SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Rule 13d-101
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
§ 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO § 240.13d-2(a)
(Amendment No. 29)*
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Emisphere Technologies, Inc.
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(Name of Issuer)
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Common Stock, Par Value $.01 Per Share
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(Title of Class of Securities)
(CUSIP Number)
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Janet Yeung
MHR Fund Management LLC
1345 Avenue of the Americas, 42
nd
Floor
New York, New York 10105
(212) 262-0005
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of
§§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐.
Note
: Schedules filed in paper format
shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
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*
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The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
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The information
required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“
Act
”) or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see the Notes).
Continued on following pages
(Page
1
of 14 Pages)
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CUSIP No.:
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291345106
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13D
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Page
2
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR CAPITAL PARTNERS MASTER ACCOUNT LP
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Anguilla, British West
Indies
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
22,544,146
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
22,544,146
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
22,544,146
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
29.2%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
PN
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CUSIP No.:
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291345106
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13D
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Page
3
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR ADVISORS LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
25,580,440
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
25,580,440
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
25,580,440
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
32.2%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
OO
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CUSIP No.:
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291345106
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13D
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Page
4
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS II LP
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
19,038,877
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
19,038,877
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
19,038,877
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
24.8%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
PN
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CUSIP No.:
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291345106
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13D
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Page
5
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS IIA LP
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
47,965,212
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
47,965,212
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
47,965,212
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
47.7%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
PN
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CUSIP No.:
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291345106
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13D
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Page
6
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR INSTITUTIONAL ADVISORS II LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
67,004,089
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
67,004,089
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
67,004,089
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
57.5%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
OO
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CUSIP No.:
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291345106
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13D
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Page
7
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHRC LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
25,580,440
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
25,580,440
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
25,580,440
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
32.2%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
OO
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CUSIP No.:
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291345106
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13D
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Page
8
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHRC II LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
67,004,089
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|
8
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SHARED VOTING POWER
0
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|
9
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SOLE DISPOSITIVE POWER
67,004,089
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|
10
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SHARED DISPOSITIVE POWER
0
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|
11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
67,004,089
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
57.5%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
OO
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CUSIP No.:
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291345106
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13D
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Page
9
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR FUND MANAGEMENT LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
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7
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SOLE VOTING POWER
92,584,529
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
92,584,529
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|
10
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SHARED DISPOSITIVE POWER
0
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|
11
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
92,584,529
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12
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
68.6%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
OO
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CUSIP No.:
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291345106
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13D
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Page
10
of 14 Pages
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1
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NAME OF REPORTING PERSONS
MHR HOLDINGS LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
|
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5
|
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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6
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
|
7
|
|
SOLE VOTING POWER
92,584,529
|
|
|
8
|
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SHARED VOTING POWER
0
|
|
|
9
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|
SOLE DISPOSITIVE POWER
92,584,529
|
|
|
10
|
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SHARED DISPOSITIVE POWER
0
|
|
11
|
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
92,584,529
|
|
12
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|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
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13
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
68.6%
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14
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TYPE OF REPORTING PERSON (See
Instructions)
OO
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CUSIP No.:
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291345106
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|
13D
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Page
11
of 14 Pages
|
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1
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NAME OF REPORTING PERSONS
MARK H. RACHESKY, M.D.
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2
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|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ☐ (b) ☒
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3
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SEC USE ONLY
|
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4
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SOURCE OF FUNDS (See
Instructions)
N/A
|
|
5
|
|
CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
|
|
6
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|
CITIZENSHIP OR PLACE OF
ORGANIZATION
United States of
America
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
|
7
|
|
SOLE VOTING POWER
93,073,827
|
|
|
8
|
|
SHARED VOTING POWER
0
|
|
|
9
|
|
SOLE DISPOSITIVE POWER
93,073,827
|
|
|
10
|
|
SHARED DISPOSITIVE POWER
0
|
|
11
|
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
93,073,827
|
|
12
|
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ☐
|
|
13
|
|
PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
68.7%
|
|
14
|
|
TYPE OF REPORTING PERSON (See
Instructions)
IN; HC
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Page
12
of 14 Pages
TABLE OF CONTENTS
Page
13
of 14 Pages
This statement on Schedule 13D (this “
Statement
”) further amends and supplements, as
Amendment No. 29, the Schedule 13D filed on October 6, 2005 (the “
Initial 13D
”), as amended by Amendment No. 1, filed on January 18, 2006 (“
Amendment No. 1
”), Amendment No. 2,
filed on May 11, 2006 (“
Amendment No. 2
”), Amendment No. 3, filed on August 20, 2007 (“
Amendment No. 3
”), Amendment No. 4, filed on August 24, 2007 (“
Amendment
No. 4
”), Amendment No. 5, filed on July 2, 2008 (“
Amendment No. 5
”), Amendment No. 6, filed on July 2, 2009 (“
Amendment No. 6
”), Amendment No. 7, filed on
August 21, 2009 (“
Amendment No. 7
”), Amendment No. 8, filed on August 25, 2009 (“
Amendment No. 8
”), Amendment No. 9, filed on June 9, 2010 (“
Amendment
No. 9
”), Amendment No. 10, filed on August 2, 2010 (“
Amendment No. 10
”), Amendment No. 11, filed on August 27, 2010 (“
Amendment No. 11
”), Amendment No. 12, filed on
December 22, 2010 (“
Amendment No. 12
”), Amendment No. 13, filed on July 1, 2011 (“
Amendment No. 13
”), Amendment No. 14, filed on July 8, 2011 (“
Amendment
No. 14
”), Amendment No. 15, filed on June 5, 2012 (“
Amendment No. 15
”), Amendment No. 16, filed on September 27, 2012 (“
Amendment No. 16
”), Amendment No. 17, filed on
October 9, 2012 (“
Amendment No. 17
”), Amendment No. 18, filed on October 19, 2012 (“
Amendment No. 18
”), Amendment No. 19, filed on January 10, 2013
(“
Amendment 19
”), Amendment No. 20, filed on April 30, 2013 (“
Amendment No. 20
”), Amendment No. 21, filed on May 9, 2013 (“
Amendment No. 21
”), Amendment No. 22,
filed on March 31, 2014 (“
Amendment No. 22
”), Amendment No. 23, filed on August 22, 2014 (“
Amendment No. 23
”), Amendment No. 24, filed on July 1, 2015 (“
Amendment No. 24
”),
Amendment No. 25, filed on October 15, 2015 (“
Amendment No. 25
”), Amendment No. 26, filed on July 5, 2016 (“
Amendment No. 26
”), Amendment No. 27, filed on December 9, 2016
(“
Amendment No. 27
”) and Amendment No. 28, filed on July 5, 2017 (“
Amendment No. 28
”, and, together with the Initial 13D and Amendment No. 1 through Amendment No. 27, the
“
Schedule 13D
”) and relates to shares of common stock, par value $0.01 per share (the “
Shares
”), of Emisphere Technologies, Inc. (the “
Issuer
”). Except as otherwise provided, defined terms used
in this Statement but not defined herein shall have the respective meanings given such terms in Amendment No. 28.
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Item 4
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Purpose of Transaction
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The information set forth in Item 6 below and Exhibit 1 to this Statement is incorporated into this Item 4 by reference.
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Item 6
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
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Item 6 is hereby amended by adding the following:
On August 14, 2017, Master Account, Capital Partners (100), Institutional Partners II and Institutional Partners IIA (collectively, the “
MHR Funds
”) entered into a letter agreement with
the Issuer whereby the MHR Funds agreed to suspend certain obligations of the Issuer pursuant to the Loan Agreement, the Pledge Agreement, the Convertible Notes, the Registration Rights Agreement and the Purchase Agreement, and the Company agreed to
provide certain limited information rights to the MHR Funds, in each case until such time as the Issuer once again becomes subject to the reporting requirements under the Exchange Act. In addition, the Company agreed that, upon the written request
of the MHR Funds, it would re-register its shares of Common Stock under the Exchange Act and file a registration statement under the Securities Act covering the registration of all or any portion of the Issuer’s securities then held by the MHR
Funds. Capitalized terms used in the foregoing paragraph have the respective meanings ascribed thereto in the letter agreement, unless otherwise defined herein. The foregoing discussion of the letter agreement is qualified in its entirety by
reference to the full text of the letter agreement, attached as Exhibit 1 to this Statement and incorporated into this Item 6 by reference.
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Item 7
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Material to Be Filed as Exhibits
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Exhibit
No.
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Description
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1
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Letter agreement, dated as of August 14, 2017, by and among the Issuer, MHR Capital Partners Master Account LP, MHR Capital Partners (100) LP, MHR Institutional Partners II LP and
MHR Institutional Partners IIA LP.
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Page
14
of 14 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this
Statement is true, complete and correct.
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Date: August 15, 2017
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MHR CAPITAL PARTNERS MASTER ACCOUNT LP
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By:
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MHR Advisors LLC,
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its General Partner
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHR ADVISORS LLC
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHR INSTITUTIONAL PARTNERS II LP
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By:
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MHR Institutional Advisors II LLC,
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its General Partner
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHR INSTITUTIONAL PARTNERS IIA LP
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By:
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MHR Institutional Advisors II LLC,
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its General Partner
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHR INSTITUTIONAL ADVISORS II LLC
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHRC LLC
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHRC II LLC
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHR FUND MANAGEMENT LLC
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MHR HOLDINGS LLC
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By:
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/s/ Janet Yeung
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Name: Janet Yeung
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Title: Authorized Signatory
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MARK H. RACHESKY, M.D.
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/s/ Janet Yeung, Attorney in Fact
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