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. 6)*
Emisphere Technologies, Inc.
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
291345106
Doron Lipshitz, Esq.
OMelveny & Myers LLP
7 Times Square
New York, New York 10036
(212) 326-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 30,
2009
(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 o.
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.
Continued on following pages
(Page 1
of 13 Pages)
* The remainder of this cover page shall be filled out for a reporting persons 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).
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CUSIP No.: |
291345106 |
13D |
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Page
2 of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MHR CAPITAL PARTNERS MASTER ACCOUNT LP |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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WC |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Anguilla, British West Indies
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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5,101,144 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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5,101,144 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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5,101,144 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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15.8% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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PN |
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CUSIP No.: |
291345106 |
13D |
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Page 3
of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MHR ADVISORS LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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AF |
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5 |
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Delaware
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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5,797,905 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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5,797,905 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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5,797,905 |
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12 |
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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17.8% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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OO |
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CUSIP No.: |
291345106 |
13D |
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Page 4
of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS II LP |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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WC |
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5 |
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Delaware
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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1,599,035 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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1,599,035 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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1,599,035 |
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12 |
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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5.1% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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PN |
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CUSIP No.: |
291345106 |
13D |
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Page 5
of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS IIA LP |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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WC |
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5 |
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Delaware
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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4,028,459 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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4,028,459 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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4,028,459 |
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12 |
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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12.0% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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PN |
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CUSIP No.: |
291345106 |
13D |
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Page 6
of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MHR INSTITUTIONAL ADVISORS II LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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AF |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Delaware
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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5,627,494 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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5,627,494 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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5,627,494 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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16.1% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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OO |
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CUSIP No.: |
291345106 |
13D |
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Page 7
of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MHR FUND MANAGEMENT LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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AF |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Delaware
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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11,425,399 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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11,425,399 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,425,399 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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30.8% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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OO |
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CUSIP No.: |
291345106 |
13D |
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Page 8
of 13 Pages |
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1 |
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NAME OF REPORTING PERSONS
MARK H. RACHESKY, M.D. |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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AF |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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United States of America
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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11,519,697 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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11,519,697 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,519,697 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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31.0% |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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IN; HC |
TABLE OF CONTENTS
Page
9 of 13 Pages
This statement on Schedule 13D (this Statement)
further amends and supplements, as Amendment No. 6, the Schedule 13D filed on October 6, 2005 (the Initial 13D),
as amended by Amendment No. 1,
filed on January 17, 2006 (Amendment No. 1), Amendment No. 2, filed on May 11, 2006
(Amendment No. 2), Amendment No. 3, filed on August 20, 2007 (Amendment
No. 3), Amendment No. 4, filed on
August 24, 2007 (Amendment No. 4) and Amendment No. 5, filed on July 2, 2008 (Amendment No. 5 and,
together with the Initial 13D, Amendment No. l, Amendment No. 2, Amendment No. 3 and Amendment No. 4, the Schedule 13D ) and relates
to shares of common stock, par value $0.01 per share (the Shares),
of Emisphere Technologies, Inc. (the Issuer). Certain of the
securities reported herein were previously reported on Schedule 13G, which was filed on April 8,
2005. This
Amendment No. 6 is being filed by the
Reporting Persons to (i) report the increase in the number of Shares which the Reporting Persons may be
deemed to beneficially own as a result of the receipt by the
Reporting Persons of additional Convertible Notes
as
paid-in-kind interest on the Convertible Notes already held by the
Reporting Persons and (ii) add Institutional Partners II as a Reporting Person. The Convertible Notes are immediately convertible
into Shares upon receipt thereof by the Reporting Persons. Defined terms used in this Statement but not defined herein
shall have the respective meanings given such terms in Amendment No. 5.
Item 5. Interest in Securities of the Issuer
Item 5 is hereby amended by deleting such item in its entirety and replacing it with the following:
The perecentages set forth in this Statement are calculated based
on information contained in the Issuers Form 10-Q for the quarterly period ended March 31, 2009, which disclosed that there were 30,341,078 Shares outstanding
as of May 1, 2009.
Page
10 of 13 Pages
All
percentages of beneficial ownership presented herein are calculated after giving effect to the
issuance of the Shares pursuant to exercise or vesting of Warrants, restricted stock or stock
options currently owned by the Reporting Persons, and assuming such Reporting Persons Convertible
Notes were converted into Shares as of such date.
(a) (i) Master
Account may be deemed the beneficial owner of 5,101,144 Shares
(approximately 15.8% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Act.
This number consists of (A) 3,123,626 Shares held for the account of Master Account, (B) 836,896
Shares that can be obtained by Master Account upon exercise of
warrants to acquire Shares, and (C) 1,140,622 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes.
(ii) Capital
Partners (100) may be deemed the beneficial owner of 696,761 Shares
(approximately 2.3% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Act). This number consists of (A) 424,818 Shares held for the
account of Capital Partners (100), (B) 115,961 Shares that can be obtained by Capital Partners
(100) upon exercise of
warrants to acquire Shares, and (C) 155,982 Shares that can be obtained by Capital Partners (100)
upon the conversion of the Convertible Notes.
(iii) Advisors
may be deemed the beneficial owner of 5,797,905 Shares (approximately
17.8% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i)
under the Act). This number consists of (A) (1) 3,123,626 Shares held for the account of
Master Account, (2) 836,896 Shares that can be obtained by Master Account upon exercise of warrants
to acquire Shares, and (3) 1,140,622 Shares that can be obtained by Master Account upon the
conversion of the Convertible Notes, and (B) (1) 424,818 Shares held for the account of Capital
Partners (100), (2) 115,961 Shares that can be obtained by Capital Partners (100) upon exercise of
warrants to acquire Shares, and (3) 155,982 Shares that can be obtained by Capital Partners (100)
upon the conversion of Convertible Notes.
(iv) Institutional
Partners II may be deemed the beneficial owner of 1,599,035 Shares
(approximately 5.1% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Act). This number consists of (A) 317,369 Shares held for the
account of Institutional Partners II, (B) 40,576 Shares that can be obtained by Institutional
Partners II upon the exercise of warrants to acquire Shares and
(C) 1,241,090 Shares that can be
obtained by Institutional Partners II upon the conversion of the Convertible Notes.
(v) Institutional
Partners IIA may be deemed the beneficial owner of 4,028,459 Shares
(approximately 12.0% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Act). This number consists of (A) 799,549 Shares held for the
account of Institutional Partners IIA, (B) 102,225 Shares that can be obtained by Institutional
Partners IIA upon the exercise of warrants to acquire Shares and
(C) 3,126,685 Shares that can be
obtained by Institutional Partners IIA upon the conversion of the Convertible Notes.
(vi) Institutional
Advisors II may be deemed the beneficial owner of 5,627,494 Shares
(approximately 16.1% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Act). This number consists of (A) (1) 317,369 Shares held for the
account of Institutional Partners II, (2) 40,576 Shares that can be obtained by Institutional
Partners II upon the exercise of warrants to acquire Shares and
(3) 1,241,090 Shares that can be
obtained by Institutional Partners II upon the conversion of the Convertible Notes and (B) (1)
799,549 Shares held for the Account
Page
11 of 13 Pages
of Institutional Partners IIA, (2) 102,225 Shares that can be
obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares and (3)
3,126,685 Shares that can be obtained by Institutional Partners IIA upon the conversion of the
Convertible Notes.
(vii) Fund Management may be deemed
the beneficial owner of 11,425,399 Shares (approximately 30.8% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i)
under the Act). This number consists of all of the Shares of Common Stock otherwise described in this Item 5(a) by virtue of Fund Managements investment
management agreement with Master Account, Capital Partners (100), Institutional Partners II and Institutional Partners IIA.
(viii) Dr. Rachesky may be deemed
the beneficial owner of 11,519,697 Shares (approximately 31.0% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i)
under the Act). This number consists of (A) all of the Shares otherwise described in this Item 5(a) by virtue of Dr. Racheskys position as the
managing member of each of Fund Management, Advisors and Institutional Advisors II, (B) 14,000 Shares that can be obtained upon the exercise of certain
options to purchase Shares, (C) 75,000 Shares that can be obtained upon the exercise of certain non-qualified stock options to purchase Shares and (D)
5,298 Shares held for his own account.
(b) (i) Master Account may be deemed to have (x) the
sole power to direct the disposition of 5,101,144 Shares which may be deemed to be beneficially owned by Master Account as described
above, and (y) the sole power to direct the voting of 5,101,144 Shares which may be deemed to be
beneficially owned by Master Account as described above.
(ii) Capital Partners (100) may be deemed to have (x) the sole power to direct the
disposition of 696,761 Shares which may be deemed to be beneficially owned by Capital Partners
(100) as described above, and (y) the sole power to direct
the voting of 696,761 Shares which may
be deemed to be beneficially owned by Capital Partners (100) as described above.
(iii) Advisors may be deemed
to have (x) the sole power to direct the disposition of
5,797,905 Shares which may be deemed to be beneficially owned by Advisors as described above, and
(y) the sole power to direct the voting of 5,797,905 Shares which may be deemed to be beneficially
owned by Advisors as described above.
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12 of 13 Pages
(iv) Institutional Partners II may be deemed to have (x) the sole power to direct the
disposition of 1,599,035 Shares which may be deemed to be beneficially owned by Institutional
Partners II as described above, and (y) the sole power to direct
the voting of 1,599,035 Shares
which may be deemed to be beneficially owned by Institutional Partners II as described above.
(v) Institutional Partners
IIA may be deemed to have (x) the sole power to direct the
disposition of 4,028,459 Shares which may be deemed to be beneficially owned by Institutional
Partners IIA as described above, and (y) the sole power to
direct the voting of 4,028,459 Shares
which may be deemed to be beneficially owned by Institutional Partners IIA as described above.
(vi) Institutional Advisors
II may be deemed to have (x) the sole power to direct the
disposition of 5,627,494 Shares which may be deemed to be beneficially owned by Institutional
Advisors II as described above, and (y) the sole power to direct
the voting of 5,627,494 Shares
which may be deemed to be beneficially owned by Institutional Advisors II as described above.
(vii) Fund Management may be
deemed to have (x) the sole power to direct the disposition
of the 11,425,399 Shares which may be deemed to be beneficially owned by Fund Management as
described above, and (y) the sole power to direct the voting of
11,425,399 Shares which may be deemed
to be beneficially owned by Fund Management as described above.
(viii) Dr. Rachesky may
be deemed to have (x) the sole power to direct the disposition of
the 11,519,697 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described
above, and (y) the sole power to direct the voting of 11,519,697 Shares which may be deemed to be
beneficially owned by Dr. Rachesky as described above.
(c) On May 15, 2009, the Issuer granted Dr. Rachesky 75,000 non-qualified stock options in the aggregate.
(d) (i) The partners of Master Account, including Advisors, have the right to
participate in the receipt of dividends from, or proceeds from the sale of, the securities held for
the account of Master Account in accordance with their partnership interests in Master Account.
(ii) The partners of Capital Partners (100), including Advisors, have the right to
participate in the receipt of dividends from, or proceeds from the sale of, the securities held for
the account of Capital Partners (100) in accordance with their partnership interests in Capital
Partners (100).
(iii) The partners of Institutional Partners II, including Institutional Advisors II,
have the right to participate in the receipt of dividends from, or proceeds from the sale of, the
securities held for the account of Institutional Partners II in accordance with their partnership
interests in Institutional Partners II.
(iv) The partners of Institutional Partners IIA, including Institutional Advisors II,
have the right to participate in the receipt of dividends from, or proceeds from the sale of, the
securities held for the account of Institutional Partners IIA in accordance with their partnership
interests in Institutional Partners IIA.
(e) Not applicable.
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this Statement is true, complete and
correct.
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Date: July 2, 2009 |
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MHR CAPITAL PARTNERS MASTER ACCOUNT LP |
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By:
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MHR Advisors LLC, |
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its General Partner |
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By: /s/ Hal
Goldstein |
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Name: Hal Goldstein |
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Title: Vice President |
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MHR ADVISORS LLC |
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By: /s/ Hal
Goldstein |
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Name: Hal Goldstein |
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Title: Vice President |
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MHR INSTITUTIONAL PARTNERS II LP |
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By:
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MHR Institutional Advisors II LLC, |
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its General Partner |
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By: /s/ Hal
Goldstein |
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Name: Hal Goldstein |
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Title: Vice President |
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MHR INSTITUTIONAL PARTNERS IIA LP |
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By:
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MHR Institutional Advisors II LLC, |
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its General Partner |
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By: /s/ Hal
Goldstein |
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Name: Hal Goldstein |
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Title: Vice President |
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MHR INSTITUTIONAL ADVISORS II LLC |
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By: /s/ Hal
Goldstein |
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Name: Hal Goldstein |
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Title: Vice President |
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MHR FUND MANAGEMENT LLC |
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By: /s/ Hal
Goldstein |
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Name: Hal Goldstein |
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Title: Managing Principal |
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MARK H. RACHESKY, M.D. |
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/s/ Hal
Goldstein, Attorney in Fact |
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