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Exhibit 2.1
SEPARATION AND DISTRIBUTION AGREEMENT
THIS SEPARATION AND DISTRIBUTION AGREEMENT (the "Agreement") is made as
of the ___ day of June, 1998 between PENFORD CORPORATION, a Washington
corporation (previously known as PENWEST, LTD.) ("Penford"), and PENWEST
PHARMACEUTICALS CO., a Washington corporation ("Penwest").
RECITALS
WHEREAS, the Board of Directors of Penford has determined that it is in
the best interest of Penford and its shareholders to separate the pharmaceutical
division of its business from the food and paper division of its business;
WHEREAS, it is the intention of Penford to contribute to Penwest
certain assets and to assign certain liabilities, to transfer certain technology
to Penwest and to make other arrangements to establish Penwest as a separate
enterprise for the purpose of engaging in research, development and marketing of
novel drug delivery technologies and sale and distribution of pharmaceutical
excipients (the "Pharmaceutical Business");
WHEREAS, Penford and Penwest have determined that it is necessary and
desirable, on the terms and conditions contemplated hereby, for Penford to
distribute to shareholders of Penford the outstanding shares of Penwest Common
Stock held by Penford;
WHEREAS, the Distribution (as defined below) is intended to qualify as
a tax-free spin-off under Sections 355 and 368 of the Code (as defined below);
WHEREAS, Penford and Penwest have further determined that it is
necessary and desirable to set forth the principal corporate transactions
required to effect the Separation (as defined below) and the Distribution and to
set forth other agreements that will govern certain other matters following the
Separation and Distribution; and
WHEREAS, Penford and Penwest are parties to that certain Separation
Agreement dated as of November 3, 1997 (the "Separation Agreement"), which shall
be canceled and superseded by this Separation and Distribution Agreement, with
effect as of November 3, 1997 (the "Effective Date");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
made herein, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.1 GENERAL. As used in this Agreement and the Exhibits hereto,
the following terms shall have the following meanings:
ACTION: any action, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
AFFILIATE: affiliate of any Person means a Person that controls, is
controlled by, or is under common control with such Person. As used herein,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and polices of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
AGENT: the distribution agent to be appointed by Penford to distribute
to the shareholders of Penford the shares of Penwest Common Stock held by
Penford pursuant to the Distribution.
ANCILLARY AGREEMENTS: all of the agreements, instruments,
understandings, assignments or other arrangements entered into in connection
with the transactions contemplated hereby, including, without limitation, the
Excipient Supply Agreement, the Services Agreement, the Tax Allocation
Agreement, the Employee Benefits Agreement and the Trademark Assignment.
CODE: the Internal Revenue Code of 1986, as amended.
COLLABORATIVE AGREEMENTS: include the following agreements:
(a) Product Development and Supply Agreement between
Penwest, Ltd., a Washington corporation ("Penwest, Ltd.") and
Mylan Pharmaceuticals, Inc., a West Virginia corporation
("Mylan") dated August 17, 1994.
(b) Sales and Distribution Agreement between Penwest,
Ltd. and Mylan dated January 3, 1997.
(c) Product Development and Supply Agreement between
Penwest, Ltd. and Mylan dated August 3, 1995.
(d) Product Development and Supply Agreement between
Penwest, Ltd. and Mylan dated March 22, 1996.
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(e) Custom Blending Agreement between Boehringer
Ingelheim Pharmaceuticals, Inc. and Penwest, Ltd. dated
November 23, 1994.
(f) Product Development and Supply Agreement between
TIMERx Technologies, a Washington corporation ("TIMERx
Technologies") and Xxxxxxx Urban Development Company
("Xxxxxxx") dated August 30, 1996.
(g) Product Development and Supply Agreement between
TIMERx Technologies and Xxxxxxx dated May 31, 1996.
(h) Heads of Agreement and Development Agreement between
TIMERx Technologies and Xxxxxxx dated September 20, 1995.
(i) Product Development, License and Supply Agreement
between TIMERx Technologies and Sanofi Winthrop International
S.A., a company incorporated under the laws of France dated
February 28, 1997, as amended.
(j) The Agreement between Xxxxxx Xxxxxxx Co., Inc. and
Leiras OY dated July 27, 1992.
(k) Letter of Consent between TIMERx Technologies and
Leiras OY dated May 26, 1995.
(l) Letter of Agreement between TIMERx Technologies and
Leiras OY dated May 26, 1995.
(m) Strategic Alliance Agreement between Penwest
Pharmaceuticals Group and Endo Pharmaceuticals Inc., dated
September 17, 1997.
COMMISSION: the Securities and Exchange Commission.
CONVEYANCE AND ASSUMPTION INSTRUMENTS: collectively, the various
agreements, instruments and other documents entered into or to be entered into
to effect the transfer, prior to the Distribution Date and in the manner
contemplated by this Agreement or any other agreement or document contemplated
by this Agreement or otherwise, of Penwest Assets to Penwest (including, without
limitation, the intellectual property rights and other assets described in the
Information Statement) and the assumption of Penwest Liabilities by Penwest, in
both cases relating to the business of Penwest as described in the Information
Statement.
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DISTRIBUTION: the distribution by Penford on a pro rata basis to
holders of Penford Common Stock of all of the outstanding shares of Penwest
Common Stock owned by Penford on the Distribution Date as set forth in Article
IV.
DISTRIBUTION DATE: August 31, 1998, or such other date as may be set by
the Board of Directors of Penford in its sole discretion.
EFFECTIVE DATE: November 3, 1997.
EMPLOYEE BENEFITS AGREEMENT: the Employee Benefits Agreement between
Penford and Penwest.
EXCIPIENT SUPPLY AGREEMENT: the Excipient Supply Agreement between
Penford and Penwest pursuant to which Penford will manufacture and supply
exclusively to Penwest, and Penwest will purchase exclusively from Penford, all
of Penwest's requirements for EMDEX and CANDEX.
EX-DIVIDEND DATE: The trading day on which the Penford Common Stock is
first traded on the Nasdaq National Market at a price that does not reflect the
value of the Penwest Common Stock held by Penford as set by the Nasdaq National
Market.
EXISTING PENFORD OPTIONS: Options to acquire shares of Penford Common
Stock held by employees of Penford and/or its Subsidiaries.
EMDEX/CANDEX: sugar based (Dextrate) binders.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended.
FORM 10: General Form for Registration of Securities on Form 10,
including the Information Statement, pursuant to which all the outstanding
Penwest's Common Stock will be registered under the Exchange Act, together with
all amendments thereto.
GOVERNMENTAL APPROVALS: any notices, reports or other filings to be
made, or any consents, registrations, approvals, permits or authorizations to be
obtained from any Governmental Authority.
GOVERNMENTAL AUTHORITY: any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
INFORMATION STATEMENT: The Information Statement portion of the
Form 10.
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LIABILITIES: any and all debts, liabilities and obligations, absolute
or contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising (unless otherwise specified in
this Agreement), including all costs and expenses relating thereto, and those
debts, liabilities and obligations arising under any law, rule, regulation,
Action, threatened Action, order or consent decree of any Governmental Authority
or any award of any arbitrator of any kind, and those arising under any
contract, commitment or undertaking.
PENFORD COMMON STOCK: the Common Stock, par value $1.00 per share, of
Penford.
PENWEST ASSETS:
(a) any and all assets that are expressly contemplated by
the Penwest Contracts or this Agreement or any other agreement or document
contemplated by this Agreement (or any Schedule hereto or thereto) as assets to
be transferred to Penwest;
(b) any assets reflected in Penwest's balance sheet dated
August 31, 1998 as assets of Penwest, subject to any dispositions of such assets
subsequent to the date of such balance sheet; and
(c) any and all assets owned or held immediately prior to
the Distribution Date by Penford that are used primarily in the Pharmaceutical
Business. The intention of this clause (c) is only to rectify any inadvertent
omission of transfer or conveyance of any assets that, had the parties given
specific consideration to such asset as of the date hereof, would have otherwise
been classified as a Penwest Asset. No asset shall be deemed to be a Penwest
Asset solely as a result of this clause (c) if such asset is within the category
or type of asset expressly covered by the subject matter of an Ancillary
Agreement.
PENWEST COMMON STOCK: the Common Stock, par value $0.001 per share, of
Penwest, including any associated rights that may be attached to the Common
Stock from time to time.
PENWEST CONTRACTS: the following contracts and agreements to which
Penford is a party or by which its assets are bound, whether or not in writing:
(a) any supply or vendor contracts or agreements that
relate primarily to the Pharmaceutical Business;
(b) the Collaborative Agreements;
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(c) any contract or agreement entered into by Penford or
Penwest that relates primarily to the Pharmaceutical Business;
(d) any contract or agreement entered into by Penford or
Penwest with any federal, state and local government that relates primarily to
the Pharmaceutical Business;
(e) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement or any of the Ancillary Agreements to be
assigned to Penwest; and
(f) any guarantee, indemnity, representation, warranty or
other Liability of Penford in respect of any other Penwest Contract, any Penwest
Liability or the Pharmaceutical Business.
PENWEST EMPLOYEES: Penwest Employees include Penwest's current
employees and any other employees who are hired by Penwest prior to the
Distribution Date.
PENWEST LIABILITIES:
(a) any and all Liabilities that are expressly
contemplated by this Agreement or any other agreement or document contemplated
by this Agreement or otherwise (or the Schedules hereto or thereto) as
Liabilities to be assumed by Penwest;
(b) all Liabilities (other than taxes based on, or
measured by reference to, net income), including any Liabilities related to
Penwest Employees and product Liabilities, primarily relating to, arising out of
or resulting from:
(i) the operation of the Pharmaceutical
Business, as conducted at any time prior to, on or after the Distribution Date
(including any Liability relating to, arising out of or resulting from any act
or failure to act or any statement made by any director, officer, employee,
agent or representatives (whether or not such act or failure to act or statement
is or was within such Person's authority); or
(ii) any Penwest Assets (including any Penwest
Contracts);
in any such case whether arising before, on or after the Distribution Date;
(c) all Liabilities, excluding any intercompany
indebtedness forgiven pursuant to Section 2.5 of this Agreement, reflected as
liabilities or obligations of Penwest in its balance sheet, subject to any
discharge of such Liabilities subsequent to the date of such balance sheet.
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PERSON: an individual, a general or limited partnership, a corporation,
a trust, a joint venture, an unincorporated organization, a limited liability
entity, any other entity and any Governmental Authority.
RECORD DATE: the close of business on the date to be determined by the
Penford Board of Directors as the record date for determining shareholders of
Penford entitled to receive shares of Penwest Common Stock.
SEPARATION: the transfer of the Penwest Assets to Penwest and the
assumption by Penwest of the Penwest Liabilities, all as more fully described in
this Agreement or any other agreement or document contemplated by this Agreement
or otherwise.
SERVICES AGREEMENT: the Services Agreement between Penford and Penwest
providing for, among other things, the provision by Penford to Penwest of
certain administrative and other services on a transitional basis.
SUBSIDIARY: Subsidiary of any Person means any corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or other performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly
wholly-owned by any other Person shall be a Subsidiary of such other Person
unless such other Person controls, or has the right, power or ability to
control, that Person.
TAX ALLOCATION AGREEMENT: the Tax Allocation Agreement between Penford
and Penwest, providing for, among other things, the allocation of liabilities
with respect to federal, state and local income taxes and the procedures for
filing returns with respect to such taxes.
TRADEMARK ASSIGNMENT: the Trademark Assignment between Penford and
Penwest, providing for, among other things the assignment by Penford to Penwest
of certain trademarks and related rights.
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ARTICLE II
THE SEPARATION
2.1 TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES.
(a) Penford hereby assigns, transfers, conveys and
delivers to Penwest, and Penwest hereby accepts from Penford, all of Penford's
right, title and interest in all Penwest Assets.
(b) Penwest hereby assumes and agrees faithfully to
perform and fulfill all the Penwest Liabilities, in accordance with their
respective terms. Penwest shall be responsible for all Penwest Liabilities,
regardless of when or where such liabilities arose or arise, or whether the
facts on which they are based occurred prior to or subsequent to the date
hereof, regardless of where or against whom such liabilities are asserted or
determined (including any Penwest Liabilities arising out of claims made by
Penford's or Penwest's respective shareholders, directors, officers, employees,
agents, Subsidiaries or Affiliates against Penford or Penwest) or whether
asserted or determined prior to the date hereof.
(c) In the event that any time or from time to time
(whether prior to or after the Distribution Date), any party hereto, shall
receive or otherwise possess any asset that is allocated to any other Person
pursuant to this Agreement or any Ancillary Agreement, such party shall promptly
transfer, or cause to be transferred, such asset to the Person so entitled
thereto. Prior to any such transfer, the Person receiving or possessing such
asset shall hold such asset in trust for any such other Person.
2.2 TERMINATION OF AGREEMENTS. Except as otherwise provided or
contemplated in this Agreement, Penwest and Penford hereby terminate any and all
agreements, arrangements, commitments or understandings, whether or not in
writing, between Penwest and Penford, effective as of the Distribution Date;
provided, however, to the extent any such agreement, arrangement, commitment or
understanding is inconsistent with any Ancillary Agreement such termination
shall be effective as of the date of effectiveness of the applicable Ancillary
Agreement. No such terminated agreement, arrangement, commitment or
understanding (including any provision thereof which purports to survive
termination) shall be of any further force or effect after the Distribution Date
(or, to the extent contemplated by the proviso to the immediately preceding
sentence, after the effective date of the applicable Ancillary Agreement). Each
party shall, at the reasonable request of any other party, take, or cause to be
taken, such other actions as may be necessary to effect the foregoing.
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2.3 DOCUMENTS RELATING TO OTHER TRANSFERS OF ASSETS AND ASSUMPTION
OF LIABILITIES. In furtherance of the assignment, transfer and conveyance of
Penwest Assets and the assumption of Penwest Liabilities set forth in Section
2.1(a) and (b), simultaneously with the execution and delivery hereof or as
promptly as practicable thereafter, (i) each of Penford and Penwest shall
execute and deliver such bills of sale, stock powers, certificates of titles,
assignments of contracts and other instruments of transfer, conveyance and
assignment as and to the extent necessary to evidence the transfer, conveyance
and assignment of all of Penford's right, title and interest in and to the
Penwest Assets to Penwest and (ii) Penwest shall execute and deliver to Penford
such bills of sale, stock powers, certificates of title, assumptions of
contracts and other instruments of assumption as and to the extent necessary to
evidence the valid and effective assumption of the Penwest Liabilities by
Penwest.
2.4 ANCILLARY AGREEMENTS. Each of Penford and Penwest will execute
and deliver all Ancillary Agreements to which it is a party, including but not
limited to:
(a) the Excipient Supply Agreement, which will become
effective as of the Distribution Date;
(b) the Services Agreement, which will become effective
as of the Distribution Date;
(c) the Tax Allocation Agreement, which will become
effective as of the Distribution Date;
(d) the Employee Benefits Agreement, which will become
effective as of the Distribution Date; and
(e) the Trademark Assignment, which became effective as
of the Effective Date.
2.5 FORGIVENESS OF INTERCOMPANY DEBT. Effective immediately prior
to the Distribution Date (but except for any indebtedness of Penwest to Penford
incurred in connection with an acquisition by Penwest of certain rights relating
to the PRUV product from Astra Production Chemicals AB, if any such acquisition
as approved in concept by the Board of Directors of Penford on March 4, 1998 (as
amended by resolution on May 18, 1998), occurs prior to the Distribution Date),
Penford hereby forgives all existing remaining intercompany indebtedness owed by
Penwest to Penford in order to provide an appropriate level of working capital
and equity at Penwest as it is established as a separate stand alone company.
Each of Penford and Penwest shall execute any documents and instruments
necessary or appropriate to confirm such loan forgiveness. Penford and Penwest
agree that Penford shall treat the loan forgiveness as a contribution to the
capital of Penwest in constructive exchange for Penwest Common Stock, provided
that no additional shares of Penwest Common Stock shall be issued or issuable in
connection with or as a result of such contributions.
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2.6 CONSENTS. Each party hereto understands and agrees that no
party hereto is, in this Agreement or in any other agreement or document
contemplated by this Agreement or otherwise, representing or warranting in any
way that the obtaining of any consents or approvals, the execution and delivery
of any agreements or the making of any filings or applications contemplated by
this Agreement will satisfy the provisions of any or all applicable agreements
or the requirements of any or all applicable laws or judgments, it being agreed
and understood that the party to which any assets were or are transferred shall
bear the economic and legal risk that any necessary consents or approvals are
not obtained or that any requirements of laws or judgments are not complied
with. Notwithstanding the foregoing, the parties shall use reasonable best
efforts to obtain all consents and approvals, to enter into all agreements and
to make all filings and applications which may be required for the consummation
of the transactions contemplated by this Agreement or any other agreement or
document contemplated by this Agreement or otherwise, including, without
limitation, all applicable regulatory filings or consents under federal or state
laws and all necessary consents, approvals, agreements, filings and
applications.
2.7 REPRESENTATIONS OR WARRANTIES. Each of the parties hereto
understands and agrees that no party hereto is, in this Agreement or in any
other agreement or document contemplated by this Agreement or otherwise, making
any representations or warranties with respect to any assets of such party,
except that Penford represents and warrants to the best of its knowledge that
the delivery of all Penwest Assets transferred or being transferred to Penwest
pursuant to this Agreement or any other Conveyance and Assumption Instruments
has vested or will vest good title to such assets in Penwest free and clear of
all material liens, mortgages, pledges, security interests, restrictions, prior
assignments, encumbrances and claims of any kind or nature whatsoever affecting
such assets.
2.8 COLLABORATIVE AGREEMENTS. In the event that any transfer of
Penford's rights to Penwest under any of the Collaborative Agreements would
violate or is found to violate the terms of, or result in the loss of rights or
imposition of penalty under, any Collaborative Agreement covered thereby, or
would not be effective subsequent to the Distribution Date, such transfer shall
be deemed null and void and, in lieu thereof, (i) Penford shall retain all
rights and fulfill any obligations, at Penwest's expense, it may have to any
third party under any such Collaborative Agreement, it being understood that to
the extent practicable, Penwest shall fulfill such obligations on Penford's
behalf, (ii) Penford shall pay over to Penwest any royalty or other payments it
may receive from any third party pursuant to any such Collaborative Agreement
and (iii) at the request and expense of Penwest Penford shall use all reasonable
best efforts to arrange for the grant by the applicable third party of
comparable rights to Penwest.
2.9 FINANCING AND GUARANTY. Prior to the date on which the
Commission declares the Form 10 to be effective, Penwest and Penford will use
their reasonable
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best efforts to execute and deliver loan documents relating to certain bank
financing on terms approved by their Boards of Directors on June 22, 1998 and
June 25, 1998, respectively, including but not limited to Penford's providing
its guaranty of certain indebtedness of Penwest for a period before and after
the Distribution Date as so approved by the Penford Board which guaranty shall
be set forth in such loan documents (the "Guaranty").
ARTICLE III
THE DISTRIBUTION
3.1 THE DISTRIBUTION.
(a) Following the completion of the actions and the
occurrence of the events set forth in Section 3.2 hereof, or the mutual
agreement of Penford and Penwest that one or more of such actions need not be
completed or one or more of such events need not occur prior to the
Distribution, and provided that this Agreement shall not have been terminated at
Penford's election pursuant to Section 8.2, on or prior to the Distribution
Date, Penford will deliver to the Agent for the benefit of holders of record of
Penford Common Stock on the Record Date, a single stock certificate, endorsed by
Penford in blank, representing all of the outstanding shares of Penwest Common
Stock then owned by Penford, and shall cause the transfer agent for the shares
of Penford Common Stock to instruct the Agent to distribute on the Distribution
Date the appropriate number of such shares of Penwest Common Stock to each such
holder or designated transferee or transferees of such holder.
(b) Subject to Section 3.3 hereof, each holder of Penford
Common Stock on the Record Date (or such holder's designated transferee or
transferees) shall be entitled to receive, in the Distribution, a number of
shares of Penwest Common Stock equal to the number of outstanding shares of
Penwest Common Stock owned by Penford on the Record Date multiplied by a
fraction, the numerator of which is the number of shares of Penford Common Stock
held by such holder on the Record Date, and the denominator of which is the
number of shares of Penford Common Stock outstanding on the Record Date.
(c) Penwest and Penford, as the case may be, will provide
to the Agent all share certificates and any information required in order to
complete the Distribution on the basis specified above.
3.2 ACTIONS AND EVENTS PRIOR TO THE DISTRIBUTION.
(a) Penwest shall prepare and file the Form 10, and such
amendments or supplements thereto, as may be necessary in order to cause the
same
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to become and remain effective as required by law, including, but not limited
to, filing such amendments to the Form 10 as may be required by the Commission
or federal or state securities laws. The Form 10 shall have become effective on
or prior to the Distribution Date, and there shall be no stop-order in effect
with respect thereto.
(b) Penford and Penwest shall cooperate in preparing,
filing with the appropriate Governmental Authority any documents or statements
which are required to reflect the establishment of, or amendments to, any
employee benefit and other plans necessary or appropriate in connection with the
Separation, the Distribution or the other transactions contemplated by this
Agreement or any other agreement or document contemplated by this Agreement or
otherwise.
(c) Penford and Penwest shall prepare and mail, prior to
the Record Date, to the holders of Penford Common Stock, the Information
Statement and such other information concerning Penwest, its business,
operations and management, the Distribution and such other matters as Penford
and Penwest shall reasonably determine and as may be required by law.
(d) Penford and Penwest shall take all other actions as
may be necessary or appropriate under the securities or blue sky laws of the
United States in connection with the Distribution and such actions and filings,
where applicable, shall have become effective or been accepted.
(e) Penwest shall prepare and file, and shall use its
reasonable best efforts to have approved, an application for the listing of the
Penwest Common Stock to be distributed in the Distribution on the Nasdaq
National Market.
(f) A private letter ruling from the Internal Revenue
Service (the "Private Letter Ruling") shall have been obtained, and shall
continue in effect, or a written opinion from Ernst & Young LLP shall have been
delivered, in either case to the effect that, among other things, the
Distribution will qualify as a tax-free distribution for federal income tax
purposes under Sections 355 and 368 of the Code, and such ruling or opinion
shall be in form and substance satisfactory to Penford in its sole discretion.
(g) Any material Governmental Approvals and consents
necessary to consummate the Distribution shall have been obtained and shall be
in full force and effect.
(h) No order, injunction or decree issued by any court or
agency of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Distribution shall be in effect and no other
event outside the
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control of Penford shall have occurred or failed to occur that prevents the
consummation of the Distribution.
(i) The transactions contemplated hereby shall be in
compliance with applicable federal and state securities laws.
(j) Each of Penwest and Penford shall have received such
consents, and shall have received executed copies of such agreements or
amendments of agreements, as they shall deem necessary in connection with the
completion of the transactions contemplated by this Agreement or any other
agreement or document contemplated by this Agreement or otherwise.
(k) All action and other documents and instruments deemed
necessary or advisable in connection with the transactions contemplated hereby
shall have been taken or executed, as the case may be, in form and substance
satisfactory to Penford and Penwest.
3.3 FRACTIONAL SHARES. As soon as practicable after the
Distribution Date, Penford shall direct the Agent to determine the number of
whole shares and fractional shares of Penwest Common Stock allocable to each
holder of record of Penford Common Stock as of the Record Date, to aggregate all
such fractional shares and sell the whole shares obtained thereby in open-market
transactions in the Agent's sole discretion as to when, how, through which
broker-dealer and at what price to make such sales, and to cause to be
distributed to each such holder or for the benefit of each such holder, in lieu
of any fractional share, such holder's ratable share of the proceeds of such
sale, after making appropriate deductions of the amount required to be withheld
for federal income tax purposes and after deducting an amount equal to all
brokerage charges, commissions and transfer taxes attributed to such sale.
Penford and the Agent shall use their reasonable best efforts to aggregate the
shares of Penford Common Stock that may be held by any holder of record thereof
through more than one account in determining the fractional share allocable to
such holder.
ARTICLE IV
ACKNOWLEDGEMENT OF MATERIAL FACTS
4.1 ORGANIZATION. Penford and Penwest acknowledge that each is
duly organized, validly existing and in good standing under the laws of the
State of Washington, with requisite corporate power to own their properties and
assets and to carry on their respective businesses as presently conducted or
contemplated.
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ARTICLE V
MISCELLANEOUS LIABILITIES AND INDEMNIFICATION
5.1 PENWEST LIABILITIES; INDEMNIFICATION. Penwest shall indemnify,
defend and hold harmless Penford from and against any and all Liabilities
arising out of or resulting from any of the following items (without
duplication):
(a) the employment of Penwest Employees;
(b) the business of Penwest and the Penwest Assets;
(c) purchase orders, accounts payable, accrued
compensation and other accrued Penwest Liabilities and other agreements which
relate to the business of Penwest and the Penwest Assets; and
(d) any misstatement or omission of a material fact other
than misstatements or omissions with respect to Penford based on information
supplied in writing by Penford in any documents or filings prepared for purposes
of compliance or qualification under applicable securities laws in connection
with the Separation or the Distribution and related transactions, including,
without limitation, the Form 10.
5.2 PENFORD LIABILITIES; INDEMNIFICATION. Penford shall indemnify,
defend and hold harmless Penwest from and against any and all Liabilities
arising out of or resulting from any of the following items (without
duplication):
(a) the business of Penford and the Liabilities not
assumed by Penwest under the terms of this Agreement or any other agreement or
document contemplated by this Agreement; and
(b) any misstatement or omission of a material fact with
respect to Penford based on information supplied in writing by Penford in any
documents or filings prepared for purposes of compliance or qualification under
applicable securities laws in connection with the Separation or the Distribution
and related transactions, including, without limitation, the Form 10.
5.3 PROCEDURES FOR INDEMNIFICATION OF THIRD PARTY CLAIMS.
(a) If any Person entitled to indemnification hereunder
(an "Indemnitee") shall receive notice or otherwise learn of the assertion by a
Person (including any Governmental Authority) of any claim or of the
commencement by any such Person of any Action (collectively, a "Third Party
Claim") with respect to which any party (an "Indemnifying Party") may be
obligated to provide indemnification to such Indemnitee pursuant to Section 5.1
or 5.2, or any other
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Section of this Agreement or any other agreement or document contemplated by
this Agreement or otherwise, such Indemnitee shall give such Indemnifying Party
written notice thereof within twenty (20) days after becoming aware of such
Third Party Claim. Any such notice shall describe the Third Party Claim in
reasonable detail. Notwithstanding the foregoing, the failure of any Indemnitee
or other Person to give notice as provided in this Section 5.3(a) shall not
relieve the Indemnifying Party of its obligations under this Article V, except
to the extent that such Indemnifying Party is actually prejudiced by such
failure to give notice.
(b) An Indemnifying Party may elect to defend (and,
unless the Indemnifying Party has specified any reservations or exceptions, to
seek to settle or compromise), at such Indemnifying Party's own expense and by
such Indemnifying Party's own counsel, any Third Party Claim. Within thirty (30)
days after the receipt of notice from an Indemnitee in accordance with Section
5.3(a) (or sooner, if the nature of such Third Party Claim so requires), the
Indemnifying Party shall notify the Indemnitee of its election whether the
Indemnifying Party will assume responsibility for defending such Third Party
Claim, which election shall specify any reservations or exceptions. After notice
from an Indemnifying Party to an Indemnitee of its election to assume the
defense of a Third Party Claim, such Indemnitee shall have the right to employ
separate counsel and to participate in (but not control) the defense,
compromise, or settlement thereof, but the fees and expenses of such counsel
shall be the expense of such Indemnitee except as set forth in Section 5.3(c).
(c) If an Indemnifying Party elects not to assume
responsibility for defending a Third Party Claim, or fails to notify an
Indemnitee of its election as provided in Section 5.3(b), such Indemnitee may
defend such Third Party Claim at the cost and expense (including allocated costs
of in-house counsel and other personnel) of the Indemnifying Party.
(d) Unless the Indemnifying Party has failed to assume
the defense of the Third Party Claim in accordance with the terms of this
Agreement, no Indemnitee may settle or compromise any Third Party Claim without
the consent of the Indemnifying Party.
(e) No Indemnifying Party shall consent to entry of any
judgment or enter into any settlement of the Third Party Claim without the
consent of the Indemnitee if the effect thereof is to permit any injunction,
declaratory judgment, other order or other nonmonetary relief to be entered,
directly or indirectly, against any Indemnitee.
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5.4 TAX LIABILITIES. Notwithstanding the provisions of Sections
5.1 and 5.2, all tax Liabilities relating to the business of Penwest and the
Penwest Assets including, without limitation, income taxes, franchise taxes,
sales taxes, use taxes, payroll taxes and employment taxes, shall be assumed by
the party to whom the Liability has been allocated in the Tax Allocation
Agreement.
5.5 ADDITIONAL MATTERS.
(a) Any claim on account of a Liability which does not
result from a Third Party Claim shall be asserted by written notice given by the
Indemnitee to the Indemnifying Party. Such Indemnifying Party shall have a
period of thirty (30) days after the receipt of such notice within which to
respond thereto. If such Indemnifying Party does not respond within such thirty
(30)-day period, such Indemnifying Party shall be deemed to have refused to
accept responsibility to make payment. If such Indemnifying Party does not
respond within such thirty (30)-day period or rejects such claim in whole or in
part, such Indemnitee shall be free to pursue such remedies as may be available
to such party as contemplated by this Agreement.
(b) In the event of payment by or on behalf of any
Indemnifying Party to any Indemnitee in connection with any Third Party Claim,
such Indemnifying Party shall be subrogated to and shall stand in the place of
such Indemnitee as to any events or circumstances in respect of which such
Indemnitee may have the right, defense or claim relating to such Third Party
Claim against any claimant or plaintiff asserting such Third Party Claim or
against any other person. Such Indemnitee shall cooperate with such Indemnifying
Party in a reasonable manner, and at the cost and expense (including allocated
costs of in-house counsel and other personnel) of such Indemnifying Party, in
prosecuting any subrogated right, defense or claim.
(c) In the event of an Action in which the Indemnifying
Party is not a named defendant, if either the Indemnitee or Indemnifying Party
shall so request, the parties shall endeavor to substitute the Indemnifying
Party for the named defendant. If such substitution or addition cannot be
achieved for any reason or is not requested, the named defendant shall allow the
Indemnifying Party to manage the Action as set forth in this Section and the
Indemnifying Party shall fully indemnify the named defendant against all costs
of defending the Action (including court costs, sanctions imposed by a court,
attorneys' fees, experts' fees and all other external expenses, and the
allocated costs of in-house counsel and other personnel), the costs of any
judgment or settlement, and the cost of any interest or penalties relating to
any judgment or settlement.
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5.6 REMEDIES CUMULATIVE. The remedies provided in this Article V
shall be cumulative and shall not preclude assertion by an Indemnitee of any
other rights or the seeking of any and all other remedies against any
Indemnifying Party.
ARTICLE VI
ACCESS TO INFORMATION AND SERVICES
6.1 PROVISION OF CORPORATE RECORDS. Upon Penwest's request,
Penford shall arrange as soon as practicable following the Effective Date for
the delivery to Penwest of existing corporate records in the possession of
Penford relating to the business of Penwest or assets to be transferred to
Penwest, together with all active agreements and active litigation files
relating to the businesses of Penwest, except to the extent such items are
already in the possession of Penwest. Such records shall be the property of
Penwest but shall be available to Penford for review and duplication until
Penford shall notify Penwest in writing that such records are no longer of use
to Penford.
6.2 ACCESS TO INFORMATION. From and after the Effective Date,
Penford shall afford to Penwest and its authorized accountants, counsel and
other designated representatives reasonable access (including using reasonable
best efforts to give access to persons or firms possessing information) and
duplicating rights during normal business hours to all records, books,
contracts, instruments, computer data and other data and information
(collectively, "Information") within Penford's possession relating to the
businesses of Penwest, insofar as such access is reasonably required by Penwest.
Penwest shall afford to Penford and its authorized accountants, counsel and
other designated representatives reasonable access (including using reasonable
best efforts to give access to persons or firms possessing Information) and
duplicating rights during normal business hours to Information within Penwest's
possession relating to the business of Penwest prior to the Distribution or to
the business of Penford, insofar as such access is reasonably required by
Penford. Information may be requested under this Article VI for, without
limitation, audit, accounting, claims, litigation and tax purposes, as well as
for purposes of fulfilling disclosure and reporting obligations and for
performing the transactions contemplated in this Agreement or any other
agreement or document contemplated by this Agreement or otherwise.
6.3 PRODUCTION OF WITNESSES. At all times from and after the
Effective Date, each of Penford and Penwest shall use reasonable best efforts to
make available to the other, upon written request, its officers, directors,
employees and agents as witnesses to the extent that such persons may reasonably
be required, in connection with legal, administrative or other proceedings in
which the requesting party may from time to time be involved.
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6.4 REIMBURSEMENT. Except to the extent otherwise contemplated by
any Ancillary Agreement, a party providing information to the other party under
this Article VI shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts, relating to
supplies, disbursements and other out-of-pocket expenses, as may be reasonably
incurred in providing such information.
6.5 RETENTION OF RECORDS. For a period of six (6) years following
the Effective Date, each of Penford and Penwest shall retain all Information
relating to the other as of the Distribution Date, except as otherwise required
by law or set forth in an Ancillary Agreement or except to the extent that such
Information is in the public domain or in the possession of the other party.
6.6 CONFIDENTIALITY. Subject to any contrary requirement of law
and the right of each party to enforce its rights hereunder in any legal action,
each party shall keep strictly confidential, and shall cause its employees and
agents to keep strictly confidential, any Information of or concerning the other
party which it or any of its agents or employees may acquire pursuant to, or in
the course of performing its obligations under, any provisions of this Agreement
or any Ancillary Agreement; provided, however, that such obligation to maintain
confidentiality shall not apply to Information which (i) at the time of
disclosure was in the public domain or (ii) was received by the receiving party
from a third party who did not receive such Information from the disclosing
party under an obligation of confidentiality.
ARTICLE VII
COVENANTS
7.1 NASDAQ NATIONAL MARKET LISTING. Penwest hereby agrees to use
its reasonable best efforts to effect and maintain the listing of the Penwest
Common Stock on the Nasdaq National Market.
7.2 ANCILLARY AGREEMENTS. The parties agree that they shall comply
with and provide all services and take any and all actions required to be
provided or taken by the terms of any and all of the Ancillary Agreements
following the effectiveness thereof.
7.3 SHARING OF UTILITIES
(a) Penford agrees that Penwest shall be entitled to use
and consume, in an amount reasonably required, at Penwest's Cedar Rapids
facility certain utilities consisting of natural gas, electricity and steam from
Penford's Cedar Rapids facility. Any material change in the provision of such
utilities shall require six (6) months prior notice.
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(b) In connection with the sharing of utilities as
described in Section 8.3(a), Penwest will reimburse Penford for its consumption
of such utilities based on Penford's total cost for each item and Penwest's
fraction of the total consumption.
(c) Penford will submit a monthly invoice to Penwest of
all amounts owed by Penwest to Penford with respect to utilities consumed by
Penwest pursuant to Section 7.3(a). The charges will be due when billed and
shall be paid no later than thirty (30) days from the date of billing.
7.4 NON-COMPETITION
(a) From the Effective Date to the longer of (i) five
years or (ii) the termination of the Excipient Supply Agreement, neither Penford
nor any of its Affiliates shall, directly or indirectly, manufacture, market,
sell or distribute for inclusion in any pharmaceutical or nutritional product
(including vitamins, minerals and cofactors, but excluding foods) any product
having the same or substantially the same form, composition or applications as
EMDEX or CANDEX or any similar sugarbased product. From the Effective Date to
the longer of (i) five years or (ii) the termination of the Excipient Supply
Agreement, neither Penwest nor any of its Affiliates shall, directly or
indirectly, manufacture, market, sell or distribute for inclusion in any foods
product any product having the same or substantially the same form, composition
or applications as EMDEX or CANDEX or any similar sugarbased product.
(b) For a period of five years from the Effective Date,
neither Penford nor any of its Affiliates shall directly or indirectly recruit
or solicit any employee of Penwest or any of its Affiliates, or induce or
attempt to induce any employee of Penwest or any of its Affiliates to terminate
his or her employment with, or otherwise cease his or her relationship with,
Penwest or any of its Affiliates. For a period of five years from the Effective
Date, neither Penwest nor any of its Affiliates shall directly or indirectly
recruit or solicit any employee of Penford or any of its Affiliates, or induce
or attempt to induce any employee of Penford or any of its Affiliates to
terminate his or her employment with, or otherwise cease his or her relationship
with, Penford or any of its Affiliates.
(c) If any restriction set forth in Sections 7.4 (a) or
(b) is found by any court of competent jurisdiction to be unenforceable because
it extends for too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to extend only over
the maximum period of time, range of activities or geographic area as to which
it may be enforceable.
(d) The restrictions contained in this Section 7.4 are
necessary for the protection of the respective businesses and goodwill of
Penwest and Penford and are considered by Penford and Penwest to be reasonable
for such purpose. Penford and
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Penwest agree that any breach of this Section 7.4 is likely to cause Penwest or
Penford, as the case may be, substantial and irrevocable damage and therefore,
in the event of any such breach, Penwest or Penford, as the case may be, in
addition to such other remedies which may be available, shall be entitled to
specific performance and other injunctive relief.
7.5 STOCK OPTIONS.
(a) Each Existing Penford Option, vested and unvested,
that is outstanding at the Distribution Date will be adjusted as of the
Distribution Date to provide in exchange therefor new options to acquire Penford
Common Stock ("Adjusted Penford Options") to option holders other than option
holders that will be employed by Penwest as of the Distribution Date ("Penwest
Option Holders"), and separately, new options to acquire Penwest Common Stock
("Penwest Options") to Penwest Option Holders. The adjustment will be made by
using the per share closing price of Penford Common Stock on the trading day
immediately prior to the Ex-Dividend Date (the "Penford Pre-Distribution Price")
and the per share closing prices of Penford Common Stock and Penwest Common
Stock on the Ex-Dividend Date (the "Penford Post-Distribution Price" and
"Penwest Post-Distribution Price", respectively), all as reported by the Nasdaq
National Market.
(b) The per share exercise price under each Adjusted
Penford Option will be determined by multiplying the per share exercise price
under the option holder's applicable Existing Penford Option by the Penford
Post-Distribution Price and then dividing the result by the Penford
Pre-Distribution Price. The number of shares of Penford Common Stock to be
covered by such Adjusted Penford Option will be determined by multiplying the
number of shares covered by such Existing Penford Option by the Penford
Pre-Distribution Price and then dividing the result by the Penford
Post-Distribution Price.
(c) The per share exercise price under each Penwest
Option will be determined by multiplying the per share exercise price under the
option holder's applicable Existing Penford Option by the Penwest
Post-Distribution Price and then dividing the result by the Penford
Pre-Distribution Price. The number of shares of Penwest Common Stock to be
covered by such Penwest Option will be determined by multiplying the number of
shares covered by such Existing Penford Option by the Penford Pre-Distribution
Price and then dividing the result by the Penwest Post- Distribution Price.
(d) The boards of directors of both Penford and Penwest,
or their respective compensation committees authorized by such board of
directors, retain the authority to modify the foregoing adjustment procedure if,
in their respective judgments, the closing prices as described above reflect
significant disruptive market
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events that are independent, determinable, and verifiable effects of events
other than the Distribution.
(e) All other terms and conditions of the Existing
Penford Options pursuant to the stock option plans under which the options were
originally granted will continue to apply to the Adjusted Penford Options and to
the Penwest Options, including the continuation of the remaining portions of
their original vesting schedules and ten-year terms.
7.6 REPRESENTATIVE ON PENWEST BOARD OF DIRECTORS. During any and
all periods in which the Guaranty is effective, and subject to the exercise by
the Board of Directors of Penwest of its fiduciary duties Penwest will use its
reasonable best efforts to assure that at least one person designated by Penford
is elected and retained to serve as a director on the Board of Directors of
Penwest, including, but not limited to, the inclusion of such person in any
slate of nominees for submission to the shareholders of Penwest (unless such
person is already serving on the Penwest Board in a directorship that is
continuing and not subject to re-election at that time), and the prompt election
by the Penwest Board of such a person to fill any vacancy on the Board created
by the departure or removal from the Board of any person previously so
designated by Penford for such service. The initial such person designated by
Penford for service as a director of Penwest is N. Xxxxxxx Xxxxxx. Penford may
from time to time designate a different person in replacement of Xx. Xxxxxx or
his successor, whenever his or her directorship becomes subject to re-election,
or should he or she leave the Penwest Board for any reason. Upon the date on
which the Guaranty ceases to be effective, the rights provided under this
Section 7.6 shall terminate and the Penford designee shall resign from the
Penwest Board.
7.7 MUTUAL ASSURANCES.
(a) In addition to the actions specifically provided for
elsewhere in this Agreement or any other agreement or document contemplated by
this Agreement or otherwise, Penford and Penwest agree to cooperate with respect
to the implementation of this Agreement or any other agreement or document
contemplated by this Agreement or otherwise, and to execute such further
documents and instruments as may be necessary to consummate and make effective
the transactions contemplated by this Agreement or any other agreement or
document contemplated by this Agreement or otherwise;
(b) Penford and Penwest shall arrange, attend and
participate in joint meetings with corporate collaborators, suppliers, customers
and others to the extent necessary to assure the orderly transition of the
business and assets contemplated hereby, provided that nothing herein shall be
deemed to obligate either Penford or Penwest to take any action or reach any
understandings which may violate any applicable laws.
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(c) Penford and Penwest agree to take any reasonable
actions necessary in order for the Distribution to qualify as a tax-free
distribution pursuant to Sections 355 and 368 of the Code.
(d) Penford and Penwest agree that they shall not take
any action which could reasonably be expected to prevent the Distribution from
qualifying as a tax-free distribution within the meaning of Sections 355 and 368
of the Code or any other transaction contemplated by this Agreement or any other
agreement or document contemplated by this Agreement or otherwise which is
intended by the parties to be tax-free from failing so to qualify.
ARTICLE VIII
TERMINATION
8.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated at any time prior to the Distribution Date by the mutual consent of
Penford and Penwest.
8.2 TERMINATION BY PENFORD. Prior to the Record Date, Penford may
terminate this Agreement at its election if its Board of Directors determines
that the consummation of the Distribution would, in light of the circumstances
at the time, not be in the best interests of the shareholders of Penford.
8.3 OTHER TERMINATION. This Agreement shall terminate if the
Distribution Date shall not have occurred on or prior to December 31, 1999.
8.4 EFFECT OF TERMINATION. In the event of any termination of this
Agreement, no party to this Agreement (or any of its directors or officers)
shall have any Liability or further obligation to any other party.
ARTICLE IX
MISCELLANEOUS
9.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Washington.
9.2 CONSTRUCTION. Each provision of this Agreement shall be
interpreted in a manner to be effective and valid to the fullest extent
permissible under applicable law. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions of
this Agreement which shall remain in full force and effect.
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9.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
9.4 EXHIBITS. Exhibits to this Agreement shall be deemed to be an
integral part hereof, and schedules or exhibits to such Exhibits shall be deemed
to be an integral part thereof.
9.5 AMENDMENTS; WAIVERS. This Agreement may be amended or modified
only in a writing executed on behalf of Penford and Penwest. No waiver shall
operate to waive any further or future act and no failure to object of
forbearance shall operate as a waiver.
9.6 NOTICES. Notices hereunder shall be effective if given in
writing and delivered or mailed, postage prepaid, by registered or certified
mail to:
Penford Corporation
000-000xx Xxxxxx XX
Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Prior to the Distribution Date to The
Chief Financial Officer,
thereafter to The President
or to:
Penwest Pharmaceuticals Co.
0000 Xxxxx 00
Xxxxxxxxx, XX 00000-0000
Attention: The Chief Executive Officer
9.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns, provided that this Agreement and the rights and
obligations contained herein or in any exhibit or schedule hereto shall not be
assignable, in whole or in part, without the prior written consent of the
parties hereto and any attempt to effect any such assignment without such
consent shall be void.
9.8 PUBLICITY. Prior to the Distribution, each of Penwest and
Penford shall consult with each other prior to issuing any press releases or
otherwise making public statements with respect to the Distribution or any of
the other transactions contemplated hereby and prior to making any filings with
any Governmental Authority with respect thereto.
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9.9 EXPENSES. Except as expressly set forth in this Agreement or
in any other agreement or document contemplated by this Agreement or otherwise,
whether or not the Distribution is consummated, all third party fees, costs and
expenses paid or incurred in connection with the Distribution will be paid by
Penford.
9.10 HEADINGS. The article, section and paragraph headings
contained in this Agreement and in the Ancillary Agreements are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement or any Ancillary Agreement.
9.11 ARBITRATION. Any dispute, controversy or claim arising out of
or in connection with this Agreement or any of the Ancillary Agreements
(including any questions of fraud or questions concerning the validity and
enforceability of this Agreement or any of the Ancillary Agreements or any of
the rights herein and therein conveyed), shall be determined and settled by
arbitration in Seattle, Washington, pursuant to the rules then in effect of the
American Arbitration Association as modified by this paragraph. Any award
rendered shall be final and conclusive upon the parties and a judgment thereon
may be entered in any court having competent jurisdiction. The party submitting
such dispute shall give written notice to that effect to the other party,
stating the dispute to be arbitrated and the name and address of a person
designated to act as arbitrator on its behalf. Within fifteen (15) days after
such notice, the other party shall give written notice to the first party
stating the name and address of a person designated to act as an arbitrator on
its behalf. In the event that the second party shall fail to notify the first
party of its designation of an arbitrator within the time specified, then the
first party shall request the American Arbitration Association to appoint a
second arbitrator. The two arbitrators so chosen shall meet within fifteen (15)
days after the second arbitrator has been appointed to appoint a third
arbitrator. If the two arbitrators are unable to agree on the appointment of a
third arbitrator within such fifteen (15) day period, either party may request
the American Arbitration Association to appoint a third arbitrator. Each
arbitrator appointed hereunder shall be independent of the parties and either
party may disqualify an arbitrator who is or is affiliated with a supplier,
customer or competitor of either party without the consent of the other party.
Each arbitrator shall be reasonably knowledgeable regarding the area or areas in
dispute. The arbitrators shall follow substantive rules of law and the Federal
Rules of Evidence, require the parties to conduct discovery pursuant to the
rules then in effect under the Federal Rules of Civil Procedure in an
expeditious manner, cause testimony to be transcribed, and make an award
accompanied by findings of fact and a statement of reasons for the decision. All
costs and expenses, including attorney's fees, of all parties incurred in any
dispute which is determined and/or settled by arbitration pursuant to this
paragraph shall be borne by the party determined to be liable in respect of such
dispute; provided, however, that if complete liability is not assessed against
only one party, the parties shall share the total costs in proportion to their
respective amounts of liability so determined. Except where clearly prevented
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by the area in dispute, both parties agree to continue performing their
respective obligations under this Agreement while the dispute is being resolved.
Each party, and the arbitrators, shall use their best efforts, subject to
reasonable prosecution of the arbitration, court order and disclosure required
under securities laws, to keep the subject matter of the arbitration and
confidential information of each party confidential, and the arbitrators are
authorized to impose such protective orders as they may deem appropriate for
such purpose.
9.12 ENTIRE AGREEMENT. This Agreement contains the full
understanding of the parties with respect to the subject matter hereof and
supersedes all prior understandings and writings relating thereto. No waiver,
alteration or modification of any of the provisions hereof shall be binding
unless made in writing and signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PENFORD CORPORATION
By:
----------------------------------
Title:
-------------------------------
PENWEST PHARMACEUTICALS CO.
By:
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Title:
-------------------------------
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