This Waiver Agreement (the “ Agreement ”) dated as of June 30, 2011 among Emisphere Technologies, Inc., a Delaware corporation (the “ Company ”), and each of the investors identified on the signature pages hereto (collectively, “ MHR ”).
WHEREAS, concurrently herewith the Company has entered into two Securities Purchase Agreements with those certain investors listed on the “Schedule of Buyers” thereto (collectively, the “ Securities Purchase Agreements ”) pursuant to which the Company has agreed to issue and sell to the investors (the “Investors”) thereto and the Investors have agreed to purchase, in each case subject to the conditions therein, an aggregate of 4,300,438 shares (the “ Shares ”) of its common stock, par value $0.01 per share (the “ Common Stock ”), and warrants to purchase 3,010,307 shares of Common Stock (the “ Warrants ”, and together with the Shares, the “ Securities ”) in a private placement (the “ Private Placement ”).
WHEREAS, as a result of prior transactions and agreements between MHR and the Company, the issuance of the Securities in connection with the Private Placement would trigger certain anti-dilution adjustments provided to MHR pursuant to the 11% Senior Secured Convertible Notes, dated as of September 26, 2005, as amended (the “ Notes ”) and Warrant Nos. A-12, A-13, A-14 and A-15, each dated as of September 21, 2006, issued by Company and Warrant Nos. A-34, A-35, A-36 and A-37, each dated June 8, 2010, issued by the Company (the “ Existing Warrants ”) .
WHEREAS, the provisions of the Registration Rights Agreements between the Company and MHR, dated as of September 30, 2005 (the “ Registration Rights Agreement ”) restrict the ability of the Company to grant registration rights.
WHEREAS, in exchange for the consideration provided herein, MHR agrees to, in connection with the Private Placement to the Investors, waive its Adjustment and Registration Right Restriction (as defined below).
NOW, THEREFORE, in consideration of the terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
A. This Agreement will become effective upon the Closing (as such term is defined in the Securities Purchase Agreements) (the “ Effective Date ”). If a Closing does not occur or if the Securities Purchase Agreements are terminated in accordance with their terms and provisions prior to the occurrence of the Closing this Agreement will become void ab initio, without any liability of any of the parties hereto under this Agreement.
B. In consideration for MHR’s waiver of its Adjustment and Registration Right Restriction, the Company shall: (1) issue to MHR Warrants to purchase 795,000 shares of Common Stock on the same terms and conditions as the Warrants iss