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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
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 Number)
765 Old Saw Mill River Road
Tarrytown, New York 10591
(914) 347-2220
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_____________________
Michael G. Goldberg
Emisphere Technologies, Inc.
765 Old Saw Mill River Road
Tarrytown, New York 10591
(914) 347-2220
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_____________________
Copies to:
Edwin S. Maynard, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] No. 333-30358.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
_____________________
CALCULATION OF REGISTRATION FEE
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Title of Each Class Amount to be Proposed Maximum Proposed Maximum Amount of
of Securities to be Registered(1) Registered (2) Offering Price Per Aggregate Registration Fee
Share Offering Price (2)
<S> <C> <C> <C> <C>
Common Stock, ($.01 par value) 287,500 shares $ 72.75 $20,915,625 $ 5,522
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(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 fee is required for such
rights as they will be issued for no additional consideration.
(2) Includes 37,500 shares subject to an over-allotment option.
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INCORPORATION BY REFERENCE
OF REGISTRATION STATEMENT ON FORM S-3 FILE NO. 333-30358
Emisphere Technologies, Inc. is incorporating by reference the
information contained in its Registration Statement on Form S-3 (File No. 333-
30358) in its entirety, including any and all amendments and any and all
exhibits relating to it other than those superseded by the exhibits filed
herewith. The Registration Statement was declared effective by the Securities
and Exchange Commission on March 13, 2000.
2
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit Description
Number -----------
- ---------
5.1 * Legal Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1 * Consent of PricewaterhouseCoopers LLP.
23.2 * Consent of PricewaterhouseCoopers LLP.
23.3 * Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (filed with the Company's Registration Statement on
Form S-3 (Registration No. 333-30358)).
* Filed herwith.
(b) Financial Statement Schedules
None.
II-1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City and State of New York on the 13th day of March, 2000.
EMISPHERE TECHNOLOGIES, INC.
By: /s/ Charles H. Abdalian, Jr.
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Charles H. Abdalian, Jr.
Vice President, Chief
Financial Officer and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on March 13, 2000.
Signature Title
--------- -----
* Director, Chairman of the Board and Chief
- ----------------------------------- Executive Officer
Michael M. Goldberg
/s/ Charles H. Abdalian, Jr. Vice President, Chief Financial
- ----------------------------------- Officer and Secretary
Charles H. Abdalian, Jr.
* Director
- -----------------------------------
Jere E. Goyan, Ph.D.
* Director
- -----------------------------------
Peter Barton Hutt
* Director
- -----------------------------------
Howard M. Pack
* Director
- -----------------------------------
Mark I. Greene, M.D., Ph.D.
* Director
- -----------------------------------
Joseph R. Robinson, Ph.D.
* Director
- -----------------------------------
Robert J. Levenson
II-2
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*
- ----------------------------------- Controller and Chief Accounting Office
Joseph D. Poveromo
/s/ Charles H. Abdalian, Jr.
* By:___________________________________________________
Charles H. Abdalian, Jr.
Attorney-in-fact
II-3
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EXHIBIT INDEX
Exhibit Description
- ------- -----------
5.1 * Legal Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1 * Consent of PricewaterhouseCoopers LLP.
23.2 * Consent of PricewaterhouseCoopers LLP.
23.3 * Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (filed with the Company's Registration Statement on
Form S-3 (Registration No. 333-30358)).
* Filed herewith.
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EXHIBIT 5.1
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 Avenue of the Americas
New York, New York 10019-6064
March 13, 2000
Emisphere Technologies, Inc.
765 Old Saw Mill River Road
Tarrytown, New York 10591
Emisphere Technologies, Inc.
Registration Statement on Form S-3
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Ladies and Gentlemen:
In connection with the Registration Statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations under the Act ("the Rules"), Emisphere Technologies, Inc., a
Delaware corporation (the "Company"), has asked us to furnish our opinion as to
the legality of the 287,500 shares (the "Company Shares") of the Company's
common stock, par value $0.01 per share (the "Common Stock"), which shares are
registered for sale under the Registration Statement. In connection with
furnishing this opinion, we have reviewed the Registration Statement (including
all amendments), the form of the Underwriting
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Agreement relating to the sale of the Common Stock (the "Underwriting
Agreement"), originals, or copies certified or otherwise identified to our
satisfaction, of the Company's Certificate of Incorporation and By-laws, each as
in effect today and records of certain of the Company's corporated proceedings.
We also have examined and relied upon representations as to factual
matters contained in certificates of officers of the Company, and have made
those other investigations of fact and law and have examined and relied upon the
originals, or copies certified or otherwise identified to our satisfaction, of
those documents, records, certificates or other instruments, and upon factual
information otherwise supplied to us, as in our judgment are necessary or
appropriate to render the opinions expressed below.
In addition, we have assumed, without independent investigation, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity of original documents to all documents submitted to
us as certified, photostatic, reproduced or conformed copies, the authenticity
of all the latter documents reviewed by us and the legal capacity of all
individuals who have executed any of the documents reviewed by us.
Based upon the above, and subject to the stated assumptions, exceptions
and qualifications, we are of the opinion that the Company Shares are duly
authorized and, when issued, delivered and paid for as contemplated in the
Registration Statement and the Underwriting Agreement, will be validly issued,
fully paid and nonassessable.
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Our opinions expressed above are limited to the General Corporation Law of the
State of Delaware. Our opinion is rendered only with respect to laws and the
rules, regulations and orders under them, which are currently in effect.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the use of our name under the heading "Legal Matters" contained
in the prospectus and incorporated into the Registration Statement. In giving
these consents, we do not admit that we come within the category of persons
whose consent is required by the Act or the Rules.
Very truly yours,
/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use and incorporation by reference in this
registration statement on Form S-3 of our report dated September 30, 1999,
except for Note 15 as to which the date is November 2, 1999, related to the
financial statements which are included herein and which appear in Emisphere
Technologies, Inc.'s Annual Report, as amended, on Form 10-K/A for the year
ended July 31, 1999. We also consent to the references to our firm under the
captions "Summary Financial Data" and "Experts" in such registration statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
March 14, 2000
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use and incorporation by reference in this
registration statement on Form S-3 of our report dated September 10, 1999,
relating to the financial statements of Ebbisham Limited which are included
herein and which appear in Emisphere Technologies, Inc.'s Annual Report, as
amended, on Form 10-K/A for the year ended July 31, 1999. We also consent to the
references to our firm under the caption "Experts" in such registration
statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
March 14, 2000
