Exhibit 10.1
EMISPHERE TECHNOLOGIES, INC.
PLACEMENT AGENCY AGREEMENT
March 31,
2005
Harris Nesbitt Corp.
3 Times Square, 28 th Floor
New York, NY 10036
Dear Sir or Madam:
Emisphere
Technologies, Inc. proposes to issue and sell to certain investors
an aggregate of up to 4,000,000 units (the “Units”)
consisting of 4,000,000 shares (the “Offered Shares”)
of the Company’s common stock, par value $0.01 per share (the
“Common Stock”) and warrants to purchase 1,500,000
shares of Common Stock (the “Offered Warrants”) in
accordance with the terms and conditions set forth in this
Placement Agency Agreement (the “Agreement”). The
Company desires to engage you as its placement agent (the
“Placement Agent”) in connection with such issuance and
sale. Each Offered Warrant shall be exercisable to purchase
one share of Common Stock at a price of $4.00 for a period of five
years following the Closing (as defined in Section 2 below).
The Common Stock issuable upon exercise of the Offered Warrants is
hereinafter referred to as the “Warrant Shares.”
The Offered Shares and Offered Warrants will be immediately
separable for trading purposes. The Offered Shares, the
Offered Warrants and the Warrant Shares are more fully described in
the Registration Statement (as hereinafter defined).
The
parties hereby confirm as follows their agreements with each
other.
1.
Agreement to Act as Placement Agent . On the basis of
the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions of
this Agreement, the Placement Agent agrees to act as the
Company’s exclusive placement agent in connection with the
issuance and sale, on a best efforts basis, by the Company of the
Units to the Investors. The Placement Agent is not required
to sell any particular number of Units pursuant to this Agreement
or to purchase any Units. The Company shall pay to the
Placement Agent 1.8% of the proceeds received by the Company from
the sale of the Units as set forth on the cover page of the
Prospectus (as hereinafter defined) completed on or prior to March
31, 2005.
2.
Delivery and Payment . At 10:00 a.m., New
York City time, on March 31, 2005, or at such other time on such
other date as may be approved by the Company in its sole discretion
(such date is hereinafter referred to as the “Closing
Date”), the Placement Agent shall have instructed the
Investors to wire an amount equal to the price per Unit as shown on
the cover page of the Prospectus (as hereinafter defined) to an
account designated by the Company and the Company shall deliver the
Units to the Investors, which delivery may be made through the
facilities of the Depository Trust Company. The closing (the
“Closing”) shall take place at the office of Morrison
& Foerster LLP at 1290 Avenue of the Americas, New York, New
York 10104. All actions taken at the Closing shall be deemed
to have occurred simultaneously.
21
Certificates
evidencing the Offered Shares and the Offered Warrants shall be in
definitive or electronic form and shall be registered in such names
and in such denominations as the Placement Agent shall request by
written notice to the Company.
3.
Representations and Warranties of the Company . The
Company represents and warrants and covenants to the Placement
Agent that:
(a) The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a “shelf” registration
statement on Form S-3 (Registration No. 333-17230), which has
become effective, relating to the Units and the Warrant Shares and
certain other securities of the Company, under the Securities Act
of 1933, as amended (the “Act”), and the rules and
regulations (collectively referred to as the “Rules and
Regulations”) of the Commission promulgated thereunder.
The registration statement, as amended at the time it became
effective, including the exhibits, and the documents incorporated
by reference therein and the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant
to Rule 430A or 434(d) under the Act, is hereinafter referred to as
the “Registration Statement.” No stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the Company’s knowledge, no proceeding for
that purpose has been initiated or threatened by the
Commission. The Company, if required by the Rules and
Regulations of the Commission, proposes to file the Prospectus (as
defined below) with the Commission pursuant to Rule 424(b) of the
Rules and Regulations. The Prospectus, in the form in which
it is to be filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, or, if the Prospectus is not to be filed
with the Commission pursuant to Rule 424(b), the Prospectus in the
form included as part of the Registration Statement at the time the
Registration Statement became effective, is hereinafter referred to
as the “Prospectus,” except that if any revised
prospectus or prospectus supplement shall be provided to the
Placement Agent by the Company for use in connection with the
offering and sale of the Units which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the
Rules and Regulations), the term “Prospectus” shall
refer to such revised prospectus or prospectus supplement, as the
case may be, from and after the time it is first provided to the
Placement Agent for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration
Statement or filed with the Commission pursuant to Rule 424 under
the Act is hereinafter called a “Preliminary
Prospectus.” Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) on or before the last to occur of the
effective date of the Registration Statement, the date of the
Preliminary Prospectus, or the date of the Prospectus, and any
reference herein to the terms “amend”,
“amendment” or “supplement” with respect to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include (i) the filing
of any document under the Exchange Act after the effective date of
the Registration Statement, the date of such Preliminary Prospectus
or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so
filed.
22
(b) When
the Registration Statement became effective, upon the filing or
first delivery to the Investors of the Prospectus, as of the date
hereof, and at the Closing Date, the Registration Statement (and
any post-effective amendment thereto) and the Prospectus (as
amended or as supplemented if the Company shall have filed with the
Commission any amendment or supplement to the Registration
Statement or the Prospectus) contained and will contain all
statements which are required to be stated therein in accordance
with the Act and the Rules and Regulations, complied and will
comply in all material respects with the Act and the Rules and
Regulations, and did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein (in
the light of the circumstances under which they were made, in the
case of the Prospectus) not misleading, each Preliminary
Prospectus, as of the date filed with the Commission, did not
include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that no
representation or warranty is made in this Section 3(b) with
respect to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
expressly for inclusion in any Preliminary Prospectus, the
Registration Statement, or the Prospectus, or any amendment or
supplement thereto, as stated in Section 7(b) hereof. The
Company has not distributed any offering material in connection
with the offering and sale of the Units, other than the
Registration Statement, the Preliminary Prospectus and the
Prospectus.
(c) The
Company is, and at the Closing Date will be, duly organized,
validly existing and in good standing under the laws of
Delaware. The Company has, and at the Closing Date will have,
full corporate power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by
it and to conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, in the most recent Preliminary Prospectus). The
Company is, and at the Closing Date will be, duly licensed or
qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary,
except where the failure to be so qualified or in good standing or
have such power or authority would not reasonably be expected to
have, individually or in the aggregate, a material adverse effect
on or affecting the business, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its Subsidiaries (as defined below) taken as a whole (a
“Material Adverse Effect”). Except as disclosed
in the Registration Statement, the Company does not own, and at the
Closing Date will not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership,
joint venture, association or other entity. Complete and
correct copies of the articles or certificate of incorporation and
of the bylaws of the Company and all amendments thereto have been
delivered to the Placement Agent, and no changes therein will be
made subsequent to the date hereof and prior to the Closing
Date. Each of the Company’s
23
“significant
subsidiaries,” as that term is defined in Rule 1-02 of
Regulation S-X (the “Subsidiaries”) has been duly
organized and is validly existing as a corporation in good standing
under the law of its respective jurisdiction of formation.
Each of the Subsidiaries is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the character
or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good
standing which will not reasonably be expected to have a material
effect on the Subsidiaries. All of the shares of issued
capital stock set forth on Schedule 3(c) as owned by the Company
are owned free and clear of any lien, encumbrance, claim, security
interest, restriction on transfer, shareholders’ agreement,
voting trust other defect of title whatsoever.
(d) The
issued and outstanding shares of capital stock of the Company have
been validly issued, are fully paid and nonassessable and, other
than as set forth in the Registration Statement, are not subject to
any preemptive or similar rights. Except as set forth in the
Registration Statement and the Prospectus such shares are not
subject to any preemptive or similar rights. The Company has
an authorized, issued and outstanding capitalization as set forth
in the Prospectus as of the dates referred to therein. The
description of the securities of the Company in the Registration
Statement and the Prospectus is, and at the Closing Date will be,
complete and accurate in all respects. Except as set forth in
the Registration Statement and the Prospectus, as of the date
referred to therein, the Company did not have outstanding any
options to purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or exchangeable
for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities.
(e) The
Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby and
thereby. This Agreement has been duly authorized and validly
executed and delivered by the Company and is a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency or similar laws affecting creditors’
rights generally and equitable principles of general
applicability.
(f) The
issuance and sale of the Units have been duly authorized by the
Company, and the Units, when issued and paid for in accordance with
this Agreement, will be duly and validly issued, fully paid and
nonassessable and will not be subject to preemptive or similar
rights. The Warrant Shares have been duly authorized and
reserved for issuance pursuant to the terms of the Warrants and,
when issued and delivered by the Company upon valid exercise of the
Warrants and payment of the exercise price will be duly and validly
issued, fully paid, and nonassessable and will not be subject to
preemptive or similar rights. The holders of the Units will
not be subject to personal liability by reason of being such
holders. The Units and the Warrant Shares, when issued, will
conform in all material respects to the description thereof set
forth in or incorporated into the Prospectus.
(g) The
financial statements and the related notes included in the
Registration Statement and the Prospectus present fairly, in all
material respects, the financial condition of the Company and
its Subsidiaries as of the dates thereof and the results of its
operations and cash flows at the dates and for the periods covered
thereby in conformity with
24
generally accepted accounting
principles (“GAAP”). No other financial
statements or schedules of the Company, the Subsidiaries or any
other entity are required by the Act or the Rules and Regulations
to be included in the Registration Statement or the
Prospectus. PricewaterhouseCoopers LLP (the
“Accountants”), who have reported on such financial
statements and schedules, are independent accountants with respect
to the Company as required by the Act and the Rules and
Regulations. The financial statements of the Company and its
Subsidiaries and the related notes and schedules included or
incorporated by reference in the Registration Statement and the
Prospectus have been prepared in conformity with the requirements
of the Act and the Rules and Regulations and present fairly in all
material respects the information shown therein.
(h) The
Company is, and at the Closing Date will be, in material compliance
with all provisions of the Sarbanes-Oxley Act of 2002 which are
applicable to it. The Company and its Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(i) Except
as set forth in or otherwise contemplated by the Registration
Statement (exclusive of any amendment thereof) or the Prospectus
(exclusive of any supplement thereto), since the date of the most
recent financial statements of the Company included or incorporated
by reference in the Registration Statement and the Prospectus and
prior to Closing, (i) there has not been and will not have been any
change in the capital stock of the Company (except for changes in
the number of outstanding shares of Common Stock of the Company due
to the issuance of shares upon the exercise of stock options or
upon the grant of restricted stock to the Company’s
directors, the issuance of shares pursuant to the Company’s
employee stock purchase plan or the Company’s deferred
compensation plan for directors, or the issuance of shares pursuant
to the conversion of the Company’s outstanding debentures) or
long-term debt of the Company or its Subsidiaries (other than
changes resulting from the repurchase by the Company of its
outstanding debentures) or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change, or any
development that would reasonably be expected to result in a
Material Adverse Effect; (ii) neither the Company nor its
Subsidiaries have entered or will enter into any transaction or
agreement, not in the ordinary course of business, that is material
to the Company and its Subsidiaries taken as a whole or incurred or
will incur any liability or obligation, direct or contingent, not
in the ordinary course of business, that is material to the Company
and its Subsidiaries taken as a whole; and (iii) neither the
Company nor its Subsidiaries have sustained or will sustain any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement and the Prospectus.
25
(j) The
Company and its Subsidiaries have good and valid title to all items
of real property and good and valid title to all personal property
described in the Registration Statement or the Prospectus as being
owned by them that are material to the businesses of the Company
and its Subsidiaries taken as a whole, in each case free and clear
of all liens, encumbrances and claims except those that (i) do not
materially interfere with the use made and proposed to be made of
such property by the Company and its Subsidiaries or (ii) would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. Any real property described in the
Registration Statement or the Prospectus as being leased by the
Company and its Subsidiaries that is material to the business of
the Company and its Subsidiaries taken as a whole is held by them
under valid, existing and enforceable leases, except those that (A)
do not materially interfere with the use made or proposed to be
made of such property by the Company or its Subsidiaries or (B)
would not be reasonably expected, individually or in the aggregate,
to have a Material Adverse Effect.
(k) The
Company is not, nor upon completion of the transactions
contemplated herein will it be, an “investment company”
or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended (the “Investment Company
Act”).
(l) Except
as disclosed in or contemplated by the Registration Statement or
the Prospectus, there are no legal, governmental or regulatory
actions, suits or proceedings pending, nor, to the Company’s
knowledge, any legal, governmental or regulatory investigations, to
which the Company or its Subsidiaries is a party or to which any
property of the Company or its Subsidiaries is the subject that,
individually or in the aggregate, if determined adversely to the
Company or its Subsidiaries, would reasonably be expected to have a
Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement; to the Company’s knowledge, no such actions, suits
or proceedings are threatened or contemplated by any governmental
or regulatory authority or threatened by others; and to the
Company’s knowledge, there are no current or pending legal,
governmental or regulatory investigations, actions, suits or
proceedings that are required under the Act to be described in the
Prospectus that are not so described.
(m) The
Company and its Subsidiaries have, and at the Closing Date will
have, (i) all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its
business as presently conducted except where the failure to have
such governmental licenses, permits, consents, orders, approvals
and other authorizations would not have a Material Adverse Effect,
(ii) complied with all laws, regulations and orders applicable to
either it or its business, except where the failure to so comply
would not have a Material Adverse Effect, and (iii) performed all
its obligations required to be performed, and is not, and at the
Closing Date will not be, to the Company’s best knowledge, in
default, under any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement, lease,
contract or other agreement or instrument (collectively, a
“contract or other agreement”) to which it is a party
or by which its
26
property is bound or affected,
except as otherwise set forth in the Registration Statement and the
Prospectus and except where such default would not have a Material
Adverse Effect, and, to the Company’s best knowledge, no
other party under any material contract or other agreement to which
it is a party is in default in any respect thereunder. The
Company and its Subsidiaries are not in violation of any provision
of its organizational or governing documents.
(n) The
Company has all corporate power and authority to enter into this
Agreement, and to carry out the provisions and conditions hereof
and thereof, and all consents, authorizations, approvals and orders
required in connection herewith and therewith have been obtained,
except such as may be required under Nasdaq listing rules, which
such approvals will be applied for promptly, and such as may be
required under state securities or Blue Sky Laws or the by-laws and
rules of the National Association of Securities Dealers, Inc. (the
“NASD”) in connection with the purchase and
distribution of the Units and the Warrant Shares by the Placement
Agent.
(o) Neither
(i) the issuance, offering and sale of the Units and the
Warrant Shares pursuant hereto, nor (ii) the compliance by the
Company with the other provisions hereof require the consent,
approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained, such
as may be required under state securities or Blue Sky laws or the
bylaws and rules of the NASD and, if the Registration Statement is
not effective under the Act as of the time of execution hereof,
such as may be required (and shall be obtained as provided in this
Agreement) under the Act.
(p) Neither
the execution of the this Agreement, nor the issuance, offering or
sale of the Units and the Warrant Shares, nor the compliance by the
Company with the terms and provisions hereof, will conflict with,
or will result in a breach of, any of the terms and provisions of,
or has constituted or will constitute a default under, or has
resulted in or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or its Subsidiaries pursuant to the terms of any contract
or other agreement to which the Company or its Subsidiaries may be
bound or to which any of the property or assets of the Company or
its Subsidiaries is subject, except such conflicts, breaches or
defaults as may have been waived; nor will such action result in
any violation of the provisions of the organizational or governing
documents of the Company or its Subsidiaries, or any statute or any
order, rule or regulation applicable to the Company or its
Subsidiaries or of any court or of any federal, state or other
regulatory authority or other government body having jurisdiction
over the Company or its Subsidiaries.
(q) There
is no document or contract of a character required to be described
in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or
filed as required. All such contracts to which the Company is
a party have been duly authorized, executed and delivered by the
Company, constitute valid and binding agreements of the Company,
and are enforceable against the Company in accordance with the
terms thereof, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights
generally and equitable principles of general
applicability.
27
(r) No
statement, representation or warranty made by the Company in this
Agreement or made in any certificate or document required by the
this Agreement to be delivered to the Placement Agent or the
Investors was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(s) Neither
the Company nor, to the Company’s knowledge, its directors,
officers or controlling persons has taken, directly or indirectly,
any action intended, or which might reasonably be expected, to
cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Units.
(t) No
holder of securities of the Company has rights to the registration
of any securities of the Company as a result of the filing of the
Registration Statement, other than rights which are not exercisable
due to the Placement Agent’s determination to include only
securities sold directly from the Company, except for such rights
as have been waived or those other rights which have been disclosed
to the Placement Agent.
(u) The
Common Stock is currently listed on the Nasdaq National Market
(“Nasdaq”). The Company has not, in the 12 months
preceding the date hereof, received notice from Nasdaq to the
effect that the Company is not in compliance with the listing or
maintenance requirements of Nasdaq. The Company is, and has no
reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance
requirements.
(v) The
Company is not involved in any material labor dispute nor is any
such dispute known by the Company to be threatened.
(w) Except
as set forth in the Registration Statement and the Prospectus, the
business and operations of the Company have been and are being
conducted in compliance with those laws, ordinances, rules,
regulations, licenses, permits, approvals, plans, authorizations or
requirements relating to occupational safety and health, or
pollution, or protection of health or the environment normally
applicable to companies engaged in the types of business engaged in
by the Company (including, without limitation, those relating to
emissions, discharges, releases or threatened releases of
pollutants, contaminants or hazardous or toxic substances,
materials or wastes into ambient air, surface water, groundwater or
land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes, whether solid, gaseous or liquid
in nature) of any governmental department, commission, board,
bureau, agency or instrumentality of the United States, any state
or political subdivision thereof, or any foreign jurisdiction, and
all applicable judicial or administrative agency or regulatory
decrees, awards, judgments and orders relating thereto, except
where the failure to be in such compliance would not, individually
or in the aggregate, have a Material Adverse Effect; and the
Company has not received any notice from any governmental
instrumentality or any third party alleging any material violation
thereof or liability thereunder (including, without limitation,
liability for costs of investigating or remediating sites
containing hazardous substances and/or damages to natural
resources).
28
(x) Except
as disclosed in or specifically contemplated by the Registration
Statement, (i) the Company owns or has obtained valid and
enforceable licenses or options for the inventions, patent
applications, patents, trademarks (both registered and
unregistered), tradenames, copyrights and trade secrets necessary
for the conduct of the Company’s business as currently
conducted and as described in the Registration Statement
(collectively, the “Intellectual Property”); and (ii)
to the Company’s knowledge (for each of the following
subsections (a) through (e)): (a) there are no third parties
who have any ownership rights to any Intellectual Property that is
owned by, or has been licensed to, the Company for the products and
services described in the Registration Statement that would
preclude the Company from conducting its businesses as described in
the Registration Statement, except for the ownership rights of the
owners of the Intellectual Property licensed or optioned by the
Company; (b) there are currently
