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If the form is filed by more than one reporting person, see Instruction 5(b)(v). |
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Intentional misstatements or omissions of facts constitute Federal Criminal Violations. See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). |
(1) |
This Form 3 is being filed to report that MHRC II LLC, a Delaware limited liability company ("MHRC II"), became a beneficial owner of greater than 10% of the outstanding shares of common stock (the "Common Stock") of Emisphere Technologies, Inc. (the "Issuer") solely as a result of a transfer of Mark H. Rachesky, M.D.'s ("Dr. Rachesky") membership interests in MHR Institutional Advisors II LLC, a Delaware limited liability company ("Institutional Advisors II") to MHRC II. |
(2) |
These shares of Common Stock consist of (i) 3,240,750 shares of Common Stock held for the account of MHR Institutional Partners II LP, a Delaware limited partnership ("Institutional Partners II"), and (ii) 8,164,436 shares of Common Stock held for the account of MHR Institutional Partners IIA LP, a Delaware limited partnership ("Institutional Partners IIA", and, together with Institutional Partners II, the "Funds"). |
(3) |
Institutional Advisors II is the general partner of each of the Funds. In such capacity, Institutional Advisors II may be deemed to beneficially own the shares of Common Stock held for the account of each of the Funds. MHRC II is the managing member of Institutional Advisors II. In such capacity, MHRC II may be deemed to beneficially own the shares of Common Stock held for the account of each of the Funds. |
(4) |
Convertible Notes are exercisable immediately upon receipt thereof by the Reporting Persons. |
(5) |
The maturity date under the Convertible Notes was on September 26, 2012. As reported by the Issuer on Form 8-K, dated September 26, 2012, the Issuer did not pay the amounts due and payable under the Convertible Notes on the maturity date. |
(6) |
These Convertible Notes are convertible into (i) 1,830,292 shares of Common Stock that can be obtained by Institutional Partners II, and (ii) 4,611,065 shares of Common Stock that can be obtained by Institutional Partners IIA. |
(7) |
These warrants are exercisable into (i) 818,011 shares of Common Stock that can be obtained by Institutional Partners II, and (ii) 2,060,818 shares of Common Stock that can be obtained by Institutional Partners IIA. |
(8) |
These warrants are exercisable into (i) 189,525 shares of Common Stock that can be obtained by Institutional Partners II, and (ii) 477,472 shares of Common Stock that can be obtained by Institutional Partners IIA. |
(9) |
These warrants are exercisable into (i) 795,610 shares of Common Stock that can be obtained by Institutional Partners II, and (ii) 2,004,381 shares of Common Stock that can be obtained by Institutional Partners IIA. |
(10) |
These warrants are exercisable into (i) 732,696 shares of Common Stock that can be obtained by Institutional Partners II, and (ii) 1,845,886 shares of Common Stock that can be obtained by Institutional Partners IIA. |