Subscription Agreement
This subscription agreement (this “Subscription Agreement”) is dated August 16, 2007, by and
between the investor identified on the signature page hereto (the “Investor”) and Emisphere
Technologies, Inc., a Delaware corporation (the “Company”), whereby the parties agree as
follows:
Investor agrees to buy and the Company agrees to sell and issue to Investor (i) such number of
shares of common stock, par value $0.01 per share (the “Common Stock”), of the Company, set
forth on the signature page hereto (the “Shares”), and (ii) warrants to purchase such
number of shares of Common Stock set forth on the signature page hereto (the “Warrants” and
together with the Shares, the “Securities”) for an aggregate purchase price set forth on
the signature page hereto (the “Purchase Price”).
The Securities have been registered on a Registration Statement on Form S-3, Registration No.
333-133087, which registration statement (together with any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act, the “Registration Statement”) has been
declared effective by the Securities and Exchange Commission (the
“Commission”) and has remained effective since such
date and is effective on the date hereof.
Subject to the last sentence of this Section 1, on August 22, 2007 (the “Closing Date”), Investor shall remit by wire transfer the
amount of funds equal to the Purchase Price for the Securities being purchased by Investor to the
following account:
Chase Bank NYC
ABA: 000-000-000
Account Name: Xxxxxx Brothers Inc.
Account Number: 000-000-000
FFC: Emisphere Technologies Inc
FFC#: 831-37354-1-0-894
ABA: 000-000-000
Account Name: Xxxxxx Brothers Inc.
Account Number: 000-000-000
FFC: Emisphere Technologies Inc
FFC#: 831-37354-1-0-894
NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS SUBSCRIPTION AGREEMENT BY
THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR
ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN
(“DWAC”) INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES ON THE
CLOSING DATE.
Upon receipt of the Purchase Price by the Company (i) shall cause its transfer agent to
deliver to Investor the Shares via the Depository Trust Company’s (“DTC”) Deposit or
Withdrawal at Custodian system and (ii) shall deliver to Investor the Warrants via the instructions
set forth on the signature page hereto, such Shares and Warrants to be registered in such name or
names as designated by the Investor on the signature page hereto. The Shares and Warrants shall be
unlegended and free of any resale restrictions.
The obligations of the
Investor set forth in this Section 1 shall be conditioned upon the consummation of the transactions contemplated
by the Placement Agency Agreement, dated as of the date hereof, by and between the Company and
ThinkEquity Partners LLC, provided that in no event shall the Investor be required to purchase in
excess of 22.7681032% of the aggregate number of securities to be sold on the
Closing Date pursuant to the Registration Statement.
2. Company Representations and Warranties. The Company represents and warrants that:
(a) it has full right, power and authority to enter into this Subscription Agreement
and to perform all of its obligations hereunder; (b) this Subscription Agreement has been duly
authorized and executed by and constitutes a valid and binding agreement of the Company enforceable
in accordance with its terms; (c) the execution and delivery of this Subscription Agreement and the
consummation of the transactions contemplated hereby including, without limitation, the issuance
of shares of Common Stock upon exercise of the Warrants, do not conflict with or result in a breach or violation of
(i) the Company’s Amended and Restated Certificate of
Incorporation or Bylaws; (ii) any material agreement to which
the Company is a party or by which any of its property or assets is bound; (iii) any applicable federal and state securities laws or
(iv) the rules and regulations of the National Association of Securities Dealers (“NASD”); (d) the Shares have been
duly authorized for sale and issuance, and when issued and delivered by the Company against payment
therefor pursuant to this Subscription Agreement, will be validly issued, fully paid and
nonassessable, the Warrants have been duly and validly authorized by the Company and upon delivery
to the Investor at the Closing Date will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights and
remedies of creditors generally or subject to general principles of equity, the shares of Common
Stock issuable upon exercise of the Warrants have been duly authorized and reserved for
sale and issuance, and when issued and delivered by the Company against payment therefor in
accordance with the terms thereof, will be validly issued, fully paid and nonassessable; (e) the
Registration Statement and any post-effective amendment thereto, at the time it became effective,
did not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading; (f) the prospectus
contained in the Registration Statement, as amended or supplemented, did not contain as of the
effective date thereof, and as of the date hereof does not contain, any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading; (g) all preemptive
rights, rights of first refusal or any other restrictions on the transfer or issuance of the Company’s Common Stock held by stockholders of the Company and applicable to the
transactions contemplated hereby have been duly satisfied or waived in accordance with the terms of
the agreements between the Company and such stockholders conferring such rights; and (h) (i) no consent
or approval of the Company’s stockholders is required for the execution, delivery and performance by the Company of this Subscription Agreement and the consummation of the transactions contemplated hereby by the rules and regulations of the NASD and (ii) the National Association of Securities Dealers Automated Quotations will not subject the Company to de-listing if the Company
issues the Securities or the shares of
the Common Stock issuable upon exercise of the Warrants without stockholder approval on the terms contained in this Subscription Agreement.
The Investor acknowledges, represents and agrees that no action has been or will be taken in
any jurisdiction outside the United States by the Company that would permit an offering of the
Securities, or possession or distribution of offering materials in connection with the issue of the
Securities in any jurisdiction outside the United States where action for that purpose is required.
Each Investor outside the United States will comply with all applicable laws and regulations in
each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its
possession or distributes any offering material, in all cases at its own expense.
The Investor acknowledges, represents and agrees that the purchase of Securities pursuant to
this Subscription Agreement satisfies all rights to purchase the Company’s securities in connection
with the current offering that Investor may have pursuant to the Company’s Amended and Restated
Certificate of Incorporation, the Letter Agreement between the Company and Investor dated March 31,
2005 (the “Side Letter”) and any other agreement between the Company and Investor. The Investor hereby agrees not to exercise any piggy-back registration rights it has pursuant to the
Side Letter or any other agreement between the
Company and Investor solely in connection with the offerings pursuant to the Registration Statement
closing on the Closing Date. The Side Letter and
any other agreement between the Company’s and Investor relating to registration rights shall remain unchanged and in full force and effect.
The Investor understands that nothing in this Agreement or any other materials presented to
the Investor in connection with the purchase and sale of the Securities constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its purchase of Securities.
The Investor represents, warrants and agrees that, since the earlier to occur of (i) the date
on which the Company first contacted the Investor about the Offering and (ii) the date that is the
tenth (10th) trading day prior to the date of this Agreement, it has not engaged in any short
selling of the Company’s securities, or established or increased any “put equivalent position” as
defined in Rule 16(a)-1(h) under the Securities Exchange Act of 1934 with respect to the Company’s
securities.
The Investor represents and warrants that: (a) it has full right, power and authority to enter
into this Subscription Agreement and to perform all of its obligations hereunder; (b) this
Subscription Agreement has been duly authorized and executed by the Investor and constitutes a
valid and binding agreement of the Investor enforceable against the Investor in accordance with its
terms; (c) the execution and delivery of this Subscription Agreement and the consummation of the
transactions contemplated hereby do not conflict with or result in a breach of (i) the Investor’s
certificate of incorporation or by-laws (or other governing documents), or (ii) any material
agreement or any law or regulation to which the Investor is a party or by which any of its property
or assets is bound; and (d) prior to the execution hereof, Investor has received in portable
document format, or has otherwise had access to, the Company’s base prospectus dated April 7, 2006.
This Subscription Agreement constitutes the entire understanding and agreement between the
parties with respect to its subject matter, and there are no agreements or understandings with
respect to the subject matter hereof which are not contained in this Subscription Agreement. This
Subscription Agreement may be modified only in writing signed by the parties hereto.
This Subscription Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and shall become effective when counterparts
have been signed by each party and delivered to the other parties hereto, it being understood that
all parties need not sign the same counterpart. Execution may be made by delivery by facsimile.
The provisions of this Subscription Agreement are severable and, in the event that any court
or officials of any regulatory agency of competent jurisdiction shall determine that any one or
more of the provisions or part of the provisions contained in this Subscription Agreement shall,
for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Subscription Agreement and this Subscription Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part
of such provision, had never been contained herein, so that such provisions would be valid, legal
and enforceable to the maximum extent possible, so long as such construction does not materially
adversely effect the economic rights of either party hereto.
All communications hereunder, except as may be otherwise specifically provided herein, shall
be in writing and shall be mailed, hand delivered, sent by a recognized overnight courier service
such as Federal Express, or sent via facsimile and confirmed by letter, to the party to whom it is
addressed at the following addresses or such other address as such party may advise the other in
writing:
To the Company: as set forth on the signature page hereto.
To the Investor: as set forth on the signature page hereto.
All notices hereunder shall be effective upon receipt by the party to which it is addressed.
This Subscription Agreement shall be governed by and interpreted in accordance with the
laws of the State of New York for contracts to be wholly performed in such state and without giving
effect to the principles thereof regarding the conflict of laws. To the extent determined by such
court, the prevailing party shall reimburse the other party for any reasonable legal fees and
disbursements incurred in enforcement of, or protection of any of its rights under this
Subscription Agreement.
If the foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this Subscription Agreement.
| EMISPHERE TECHNOLOGIES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Corporate Controller (Principal Accounting Officer) | |||
| Number of Shares: | ||||||||||||
| Number of Warrants: | ||||||||||||
| (such number to be equal to 20% of the number | ||||||||||||
| of Shares being purchased by the Investor) | ||||||||||||
| Purchase Price Per Unit: $3.785 | ||||||||||||
| Aggregate Purchase Price: | Address for Notice: | |||||||||||
| INVESTOR: | 000 Xxx Xxx Xxxx Xxxxx Xxxx | |||||||||||
| MHR INSTITUTIONAL PARTNERS II LP | Xxxxxxxxx, Xxx Xxxx 00000 | |||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| By: MHR Institutional Partners II LLC, | Attention: Chief Executive Officer | |||||||||||
| its General Partner | ||||||||||||
By: |
/s/ Xxx Xxxxxxxxx | |||||||||||
Name: |
Xxx Xxxxxxxxx | |||||||||||
Title: |
Vice President | |||||||||||
| Address for Notice and Delivery of the Warrants: | ||||||||
| Facsimile: | ||||||||
| Attention: | ||||||||
| DWAC Instructions for Delivery of the Shares: | ||||||||
| Name of DTC Participant: | ||||||||
| DTC Participant Number: | ||||||||
| Account Number: | ||||||||