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
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| Date of Report (Date of
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August 16, 2007 |
Emisphere Technologies, Inc.
(Exact name of registrant as specified in its charter)
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| Delaware
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1-10615
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13-3306985 |
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| (State or other jurisdiction
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(Commission
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(I.R.S. Employer |
| of incorporation)
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File Number)
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Identification No.) |
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| 765 Old Saw Mill River Road,
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10591 |
| Tarrytown, New York |
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| (Address of principal executive offices)
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(Zip Code) |
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| Registrant’s telephone number, including area code:
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914-347-2220 |
Not Applicable
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.
On August 16, 2007, Emisphere Technologies, Inc. (the “Company”) entered into a placement agency
agreement (the “Placement Agency Agreement”) with
ThinkEquity Partners, LLC acting as sole
placement agent (the “Placement Agent”) pursuant to which the Placement Agent has agreed to act as
the Company’s placement agent in connection with a public
offering of up to an aggregate of 1,544,638 shares of common stock
and warrants to purchase 308,927 shares of common stock, at a
purchase price of $3.785 per unit (the “Securities”). The securities in this transaction were
offered by Emisphere pursuant to an effective shelf registration statement on Form S-3, which was
filed with the Securities and Exchange Commission on April 7, 2006, and declared effective on May
2, 2006 (File No. 333-133087) and a registration statement (File No. 333-145524) filed pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, as amended (collectively, the
“Registration Statement”).
A copy of the Placement Agency Agreement, including as an exhibit thereto the form of Subscription
Agreement to be entered into by the Company and certain of the investors in the Offering described
below, is attached hereto as Exhibit 1.1 and is incorporated herein by reference. The foregoing
description of the Placement Agency Agreement does not purport to be complete and is qualified in
its entirety by reference to such Exhibit 1.1. Also attached hereto as Exhibit 1.2 is the form of
Subscription Agreement entered into by the Company and MHR Institutional Partners II LP (“MHR”), in
connection with the Offering described below, which is incorporated herein by reference. Attached
hereto as Exhibit 10.1 is the form of Warrant to be issued by the Company in connection with the Offering described below, which is incorporated herein by reference. The
foregoing description of the forms of Subscription Agreement and Warrant do not purport to be
complete and are qualified in their entirety by reference to Exhibits 1.2 and 10.1, respectively.
On August 16, 2007, the Company entered into an escrow agreement (the “Escrow Agreement”) with
ThinkEquity Partners LLC and JPMorgan Chase Bank, N.A., a national banking association, whereby
JPMorgan Chase Bank, N.A. will act as escrow agent for certain of the investors in connection with
the Offering described below. A copy of the Escrow Agreement is attached hereto as Exhibit 10.2 and
is incorporated herein by reference. The foregoing description of the Escrow Agreement does not
purport to be complete and is qualified in its entirety by reference to such Exhibit 10.2.
Item 8.01 Other Events.
On August 17, 2007, the Company announced that it had entered into definitive agreements with
certain institutional and strategic investors, including MHR, to sell
2,000,000 shares of its
common stock and warrants to purchase 400,000 shares of its common stock, at a purchase price
of $3.785 per unit, pursuant to the Registration Statement for an aggregate net purchase price of
approximately $7,000,000 after deducting placement agency fees and all estimated offering
expenses that are payable by the Company (the “Offering”). The transaction is expected to close on
August 22, 2007 and proceeds from the Offering will be used for general corporate purposes,
including further development of the Company’s lead clinical programs, capital expenditures and to
meet working capital needs. Emisphere’s press release announcing the Offering is filed as Exhibit
99.1 and is incorporated herein by reference.