EXHIBIT 10.4
AMENDMENT TO WARRANT A3
This Amendment (this "Amendment") is dated as of September 26, 2005 and
amends the Warrant numbered A3, dated as of March 31, 2005 (the "Warrant"),
issued by Emisphere Technologies Inc., a Delaware corporation (the "Company"),
to MHR Capital Partners (100) LP, a Delaware limited partnership ("MHR").
WITNESSETH
WHEREAS, the Company previously issued to MHR the Warrant to purchase
114,114 shares of common stock of the Company, $0.01 par value per share (the
"Common Stock"); and
WHEREAS, the Company and MHR hereby wish to amend the terms of the Warrant
pursuant to Section 13(a) of the Warrant on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION I
AMENDMENT TO THE WARRANT
(a) Section 7(e)(i)(A)(1) of the Warrant is hereby amended in the
following manner:
(i) inserting the phrase "in effect on or prior to September 26,
2005 and" immediately after the phrase "stock option or stock purchase
plans or agreements"; and
(ii) inserting the phrase "and granted, sold or awarded in the
ordinary course of business and consistent with past practice" after the
phrase "approved by the Company's Board of Directors" and immediately
prior to the semicolon.
(b) Section 7(e)(i)(A)(2) of the Warrant is hereby deleted in its entirety
and replaced with the following:
for an aggregate consideration (determined pursuant to Section 7(e)(v)
hereof) of not more than $10,000,000 during any 24-month period;
(c) Section 7(e)(iv) is hereby amended in the following manner:
(i) by deleting the word "In" and adding a "(a) Subject to the last
sentence of subsection (b) below, in ..." at the beginning of the first
sentence;
(ii) by deleting the phrase "Exercise Price in effect on the date of
and" in the fourth line of the first sentence and replacing it with
"closing price per Share of Common Stock as reported on a publicly traded
exchange ("MARKET PRICE") on the last full trading day";
(iii) by deleting the phrase "Exercise Price" in the tenth line of
the first sentence and replacing it with "Market Price";
(iv) by adding the following new subsection after the second
paragraph of Section 7(e)(iv):
(b) In the event the Company, at any time while this Warrant is
outstanding, shall issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Section
7(e)(iii)) with a purchase price, conversion price or exercise price,
respectively, that is less than the Exercise Price in effect immediately
prior to the time of such issuance or sale, then and in each such case the
then-existing Exercise Price shall be reduced, as of the close of business
on the effective date of such issuance or sale, to the lowest purchase
price, conversion price or exercise price at which any Additional Shares
of Common Stock were issued or sold. In the event that both subsections
(iv)(a) and (iv)(b) hereof may apply to any issuance, sale or deemed
issuance or sale, then only this section (b) shall be deemed to apply to
such transaction.
(d) Section 7(j) is hereby amended and replaced in its entirety by the
following:
Notwithstanding anything to the contrary in this Section 7, in
no event will this Warrant be exercisable for a number of Warrant Shares
that would cause the Holder's beneficial ownership of the outstanding
Common Stock, Convertible Securities or Options, together with any
affiliates of the Holder, to exceed 19.9% of the sum of (a) the number of
Warrant Shares and (b) the issued and outstanding shares of Common Stock
of the Company prior to any such exercise. In the event any exercise of
this Warrant would contravene this provision, the number of shares of
Common Stock for which this Warrant would otherwise be exercisable shall
automatically be reduced accordingly.
SECTION II
MISCELLANEOUS
(a) Ratification. Except as expressly amended hereby, all of the
provisions of the Warrant shall otherwise remain in full force and effect to the
same extent as if fully set forth herein.
(b) Separate Counterparts. This Amendment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall constitute but one and the
same instrument.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
EMISPHERE TECHNOLOGIES, INC.
By: /s/ Elliot M. Maza
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Name: Elliot M. Maza
Title: Chief Financial Officer
MHR CAPITAL PARTNERS (100) LP
By: MHR Advisors LLC, its general partner
By:/s/ Hal Goldstein
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Name: Hal Goldstein
Title: Authorized Signatory