JOINT FILING AND SOLICITATION AGREEMENT
Exhibit 99.1
WHEREAS,
certain of the undersigned are shareholders, direct or beneficial, of Penwest
Pharmaceuticals Co., a Washington corporation (“Penwest”);
WHEREAS,
Accipiter Life Sciences Fund, LP, a Delaware limited partnership (“Accipiter
Life Sciences”), Accipiter Life Sciences Fund II, LP, a Delaware limited
partnership (“ALSF II”), Accipiter Life Sciences Fund (Offshore), Ltd., a Cayman
Islands company (“ALSF Offshore”), Accipiter Life Sciences Fund II (Offshore),
Ltd., a Cayman Islands company (“ALSF II Offshore”), Accipiter Life Sciences
Fund II (QP), LP,
a Delaware limited partnership (“ALSF II QP”), Accipiter Capital
Management, LLC, a Delaware limited liability company (“Management”), Candens
Capital, LLC, a Delaware limited liability company (“Candens”), Xxxxx Xxxxxx,
Xxxx Xxxxxxx and Xxxxxx X. Xxxxx wish to form a group for the purpose of seeking
representation on the Board of Directors of Penwest;
WHEREAS,
Accipiter Life Sciences intends to nominate Xxxxx Xxxxxx, Xxxx Xxxxxxx and
Xxxxxx X. Xxxxx as nominees to be elected to the Board of Directors of Penwest
at the 2008 annual meeting of shareholders of Penwest, or any other meeting of
shareholders held in lieu thereof, and any adjournments, postponements,
reschedulings or continuations thereof (the “Annual Meeting”).
NOW, IT
IS AGREED, this 15th day of February 2008 by the parties
hereto:
In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended, each of the undersigned (collectively, the “Group”) agrees to the
joint filing on behalf of each of them of statements on Schedule 13D with
respect to the securities of Penwest. Each member of the Group shall
be responsible for the accuracy and completeness of his/her own disclosure
therein.
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 Penwest; or (ii) any securities
of Penwest over which they acquire or dispose of beneficial
ownership. Notice shall be given no later than 24 hours after each
such transaction.
Each of
the undersigned agrees to solicit proxies or written consents for the election
of Xxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx X. Xxxxx, or any other person(s)
nominated by Accipiter Life Sciences, to the Board of Directors of Penwest at
the Annual Meeting.
Accipiter
Life Sciences agrees to bear all expenses incurred in connection with the
Group’s activities, including expenses incurred by any of the parties in a
solicitation of proxies or written consents by the members of the Group in
connection with the Annual Meeting. Notwithstanding the foregoing,
Accipiter Life Sciences 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 Accipiter Life Sciences’ prior written approval; (ii)
the value of the time of any party; (iii) legal fees incurred without Accipiter
Life Sciences’ prior written approval; or (iv) the costs of any
counsel, other than Xxxxxx, employed in connection with any pending
or threatened litigation without Accipiter Life Sciences’ prior
written approval.
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 Penwest, as he/she deems appropriate, in his/her
sole discretion, provided that all such sales are made in compliance with all
applicable securities laws.
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.
In the
event of any dispute arising out of the provisions of this Agreement, the
parties hereto consent and submit to the exclusive jurisdiction of the Federal
and State Courts in the State of New York.
Any party
hereto may terminate his or her obligations under this agreement at any time on
24 hours’ written notice to all other parties, with a copy by fax to Xxxxxx
Xxxxxxx at Xxxxxx, Fax No. (000) 000-0000.
Each
party acknowledges that Xxxxxx shall act as counsel for both the Group and
Accipiter Life Sciences.
[Signature
page follows]
IN
WITNESS WHEREOF, the parties hereto caused this Agreement to be executed as of
the day and year first above written.
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ACCIPITER
LIFE SCIENCES FUND, LP
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By:
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Candens
Capital, LLC
its
general partner
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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ACCIPITER
LIFE SCIENCES FUND II, LP
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By:
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Candens
Capital, LLC
its
general partner
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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ACCIPITER
LIFE SCIENCES FUND II (QP), LP
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By:
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Candens
Capital, LLC
its
general partner
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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ACCIPITER
LIFE SCIENCES FUND (OFFSHORE), LTD.
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By:
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its
investment manager
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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ACCIPITER
LIFE SCIENCES FUND II (OFFSHORE), LTD.
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By:
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its
investment manager
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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CANDENS
CAPITAL, LLC
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx
Xxxxxxx, Managing Member
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| /s/ Xxxx Xxxxxxx | |
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XXXX
XXXXXXX
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| /s/ Xxxxx Xxxxxx | |
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XXXXX
XXXXXX
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/s/
Xxxxxx X. Xxxxx
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XXXXXX
X. XXXXX
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