Attached files
Exhibit 5.1
July 26, 2011
Emisphere Technologies, Inc.
240 Cedar Knolls Road
Suite 200
Cedar Knolls, New Jersey 07927
240 Cedar Knolls Road
Suite 200
Cedar Knolls, New Jersey 07927
Re: Emisphere Technologies, Inc. Registration Statement on Form S-1
Ladies and Gentlemen:
We are counsel to Emisphere Technologies, Inc., a Delaware corporation (the
Company), and we have represented the Company in connection with the preparation and
filing with the Securities and Exchange Commission (the Commission) of the Companys
Registration Statement on Form S-1 (as may be amended, the Registration Statement) under
the Securities Act of 1933, as amended (the Securities Act), on or about the date hereof,
covering the resale by certain selling security holders named in the Registration Statement (the
Selling Security Holders) to the public of (i) 4,300,438 shares of common stock (the
Shares), $.01 par value per share of the Company (the Common Stock) issued to
the Selling Security Holders on July 6, 2011, pursuant to that certain Securities Purchase
Agreement, dated June 30, 2011, by and between the Company and the Selling Security Holders (the
Securities Purchase Agreement); and
(ii) 3,010,306 shares of Common Stock issuable upon
exercise of the warrants to purchase 3,010,306 shares of Common Stock issued to the Selling
Security Holders on July 6, 2011, pursuant to the Securities Purchase Agreement (the Warrant
Shares, together with the Shares, the Registrable Shares), which the Company is
required to register pursuant to that certain Registration Rights Agreement, dated July 6, 2011, by
and between the Company and the Selling Security Holders (the Registration Rights
Agreement). The Registrable Shares are to be offered for resale on a delayed or continuous
basis pursuant to Rule 415 promulgated under the Securities Act by the Selling Security Holders.
In connection with the registration of the Registrable Shares, we have examined, are familiar
with, and have relied as to factual matters solely upon, copies of the following documents for the
purpose of rendering this opinion (collectively, the Documents):
1. | the Registration Statement; | ||
2. | the Securities Purchase Agreement; | ||
3. | the Warrants; | ||
4. | the Registration Rights Agreement; | ||
5. | the Amended and Restated Certificate of Incorporation, as amended, of the Company; | ||
6. | the By-Laws, as amended, of the Company; and | ||
7. | certain resolutions of the Board of Directors of the Company. |
In connection with our opinion expressed below, we have assumed that, at or before the time of
any resale of the Registrable Shares pursuant to the Registration Statement, the Registration
Statement
Emisphere Technologies, Inc.
July 26, 2011
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July 26, 2011
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will have been declared effective under the Securities Act and the effectiveness thereof will not
have been suspended, and that there will not have occurred any change in law affecting the validity
of the issuance of such Registrable Shares or the status of such Registrable Shares as fully paid
and nonassessable. In addition, in rendering this opinion, we have (a) assumed (i) the genuineness
of all signatures on all documents reviewed by us, (ii) the authenticity of all documents submitted
to us as originals and (iii) the conformity to original documents of all documents submitted to us
as photostatic or conformed copies and the authenticity of the originals of such copies; and (b)
without independent investigation, relied upon the representations and warranties of the various
parties as to matters of objective fact contained in the Documents.
Our opinions contained herein are limited to the General Corporation Law of the State of
Delaware, including the statutory provisions, all applicable provisions of the Delaware
Constitution, and reported judicial decisions interpreting these laws, and the federal law of the
United States of America.
Our opinion hereafter expressed is based solely upon: (1) our review of the Documents; (2)
discussions with those of our attorneys who have devoted substantive attention to the matters
contained herein; and (3) such review of published sources of law as we have deemed necessary.
Based on the foregoing, we are of the opinion that (i) the Shares have been validly issued and
are fully paid and nonassessable; and (ii) the Warrant Shares will be validly issued, fully paid
and nonassessable when (a) the Warrants are properly exercised, including payment of the applicable
exercise price stated in the Warrants, and (b) the Warrant Shares are issued and delivered in the
manner described in the Registration Statement.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement
and to the reference to our firm in the prospectus contained in the Registration Statement under
the caption Legal Matters. In giving this consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations promulgated thereunder.
Very truly yours,
/s/ Brown Rudnick LLP
Brown Rudnick LLP
TCM/SPW/RER
# 1841053
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