PENWEST PHARMACEUTICALS CO (Form: DEF 14A, Filing Date: 10/01/2010)

SECURITIES AND EXCHANGE COMMISSION FORM DEF 14A Definitive proxy statements Filing Date: 2010-10-01 | Period of Report: 2010-11-04 SEC Accession No. 0001193125-10-222180 (HTML Version on secdatabase.com) FILER PENWEST PHARMACEUTICALS CO Mailing Address Business Address 2981 ROUTE 22 2981 ROUTE 22 CIK:1047188| IRS No.: 911513032 | State of Incorp.:WA | Fiscal Year End: 1231 SUITE 2 SUITE 2 Type: DEF 14A | Act: 34 | File No.: 001-34267 | Film No.: 101103060 PATTERSON NY 12563-2335 PATTERSON NY 12563-2335 SIC: 2834 Pharmaceutical preparations 877-736-9378 Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 14A Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934 (Amendment No. 1) Filed by the Registrant x Filed by a Party other than the Registrant ¨ Check the appropriate box ¨ Preliminary Proxy Statement ¨ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) x Definitive Proxy Statement ¨ Definitive Additional Materials ¨ Soliciting Material under §240.14a-12 Penwest Pharmaceuticals Co. (Name of Registrant as Specified In Its Charter) (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): ¨ No fee required. ¨ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. (1) Title of each class of securities to which transaction applies: Common stock, par value $0.001 per share, of Penwest Pharmaceuticals Co. (Penwest common stock) (2) Aggregate number of securities to which transaction applies: 31,966,889 shares of Penwest common stock, warrants to purchase 4,070,301 shares of Penwest common stock and 1,175,152 shares of Penwest common stock underlying outstanding stock options, each outstanding as of August 27, 2010 (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): The filing fee was determined based on the sum of (i) 31,966,889 shares of Penwest common stock multiplied by $5.00 per share, (ii) 1,175,152 shares of Penwest common stock underlying outstanding stock options with exercise prices less than $5.00 per share multiplied by $2.48 per share (which is the difference between $5.00 per share and the weighted average exercise price per share of the outstanding stock options as of August 27, 2010), and (iii) 4,070,301 shares of Penwest common stock underlying warrants with exercise prices less than $5.00 per share multiplied by $1.38 per share (which is the difference between $5.00 per share and the exercise price per share of the warrants). The filing fee was determined by multiplying $0.0000713 by the sum of the preceding sentence. Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (4) Proposed maximum aggregate value of transaction: $168,365,837.34 (5) Total fee paid: $12,004.48 x Fee paid previously with preliminary materials. ¨ Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed: Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Table of Contents Penwest Pharmaceuticals Co. 2981 Route 22, Suite 2 Patterson, New York 12563 October 1, 2010 Dear Shareholders: You are cordially invited to attend a special meeting of shareholders of Penwest Pharmaceuticals Co. (Penwest) to be held on November 4, 2010, at 10:00 a.m., local time, at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036. At the special meeting, you will be asked to consider and vote upon a proposal to approve the merger of West Acquisition Corp. (Merger Sub), a Delaware corporation and an indirect wholly owned subsidiary of Endo Pharmaceuticals Holdings Inc., a Delaware corporation (Endo), with and into Penwest (the Merger), pursuant to the Agreement and Plan of Merger, dated as of August 9, 2010 (as such agreement may be amended and in effect from time to time, the Merger Agreement), by and among Endo, Merger Sub, and Penwest, and the Plan of Merger (as described in the Merger Agreement). Endo and its affiliates own approximately 90.56% of Penwest common stock and their shares represent a quorum and sufficient votes to approve the Merger. Pursuant to the Merger Agreement, on August 20, 2010 Merger Sub commenced a cash tender offer to purchase all outstanding shares of Penwest common stock at a price of $5.00 per share, net to the sellers in cash, without interest and less any required withholding taxes, upon the terms and conditions set forth in the Offer to Purchase dated August 20, 2010, and the related Letter of Transmittal that were mailed to Penwest shareholders and filed by Endo and Penwest with the Securities and Exchange Commission (the SEC) on August 20, 2010. The offer reflected by such Offer to Purchase and the related Letter of Transmittal, together with any amendments or supplements thereto, is referred to herein as the Offer. On September 17, 2010, the Offer expired and on September 20, 2010, Merger Sub accepted for payment shares of Penwest common stock pursuant to and subject to the conditions of the Offer (the Offer Closing). The Merger Agreement provides that following the Offer Closing and on the terms and subject to the conditions set forth in the Merger Agreement, including Penwest shareholder approval of the Merger and the Plan of Merger, 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 and the separate corporate existence of Merger Sub will thereupon cease. If the Merger is completed, Penwest shareholders will be entitled to receive $5.00 in cash, without interest and less any required withholding taxes, for each share of Penwest common stock owned by them as of the date the Merger becomes effective. Following the completion of the Merger, Penwest will continue as an indirect wholly-owned subsidiary of Endo. A copy of the Merger Agreement (which includes the Plan of Merger) is filed as Appendix A hereto and is incorporated herein by reference. After careful consideration, our board of directors unanimously determined that the Merger Agreement and the terms and conditions of the Merger are advisable, fair to and in the best interests of Penwests shareholders. Our board of directors has unanimously adopted and approved the Merger Agreement. Our board of directors unanimously recommends that you vote FOR the approval of the Merger and the Plan of Merger at the special meeting. Our board of directors considered a number of factors in evaluating the transaction and consulted with its legal and financial advisors. The enclosed proxy statement provides detailed information about the Merger Agreement and the Merger. We encourage you to read this proxy statement carefully in its entirety. Your vote is very important, regardless of the number of shares you own. The proposal to approve the Merger and the Plan of Merger must be approved by the holders of a majority of all the outstanding shares of Penwest common stock entitled to vote at the special meeting. Therefore, if you do not return your proxy card, submit a proxy via the Internet or telephone or attend the special meeting and vote in person, it will have the same effect as if you voted AGAINST approval of the Merger and the Plan of Merger. Only shareholders who Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Table of Contents owned shares of Penwest common stock at the close of business on September 24, 2010, the record date for the special meeting, will be entitled to vote at the special meeting. To vote your shares, please sign, date and return the enclosed proxy card in the postage-prepaid envelope, submit a proxy via the Internet or telephone or attend the special meeting and vote in person. Even if you plan to attend the meeting, we urge you to promptly submit a proxy for your shares via the Internet or telephone or by signing, dating and returning the enclosed proxy card. On behalf of our board of directors, I would like to express our appreciation for your continued interest in Penwest. Your vote is extremely important. If you have any questions or require any assistance in voting your shares, please call our proxy solicitor, Mackenzie Partners, Inc., toll-free at (800) 322-2885. Very truly yours, /s/ JENNIFER L. GOOD JENNIFER L. GOOD President and Chief Executive Officer Neither the Securities and Exchange Commission nor any state securities regulatory agency has approved or disapproved the Merger or the Plan of Merger, passed upon the merits or fairness of the Merger or the Plan of Merger or passed upon the adequacy or accuracy of the disclosures in this proxy statement. Any representation to the contrary is a criminal offense. This proxy statement is dated October 1, 2010 and is being mailed to shareholders of Penwest on or about October 4, 2010. Copyright © 2012 www.secdatabase.com.

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