The information contained on this web page is only a summary of information presented in more detail in the Notice of Pendency and Proposed Settlement of Class Action, which you can access by clicking here [live link to pdf]. Because this website is just a summary, you should review the Notice for additional details.
To: All persons who held shares of Emisphere Technologies, Inc. (“Emisphere” or the “Company”) common stock as of the December 8, 2020, closing of the acquisition of Emisphere by Novo Nordisk A/S and received consideration for such shares (the “Class”)
Please read all of the Notice carefully. Your rights will be affected by the legal proceedings in the action. If the Court approves the proposed settlement described below, you will be forever barred from contesting the fairness of the proposed settlement or pursuing the Released Plaintiffs’ Claims against the Released Defendant Parties.
The purpose of the Notice of Pendency and Proposed Settlement of Class Action (“Notice”) is to inform you of the proposed settlement (the “Settlement”) of the above-captioned lawsuit (the “Action”) pending in the Court of Chancery of the State of Delaware (the “Court”).
Pursuant to the Stipulation and Agreement of Compromise and Settlement(the "Stipulation"), plaintiffs Stephen Brandenburg, Robert K. Brennan, James DeVilliers, Dr. Michael Goldberg, and Samuel Menasha (“Plaintiffs”), on behalf of themselves and on behalf of the Class, have agreed to settle and dismiss with prejudice their claims against (i) defendants Timothy Rothwell and Michael Weiser; and (ii) defendants Mark H. Rachesky, MHR Fund Management LLC, MHR Holdings LLC, MHR Capital Partners Master Account LP, MHR Capital Partners (100) LP, MHR Institutional Partners II LP, MHR Institutional Partners IIA LP, MHR Advisors LLC, MHRC LLC, MHR Institutional Advisors II LLC, and MHRC II LLC (collectively, the “MHR Defendants,” and together with Rothwell and Weiser, the “Defendants”). Non-party Novo Nordisk A/S (“Novo Nordisk,” and together with the Plaintiffs and the Defendants, the “Parties” and each a “Party”), along with Plaintiffs and Defendants, have also agreed to the Settlement on the terms described in the Notice and set forth in the Stipulation.
The Settlement resolves all actual and potential claims by the Class against the Released Defendant Parties alleged in the Operative Complaint in the Action, including (i) that the Defendants breached their fiduciary duties by (a) unfairly diverting and/or allowing the MHR Defendants to unfairly divert Transaction consideration from minority stockholders to themselves; (b) causing the Company to enter into the Transaction at an inopportune time, on unfair terms, following an unfair process; and (c) failing to provide other directors or the Company’s minority stockholders all material information necessary to understand their wrongdoing; (ii) that the MHR Defendants breached their fiduciary duties by abusing their control of Emisphere to have Emisphere issue excessive shares of its stock to them in exchange for debt and warrants of a far lesser value; and (iii) that defendants Rachesky, Rothwell, and Weiser breached their fiduciary duties by taking action for the primary purpose of impeding the stockholder franchise and guaranteeing approval of the Transaction, by accelerating the vesting of two million outstanding RSUs held by Rothwell and Weiser. In consideration of the Settlement, a total of $32 million ($32,000,000) in cash will be deposited into an account and will be distributed to the Settlement Payment Recipients according to the Plan of Allocation.
The Notice describes the rights you may have under the Settlement and what steps you may, but are not required to, take in relation to the Settlement.
If the Court approves the Settlement, the Parties to the Action will ask the Court at the Settlement Hearing to enter a judgment dismissing the Action with prejudice as to the Defendants.
If you are a member of the Class, you will be bound by any judgment entered in the Action. You may not opt out of the Class.
Please Note: The Class is a non-opt-out class pursuant to Delaware Court of Chancery Rules 23(a), 23(b)(1), and 23(b)(2). Accordingly, Class Members do not have the right to exclude themselves from the Class.