As filed with the Securities and Exchange Commission on March 25, 1999
Registration No.
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.)
765 Old Saw Mill River Road
Tarrytown, New York 10591
---------------------------
(Address, including zip code, of principal executive offices)
Emisphere Technologies, Inc. 1991 Stock Option Plan
Emisphere Technologies, Inc. 1995 Non-Qualified Stock Option Plan
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(Full title of plan)
MICHAEL M. GOLDBERG, M.D.
c/o Emisphere Technologies, Inc.
765 Old Saw Mill River Road
Tarrytown, New York 10591
--------------------------------
(Name and address of agent for service)
(914) 347-2220
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(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, $.01 550,000 shares $10.56 (2) $5,808,000 $1,713.36
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 and
250,000 shares issuable upon exercise of options to be granted pursuant to
the Emisphere Technologies, Inc. 1995 Non-Qualified Stock Option Plan at an
offering price, calculated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, equal to $10.56, the average of the high
and low prices reported on the Nasdaq National Market on March 19, 1999.
(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, 1998;
(b) Quarterly Report on Form 10-Q for the quarter ended October 31, 1998;
(c) Quarterly Report on Form 10-Q for the quarter ended January 31, 1999;
(d) The description of the Company's preferred stock purchase rights
contained in its Registration Statement on Form 8-A, dated March 5,
1996; and
(e) 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.
II-3
<PAGE>
Item 8. Exhibits
A list of Exhibits to this registration statement is set forth in the
Exhibit Index starting on page II-4 hereof.
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
II-4
<PAGE>
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-5
<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 March 23, 1999.
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. his or her true and
lawful attorney-in-fact and agent, 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 attorney-in-fact and
agent full power and authority to 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 attorney-in-fact and agent or his
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 March 23, 1999
- ------------------------- Chief Executive Officer
Michael M. Goldberg, M.D.
/s/ Howard M. Pack Director March 23, 1999
- -------------------------
Howard M. Pack
Director March 23, 1999
- -------------------------
Peter Barton Hutt
Director March 23, 1999
- -------------------------
Jere E. Goyan, Ph.D.
/s/ Mark I. Greene Director March 23, 1999
- -------------------------
Mark I. Greene, M.D., Ph.D.
/s/ Joseph R. Robinson Director March 23, 1999
- -------------------------
Joseph R. Robinson, Ph.D.
Director March 23, 1999
- -------------------------
Robert J. Levenson
/s/ Joseph D. Poveromo Controller (Principal March 23, 1999
- ------------------------- Financial and Accounting
Joseph D. Poveromo Officer)
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- ---------------------------------------------------
5 Opinion of M. Warren Browne
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of M. Warren Browne (included in Exhibit 5)
24 Power of Attorney (included in signature page)
II-7
<PAGE>
Exhibit 5
March 23, 1999
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
550,000 shares of the Company's Common Stock, par value $.01 per share (the
"Shares"), issuable upon the exercise of options to be granted under the
Company's 1991 Stock Option Plan and 1995 Non-Qualified Stock Option Plan (the
"Option Plans").
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 pursuant to the Option Plans
and that the Shares will, when issued upon exercise of options granted in
accordance with the terms and conditions of the Option Plans, 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 12, 1998, on our audits of the financial statements of the Company as
of July 31, 1998 and 1997, and for each of the three years in the period ended
July 31, 1998, which report is included in the Company's Annual Report on Form
10-K for the year ended July 31, 1998.
/s/ PricewaterhouseCoopers LLP
New York, New York
March 18, 1999
