Exhibit 10.1
SIXTH AMENDMENT
This Sixth Amendment (the “Sixth Amendment”), dated as of August 9, 2010, but effective as set forth in Paragraph 10 below, to the Amended and Restated Strategic Alliance Agreement (as amended) is entered into by and between PENWEST PHARMACEUTICALS CO., a corporation organized and existing under the laws of the State of Washington, with its principal place of business at 39 Old Ridgebury Road, Danbury, Connecticut 06810 (“Penwest”), and ENDO PHARMACEUTICALS INC., a corporation organized and existing under the laws of the State of Delaware, with its principal place of business at 100 Painters Drive, Chadds Ford, Pennsylvania 19317 (“Endo”) (each, a “Party” and collectively, the “Parties”).
WITNESSETH:
WHEREAS, Endo and Penwest are parties to that certain Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended by that certain Amendment Agreement, dated as of January 7, 2007, that certain Second Amendment, effective as of July 14, 2008, that certain Third Amendment, effective as of January 1, 2009, that certain Consent Agreement, dated as of June 8, 2009, that certain Fourth Amendment, effective as of April 8, 2010 and that certain Fifth Amendment, dated as of June 8, 2010 (collectively, the “Agreement”);
WHEREAS, Endo, Penwest and West Acquisition Corp. (“Merger Sub”), concurrently with the execution and delivery of this Sixth Amendment, have entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which (i) Merger Sub will commence an Offer (as defined in the Merger Agreement) to purchase all of the outstanding shares of common stock of Penwest upon the terms and subject to the conditions set forth in the Merger Agreement, and (ii) following the consummation of the Offer, Merger Sub will merge with and into Penwest in accordance with the Washington Business Corporation Act and the General Corporation Law of the State of Delaware;
WHEREAS, following the Offer Closing (as defined in the Merger Agreement), Endo will be the beneficial owner of a majority of the issued and outstanding shares of common stock of Penwest and will be entitled to designate a majority of the directors on the Company Board (as defined in the Merger Agreement); and
WHEREAS, if Merger Sub consummates the Offer, Penwest and Endo desire to further amend the Agreement as specified herein, effective as of the Offer Closing, to reflect the ownership of Penwest following the Offer Closing.
NOW, THEREFORE,in consideration of the foregoing, of the mutual covenants and undertakings set forth below, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
| 1. | | Certain Defined Terms. Words and phrases that are introduced by initial capitals and which are not otherwise defined in this Sixth Amendment shall have the same meaning as in the Agreement. All references to “Section”, unless otherwise specified, are intended to refer to a |
