UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 29, 2014
EMISPHERE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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| DELAWARE |
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000-17758 |
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13-3306985 |
| (State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
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| 240 Cedar Knolls Road,
Suite 200, Cedar Knolls, New Jersey |
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07927 |
| (Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including area code: 973-532-8000
Not Applicable
(Former
name or former address, if changed since last report.)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
On June 4, 2014,
the Company filed with the Secretary of State of the State of Delaware a Certificate of Amendment (the “Certificate of Amendment”) to its Amended and Restated Certificate of Incorporation, increasing the number of authorized shares of
common stock from 200,000,000 to 400,000,000 shares and increasing the number of authorized shares of preferred stock from 2,000,000 to 4,000,000 shares. A copy of the Certificate of Amendment is attached hereto as Exhibit 3.1 and incorporated by
reference herein. The Company’s stockholders approved the Certificate of Amendment at its annual meeting, as more specifically described under Item 5.07 below.
| Item 5.07 |
Submission of Matters to a Vote of Security Holders. |
The Company held its annual meeting of
stockholders (the “Annual Meeting”) on May 29, 2014. The final results for each of the matters submitted to a vote of stockholders at the Annual Meeting are set forth below. A more detailed description of each proposal is set forth in
the Company’s Proxy Statement filed with the Securities and Exchange Commission on April 17, 2014.
Proposal No. 1 – Election of
Directors. The stockholders elected both of the Board’s nominees for director, to serve a term expiring at the third succeeding annual meeting after their election or until their respective successors are duly elected and qualified, by the
votes set forth in the table below:
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| Name |
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For |
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Against/Withheld |
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Broker Non-Vote |
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| Dr. Mark H. Rachesky |
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32,767,953 |
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1,229,579 |
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16,694,341 |
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| Dr. Michael Weiser |
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33,519,933 |
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477,599 |
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16,694,341 |
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Proposal No. 2 – Ratification of Appointment of Certified Public Accountants. The stockholders ratified, by
non-binding vote, the appointment of McGladrey & Pullen, LLP as the Company’s independent registered accounting firm for the fiscal year ending December 31, 2012, by the votes set forth in the table below:
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| For |
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Against/Withheld |
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Abstained |
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Broker Non-Vote |
| 48,198,793 |
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959,955 |
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1,533,125 |
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n/a |
Proposal No. 3 – Advisory Approval of Executive Compensation. The stockholders approved, on an advisory
basis, the compensation of the Company’s named executive officers, by the votes set forth in the table below:
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| For |
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Against/Withheld |
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Abstained |
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Broker Non-Vote |
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32,788,522 |
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507,572 |
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701,438 |
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16,694,341 |
Proposal No. 4 – Amendment to Company’s Amended and Restated Certificate of Incorporation. The
stockholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended, to increase the number of authorized shares of common stock from 200,000,000 to 400,000,000 shares and to increase the number of
authorized shares of preferred stock from 2,000,000 to 4,000,000 shares, by the votes set forth in the table below:
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| For |
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Against/Withheld |
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Abstained |
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Broker Non-Vote |
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30,875,127 |
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3,048,064 |
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74,341 |
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16,694,341 |
| Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits. The following exhibits are filed
herewith:
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| Exhibit
No. |
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Description |
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| 3.1 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Emisphere Technologies, Inc. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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Emisphere Technologies, Inc. |
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| June 4, 2014 |
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By: |
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/s/ Michael R. Garone |
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Name: |
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Michael R. Garone |
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Title: |
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Chief Financial Officer |
Exhibit Index
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| Exhibit
No. |
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Description |
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| 3.1 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Emisphere Technologies, Inc. |
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EMISPHERE TECHNOLOGIES, INC.
Emisphere Technologies, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Emisphere Technologies, Inc., resolutions were duly
adopted setting forth a proposed amendment to the Amended and Restated Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration
thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED: That it is advisable and in the best interests of
the corporation to amend the Amended and Restated Certificate of Incorporation of the corporation so that Article Fourth shall read in its entirety as follows:
“The total number of shares of stock which the Corporation shall have the authority to issue is Four-Hundred-Four-Million (404,000,000),
consisting of 400,000,000 shares of common stock, $.01 par value per share (the “Common Stock”), and 4,000,000 shares of preferred stock, $.01 par value per share (the “Preferred Stock”).”
SECOND: That thereafter, pursuant to resolution of its Board of Directors, an annual meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, said Emisphere Technologies, Inc. has caused this Certificate to be signed by Michael R. Garone, its
Chief Financial Officer, this 4th day of June, 2014.
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| EMISPHERE TECHNOLOGIES, INC. |
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| By: |
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/s/ Michael R. Garone |
| Name: Title: |
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Michael R. Garone Chief Financial
Officer |