Attached files
file | filename |
---|---|
EX-4.1 - EX-4.1 - EMISPHERE TECHNOLOGIES INC | b87158exv4w1.htm |
EX-4.3 - EX-4.3 - EMISPHERE TECHNOLOGIES INC | b87158exv4w3.htm |
EX-4.2 - EX-4.2 - EMISPHERE TECHNOLOGIES INC | b87158exv4w2.htm |
EX-10.1 - EX-10.1 - EMISPHERE TECHNOLOGIES INC | b87158exv10w1.htm |
EX-10.2 - EX-10.2 - EMISPHERE TECHNOLOGIES INC | b87158exv10w2.htm |
EX-99.1 - EX-99.1 - EMISPHERE TECHNOLOGIES INC | b87158exv99w1.htm |
EX-10.3 - EX-10.3 - EMISPHERE TECHNOLOGIES INC | b87158exv10w3.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of Earliest Event Reported): June 30, 2011
Emisphere Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 000-17758 | 13-3306985 | ||
(State or other jurisdiction | (Commission | (I.R.S. Employer | ||
of incorporation) | File Number) | Identification No.) |
240 Cedar Knolls Road, Suite 200 Cedar Knolls, NJ |
07927 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: 973-532-8000
Not Applicable
Former name or former address, if changed since last report
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Table of Contents
Item 1.01. Entry into a Material Definitive Agreement.
Private Placement
On June 29, 2011, Emisphere Technologies, Inc. (the Company) entered into a Securities Purchase
Agreement (the Purchase Agreement) with certain institutional investors (collectively, the
Buyers) to sell an aggregate of approximately 4.3
million shares of its common stock and warrants (the Warrants) to
purchase a total of approximately 3.0 million shares of its common stock (the Warrant Shares) to
the Buyers for gross proceeds, before deducting fees and expenses and excluding the proceeds, if
any, from the exercise of the Warrants of approximately $3.75 million (the Private Placement). Each unit,
consisting of one share of common stock and a warrant to purchase 0.7 shares of common stock, will
be sold at a purchase price of $0.872.
The Warrants will be exercisable at an exercise price of $1.09 per share beginning immediately
after issuance and will expire 5 years from the date of issuance. The exercise price of the
Warrants is subject to adjustment in the case of stock splits, stock dividends, combinations of
shares and similar recapitalization transactions.
A copy of the Purchase Agreement is attached hereto as Exhibit 10.1 and is incorporated herein by
reference. A copy of the form of Warrants is also attached hereto as Exhibit 4.1 and is
incorporated herein by reference.
In
connection with the Purchase Agreement, on or about July 6, 2011, the Company and the Buyers will enter
into a Registration Rights Agreement (the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company will provide certain registration rights under the
Securities Act of 1933, as amended (the Securities Act), and applicable state securities laws.
The Company will be required to file a registration statement (the Registration Statement) with
the Securities and Exchange Commission (the SEC) within 20 days of the closing date and use its
reasonable best efforts to have such Registration Statement declared effective as soon as
practicable, but in no event later than 60 days of the closing date of the Private Placement (90
days in the event the SEC reviews the Registration Statement).
A copy of the form of Registration Rights Agreement to be entered into by the Company and the
Buyers is attached hereto as Exhibit 4.2 and is incorporated herein by reference.
MHR Private Placement
In connection with the Companys entry into the Securities Purchase Agreement, the Company entered
into a Securities Purchase Agreement (the MHR Purchase Agreement) on the same date with MHR
Fund Management LLC (the MHR Buyer) to sell an
aggregate of approximately 4.3 million shares of its common
stock and warrants (the MHR Warrants) to purchase
a total of approximately 3.0 million shares of its common
stock (the MHR Warrant Shares) for gross proceeds, before deducting fees and expenses and
excluding the proceeds, if any, from the exercise of the MHR Warrants of approximately $3.75 million (the MHR
Private Placement). Each unit, consisting of one share of common stock and a warrant to purchase
0.7 shares of common stock, will be sold at a purchase price of $0.872. MHR Buyer, together with
certain of its affiliated investment funds (collectively, MHR), is the holder of the Companys
11% Senior Secured Convertible Notes (the MHR Senior Secured Notes) and, after giving effect to
the MHR Private Placement, will beneficially own approximately 47.6% of the Companys common
stock, assuming conversion and exercise by MHR of all convertible securities, warrants and options
held, including the MHR Warrants and the MHR Waiver Warrants (as defined below).
The Buyers required, as a condition to the Purchase Agreement, that MHR enter into the MHR Purchase
Agreement.
The MHR Warrants will be exercisable at an exercise price of $1.09 per share beginning immediately
after issuance and will expire 5 years from the date of issuance. The exercise price of the MHR
Warrants is subject to adjustment in the case of stock splits, stock dividends, combinations of
shares and similar recapitalization transactions.
MHR has existing registration rights under that certain Registration Rights Agreement, dated as of
September 26, 2005, by and between the Company and MHR under which the MHR Private Placement
Securities (as defined below) shall constitute Registrable Securities.
A copy of the MHR Purchase Agreement entered into by the Company and the MHR Buyer is attached
hereto as Exhibit 10.2 and is incorporated herein by reference. A copy of the form of MHR Warrant
is attached hereto as Exhibit 4.3 and is incorporated herein by reference.
The collective net proceeds to the Company from the Private Placement and the MHR Private
Placement, after deducting fees and expenses and excluding the proceeds, if any, from the exercise
of the Warrants and the MHR Warrants, are expected to be approximately $7.25 million. The
Private Placement and the MHR Private Placement are expected to close
on or about July 6, 2011,
subject to the satisfaction of customary closing conditions.
MHR Waiver Agreement
In connection with the Private Placement and the MHR Private Placement, the Company entered into a
Waiver Agreement with MHR (Waiver Agreement), pursuant to which MHR waived certain anti-dilution
adjustment rights under the MHR Senior Secured Notes and certain warrants issued by the Company to
MHR that would otherwise have been triggered by the Private Placement described above. As
consideration for such waiver, the Company will issue to MHR a warrant (the MHR Waiver Warrant)
to purchase 795,000 shares of its common stock (the MHR Waiver Warrant Shares) and agreed to
reimburse MHR for up to $25,000 of its legal fees. The MHR Waiver Warrant shall be in the same form
of warrant as the MHR Warrants described above.
A copy of the Waiver Agreement is attached hereto as Exhibit 10.3 and is incorporated herein by
reference.
Table of Contents
The foregoing descriptions of the Purchase Agreement, MHR Purchase Agreement, Waiver Agreement,
Registration Rights Agreement and the form of Warrants and MHR Warrants do not purport to be
complete and are qualified in their entirety by reference to Exhibits 10.1, 10.2, 10.3, 4.2, 4.1,
and 4.3, respectively.
Item 3.02. Unregistered Sales of Equity Securities.
The disclosures related to the Private Placement and the MHR Private Placement set forth in Item
1.01 of this Current Report on Form 8-K are hereby incorporated by reference into this Item 3.02.
The shares of common stock, the Warrants and the Warrant Shares to be sold and issued in connection
with the Private Placement (collectively, the Private Placement Securities), the shares of
common stock, the MHR Warrants and the MHR Warrant Shares to be sold and issued in connection with
the MHR Private Placement (collectively, the MHR Private Placement Securities) and the MHR
Waiver Warrant and MHR Waiver Warrant Shares to be issued in connection with the Waiver Agreement
will not be registered under the Securities Act at the time of sale, and therefore, may not be
offered or sold in the United States absent registration or an applicable exemption from
registration requirements. For these issuances, the Company will rely on the exemption from federal
registration under Section 4(2) of the Securities Act and/or Rule 506 promulgated thereunder, based
on the Companys belief that the offer and sale of the Private Placement Securities, the MHR
Private Placement Securities, the MHR Waiver Warrant and the MHR Waiver Warrant Shares have and
will not involve a public offering, as each purchaser of such securities is an accredited
investor (as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities
Act) and/or a qualified institutional buyer (as such term is defined in Rule 144A of the
Securities Act), and no general solicitation has been involved in connection with the Private
Placement, the MHR Private Placement or the Waiver Agreement.
Item 8.01. Other Events.
On June 30, 2011, the Company announced that it entered into the Private Placement and the MHR
Private Placement. The Companys press release announcing such transactions is filed as Exhibit
99.1 and is incorporated herein by reference.
Safe Harbor Statement Regarding Forward-Looking Statements. The press release attached as an
exhibit hereto contains forward-looking statements which involve certain risks and uncertainties
that could cause actual results to differ materially from those expressed or implied by these
statements. Please refer to the Safe Harbor Statement in the press release regarding these
forward-looking statements.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit | ||||
No. | Description | |||
4.1 | Form of Warrant |
|||
4.2 | Form of Registration Rights Agreement by and among Emisphere Technologies, Inc. and the Buyers named therein. |
|||
4.3 | Form of MHR Warrant |
|||
10.1 | Securities
Purchase Agreement, dated June 30, 2011, by and among Emisphere Technologies, Inc. and the Buyers
named therein. |
|||
10.2 | Securities
Purchase Agreement, dated June 30, 2011, by and among Emisphere Technologies, Inc. and the MHR Buyer. |
|||
10.3 | Waiver
Agreement, dated June 30, 2011, by and among Emisphere Technologies, Inc. and MHR. |
|||
99.1 | Press Release of Emisphere Technologies, Inc., dated June 30, 2011. |
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
Emisphere Technologies, Inc. |
||||
June 30, 2011 | By: | /s/ Michael R. Garone | ||
Name: | Michael R. Garone | |||
Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||
Table of Contents
Exhibit Index
Exhibit | ||||
No. | Description | |||
4.1 | Form of Warrant |
|||
4.2 | Form of Registration Rights Agreement by and among Emisphere Technologies, Inc. and the Buyers named therein. |
|||
4.3 | Form of MHR Warrant |
|||
10.1 | Securities
Purchase Agreement, dated June 30, 2011, by and among Emisphere Technologies, Inc. and the Buyers
named therein. |
|||
10.2 | Securities
Purchase Agreement, dated June 30, 2011, by and among Emisphere Technologies, Inc. and the MHR Buyer. |
|||
10.3 | Waiver
Agreement, dated June 30, 2011, by and among Emisphere Technologies, Inc. and MHR. |
|||
99.1 | Press
Release of Emisphere Technologies, Inc., dated June 30, 2011. |