sc13da307738007_04272010.htm

0000921895-10-000691.txt : 20100503 0000921895-10-000691.hdr.sgml : 20100503 20100503172824 ACCESSION NUMBER: 0000921895-10-000691 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20100503 DATE AS OF CHANGE: 20100503 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BITSTREAM INC CENTRAL INDEX KEY: 0000818813 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 042744890 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47395 FILM NUMBER: 10794119 BUSINESS ADDRESS: STREET 1: 215 FIRST ST CITY: CAMBRIDGE STATE: MA ZIP: 02142 BUSINESS PHONE: 6174976222 MAIL ADDRESS: STREET 1: 215 FIRST ST CITY: CAMBRIDGE STATE: MA ZIP: 02142 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Raging Capital Management, LLC CENTRAL INDEX KEY: 0001444376 IRS NUMBER: 204306350 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 254 WITHERSPOON STREET CITY: PRINCETON STATE: NJ ZIP: 08542 BUSINESS PHONE: 6099100954 MAIL ADDRESS: STREET 1: 254 WITHERSPOON STREET CITY: PRINCETON STATE: NJ ZIP: 08542 SC 13D/A 1 sc13da207738007_04272010.htm AMENDMENT NO. 2 TO THE SCHEDULE 13D sc13da307738007_04272010.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 2)1

Bitstream Inc.

(Name of Issuer)

Class A Common Stock, par value $0.01 per share

(Title of Class of Securities)

091736108

(CUSIP Number)

STEVEN WOLOSKY, ESQ.

OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

April 27, 2010

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

_______________

1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP NO. 091736108

1	NAME OF REPORTING PERSON Raging Capital Fund, LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 456,302
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 456,302
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 456,302
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.6%
14	TYPE OF REPORTING PERSON PN

CUSIP NO. 091736108

1	NAME OF REPORTING PERSON Raging Capital Fund (QP), LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 382,110
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 382,110
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 382,110
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.8%
14	TYPE OF REPORTING PERSON PN

CUSIP NO. 091736108

1	NAME OF REPORTING PERSON Raging Capital Management, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 838,412
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 838,412
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 838,412
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.4%
14	TYPE OF REPORTING PERSON OO

CUSIP NO. 091736108

1	NAME OF REPORTING PERSON William C. Martin
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 838,412
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 838,412
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 838,412
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.4%
14	TYPE OF REPORTING PERSON IN

CUSIP NO. 091736108

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 amends the Schedule 13D as specifically set forth.

Item 2.

Identity and Background.

Item 2 is hereby amended and restated to read as follows:

In connection with the Settlement Agreement described and defined in Item 4, Kenneth H. Traub and James A. Waskovich, director nominees of Raging Capital Fund, are no longer members of the Section 13(d) group and ceased to be Reporting Persons contemporaneously with the entry into the Settlement Agreement. In addition, Raul K. Martynek, a director nominee of Raging Capital Fund, was appointed to the Board of Directors of the Issuer (the “Board”). Accordingly, Mr. Martynek is no longer a member of the Section 13(d) group and ceased to be a Reporting Person contemporaneously with the entry into the Settlement Agreement. The remaining Reporting Persons will continue filing as a group statements on Schedule 13D with respect to their beneficial ownership of securities of the Issuer, to the exten t required by applicable law.

Item 4. Purpose of Transaction.

Item 4 is hereby amended to add the following:

On April 27, 2010, the Raging Capital Group (as defined in the Settlement Agreement) and the Issuer entered into a Settlement Agreement. Pursuant to the terms of the Settlement Agreement the Issuer agreed to: (i) increase the size of the Board from six (6) to eight (8) directors and (ii) nominate Raul Martynek, a Raging Capital Fund nominee, and Melvin L. Keating to be elected as members of the Board at the Issuer’s 2010 annual meeting of stockholders (the “2010 Annual Meeting”).

The Issuer further agreed that if Mr. Martynek leaves the Board before the Issuer’s 2012 annual meeting of stockholders (the “2012 Annual Meeting”) by reason of his resignation, death or disability, the Raging Capital Group will be entitled to recommend to the Nominating and Corporate Governance Committee of the Board a nominee for director who will qualify as “independent” pursuant to NASDAQ listing standards and the Nominating and Corporate Governance Committee will consider such Raging Capital Group nominee in good faith and in accordance with their fiduciary duties.

As part of the Settlement Agreement, the Issuer also agreed to notify the Raging Capital Group whether it has resolved to recommend Mr. Martynek for re-election to the Board at each of the 2011 annual meeting of stockholders (the “2011 Annual Meeting”) and the 2012 Annual Meeting within fifteen (15) days following the first date upon which a stockholder may nominate, in accordance with the applicable procedures set forth in the Issuer’s Bylaws, a person for election as a member of the Board at such meeting.

The Raging Capital Group agreed to (i) withdraw its nomination letter, dated February 26, 2010, (ii) cease any proxy solicitation activities with respect to the 2010 Annual Meeting, (iii) withdraw its demand to inspect certain of the Issuer’s books and records pursuant to Section 220 of the Delaware General Corporation Law, (iv) vote all Shares beneficially owned by it in favor of the election to the Issuer’s slate of nominees at the 2010 Annual Meeting and (v) not solicit any proxies or consents for the voting of securities of the Issuer nor advise or influence the voting of securities of the Issuer until the earlier of (a) the date on which the Issuer notifies the Raging Capital Group that it has not resolved to nominate Mr. Martynek for election to the Board at the 2011 Annual Meeting or the 2012 Annual Meeting; or (b) the first day after the 2012 Annual Meeting.

CUSIP NO. 091736108

The foregoing description of the Settlement Agreement is qualified in its entirety by reference to the Settlement Agreement, which is attached as exhibit 99.1 hereto and is incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

Item 5(a) is hereby amended and restated to read as follows:

(a) The aggregate percentage of Shares reported owned by each person named herein is based upon 10,010,807 Shares outstanding as of April 16, 2010, which is the total number of Shares outstanding as reported in the Issuer’s Definitive Proxy Statement filed with the Securities and Exchange Commission on April 28, 2010.

As of the close of business on April 30, 2010, Raging Capital Fund directly owned 456,302 Shares, constituting approximately 4.6% of the Shares outstanding. By virtue of their relationships with Raging Capital Fund discussed in further detail in Item 2, each of Raging Capital and Mr. Martin may be deemed to beneficially own the Shares owned by Raging Capital Fund.

As of the close of business on April 30, 2010, Raging Capital Fund QP directly owned 382,110 Shares, constituting approximately 3.8% of the Shares outstanding. By virtue of their relationships with Raging Capital Fund QP discussed in further detail in Item 2, each of Raging Capital and Mr. Martin may be deemed to beneficially own the Shares owned by Raging Capital Fund QP.

Each of the Reporting Persons, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), may be deemed to beneficially own the Shares owned by the other Reporting Persons. The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Exchange Act, the beneficial owners of any Shares he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the Shares reported herein that he or it does not directly own.

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended to add the following:

On May 3, 2010, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D, with respect to securities of the Issuer, to the extent required by applicable law. A copy of this agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Other than as described herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

CUSIP NO. 091736108

Item 7.

Material to be Filed as Exhibits.

Item 7 is hereby amended to add the following exhibits:

99.1

Settlement Agreement by and among Bitstream Inc., Raging Capital Fund, LP, Raging Capital Fund (QP), LP, Raging Capital Management, LLC and William C. Martin, dated April 27, 2010.

99.2

Joint Filing Agreement by and among Raging Capital Fund, LP, Raging Capital Fund (QP), LP, Raging Capital Management, LLC and William C. Martin, dated May 3, 2010.

CUSIP NO. 091736108

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: May 3, 2010

Raging Capital Fund, LP

By:	Raging Capital Management, LLC General Partner

By:	/s/ William C. Martin
	Name:	William C. Martin
	Title:	Managing Member

Raging Capital Fund (QP), LP

By:	Raging Capital Management, LLC General Partner

By:	/s/ William C. Martin
	Name:	William C. Martin
	Title:	Managing Member

Raging Capital Management, LLC

By:	/s/ William C. Martin
	Name:	William C. Martin
	Title:	Managing Member

	/s/ William C. Martin
	William C. Martin

EX-99.1 2 ex991to13da207738007_042710.htm SETTLEMENT AGREEMENT ex991to13da307738007_042710.htm

Exhibit 99.1

Settlement Agreement

This Settlement Agreement, dated as of April 27, 2010 (this “Agreement”), is by and among Raging Capital Fund, LP, a Delaware limited partnership (“Raging Capital LP”); Raging Capital Fund (QP), LP, a Delaware limited partnership; Raging Capital Management, LLC, a Delaware limited liability company (“Raging Capital Management”); and William C. Martin (collectively, the “Raging Capital Group”, and each, individually, a “member” of the Raging Capital Group) and Bitstream Inc. (the “Company”).

RECITALS

WHEREAS, the Raging Capital Group beneficially owns (as defined below) shares of the Company’s common stock, par value $0.10 per share (the “Common Stock”) as specified in Amendment No. 1 to the Schedule 13D filed by the Raging Capital Group with the Securities and Exchange Commission (the “SEC”) on March 1, 2010;

WHEREAS, On February 26, 2010, Raging Capital LP delivered a letter to the Company nominating Raul K. Martynek, Kenneth H. Traub and James A. Waskovich (the “Nomination Letter”) for election to the Company’s Board of Directors (the “Board”) at the Company’s 2010 annual meeting of stockholders (the “2010 Annual Meeting”);

WHEREAS, on March 4, 2010, Raging Capital LP delivered to the Company a demand, pursuant to Section 220 of the Delaware General Corporation Law, to review certain of the Company’s books and records in connection with the 2010 Annual Meeting (the “Section 220 Demand”);

WHEREAS, on March 19, 2010, Raging Capital LP filed a preliminary proxy statement on Schedule 14A with the SEC related to the matters set forth in the Nomination Letter; and

WHEREAS, the Company and the members of the Raging Capital Group have determined to come to an agreement with respect to certain matters related to the 2010 Annual Meeting and certain other matters, as provided in this Agreement;

NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound, hereby agrees as follows:

Article I

DEFINITIONS

Section 1.1 Defined Terms. For purposes of this Agreement:

(a) “2011 Annual Meeting” means the Company’s 2011 annual meeting of stockholders.

(b) “2012 Annual Meeting” means the Company’s 2012 annual meeting of stockholders.

(d) “Associate” has the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act.

(e) The terms “beneficial owner” and “beneficially owns” have the meanings set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act.

(f) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

(g) “Person” means any individual, partnership, corporation, group, syndicate, trust, government or agency, or any other organization, entity or enterprise.

(h) “Termination Date” means the earlier to occur of (a) the date on which the Company notifies the Raging Capital Group pursuant to Section 2.4 below that it has not resolved to nominate Mr. Martynek for election to the Board at the 2011 Annual Meeting or the 2012 Annual Meeting; or (b) the first day after the 2012 Annual Meeting.

Section 1.2 Interpretation. When reference is made in this agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing an in strument to be drafted.

Article II

BOARD NOMINATION

Section 2.1 Board Nominees. Subject to the terms hereof, the Company and the Raging Capital Group have identified Raul Martynek and Melvin L. Keating as mutually acceptable candidates for election to the Board at the 2010 Annual Meeting.

Section 2.2 2010 Annual Meeting. The Company hereby covenants and agrees that (a) it shall take all requisite action, in accordance with Article III of the Bylaws of the Company, to increase the size of the Board from six (6) to eight (8) directors, and (b) at the 2010 Annual Meeting, Messrs. Martynek and Keating shall be nominated for election as directors of the Company for a term expiring at the Company’s 2011 Annual Meeting until their respective successors are duly elected and qualified. Prior to the 2010 Annual Meeting, (i) the Board shall recomm end that the Company’s stockholders vote in favor of the election of Messrs. Martynek and Keating at the 2010 Annual Meeting and (ii) the Company shall solicit proxies for the election of Messrs. Martynek and Keating at the 2010 Annual Meeting.

Section 2.3 Resignation, Death or Disability. If Mr. Martynek leaves the Board before the Company’s 2012 Annual Meeting by reason of his resignation, death or disability, the Raging Capital Group will be entitled to recommend to the Nominating and Corporate Governance Committee of the Board a nominee for director who will qualify as “independent” pursuant to NASDAQ listing standards. The Nominating and Corporate Governance Committee will consider in good faith, in accordance with their fiduciary duties, any such person recommended by the Raging Capital Group.

Section 2.4 Notice of Re-nomination of Mr. Martynek at 2011 or 2012 Annual Meeting. Within fifteen (15) days following the first date upon which a stockholder of the Company may nominate, in accordance with the applicable procedures set forth in the Company’s Bylaws, a person for election as a member of the Board at such meeting, the Company shall notify the Raging Capital Group whether it has resolved to recommend Mr. Martynek for re-election to the Board at each of the 2011 Annual Meeting and the 2012 Annual Meeting.

Section 2.5 Finder’s Fee. In consideration of Raging Capital Management’s having identified Mr. Martynek as a candidate for director of the Company, the Company shall pay to Raging Capital Management an amount equal to $30,000.

Article III

PROXY CONTEST AND OTHER MATTERS; PRESS RELEASE

Section 3.1 Undertakings by the Raging Capital Group. (a) The Raging Capital Group hereby (i) irrevocably withdraws the Nomination Letter and any nominations to the Board made prior to the date hereof, (ii) irrevocably ceases any proxy solicitation activities with respect to the Company in connection with the 2010 Annual Meeting, (iii) irrevocably withdraws the demand to inspect certain of the Company’s book and records pursuant to the Section 220 Demand and (iv) irrevocably agrees t hat Raul K. Martynek, Kenneth H. Traub and James A. Waskovich will cease to be members of the Raging Capital Group’s Section 13(d) “group” contemporaneously herewith. Within two business days of the date hereof, the Raging Capital Group shall file with the SEC an amendment to its Schedule 13D with respect to the Company disclosing the material contents of this Agreement.

(b) From the date hereof until the Termination Date, each member of the Raging Capital Group agrees that neither such member nor any of such member’s respective Affiliates or Associates (such Affiliates and Associates, collectively, the “Raging Capital Affiliates”) shall, without the prior written consent of the Company, in any manner, directly or indirectly, acting alone or in concert with others:

(i) make or propose (whether publicly or otherwise) any solicitation of proxies or consents to vote any voting securities of the Company or any binding or nonbinding referendum with respect to Common Stock of the Company, or make, or in any way participate in, any “solicitation” of any “proxy” with respect to the Company within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(1)(2)(iv) from the definition of “solicitation”);

(ii) seek to advise or influence any Person with respect to the voting of any securities of the Company at the 2010 Annual Meeting;

(iii) form, join or in any way participate in a “group” (as defined under Section 13(d) of the Exchange Act) with respect to the securities of the Company, other than the Section 13(d) “group” that includes all or some lesser number of the members of the Raging Capital Group;

(iv) request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 3.1(b), other than through non-public communications with the directors of the Company;

(v) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth above; or

(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.

Section 3.2 Voting of Raging Capital Group Shares. Each member of the Raging Capital Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by such member, or by any Raging Capital Affiliate, as of the record date for the 2010 Annual Meeting, to be present for quorum purposes and to be voted, at the 2010 Annual Meeting or at any adjournments or postponements thereof, in favor of the directors nominated by the Board for election at the 2010 Annual Meeting.

Section 3.3 Press Release. The Company and the Raging Capital Group shall announce this Agreement and the material terms hereof by means of a press release in the form attached hereto as Exhibit A as soon as practicable on or after the date hereof.

Article IV

REPRESENTATIONS AND WARRANTIES

Section 4.1 Representations and Warranties. Each Party represents and warrants to the other Parties that:

(a) such Party, if not a natural Person, has all requisite limited partnership, limited liability company or corporate authority and power to execute and deliver this Agreement and to perform such Party’s obligations hereunder;

(b) the execution and delivery of this Agreement by such Party and the performance of such Party’s obligations hereunder have been duly and validly authorized by all required limited partnership, limited liability company, corporate or other action on the part of such Party and no other proceedings on the part of such Party are necessary to authorize the execution and delivery of this Agreement by such Party or the performance of such Party’s obligations hereunder;

(c) this Agreement has been duly and validly executed and delivered by such Party and constitutes the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and

(d) this execution and delivery by such Party of Agreement and the performance of such Party’s obligations hereunder will not result in a violation of any terms or provisions of any (i) organizational document of such Party, (ii) agreement to which such Party is a party or by which such Party may otherwise be bound or (iii) law, rule, license, regulation, judgment, order or decree governing or affecting such Party.

Article V

OTHER PROVISIONS

Section 5.1 Remedies; Governing Law.

(a) The Parties agree that any breach of this Agreement would cause irreparable harm to the other Parties, that money damages alone would not be a sufficient remedy and that the Parties shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement. The Parties shall not oppose the granting of such relief, and shall waive any requirement for the securing or posting of any bond in connection with such remedy. Equitable relief shall not be deemed to be the exclusive remedy for breach of this agreement, but shall be in addition to all other remedies available at law or in equity.

(b) The Parties agree that the Court of Chancery or federal court of the State of Delaware shall have exclusive jurisdiction with respect to all actions and proceedings arising out of or relating to this Agreement, Each Parties hereby (i) consents to submit itself to the personal jurisdiction of the Court of Chancery or federal court of the State of Delaware in the event any dispute between the Parties arises out or relates of this Agreement, (ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it shall not bring any action re lating to this Agreement in any other court and irrevocably waives the right to trial by jury in the event of any such dispute and (iv) irrevocably consents to service of process by delivery of notice complying with Section 5.3.

(c) THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW RULES OR PRINCIPLES OF SUCH STATE THAT WOULD PERMIT OR COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

Section 5.2 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the Parties.

Section 5.3 Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if when actually received during normal business hours at the address specified in this subsection:

if to the Company, to:

Bitstream Inc.

500 Nickerson Road

Marlborough, MA 01752

Attention: Anna M. Chagnon, President and Chief Executive Officer

with a copy to:

Debevoise & Plimpton LLP

919 Third Avenue

New York, NY 10022

Attention: Jeffrey J. Rosen

William D. Regner

if to any member of the Raging Capital Group, to:

Raging Capital Management, LLC

254 Witherspoon Street

Princeton, NJ 08542

Attention: William C. Martin

with a copy to:

Olshan Grundman Frome Rosenzweig & Wolosky LLP

Park Avenue Tower

65 East 55th Street

New York, NY 10022

Attention: Steven Wolosky

or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section 5.3.

Section 5.4 Severability. If any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.

Section 5.5 Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile or PDF) which together shall constitute a single agreement.

Section 5.6 Successors and Assigns. This Agreement shall not be assignable by any Party but shall be binding on successors of the Parties.

Section 5.7 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto and is not enforceable by any other Person.

Section 5.8 Fees and Expenses. Each of the Company, on the one hand, and the Raging Capital Group, on the other hand, shall be solely responsible for all fees or expenses incurred by it in connection with this Agreement.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

BITSTREAM INC.

By:	/s/ Anna M. Chagnon
	Name: Anna M. Chagnon
	Title: President & Chief Executive Officer

RAGING CAPITAL FUND, LP

By:	Raging Capital Management, LLC as General Partner

By:	/s/ William C. Martin
	Name: William C. Martin
	Title: Managing Member

RAGING CAPITAL FUND (QP), LP

By:
	Raging Capital Management, LLC as General Partner
By:	/s/ William C. Martin
	Name: William C. Martin
	Title: Managing Member

RAGING CAPITAL MANAGEMENT, LLC

By:	/s/ William C. Martin
	Name: William C. Martin


WILLIAM C. MARTIN

By: /	s/ William C. Martin
	Name: William C. Martin
	Title: Managing Member

EX-99.2 3 ex992to13da207738007_042710.htm JOINT FILING AGREEMENT ex992to13da307738007_042710.htm

Exhibit 99.2

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D originally filed on September 8, 2009 (including amendments thereto) with respect to the shares of Class A Common Stock, par value $0.01 per share, of Bitstream Inc. This Joint Filing Agreement shall be filed as an Exhibit to such Statement.

Dated: May 3, 2010

Raging Capital Fund, LP

By:	Raging Capital Management, LLC General Partner

By:	/s/ William C. Martin
	Name:	William C. Martin
	Title:	Managing Member

Raging Capital Fund (QP), LP

By:	Raging Capital Management, LLC General Partner

By:		/s/ William C. Martin
		Name:	William C. Martin
		Title:	Managing Member

Raging Capital Management, LLC

By:	/s/ William C. Martin
	Name:	William C. Martin
	Title:	Managing Member

	/s/ William C. Martin
	William C. Martin