JOINT FILING AND SOLICITATION AGREEMENT
Exhibit 99.1
WHEREAS,
certain of the undersigned are stockholders, direct or beneficial, of Bitstream
Inc., a Delaware Corporation (the “Company”);
WHEREAS,
Raging Capital Fund, LP, a Delaware limited partnership (“Raging Capital Fund”),
Raging Capital Fund (QP), LP, a Delaware limited partnership, Raging Capital
Management, LLC, a Delaware limited liability company (“Raging Capital”),
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxxx,
wish to form a group for the purpose of seeking representation on the Board of
Directors of the Company at the 2010 annual meeting of stockholders of the
Company, or any other meeting of stockholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the “2010
Annual Meeting”) and for the purpose of taking all other action necessary to
achieve the foregoing.
NOW, IT
IS AGREED, this 1st day
of March 2010 by the parties hereto:
1. In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), each of the undersigned (collectively, the
“Group”) agrees to the joint filing on behalf of each of them of statements on
Schedule 13D, and any amendments thereto, with respect to the securities of the
Company. Each member of the Group shall be responsible for the
accuracy and completeness of his/its own disclosure therein, and is not
responsible for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that such
information is inaccurate.
2. So
long as this agreement is in effect, each of the undersigned shall provide
written notice to Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP (“Xxxxxx”)
of (i) any of their purchases or sales of securities of the Company; or (ii) any
securities of the Company over which they acquire or dispose of beneficial
ownership. Notice shall be given no later than 24 hours after each
such transaction.
3. Each
of the undersigned agrees to form the Group for the purpose of (i) soliciting
proxies or written consents for the election of the persons nominated by Raging
Capital Fund to the Board of Directors of the Company at the 2010 Annual
Meeting; (ii) taking such other action as the parties deem advisable; and (iii)
taking all other action necessary or advisable to achieve the foregoing (the
“Solicitation”).
4. Raging
Capital agrees to bear all expenses incurred in connection with the Group’s
activities, including expenses incurred by any of the parties in the
Solicitation. Notwithstanding the foregoing, Raging Capital shall not
be required to reimburse any party for (i) out-of-pocket expenses incurred by a
party in the aggregate in excess of $250 without Raging Capital’s prior written
approval; (ii) the value of the time of any party; (iii) legal fees incurred
without Raging Capital’s prior written approval; or (iv) the costs of any
counsel, other than Xxxxxx, employed in connection with any pending or
threatened litigation without Raging Capital’s prior written
approval.
5. Each
of the undersigned agrees that any SEC filing, press release or stockholder
communication proposed to be made or issued by the Group or any member of the
Group in connection with the Solicitation shall be first approved by Raging
Capital, or its representatives, which approval shall not be unreasonably
withheld.
6. The
relationship of the parties hereto shall be limited to carrying on the business
of the Group in accordance with the terms of this agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party’s right to
purchase or sell securities of the Company, as he/it deems appropriate, in
his/its sole discretion, provided that all such sales are made in compliance
with all applicable securities laws.
7. This
agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute but one and the same
instrument, which may be sufficiently evidenced by one counterpart.
8. In
the event of any dispute arising out of the provisions of this agreement or
their investment in the Company, the parties hereto consent and submit to the
exclusive jurisdiction of any court of competent jurisdiction of the State of
New York located in New York County and the federal court in the Southern
District of New York.
9. Any
party hereto may terminate his/its obligations under this agreement on 24 hours’
written notice to all other parties, with a copy by fax to Xxxxx Xxxxxxx at
Xxxxxx, Fax No. (000) 000-0000.
10. Each
party agrees that Xxxxxx shall act as counsel for both the Group and Raging
Capital and its affiliates relating to his/its investment in the
Company.
11. Each
party agrees that this agreement shall be filed as an exhibit to a Schedule 13D
pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.
2
IN
WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as
of the day and year first above written.
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Raging
Capital Fund, LP
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By:
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General
Partner
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Managing
Member
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Raging
Capital Fund (QP), LP
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By:
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General
Partner
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Managing
Member
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Managing
Member
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/s/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx
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/s/
Xxxx X. Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
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/s/
Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx
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