EX-10.2



 Exhibit 10.2 

EXECUTION VERSION 

AMENDMENT NO. 4 TO THE DEVELOPMENT AND LICENSE AGREEMENT 

This Amendment No. 4 (“Amendment No. 4”), effective as of December 8, 2016 (the “Amendment Effective
Date”), to the Development and License Agreement, executed on June 21, 2008 (the “Original Agreement”), as amended by the Amendment to the Development and License Agreement, effective as of November 13, 2008
(“Amendment No. 1”), Side Letter to the Development and License Agreement, dated March 9, 2009 (the “Side Letter”), Amendment No. 2 to the Development and License Agreement, effective as of
April 26, 2013 (“Amendment No. 2”) and Amendment No. 3 to the Development and License Agreement, effective as of October 13, 2015 (“Amendment No. 3” and, collectively with the Original
Agreement, Amendment No. 1, the Side Letter and Amendment No. 2, the “Agreement”), is entered into by and among Emisphere Technologies, Inc., a Delaware corporation (“Emisphere”), NOVO NORDISK A/S
(“Novo Nordisk”) and, solely for the express purposes set forth in this Amendment No. 4, MHR Capital Partners Master Account LP, a limited partnership organized in Anguilla, British West Indies, MHR Capital Partners
(100) LP, a Delaware limited partnership, MHR Institutional Partners II LP, a Delaware limited partnership and MHR Institutional Partners IIA LP, a Delaware limited partnership (each, an “MHR Fund” and, collectively, the
“MHR Funds”). 
 WITNESSETH: 

WHEREAS, pursuant to Section 14.1 (last sentence) of the Agreement, Novo Nordisk and Emisphere may modify or supplement the Agreement in
a writing signed by the Parties to the Agreement; and 
 WHEREAS, Novo Nordisk and Emisphere wish to amend certain provisions of the
Agreement to add the MHR Funds as a party to the Agreement solely for the purposes set forth in this Amendment No. 4. 
 NOW,
THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 

 

	1.	Amendments. The Agreement is hereby amended as follows: 

  

	 	a.	Section 3.5(a) of the Agreement is hereby amended and restated in its entirety as follows: 


“(a) For any Licensed Product Covered by an Issued Patent Claim of Licensed Patents or of Formulation Intellectual Property or Option
Agreement Formulation Intellectual Property, Novo Nordisk shall pay directly to (x) Emisphere a royalty of two-and-a-half percent (2.5%) and (y) the MHR Funds a royalty of one-half percent (0.5%), respectively, on all the Net Sales of
such Licensed Product(s).” 
  

	 	b.	Section 3.5(b) of the Agreement is hereby amended and restated in its entirety as follows: 


“(b) For any Licensed Product(s) not Covered by an Issued Patent Claim of Licensed Patents or of Formulation Intellectual Property or
Option Agreement 







 
Formulation Intellectual Property in a country, in consideration for Novo Nordisk’s use of the Licensed Know-How, Novo Nordisk shall pay directly to (x) Emisphere a Know-How royalty of
one-half percent (0.5%) and (y) the MHR Funds a Know-How royalty of one-half percent (0.5%), respectively, on all the Net Sales of such Licensed Product(s) in such country for a period of ten years from the First Commercial Sale in such country
of such Licensed Product(s)”. 
  

	 	c.	Section 3.5(c) of the Agreement is hereby amended and restated in its entirety as follows: 


“(c) In the event that the only Issued Patent Claim covering a Licensed Product(s) in a country is an Issued Patent Claim of Licensed
Patents or Formulation Intellectual Property or Option Agreement Formulation Intellectual Property which has been solely invented by Novo Nordisk, Novo Nordisk shall pay directly to (x) Emisphere a Know-How royalty of one-half percent (0.5%)
and (y) the MHR Funds a Know-How royalty of one-half percent (0.5%), respectively, on all the Net Sales of such Licensed Product(s) in such country.” 
  

	 	d.	Section 3.5(f) of the Agreement is hereby amended by replacing the first two sentences of Section 3.5(f) with the following: 


“Royalty payments shall be calculated and reported to Emisphere and the MHR Funds concurrently for each calendar quarter. All royalty
payments due to Emisphere and the MHR Funds under this Agreement shall be paid within thirty (30) calendar days of the end of each calendar quarter.” 
  

	 	e.	Section 3.5(f) of the Agreement is hereby amended by replacing the penultimate sentence of Section 3.5(f) with the following: 


“Each payment to Emisphere and the MHR Funds shall be accompanied by a report, which shall be delivered to each of Emisphere and the MHR
Funds, of Net Sales of Licensed Products by Novo Nordisk, its Affiliates and their respective sublicensees in sufficient detail to permit confirmation of the accuracy of the payment made, including, the Net Sales of such Licensed Products in the
Territory and country by country, and the royalty payable to Emisphere and the MHR Funds.” 
  

	 	f.	A new Section 3.5(g) shall be added to the Agreement as follows: 

 “Any reduction in
the royalties payable to Emisphere and the MHR Funds under Sections 3.5(a), 3.5(b) or 3.5(c) of the Agreement (including any reduction pursuant to Sections 3.5(d) or 3.8 of the Agreement) shall first be applied to reduce the amount of royalties
payable to Emisphere and, only in the event that such royalties payable to Emisphere have been reduced to zero, shall be applied to reduce the amount of royalties payable to the MHR Funds.” 

 

	 	g.	Section 3.6 of the Agreement is hereby amended and restated as follows: 


  
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 “(a) Emisphere shall be responsible for and shall bear any taxes levied upon
payments received by Emisphere and Emisphere hereby authorizes Novo Nordisk to withhold such taxes from the payments which are payable to Emisphere in accordance with this Agreement if Novo Nordisk is either required to do so under applicable law or
directed to do so by a governmental authority. Upon Emisphere’s written request, Novo Nordisk shall, with respect to the laws of Denmark, reasonably support Emisphere in its legal efforts to minimize any such withholding taxes and provide
Emisphere with information about and necessary for any documentation needed to reduce withholding to a legal minimum. 
 (b)
The MHR Funds shall be responsible for and shall bear any taxes levied upon payments received by the MHR Funds and the MHR Funds each hereby authorize Novo Nordisk to withhold such taxes from the payments which are payable to the MHR Funds in
accordance with this Agreement if Novo Nordisk is either required to do so under applicable law or directed to do so by a governmental authority. Upon written request of any MHR Fund, Novo Nordisk shall, with respect to the laws of Denmark,
reasonably support the MHR Funds in their legal efforts to minimize any such withholding taxes and provide the MHR Funds with information about and necessary for any documentation needed to reduce withholding to a legal minimum.” 

 

	 	h.	Section 3.7 of the Agreement is hereby amended and supplemented by inserting the following at the end thereof: 


“All payments to be made by Novo Nordisk to the MHR Funds under this Agreement shall be made by wire transfer from Novo Nordisk to the
following account(s) of the MHR Funds or to such other account(s) as the MHR Funds shall notify Novo Nordisk in writing from time to time: 

JP Morgan Chase 
 ABA #:
021-000-021 
 Account Name: JPMCC 

Account Number: 066001633 
 Sub
Account Name: MHR Institutional Partners IIA LP 
 Sub Account Number: 220-36055 

 

	 	i.	Section 7.6(i) of the Agreement is hereby amended and restated as follows: 

 “Where
there has been an underpayment, Novo Nordisk shall pay to Emisphere and the MHR Funds, if applicable, the underpayment (together with reasonable and documentable audit costs if applicable) due within thirty (30) days of its receipt of the
Auditor’s report. In the case of overpayment by Novo Nordisk, Novo Nordisk may, at its option, offset any future royalty payments payable to Emisphere (and the MHR Funds if such overpayments arose pursuant to Section 3.5 hereof) by the
amount of overpayment, or it may request reimbursement from Emisphere (and the MHR Funds if such overpayments arose pursuant to Section 3.5 hereof) within thirty (30) days of its receipt of the Auditor’s report.” 

  
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 2. No Liability. Notwithstanding anything to the contrary in this Amendment No. 4 or
the Agreement, no MHR Fund assumes any direct or indirect, liability, obligation, undertaking, responsibility, deficiency, cost, expense, fine or penalty of any kind, fixed or unfixed, known or unknown, asserted or unasserted, liquidated or
unliquidated, contingent or absolute, secured or unsecured, due or undue (“Liability”), of Emisphere under the Agreement or this Amendment No. 4, including, inter alia, any Liability of any kind of Emisphere that exists
at any time prior to, on or after the Amendment Effective Date. In addition, except as expressly set forth in Section 1(g) of this Amendment No. 4, none of the MHR Funds nor any of their respective Affiliates shall have any Liability to
Emisphere or Novo Nordisk under the Agreement or this Amendment No. 4. 
 3. Indemnification. 

(a) Emisphere hereby agrees to indemnify, defend and hold harmless Novo Nordisk (the “Indemnified Party”) from and against
any and all Losses incurred or sustained by, or imposed upon, any of them resulting solely from this Amendment No. 4, provided that the Indemnified Party shall not be entitled to indemnification for any Losses resulting from any breach of this
Amendment No. 4 by such Indemnified Party. 
 (b) If the Indemnified Party receives notice of the assertion or commencement of any
Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Claim”) against such Indemnified Party with respect to which Emisphere is obligated to provide
indemnification under this Amendment No. 4, the Indemnified Party shall give Emisphere reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third Party
Claim. The failure to give such prompt written notice shall not, however, relieve Emisphere of its indemnification obligations, except and only to the extent (i) that Emisphere forfeits rights or defenses by reason of such failure, (ii) as
a result of such failure, Emisphere is deprived of its right to recover any payment under its applicable insurance coverage or (iii) Emisphere is otherwise adversely affected or damaged as a result of such failure to give timely notice. Subject
to the immediately following sentence, Emisphere shall have the right to assume the defense of any Third Party Claim at Emisphere’s sole expense and by Emisphere’s own counsel by providing written notice of such election to the Indemnified
Party within forty-five (45) days of Emisphere’s receipt of written notice of the Third Party Claim, and the Indemnified Party shall cooperate in good faith in such defense. In the event that Emisphere assumes the defense of any Third
Party Claim, subject to Section 3(c), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the
Indemnified Party, and the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to Emisphere’s right to control the defense thereof. The fees and disbursements of such
counsel retained by the Indemnified Party shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party
that are different from or additional to those available to Emisphere or (B) there exists a conflict of interest between Emisphere and the Indemnified Party that cannot be waived, Emisphere shall be liable for the reasonable fees and expenses
of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If Emisphere elects not to defend such 

  
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Third Party Claim, the Indemnified Party may defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim, and
Emisphere shall have the right at its expense to participate in the defense of such Third Party Claim, assisted by counsel of its own choosing. Emisphere and the Indemnified Party shall cooperate with each other in all reasonable respects in
connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim. 
 (c)
Settlement of Third Party Claims. Notwithstanding any other provision of this Amendment No. 4, (x) Emisphere shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party and
(y) the Indemnified Party shall not enter into settlement of any Third Party Claim without the prior written consent of Emisphere, in either case which consent will not be unreasonably delayed, conditioned or withheld. 

4. Amendments. No amendments or supplements to the provisions of the Agreement amended by this Amendment No. 4 shall be valid and
binding unless set forth in a written agreement executed and delivered by Novo Nordisk, Emisphere and the MHR Funds. 
 5. Governing Law;
Jurisdiction. This Amendment No. 4 shall be governed and construed in accordance with the internal laws of the State of New York, USA, without regard to principles of conflicts of law and each party hereto shall consent to the exclusive
jurisdiction of the courts of New York in any action arising out of the matters set forth in, or related to the validity or enforceability of this Amendment No. 4. 

6. Assignment. Each of the MHR Funds may, in whole or in part, assign or otherwise transfer any of their respective rights and
obligations hereunder without the prior written consent of Novo Nordisk or Emisphere. Upon any such assignment or transfer, all references herein to the MHR Funds shall be deemed to be references to such assignee or transferee. 

7. Capitalized Terms. Unless otherwise noted, all capitalized terms used and not defined in this Amendment No. 4 shall the meaning
as set out in the Agreement. Solely for the purposes of this Amendment No. 4, the following terms shall have the following meaning: 

(a) “Action” shall mean any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation,
proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity. 

(b) “Affiliate” shall mean, with respect to any Person, a Person that directly or indirectly through one or more
intermediaries, Controls the first Person, is Controlled by the first Person or is under Common Control with the first Person. 
 (c)
“Control” shall mean (including the correlative terms “Controlling,” “Controlled” and “under Common Control with,”) the possession, directly or indirectly, of the power to direct or cause the direction
of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person. 

  
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 (d) “Losses” shall mean (i) all debts, Liabilities and obligations owed to
or at the behest of any other Person, (ii) all losses, damages, judgments, awards, fines, fees, expenses, penalties and settlements and (iii) all demands, claims, suits, actions, causes of action, proceedings and assessments. 

(e) “Person” shall mean any individual, corporation, association, company, partnership, limited liability company, joint-stock
company or business trust. 
 8. Terms of Agreement. Except as modified by this Amendment No. 4, the terms of the Agreement
shall continue in full force and effect without modification. All references in and to the Agreement (including any annexes, exhibits or schedules thereto) shall be deemed to be references to the Agreement as amended by this Amendment No. 4.

 [Remainder of Page Intentionally Left Blank] 

  
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 IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment No. 4 to be duly
executed in the name of and on its behalf, as of the Amendment Effective Date. 
  

					
	NOVO NORDISK A/S
		
	By:	 	 /s/ Mads Krogsgaard Thomsen

		 	Name:	 	Mads Krogsgaard Thomsen
		 	Title:	 	Chief Science Officer


 EMISPHERE TECHNOLOGIES, INC. 

By: /s/ Alan L. Rubino 
 Name: Alan L. Rubino 

Title: President and Chief Executive Officer 

  
 [Amendment No. 4 to GLP-1
Development and License Agreement] 








 IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment No. 4 to be duly
executed in the name of and on its behalf, as of the Amendment Effective Date. 
 MHR CAPITAL PARTNERS MASTER ACCOUNT LP 

By: MHR Advisors LLC, 
 its General Partner 

By: /s/ Janet Yeung 
 Name: Janet Yeung 

Title: Authorized Signatory 
 MHR CAPITAL PARTNERS (100) LP

 By: MHR Advisors LLC, 
 its General Partner 

By: /s/ Janet Yeung 
 Name: Janet Yeung 

Title: Authorized Signatory 
 MHR INSTITUTIONAL PARTNERS II LP

 By: MHR Institutional Advisors II LLC, 
 its General Partner

 By: /s/ Janet Yeung 
 Name: Janet Yeung 

Title: Authorized Signatory 
 MHR INSTITUTIONAL PARTNERS IIA LP

 By: MHR Institutional Advisors II LLC, 
 its General Partner

 By: /s/ Janet Yeung 
 Name: Janet Yeung 

Title: Authorized Signatory 

  
 [Amendment No. 4 to
GLP-1 Development and License Agreement]