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
Date of Report (Date of Earliest Event Reported): May 21, 2009
Emisphere Technologies, Inc.
(Exact name of registrant as specified in its charter)
| |
|
|
|
|
| Delaware
|
|
000-17758
|
|
13-3306985 |
|
|
|
|
|
|
(State or other jurisdiction
of incorporation)
|
|
(Commission
File Number)
|
|
(I.R.S. Employer
Identification No.) |
| |
|
|
|
|
240 Cedar Knolls Road, Suite 200,
Cedar Knolls, New Jersey
|
|
|
|
07927 |
|
|
|
|
|
|
| (Address of principal
executive offices)
|
|
|
|
(Zip Code) |
Registrant’s telephone number, including area code: 973-532-8000
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:
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))
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
On May 21, 2009, Emisphere Technologies, Inc. (the “Company”) received a letter from The
NASDAQ Stock Market stating that the NASDAQ Hearings Panel (the “Panel”) had reached the limits of
its discretion as set forth under the NASDAQ Marketplace Rules and had therefore determined to
delist the Company’s common stock from The NASDAQ Capital Market. Accordingly, trading of the
Company’s common stock on The NASDAQ Capital Market was scheduled to be suspended at the open of
trading on May 26, 2009 (the “NASDAQ Letter”). However, the Company was subsequently notified on
May 22, 2009 by The NASDAQ Stock Market that the NASDAQ Listing and Hearing Review Council (the
“Listing Council”) had called the matter for review pursuant to its discretionary authority under
NASDAQ Marketplace Rule 5820(b) and had also determined to stay the May 21, 2009 decision to
suspend the Company’s securities from trading pending further action by the Listing Council (the
“Review Letter”). As a result, the Company’s securities will continue to trade on The NASDAQ
Capital Market pending further consideration of this matter by the Listing Council.
Although the Listing Council called the Company’s matter for review in order to determine
whether the Company should be afforded additional time to regain compliance, there can be no
assurance that, subsequent to completion of the Listing Council’s review, the Company’s securities
will continue to be listed on The NASDAQ Capital Market. Moreover, at any time, the Listing
Council could withdraw its call for review thus allowing the stay to expire and the Company’s
securities to be delisted on two business days notice.
As previously reported under Item 3.01 of the Form 8-K filed by the Company with the
Securities and Exchange Commission on November 26, 2008, the Company received a letter from The
NASDAQ Stock Market advising that, for the ten consecutive trading days prior to October 21, 2008,
the market value of the Company’s listed securities had been below the minimum $35 million
requirement for continued inclusion on The NASDAQ Capital Market pursuant to NASDAQ Marketplace
Rule 4310(c)(3)(B) (the “Rule”) and that, in accordance with NASDAQ Marketplace Rule 4310(c)(8)(C),
the Company would be provided thirty calendar days, or until November 20, 2008, to regain
compliance with the Rule. The Company was not compliant with the Rule as of November 20, 2008, and
received notice from the NASDAQ Listing Qualifications Department that the Company’s securities
were subject to delisting from The NASDAQ Capital Market. The Company went before the Panel on
January 8, 2009 to request continued listing pending its return to compliance.
The Panel’s decision, issued on April 9, 2009, granted the Company an exception to NASDAQ
Marketplace Rule 5550(b)(1), conditioned upon the Company achieving a market value of listed
securities of $35 million for ten consecutive trading days or demonstrating compliance with one of
the alternative listing criteria on or before May 20, 2009, which, as noted above, represented the
full extent of the Panel’s authority to grant an exception.
On May 20, 2009, the Company informed the Panel that, as of May 19, 2009, the Company had a
market capitalization of approximately $39.5 million and had demonstrated a market capitalization
in excess of the minimum $35 million threshold for two consecutive business days. On May 21, 2009,
the Company received the NASDAQ Letter and on May 22, 2009, the Company received the Review Letter.
The Listing Council has requested that the Company submit additional information relating to its
plan to regain compliance by June 26, 2009; however, as noted above, the Listing Council reserves
its right to withdraw its call for review at any time.