THIS WARRANT
AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS AND MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT
COVERING SUCH SECURITIES UNDER THE SECURITIES ACT AND ANY OTHER
APPLICABLE SECURITIES LAWS, OR (2) AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
IN ADDITION,
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE
THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL
TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION
OF SUCH SECURITIES BY ANY PERSON PRIOR TO OCTOBER 1, 2012, EXCEPT
IN ACCORDANCE WITH FINRA RULE 5110(G)(2).
Form of Warrant for Rodman
& Renshaw, LLC
EMISPHERE TECHNOLOGIES,
INC.
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Warrant No.
___
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Original Issue Date: August ___,
2009
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EMISPHERE
TECHNOLOGIES, INC. , a Delaware corporation (the “
Company ”), hereby certifies that, for value
received, ___or its permitted registered assigns (the “
Holder ”), is entitled to purchase from the
Company up to a total of ___shares of common stock, $0.01 par value
(the “ Common Stock ”), of the Company
(each such share, a “ Warrant Share ” and
all such shares, the “ Warrant Shares ”)
at an exercise price equal to $0.875 per share (as adjusted from
time to time as provided herein, the “ Exercise
Price ”), at any time and from time to time on or
after the Original Issue Date and through and including
October 1, 2012 (the “ Expiration Date
” ), and subject to the following terms and
conditions:
This warrant (the
“ Warrant ”) is issued pursuant to that
certain Letter Agreement dated August 19, 2009, by and between the
Company and Rodman & Renshaw, LLC, as placement agent for an
offering of Common Stock of the Company (the “
Placement Agreement ”).
1.
Definitions . In addition to the terms defined elsewhere in
this Warrant, capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Securities
Purchase Agreement, dated August 19, 2009, among the Company
and the purchasers signatory thereto.
2. List
of Warrant Holders . The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the
“ Warrant Register ”), in the name of the
record Holder (which shall include the initial Holder or, as the
case may be, any registered assignee to which this Warrant is
permissibly assigned hereunder from time to time). The Company may
deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent
actual notice to the contrary.
3. List
of Transfers; Restrictions on Transfer .
(a) This
Warrant, each Warrant issued upon transfer or in substitution for
this Warrant and the Warrant Shares are subject to the restrictions
on transfer set forth in this Section 3. Each of the foregoing
securities shall be stamped or otherwise imprinted with a legend
reflecting the restrictions on transfer set forth herein and any
restrictions required under the Securities Act or other applicable
securities laws.
(b) For a
period of six months after the issuance date of this Warrant (which
shall not be earlier than the closing date of the offering pursuant
to which this Warrant is being issued), neither this Warrant nor
any Warrant Shares issued upon exercise of this Warrant shall be
sold, transferred, assigned, pledged, or hypothecated, or be the
subject of any hedging, short sale, derivative, put, or call
transaction that would result in the effective economic disposition
of the securities by any person for a period of 180 days
immediately following the date of effectiveness or commencement of
sales of the offering pursuant to which this Warrant is being
issued, except the transfer of any security:
(i) by operation
of law or by reason of reorganization of the Company;
(ii) to any FINRA
member firm participating in the offering and the officers or
partners thereof, if all securities so transferred remain subject
to the lock-up restriction in this Section 3 for the remainder
of the time period;
(iii) if the
aggregate amount of securities of the Company held by the Holder or
related person do not exceed 1% of the securities being
offered;
(iv) that is
beneficially owned on a pro-rata basis by all equity owners of an
investment fund, provided that no participating member manages or
otherwise directs investments by the fund, and participating
members in the aggregate do not own more than 10% of the equity in
the fund; or
(v) the exercise
or conversion of any security, if all securities received remain
subject to the lock-up restriction in this Section 3 for the
remainder of the time period.
(c) The
Company shall register any such transfer of all or any portion of
this Warrant made in compliance with the terms hereof in the
Warrant Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the
Company at its address specified herein. Upon any such registration
or transfer, a new Warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new Warrant, a
“ New Warrant ”), evidencing the portion
of this Warrant so transferred shall be issued to the transferee
and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring
Holder. The acceptance of the New Warrant by the transferee thereof
shall be deemed the acceptance by such transferee of all of the
rights and obligations in respect of the New Warrant that the
Holder has in respect of this Warrant.
(d) Prior to
any transfer of any securities which are not registered under an
effective registration statement under the Securities Act, which
transfer may only occur if there is an exemption from the
registration provisions of the Securities Act and all other
applicable securities laws and otherwise in compliance with the
terms of this Warrant, , the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of
this Warrant, as the case may be, furnish to the Company a written
opinion of counsel (which opinion shall be in form, substance and
scope customary for opinions of counsel in comparable transactions)
to the effect that such transfer may be made without registration
under the Securities Act and under applicable state securities or
blue sky laws, (ii) that the holder or transferee execute and
deliver to the Company an investment letter in form and substance
acceptable to the Company and (iii) that the transferee be an
“accredited investor” as defined in Rule 501(a)
promulgated under the Securities Act.
4.
Exercise and Duration of Warrants .
(a) All or
any part of this Warrant shall be exercisable by the registered
Holder in any manner permitted by Section 10 of this Warrant
at any time and from time to time on or after the lock-up period
described in Section 3 hereof and through and including the
Expiration Date. Subject to Section 11 hereof, at 5:00 p.m.,
New York City time, on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of
no value and this Warrant shall be terminated and no longer
outstanding. In addition, if cashless exercise would be permitted
under Section 10(b) of this Warrant, then all or part of this
Warrant may be exercised by the registered Holder
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utilizing such
cashless exercise provisions at any time, or from time to time, on
or after the Original Issue Date and through and including the
Expiration Date.
(b) The
Holder may exercise this Warrant by delivering to the Company
(i) an exercise notice, in the form attached hereto (the
“ Exercise Notice ”), completed and duly
signed, and (ii) if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, payment of the
Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised. The date such items are delivered to
the Company (as determined in accordance with the notice provisions
hereof) is an “ Exercise Date .” The
Holder shall not be required to deliver the original Warrant in
order to effect an exercise hereunder. Execution and delivery of
the Exercise Notice shall have the same effect as cancellation of
the original Warrant and issuance of a New Warrant evidencing the
right to purchase the remaining number of Warrant Shares.
Additionally, at the request of the Holder, if this Warrant shall
have been exercised in part and the Holder shall have surrendered
this Warrant certificate, the Company shall, at the time of
delivery of the certificate or certificates representing Warrant
Shares, deliver to Holder a new Warrant evidencing the rights of
Holder to purchase the unpurchased Warrant Shares called for by
this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
5.
Delivery of Warrant Shares .
(a) Upon
exercise of this Warrant, the Company shall promptly (but in no
event later than three Trading Days after the Exercise Date) issue
or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder
may designate (provided that, if a registration statement is not
then effective and the Holder directs the Company to deliver a
certificate for the Warrant Shares in a name other than that of the
Holder or an Affiliate of the Holder, it shall deliver to the
Company on the Exercise Date an opinion of counsel reasonably
satisfactory to the Company to the effect that the issuance of such
Warrant Shares in such other name may be made pursuant to an
available exemption from the registration requirements of the
Securities Act and all applicable state securities or blue sky
laws), a certificate for the Warrant Shares issuable upon such
exercise, free of restrictive legends unless a registration
statement is not then effective or the Warrant Shares are not
freely transferable without volume restrictions or current public
information requirements pursuant to Rule 144 under the
Securities Act. The Holder, or any Person permissibly so designated
by the Holder to receive Warrant Shares, shall be deemed to have
become the holder of record of such Warrant Shares as of the
Exercise Date. If the Warrant Shares can be issued without
restrictive legends, the Company shall, upon the written request of
the Holder, use its best efforts to deliver, or cause to be
delivered, Warrant Shares hereunder electronically through the
Depository Trust and Clearing Corporation DWAC system or another
established clearing corporation performing similar functions, if
available; provided, that, the Company may, but will not be
required to, change its transfer agent if its current transfer
agent cannot deliver Warrant Shares electronically through the
Depository Trust and Clearing Corporation.
(b) If by the
close of the third Trading Day after delivery of an Exercise
Notice, the Company fails to deliver to the Holder a certificate
representing the required number of Warrant Shares in the manner
required pursuant to Section 5(a), and if after such third
Trading Day and prior to the receipt of such Warrant Shares, the
Holder purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the
Holder of the
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Warrant Shares
which the Holder anticipated receiving upon such exercise (a
“ Buy-In ”), then the Company shall,
within three Trading Days after the Holder’s request and in
the Holder’s sole discretion, either (1) pay in cash to
the Holder an amount equal to the Holder’s total purchase
price (including brokerage commissions, if any) for the shares of
Common Stock so purchased (the “ Buy-In Price
”), at which point the Company’s obligation to deliver
such certificate (and to issue such Warrant Shares) shall terminate
or (ii) promptly honor its obligation to deliver to the Holder
a certificate or certificates representing such Warrant Shares and
pay cash to the Holder in an amount equal to the excess (if any) of
the Buy-In Price over the product of (A) such number of
Warrant Shares, times (B) the closing bid price on the date of
the event giving rise to the Company’s obligation to deliver
such certificate.
(c) To the
extent permitted by law, the Company’s obligations to issue
and deliver Warrant Shares in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any
obligation to the Company or any violation or alleged violation of
law by the Holder or any other Person, and irrespective of any
other circumstance that might otherwise limit such obligation of
the Company to the Holder in connection with the issuance of
Warrant Shares. Nothing herein shall limit a Holder’s right
to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing
shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
6.
Charges, Taxes and Expenses . Issuance and delivery of
certificates for shares of Common Stock upon exercise of this
Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company; provided, however , that the Company shall not be
required to pay any tax that may be payable in respect of any
transfer involved in the registration of any certificates for
Warrant Shares or Warrants in a name other than that of the Holder.
The Holder shall be responsible for all other tax liability that
may arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
7.
Replacement of Warrant . If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation hereof, or
in lieu of and substitution for this Warrant, a New Warrant, but
only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and
reasonable indemnity (which shall not include a surety bond), if
requested. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the
Company may prescribe. If a New Warrant is requested as a result of
a mutilation of this Warrant, then the Holder shall deliver such
mutilated Warrant to the Company as a condition precedent to the
Company’s obligation to issue the New Warrant.
8.
Reservation of Warrant Shares . The Company covenants that
it will at all times
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reserve and
keep available out of the aggregate of its authorized but unissued
and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant
as herein provided, the number of Warrant Shares that are then
issuable and deliverable upon the exercise of this entire Warrant,
free from preemptive rights or any other contingent purchase rights
of pers
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