United States
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
September 23, 2005
Date of report (date of earliest event reported)
EMISPHERE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-10615
(Commission File Number)
13-3306985
(I.R.S. Employer Identification Number)
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| 765 Old Saw Mill River Road, Tarrytown, New York
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10591 |
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| (Address of principal executive offices)
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(Zip Code) |
914-347-2220
(Registrant’s telephone number, including area code)
N/A
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement
Indemnification and Advancement Agreements
On September 23, 2005, the Company entered into Indemnification and Advancement Agreements
with each of Michael M. Goldberg, M.D., Michael E. Black, Stephen K. Carter, M.D., Arthur
Dubroff and Howard M. Pack, members of the Board (each an “Indemnification Agreement”). Each
Indemnification Agreement requires the Company (i) subject to certain conditions, to the fullest
extent permitted by applicable law, to indemnify the director against any and all liabilities to
third parties incurred in the course of conduct of the Company’s business or
the business of any of its affiliates and (ii) to advance expenses to the indemnitee incurred in connection with a
proceeding as defined in the agreement, within 30 days of such request.
Each
Indemnification Agreement is in the form set forth in
Exhibit 10.1 and the foregoing
description of the Indemnification Agreement is qualified in its entirety by reference to the text
of the form of Indemnification Agreement which is attached as
Exhibit 10.1 hereto and incorporated
herein by reference.
Indemnification and Advancement Agreement with Robert J. Levenson
On September 23, 2005, the Company entered into an Indemnification and Advancement Agreement
with Robert J. Levenson, a member of the Board (the “Levenson Indemnification Agreement”).
The Levenson Indemnification Agreement requires the Company (i) subject to certain conditions,
to the fullest extent permitted by applicable law, to indemnify Mr.
Levenson against any and all
liabilities to third parties incurred in the course of conduct of the company’s business or the
business of any of its affiliates and (ii) to advance expenses
to Mr. Levenson incurred in
connection with a proceeding as defined in the agreement, within 30 days of such request.
The
Levenson Indemnification Agreement is set forth as Exhibit 10.2 and the
foregoing description of the Levenson Indemnification Agreement is qualified in its
entirety by reference to the text of the Levenson Indemnification Agreement which is
attached as Exhibit 10.2 hereto and incorporated herein by reference.
In connection with the entering into of the Levenson Indemnification Agreement, the Board
approved the acceleration of the vesting of 2,770 shares of common stock of the Company which were
subject to a certain restricted stock agreement between Mr. Levenson and the Company dated May 24,
2005 and 7,000 options that were granted upon his appointment to the
Board pursuant to the Company’s Director Stock
Plan.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers
On September 23, 2005, Robert J. Levenson resigned from the Board. Mr. Levenson was
chairperson of the Compensation Committee and a member of both the Governance and Nominating
Committee and the Audit Committee of the Board. A statement issued by Mr. Levenson is attached
hereto as Exhibit 99.1. The Company has no objection to the contents of the statement.
Item 9.01 Financial Statements and Exhibits
1