Private Placement, the Securities Purchase Agreements and this Agreement, against delivery ofsuch documentation of expenses as may be reasonably requested by the Company (which suchdocumentation shall not include descriptions of time entries and related information).     C. Each of the undersigned hereby waives, solely to the extent such provisions would betriggered or otherwise implicated in connection with the sale and issuance of the Securitiespursuant to the Private Placement or upon any issuance by the Company of shares of Common Stockupon exercise of such Warrants, the following rights: 1. the application of any anti-dilution adjustments to the rate ofconversion or conversion price of the Notes as set forth in Sections 3(d)(iv)and 3(d)(vi) of the Notes; and  2. the application of any anti-dilution adjustments to the rate ofexchange or exercise price of the Existing Warrants as set forth in Sections7(e)(iii) and 7(e)(iv) of the Existing Warrants.    (such anti-dilution adjustments, the “Adjustment”).     D. Each of the undersigned hereby waives, solely to the extent such provisions would beimplicated in connection with the registration rights being granted by the Company to the Investorsconcurrently with the consummation of the Private Placement, the application of the restriction onthe grant of registration rights as set forth in Section 10.1 of the Registration Rights Agreement(the “Registration Right Restriction”).     E. Except as expressly provided herein, the execution, delivery and effectiveness of thisWaiver Agreement shall not operate as a waiver of any right, adjustment, restriction, power orremedy of the undersigned or any one of them under any agreement or document, including but notlimited to the Notes, the Existing Warrants or the Registration Rights Agreement. The Companyacknowledges that nothing in this waiver shall be construed as a waiver of MHR’s rights withrespect to any future issuance, sale, conversion or exercise of securities of the Company (exceptfor the issuance of Common Stock upon exercise of the Warrants) or any other transaction or uponany other event.     F. This Agreement shall in all respects be governed by, and construed and enforced inaccordance with, the laws of the State of New York, without giving effect to any choice or conflictof law provision or rule that would cause the application of laws of any jurisdiction other thanthose of the State of New York.     G. This Agreement may be executed in multiple counterparts each of which shall be deemed anoriginal, but all of which will constitute one and the same instrument. This Agreement may beexecuted and delivered by facsimile or .pdf transmission.[Signature Page Follows]
 

 
     IN WITNESS WHEREOF, the parties have caused this agreement to be duly executed as of the datefirst indicated above.         **COMPANY**           EMISPHERE TECHNOLOGIES, INC.           By: /s/ Michael R. Garone           Name: Michael R. Garone           Title: Interim Chief Executive Officer and Chief Financial Officer         [Signature Page to Waiver Agreement]
 

 
         **INVESTORS**           MHR CAPITAL PARTNERS (100) LP           By: /s/ Hal Goldstein           Name: Hal Goldstein           Title: Authorized Signatory                  MHR INSTITUTIONAL PARTNERS II LP           By: /s/ Hal Goldstein           Name: Hal Goldstein           Title: Authorized Signatory                  MHR INSTITUTIONAL PARTNERS IIA LP           By: /s/ Hal Goldstein           Name: Hal Goldstein           Title: Authorized Signatory                  MHR CAPITAL PARTNERS MASTER ACCOUNT LP           By: /s/ Hal Goldstein           Name: Hal Goldstein           Title: Authorized Signatory         [Signature Page to Waiver Agreement]