As filed with the Securities and Exchange Commission on May 11, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
Registration Statement
Under
The Securities Act of 1933
___________
EMISPHERE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3306985
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15 Skyline Drive
Hawthorne, New York 10532
(Address, including zip code, of principal executive offices)
Emisphere Technologies, Inc. 1991 Stock Option Plan
Emisphere Technologies, Inc. 1995 Non-Qualified Stock Option Plan
Emisphere Technologies, Inc. Directors' Deferred Compensation Stock Plan
(Full title of plan)
MICHAEL M. GOLDBERG, M.D.
c/o Emisphere Technologies, Inc.
15 Skyline Drive
Hawthorne, New York 10532
(Name and address of agent for service)
(914) 347-2220
(Telephone number, including area code, of agent for service)
___________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered share price fee
Common Stock, $.01 525,000 shares $16.69 (2) $8,762,250 $2,585
par value (1) (2) (3)
(1)This Registration Statement also applies to rights under the registrant's
Rights Agreement which are attached to and tradable only with the shares of
Common Stock registered hereby. No registration fees are required for such
rights as they will be issued for no additional consideration.
(2)Represents 300,000 shares issuable upon exercise of options to be granted
pursuant to the Emisphere Technologies, Inc. 1991 Stock Option Plan, 200,000
shares issuable upon exercise of options to be granted pursuant to the
Emisphere Technologies, Inc. 1995 Non-Qualified Stock Option Plan and 25,000
shares issuable under the Emisphere Technologies, Inc. Directors' Deferred
Compensation Stock Plan at an offering price, calculated in accordance with
Rule 457(h)(1) under the Securities Act of 1933, as amended, equal to $16.69,
the average of the high and low prices reported on the Nasdaq National Market
System on May 7, 1998.
(3)This Registration Statement shall, in accordance with Rule 416 under the
Securities Act of 1933, as amended, be deemed to cover such additional shares
as may be issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
This Registration Statement shall hereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference
The following documents filed by Emisphere Technologies, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended July 31, 1997;
(b) Quarterly Report on Form 10-Q for the quarter ended October 31, 1997;
(c) Quarterly Report on Form 10-Q for the quarter ended January 31, 1998;
(d) Current Report on Form 8-K dated May 1, 1998;
(e) The description of the Company's preferred stock purchase rights
contained in its Registration Statement on Form 8-A, dated March 5,
1996; and
(f) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, dated September 11, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all of the securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference in this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document that is
also incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware, Article Twelfth of the Certificate of Incorporation of the Company
and Article Five of the By-laws of the Company, the Company is authorized to
indemnify, subject to certain conditions, its directors and officers against
certain liabilities and expenses arising from claims against them because of
being such a director or officer. In addition, the Company has obtained
directors' and officers' liability insurance insuring, subject to certain
conditions, its directors and officers against similar such liabilities and
expenses.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
A list of Exhibits to this registration statement is set forth in the
Exhibit Index starting on page II-4 hereof.
II-1
<PAGE>
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3, Form S-
8 or Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York on May 6, 1998.
EMISPHERE TECHNOLOGIES, INC.
by /s/Michael M. Goldberg
Michael M. Goldberg, M.D.
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael M. Goldberg, M.D. and Sam J. Milstein,
Ph.D., his or her true and lawful attorneys-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments to this Registration Statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
he or she might or could do in person, and hereby ratifies and confirms all
that said attorneys-in-fact and agents, each acting alone, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ Michael M. Goldberg Chairman of the Board and May 6, 1998
Michael M. Goldberg, M.D. Chief Executive Officer
/s/ Sam J. Milstein Director and President May 6, 1998
Sam J. Milstein, Ph.D
/s/ Howard M. Pack Director May 6, 1998
Howard M. Pack
Director May 6, 1998
Peter Barton Hutt
Director May 6, 1998
Jere E. Goyan, Ph.D.
/s/ Mark I. Greene Director May 6, 1998
Mark I. Greene, M.D., Ph.D.
Director May 6, 1998
Joseph R. Robinson, Ph.D.
/s/ Joseph D. Poveromo Controller (Principal Financial May 6, 1998
Joseph D. Poveromo and Accounting Officer)
II-3
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
5 Opinion of M. Warren Browne
23(a) Consent of Coopers & Lybrand L.L.P.
23(b) Consent of M. Warren Browne (included in Exhibit 5)
24 Power of Attorney (included in signature page)
<PAGE>
Exhibit 5
May 6, 1998
Emisphere Technologies, Inc.
15 Skyline Drive
Hawthorne, New York 10532
Dear Sirs:
Reference is made to the Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities
and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), on behalf of Emisphere Technologies, Inc.
(the "Company"), relating to an aggregate of 525,000 shares of
the Company's Common Stock, par value $.01 per share (the
"Shares"), issuable upon the exercise of certain options granted
and to be granted under the Company's 1991 Stock Option Plan and
1995 Non-Qualified Stock Option Plan (the "Option Plans") and in
accordance with the provisions of the Company's Directors'
Deferred Compensation Stock Plan (the "Directors' Plan").
As counsel to the Company, I have examined such corporate
records and other documents and have considered such questions of
law as I have deemed necessary or appropriate for the purposes of
this opinion and, upon the basis of such examination, advise you
that, in my opinion, all necessary corporate proceedings by the
Company have been duly taken to authorize the issuance of the
Shares upon the exercise of options granted and to be granted
pursuant to the Option Plans and in accordance with the
provisions of the Directors' Plan and that the Shares will, when
issued upon exercise of options granted and to be granted in
accordance with the terms and conditions of the Option Plans or
in accordance with the provisions of the Directors' Plan, be duly
authorized, validly issued, fully paid and non-assessable.
I hereby consent to the use of this opinion as Exhibit 5 to
the Registration Statement. This consent is not to be construed
as an admission that I am a person whose consent is required to
be filed with the Registration Statement under the provisions of
the Act.
Very truly yours,
/s/ M. Warren Browne
M. Warren Browne
<PAGE>
Exhibit 23(a)
Consent of Independent Accountants
________________________
We consent to the incorporation by reference in the registration
statement of Emisphere Technologies, Inc. (the "Company") on Form S-8
of our report dated October 10, 1997, on our audits of the financial
statements and financial statement schedule of the Company as of July
31, 1997 and 1996, and for each of the three years in the period
ended July 31, 1997, which report is included in the Company's Annual
Report on Form 10-K for the year ended July 31, 1997.
/s/ Coopers & Lybrand L.L.P.
New York, New York
May 6, 1998
