SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
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. 22)*
Emisphere Technologies, Inc. |
(Name of Issuer)
Common Stock, Par Value $.01 Per Share |
(Title of Class of Securities)
291345106 |
(CUSIP Number)
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)
March 28, 2014 |
(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 ¨.
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.
* | 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).
Continued on following pages
(Page 1 of 17 Pages)
CUSIP No.: | 291345106 | 13D | Page 2 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR CAPITAL PARTNERS MASTER ACCOUNT LP | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Anguilla, British West Indies | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
18,638,199 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
18,638,199 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,638,199 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.5% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
PN |
CUSIP No.: | 291345106 | 13D | Page 3 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR ADVISORS LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
21,141,943 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
21,141,943 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,141,943 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.3% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
OO |
CUSIP No.: | 291345106 | 13D | Page 4 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS II LP | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
14,949,219 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
14,949,219 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,949,219 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
PN |
CUSIP No.: | 291345106 | 13D | Page 5 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS IIA LP | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
37,661,979 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
37,661,979 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,661,979 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.8% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
PN |
CUSIP No.: | 291345106 | 13D | Page 6 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR INSTITUTIONAL ADVISORS II LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
52,611,198 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
52,611,198 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
52,611,198 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
51.6% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
OO |
CUSIP No.: | 291345106 | 13D | Page 7 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHRC LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
21,141,943 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
21,141,943 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,141,943 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.3% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
OO |
CUSIP No.: | 291345106 | 13D | Page 8 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHRC II LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
52,611,198 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
52,611,198 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
52,611,198 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
51.6% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
OO |
CUSIP No.: | 291345106 | 13D | Page 9 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR FUND MANAGEMENT LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
73,753,141 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
73,753,141 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
73,753,141 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.6% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
OO |
CUSIP No.: | 291345106 | 13D | Page 10 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MHR HOLDINGS LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
73,753,141 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
73,753,141 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
73,753,141 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.6% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
OO |
CUSIP No.: | 291345106 | 13D | Page 11 of 17 Pages |
1 |
NAME OF REPORTING PERSONS
MARK H. RACHESKY, M.D. | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
74,007,439 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
74,007,439 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
74,007,439 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.7% | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN; HC |
Page 12 of 17 Pages
Item 5. Interest in Securities of the Issuer. | 13 | |
15 | ||
Item 7. Materials to Be Filed as Exhibits. | 15 | |
SIGNATURES | 16 |
Page 13 of 17 Pages
This statement on Schedule 13D (this Statement) further amends and supplements, as Amendment No. 22, 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), Amendment No. 5, filed on July 2, 2008 (Amendment No. 5), Amendment No. 6, filed on July 2, 2009 (Amendment No. 6), Amendment No. 7, filed on August 21, 2009 (Amendment No. 7), Amendment No. 8, filed on August 25, 2009 (Amendment No. 8), Amendment No. 9, filed on June 9, 2010 (Amendment No. 9), Amendment No. 10, filed on August 2, 2010 (Amendment No. 10), Amendment No. 11, filed on August 27, 2010 (Amendment No. 11), Amendment No. 12, filed on December 22, 2010 (Amendment No. 12), Amendment No. 13, filed on July 1, 2011 (Amendment No. 13), Amendment No. 14, filed on July 8, 2011 (Amendment No. 14), Amendment No. 15, filed on June 5, 2012 (Amendment No. 15), Amendment No. 16, filed on September 27, 2012 (Amendment No. 16), Amendment No. 17, filed on October 9, 2012 (Amendment No. 17), Amendment No. 18, filed on October 19, 2012 (Amendment No. 18), Amendment No. 19, filed on January 10, 2013 (Amendment 19), Amendment No. 20, filed on April 30, 2013 and Amendment No. 21, filed on May 9, 2013 (Amendment No. 21, and, together with the Initial 13D and Amendment No. 1 through Amendment No. 20, 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. Defined terms used in this Statement but not defined herein shall have the respective meanings given such terms in Amendment No. 21.
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 percentages set forth in this Statement are calculated based on information contained in the Issuers Form 10-Q for the quarterly period ended September 30, 2013, which disclosed that there were 60,687,478 Shares outstanding as of November 12, 2013.
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, Bridge Notes and Reimbursement Notes were converted into Shares as of such date.
(a) (i) Master Account may be deemed the beneficial owner of 18,638,199 Shares (approximately 25.5% 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) 6,226,054 Shares held for the account of Master Account, (B) 5,515,644 Shares that can be obtained by Master Account upon exercise of warrants to acquire Shares, (C) 5,789,000 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes, (D) 851,360 Shares that can be obtained by Master Account upon the conversion of the Bridge Notes and (E) 256,141 Shares that can be obtained by Master Account upon the conversion of the Reimbursement Notes.
(ii) Capital Partners (100) may be deemed the beneficial owner of 2,503,744 Shares (approximately 4.0% 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) 847,125 Shares held for the account of Capital Partners (100), (B) 716,030 Shares that can be obtained by Capital Partners (100) upon exercise of warrants to acquire Shares, (C) 791,656 Shares that can be obtained by Capital Partners (100) upon the conversion of the Convertible Notes, (D) 113,252 Shares that can be obtained by Capital Partners (100) upon the conversion of the Bridge Notes and (E) 35,681 Shares that can be obtained by Capital Partners (100) upon the conversion of the Reimbursement Notes.
(iii) Advisors may be deemed the beneficial owner of 21,141,943 Shares (approximately 28.3% 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) (1) 6,226,054 Shares held for the account of Master Account, (2) 5,515,644 Shares that can be obtained by Master Account upon exercise of warrants to acquire Shares, (3) 5,789,000 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes, (4) 851,360 Shares that can be obtained by Master Account upon the conversion of the Bridge Notes and (5) 256,141 Shares that can be obtained by Master Account upon the conversion of the Reimbursement Notes, and (B) (1) 847,125 Shares held for the account of Capital Partners (100), (2) 716,030 Shares that can be obtained by Capital Partners (100) upon exercise of warrants to acquire Shares, (3) 791,656 Shares that can be obtained by Capital Partners (100) upon the conversion of Convertible Notes, (4) 113,252 Shares that can be obtained by Capital Partners (100) upon the conversion of Bridge Notes and (5) 35,681 Shares that can be obtained by Capital Partners (100) upon the conversion of Reimbursement Notes.
Page 14 of 17 Pages
(iv) Institutional Partners II may be deemed the beneficial owner of 14,949,219 Shares (approximately 20.6% 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) 3,240,750 Shares held for the account of Institutional Partners II, (B) 4,479,892 Shares that can be obtained by Institutional Partners II upon the exercise of warrants to acquire Shares, (C) 6,298,904 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes, (D) 650,594 Shares that can be obtained by Institutional Partners II upon the conversion of the Bridge Notes and (E) 279,079 Shares that can be obtained by Institutional Partners II upon the conversion of the Reimbursement Notes.
(v) Institutional Partners IIA may be deemed the beneficial owner of 37,661,979 Shares (approximately 41.8% 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) 8,164,436 Shares held for the account of Institutional Partners IIA, (B) 11,286,210 Shares that can be obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares, (C) 15,868,863 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Convertible Notes, (D) 1,639,038 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Bridge Notes and (E) 703,432 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Reimbursement Notes.
(vi) Institutional Advisors II may be deemed the beneficial owner of 52,611,198 Shares (approximately 51.6% 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) 3,240,750 Shares held for the account of Institutional Partners II, (2) 4,479,892 Shares that can be obtained by Institutional Partners II upon the exercise of warrants to acquire Shares, (3) 6,298,904 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes, (4) 650,594 Shares that can be obtained by Institutional Partners II upon the conversion of the Bridge Notes and (5) 279,079 Shares that can be obtained by Institutional Partners II upon the conversion of the Reimbursement Notes, and (B) (1) 8,164,436 Shares held for the account of Institutional Partners IIA, (2) 11,286,210 Shares that can be obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares, (3) 15,868,863 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Convertible Notes, (4) 1,639,038 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Bridge Notes and (5) 703,432 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Reimbursement Notes.
(vii) MHRC may be deemed the beneficial owner of 21,141,943 Shares (approximately 28.3% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of all of the Shares otherwise described in Item 5(a)(iii) by virtue of MHRCs position as the managing member of Advisors.
(viii) MHRC II may be deemed the beneficial owner of 52,611,198 Shares (approximately 51.6% 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 otherwise described in Item 5(a)(vi) by virtue of MHRC IIs position as the managing member of Institutional Advisors II.
(ix) Fund Management may be deemed the beneficial owner of 73,753,141 Shares (approximately 63.6% 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 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.
(x) MHR Holdings may be deemed to be the beneficial owner of 73,753,141 Shares (approximately 63.6% 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 otherwise described in this Item 5(a) by virtue of MHR Holdings position as the managing member of Fund Management.
(xi) Dr. Rachesky may be deemed the beneficial owner of 74,007,439 Shares (approximately 63.7% 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 MHRC, MHRC II and MHR Holdings, (B) 14,000 Shares that can be obtained upon the exercise of certain options to purchase Shares, (C) 235,000 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 18,638,199 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 18,638,199 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 2,503,744 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 2,503,744 Shares which may be deemed to be beneficially owned by Capital Partners (100) as described above.
Page 15 of 17 Pages
(iii) Advisors may be deemed to have (x) the sole power to direct the disposition of 21,141,943 Shares which may be deemed to be beneficially owned by Advisors as described above, and (y) the sole power to direct the voting of 21,141,943 Shares which may be deemed to be beneficially owned by Advisors as described above.
(iv) Institutional Partners II may be deemed to have (x) the sole power to direct the disposition of 14,949,219 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 14,949,219 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 37,661,979 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 37,661,979 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 52,611,198 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 52,611,198 Shares which may be deemed to be beneficially owned by Institutional Advisors II as described above.
(vii) MHRC may be deemed to have (x) the sole power to direct the disposition of the 21,141,943 Shares which may be deemed to be beneficially owned by MHRC as described above, and (y) the sole power to direct the voting of 21,141,943 Shares which may be deemed to be beneficially owned by MHRC as described above.
(viii) MHRC II may be deemed to have (x) the sole power to direct the disposition of the 52,611,198 Shares which may be deemed to be beneficially owned by MHRC II as described above, and (y) the sole power to direct the voting of 52,611,198 Shares which may be deemed to be beneficially owned by MHRC II as described above.
(ix) Fund Management may be deemed to have (x) the sole power to direct the disposition of the 73,753,141 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 73,753,141 Shares which may be deemed to be beneficially owned by Fund Management as described above.
(x) MHR Holdings may be deemed to have (x) the sole power to direct the disposition of 73,753,141 Shares which may be deemed to be beneficially owned by MHR Holdings as described above, and (y) the sole power to direct the voting of 73,753,141 Shares which may be deemed to be beneficially owned by MHR Holdings as described above.
(xi) Dr. Rachesky may be deemed to have (x) the sole power to direct the disposition of the 74,007,439 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 74,007,439 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described above.
(c) Not applicable.
(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.
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
Item 6 is hereby amended to add the following:
On March 28, 2014, the Issuer and each of Master Account, Capital Partners (100), Institutional Partners II and Institutional Partners IIA (collectively, MHR) entered into that certain Amendment, attached as Exhibit 1 hereto (the Amendment), pursuant to which the Issuer and MHR amended the Issuers Amended and Restated 13% Senior Secured Convertible Notes (the Convertible Notes) by revising the terms and timing of certain of the milestones relating to product sales, operational performance and manufacturing. The failure of the Issuer to achieve such milestones by the dates agreed to in the Convertible Notes would constitute an event of default under the Convertible Notes.
The foregoing discussion of the Amendment is qualified in its entirety by reference to the full text of the Amendment attached as Exhibit 1 to this Statement and incorporated into this Item 6 by reference to Exhibit 10.105 of the Issuers Annual Report on Form 10-K filed on March 31, 2014.
Item 7. | Materials to Be Filed as Exhibits |
Exhibit No. |
Description | |
1 | Amendment, dated as of March 28, 2014, by and among Emisphere Technologies, Inc., MHR Capital Partners Master Account LP, MHR Capital Partners (100) LP, MHR Institutional Partners II LP and MHR Institutional Partners IIA LP (incorporated by reference to Exhibit 10.105 to the Issuers Annual Report on Form 10-K filed on March 31, 2014). |
Page 16 of 17 Pages
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.
Date: March 31, 2014 | MHR CAPITAL PARTNERS MASTER ACCOUNT LP | |||||
By: | MHR Advisors LLC, | |||||
its General Partner | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHR ADVISORS LLC | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHR INSTITUTIONAL PARTNERS II LP | ||||||
By: | MHR Institutional Advisors II LLC, | |||||
its General Partner | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHR INSTITUTIONAL PARTNERS IIA LP | ||||||
By: | MHR Institutional Advisors II LLC, | |||||
its General Partner | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHR INSTITUTIONAL ADVISORS II LLC | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHRC LLC | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHRC II LLC | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHR FUND MANAGEMENT LLC | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MHR HOLDINGS LLC | ||||||
By: | /s/ Janet Yeung | |||||
Name: Janet Yeung | ||||||
Title: Authorized Signatory | ||||||
MARK H. RACHESKY, M.D. | ||||||
/s/ Janet Yeung, Attorney in Fact |
Page 17 of 17 Pages
Exhibit Index
Exhibit No. |
Description | |
1 | Amendment, dated as of March 28, 2014, by and among Emisphere Technologies, Inc., MHR Capital Partners Master Account LP, MHR Capital Partners (100) LP, MHR Institutional Partners II LP and MHR Institutional Partners IIA LP (incorporated by reference to Exhibit 10.105 to the Issuers Annual Report on Form 10-K filed on March 31, 2014). |