Company, until the termination of this Agreement in accordance with its terms under Section 5.   THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN IRREVOCABLE PROXY AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM SHAREHOLDER MAY TRANSFER ANY OWNED COMMON SHARES OR HIS RIGHT TO VOTE THE BENEFICIAL VOTING RIGHTS SHARES. Shareholder hereby revokes all other proxies and power of attorneys, with respect to all of the Owned Common Shares that may have heretofore been appointed or granted with respect to any matters covered by Section 1.2, and no subsequent proxy (whether revocable or irrevocable) or power of attorney shall be given by Shareholder, except as required by any letter of transmittal in connection with the Offer. Shareholder agrees to execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate the grant of the proxy contained herein. Notwithstanding the foregoing, such proxy shall automatically terminate upon termination of this Agreement in accordance with its terms under Section 5. This proxy shall not be exercised on any other matter except as expressly provided herein.

 

1.4                               Capacity.  Shareholder is entering into this Agreement solely in his capacity as the shareholder of the Owned Common Shares and not in his capacity as a director or officer of Company or any Company Subsidiary. Nothing in this Agreement shall limit or affect any actions taken by Shareholder in his capacity as a director or officer of Company or any Company Subsidiary.

 

1.5                               Return of Owned Common Shares.  Parent and Merger Sub shall return to Shareholder all Owned Common Shares tendered by Shareholder to Merger Sub promptly after the termination or expiration of the Offer without Merger Sub purchasing all Shares of Company Common Stock tendered pursuant to the Offer in accordance with its terms.

 

2.                                      Representations and Warranties.  Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

 

2.1                               Power; Due Authorization; Binding Agreement.  Shareholder has all requisite legal capacity, power and authority to execute and deliver this Agreement, to perform his obligations under this Agreement, and to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Shareholder and constitutes a valid and binding agreement of Shareholder, enforceable against Shareholder in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting the enforcement of creditors rights generally and equitable principles of general applicability.

 

2.2                               Ownership of Shares.  On the date of this Agreement, the Owned Common Shares set forth opposite Shareholder ‘s name on Annex A are owned beneficially by Shareholder and include all of the Owned Common Shares owned beneficially by Shareholder, free and clear of any Liens (other than this Agreement). As of the date of this Agreement, Shareholder has sole voting and dispositive power with respect to the Owned Common Shares. As of immediately prior to the expiration of the Offer, Shareholder will have sole voting and dispositive power with

 

3

 

respect to the Owned Common Shares and will be entitled to tender the Owned Common Shares in accordance with the terms of the Offer.

 

2.3                               No Conflicts.  The execution and delivery of this Agreement by Shareholder does not, and the performance of the terms of this Agreement by Shareholder will not, (a) other than any filing required under Section 13(d) or Section 16 of the Exchange Act, require Shareholder to obtain the consent or approval of, or make any filing with or notification to, any Governmental Authority, (b) require the consent or approval of any other Person pursuant to any agreement, obligation or instrument binding on Shareholder or his properties and assets, (c) assuming the timely filing of such reports as may be required under Section 13(d) or Section 16 of the Exchange Act, conflict with or violate any law, rule, regulation, order, judgment or decree applicable to Shareholder or pursuant to which any of his properties or assets are bound or (d) violate any other agreement to which Shareholder is a party, including, without limitation, any voting agreement, shareholders agreement, irrevocable proxy or voting trust. The Owned Common Shares are not, with respect to the voting or transfer of such Owned Common Shares, subject to any other agreement, including any voting agreement, shareholders agreement, irrevocable proxy or voting trust.

 

3.                                      Representations and Warranties of Parent and Merger Sub.  Each of Parent and Merger Sub hereby represents and warrants to Shareholder as follows:

 

3.1                               Power; Due Authorization; Binding Agreement.  Parent and Merger Sub are each corporations duly organized, validly existing and in good standing under the laws of their respective jurisdictions of organization. Parent and Merger Sub have the requisite corporate power and authority to execute and deliver this Agreement, to perform their obligations under this Agreement, and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of Parent and Merger Sub, and no other proceedings on the part of Parent and Merger Sub are necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and constitutes a valid and binding agreement of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting the enforcement of creditors rights generally and equitable principles of general applicability.

 

3.2                               No Conflicts.  The execution and delivery of this Agreement by Parent and Merger Sub does not, and the performance of the terms of this Agreement by Parent and Merger Sub will not, (a) other than any filing required under Section 13(d) or Section 16 of the Exchange Act, require Parent and Merger Sub to obtain the consent or approval of, or make any filing with or notification to, any Governmental Authority, (b) require the consent or approval of any other Person pursuant to any agreement, obligation or instrument binding on Parent and Merger Sub or its properties and assets, (c) assuming the timely filing of such reports as may be required under Section 13(d) or Section 16 of the Exchange Act, conflict with or violate any law, rule, regulation, order, judgment or decree applicable to Parent and Merger Sub or pursuant to which

 

4

 

any of their Affiliates’ respective assets are bound or (d) violate any other agreement to which Parent and Merger Sub or any of their Affiliates is a party.

 

4.                                      Certain Covenants of Shareholder.  Shareholder hereby covenants and agrees with Parent and Merger Sub as follows:

 

4.1                               Restriction on Transfer.  From the date of this Agreement, except for any action contemplated by Section 1, Shareholder shall not, directly or indirectly: (i) 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, or limitation on the voting rights of, any of the Owned Common Shares (any such action, a “Transfer”), provided that nothing in this Agreement shall prohibit (x) the exercise by Shareholder of any Options to purchase shares of Company Common Stock or (y) any Transfer with the prior written consent of Parent and Merger Sub; (ii) grant any proxies or powers of attorney, deposit any Owned Common Shares into a voting trust or enter into a voting agreement with respect to any Owned Common Shares; (iii) take any action that would cause any representation or warranty of Shareholder contained herein to become untrue or incorrect or have the effect of preventing or disabling Shareholder from performing his obligations under this Agreement; or (iv) commit or agree to take any of the foregoing actions.

 

4.2                               Additional Shares.  Shareholder hereby agrees, during the term of this Agreement, promptly to notify Parent and Merger Sub of any new Owned Common Shares acquired by Shareholder, if any, after the execution of this Agreement. Any such shares shall be subject to the terms of this Agreement as though owned by Shareholder on the date of this Agreement.

 

4.3                               Documentation and Information.  Shareholder (i) consents to and authorizes the publication and disclosure by Parent and Merger Sub of his identity and holding of Shareholder’s Owned Common Shares, and the nature of Shareholder ‘s commitments, arrangements and understandings under this Agreement, in any press release approved by Company, the Proxy Statement or any other disclosure document required in connection with the Offer, the Merger and the Other Transactions contemplated by the Merger Agreement, and (ii) agrees, as promptly as practicable, to give to Parent any information reasonably related to the foregoing it may reasonably require for the preparation of any such disclosure documents.  Shareholder agrees, as promptly as practicable, to notify Parent of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure document, if and to the extent Shareholder becomes aware that any shall have become false or misleading in any material respect.

 

4.4                               Further Assurances.  From time to time, at the request of Parent and Merger Sub and without further consideration, Shareholder shall execute and deliver such additional documents and take all such further action as may be necessary or desirable to consummate and make effective the transactions contemplated by this Agreement.

 

5.                                      Termination.  The covenants and agreements contained herein shall terminate upon the earliest of (i) the Effective Time, (ii) the mutual written agreement of the parties hereto, (iii) the termination of the Merger Agreement in accordance with its terms, (iv) a Company Adverse Recommendation Change, and (v) the occurrence of any of the events described in the

 

5

 

penultimate sentence of Section 1.1 permitting Shareholder to decline to tender or withdraw its Owned Company Shares; provided, however, that the provisions of Section 6, other than Sections 6.1 and 6.2, shall survive termination of this Agreement solely pursuant to this Section 5.

 

6.                                      Miscellaneous.

 

6.1                               Acknowledgment.  Shareholder acknowledges that the covenants in Section 1 are integral to the Offer.  Shareholder understands and acknowledges that each of Parent and Merger Sub is entering into the Merger Agreement in reliance upon Shareholder’s execution, delivery and performance of this Agreement.

 

6.2                               Enforcement of Agreement; Injunctive Relief; Attorneys’ Fees and Expenses.  Shareholder acknowledges that violation of this Agreement will cause immediate and irreparable damage to Parent and Merger Sub, entitling each to injunctive relief. Shareholder specifically consents to the issuance of temporary, preliminary, and permanent injunctive relief, without having to prove damages or post a bond or other security, to enforce the terms of this Agreement.  In addition to injunctive relief, Parent and Merger Sub are each entitled to all money damages available under the law.  If Shareholder violates this Agreement, in addition to all other remedies available to Parent, Merger Sub or Company at law, in equity, and under contract, Shareholder agrees that Shareholder is obligated to pay all Parent’s, Merger Sub’s and Company’s costs of enforcement of this Agreement, including attorneys’ fees and expenses.

 

6.3                               Entire Agreement.  This Agreement (a) constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties or any of them with respect to the subject matter hereof, and (b) shall be binding upon the parties hereto and their successors and permitted assigns.

 

6.4                               Amendments and Waivers.  This Agreement may not be amended except by an instrument in writing signed on behalf of all the parties. This Agreement may be waived by each party against whom the waiver is to be effective.

 

6.5                               Notices.  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable international overnight courier service, or (iii) on the date of confirmation of receipt (or, the first (1st) Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by facsimile (provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to be received at 9:00 a.m. (addressee’s local time) on the next Business Day), in each case to the intended recipient as set forth below:

 

6

 

if to Parent or Merger Sub, to:

 

Sun Pharmaceutical Industries Limited

17/B Mahal Industrial Estate

Mahakali Caves Road

Andheri (East)

Mumbai 400 093 India

Attn:  Kirti Ganorkar, Sr. Vice President Business Development

Facsimile:

 

with copies (which shall not constitute notice) to:

 

Sun Pharmaceutical Industries Limited

17/B Mahal Industrial Estate

Mahakali Caves Road

Andheri (East)

Mumbai 400 093 India

Attn: Ashok I. Bhuta, Deputy General Manager (Accounts) & Company Secretary

Facsimile:

 

and

 

Fred B. Green

Bodman PLC

6th Floor at Ford Field

1901 St. Antoine Street

Detroit, Michigan 48226

Facsimile: (313) 393-7579

 

if to Shareholder:

 

[Shareholder Address]

 

with copies (which shall not constitute notice) to:

 

Reed Smith LLP

136 Main Street

Princeton NJ 08543

Attn:  Nanette W. Mantell, Esq.

Facsimile: (609) 951-0824

 

and

 

7

 

Reed Smith LLP

2500 Liberty Place

1650 Market Street

Philadelphia, PA 19103

Attn:  Brian C. Miner, Esq.

Facsimile: (215) 851-1420

 

Any party to this Agreement may give any notice or other communication hereunder using any other means (including personal delivery, messenger service, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended. Any party to this Agreement may change the address to which notices and other communications hereunder are to be delivered by giving the other parties to this Agreement notice in the manner herein set forth; provided, however, that such change of address notification shall be effective on the later of the date specified in the notice or five (5) Business Days after such notice is given.

 

6.6                               Interpretations. When a reference is made in this Agreement to Sections or Exhibits, such reference shall be to a Section or Exhibit to this Agreement unless otherwise indicated. The words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” With respect to the determination of any period of time, the words “from,” “since,” “between” mean “from and including” and the words “to” and “until” each mean “to but excluding.” The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The parties hereto agree that they have been represented by counsel during the negotiation, drafting, preparation and execution of this Agreement and, therefore, waive the application of any Law or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

 

6.7                               Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New Jersey without regard to the conflict or choice of laws provisions thereof that would give rise to the application of the domestic substantive law of any other jurisdiction.

 

6.8                               Jurisdiction; Waiver of Jury Trial.

 

(a)                                 Each of the parties to this Agreement (i) consents to submit itself to the exclusive personal jurisdiction of the New Jersey Superior Court of Essex County, or, if that court does not have jurisdiction, a federal court sitting in Newark, New Jersey in any action or proceeding arising out of or relating to this Agreement or any of the Transactions, (ii) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in any such court, (iii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iv) agrees not to assert as a defense,

 

8

 

counterclaim or otherwise that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgments, attachments prior to judgment, attachments in advance of execution of judgment, execution of judgment or otherwise), and (v) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the Transactions in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any party hereto may make service on another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 6.5.  Nothing in this Section 6.8(a), however, shall affect the right of any party to serve legal process in any other manner permitted by Law.

 

(b)                                 EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS.

 

6.9                               Counterparts; Facsimile Transmission of Signatures. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of facsimile transmission or other electronic transmission, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Agreement may be executed and delivered by facsimile or .pdf transmission.

 

6.10                        Assignment; No Third Party Beneficiaries.

 

(a)                                 This Agreement and all of the provisions hereto shall be binding upon and inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations set forth herein shall be assigned by any party hereto without the prior written consent of the other parties hereto and any purported assignment without such consent shall be void. Notwithstanding the foregoing, Parent may assign this Agreement and its rights and obligations therein to an Affiliate without the consent of Shareholder, provided that any such assignment shall not relieve Parent from any liability or obligation hereunder.

 

(b)                                 Nothing in this Agreement shall be construed as giving any Person other than the parties hereto and their heirs, successors, legal representatives and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

9

 

IN WITNESS WHEREOF, Parent, Merger Sub and Shareholder are executing this Agreement as of the date first written above.

 

	PARENT:
	Sun Pharmaceutical Industries Limited
	By:
	Name: Kirti Ganorkar
	Title: Sr. Vice President Business Development
	MERGER SUB:
	Caraco Acquisition Corporation
	By:
	Name: Mukul Rathi
	Title: Chief Financial Officer
	SHAREHOLDER:
	By:
	Name:

 

10

 

Annex A

 

Name		Company Common Stock		Options		Restricted Shares
[Shareholder]		[x]		[x]		[x]

 

Exhibit 99.1

 

JOINT FILING AGREEMENT

 

The undersigned hereby agree that this statement on Schedule 13D with respect to the common stock of DUSA Pharmaceuticals, Inc. is, and any amendments hereto signed by each of the undersigned shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended.

 

Dated: November 19, 2012
	CARACO ACQUISITION CORPORATION
	By:	/s/ Mukul Rathi
	Name:	Mukul Rathi
	Title:	President
	SUN PHARMACEUTICAL INDUSTRIES LIMITED
	By:	/s/ Dilip S. Shanghvi
	Name:	Dilip S. Shanghvi
	Title:	Managing Director
	SUN PHARMA GLOBAL, INC.
	By:	/s/ Harin Mehta
	Name:	Harin Mehta
	Title:	Managing Director
	CARACO PHARMACEUTICAL LABORATORIES, LTD.
	By:	/s/ Mukul Rathi
	Name:	Mukul Rathi
	Title:	Interim Chief Financial Officer
	DILIP S. SHANGHVI
	/s/ Dilip S. Shanghvi
	Dilip S. Shanghvi

 

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