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

 

2834

 

13-3306985

(State or other jurisdiction of
incorporation or organization)

 

(Primary Standard Industrial
Classification Code Number)

 

(I.R.S. Employer
Identification No.)

 

 

 

 

 

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)

Emisphere Technologies, Inc. Qualified Employee Stock Purchase Plan
 (full title of plan)

MICHAEL M. GOLDBERG, M.D.
Chairman of the Board and Chief Executive Officer
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 of Communications to:
Timothy Maguire
Brown Rudnick Berlack Israels LLP
One Financial Center
Boston, MA 02111
617-856-8200


CALCULATION OF REGISTRATION FEE

Title of Each Class of
Securities To Be Registered

 

Amount To Be
Registered (1) (2) (3)

 

Proposed Maximum
Aggregate Offering Price
Per Share (4)

 

Proposed Maximum
Aggregate Offering
Price (3)(4)

 

Amount of Registration
Fee (1)(4)

 

 

 

 

 

 

Common Stock par value $.01 per share

 

 300,000

 

$3.60

 

$1,080,000

 

$127

 

          (1)          Represents shares issuable upon exercise of options to be granted pursuant to the Emisphere Technologies, Inc. Qualified Employee Purchase Plan.

 

          (2)          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.

 

          (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.

 

          (4)          In accordance with Rule 457(h)(l), the aggregate offering price of our common stock is estimated solely for calculating the registration fees due for this filing.  For the initial filing of this Registration Statement, this estimate was based on the average of the high and low sales prices of our stock reported by the Nasdaq National Market on August 4, 2005, which was $3.60 per share.

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EXPLANATORY NOTE

          Pursuant to General Instruction E of Form S-8, this Registration Statement on Form S-8 of Emisphere Technologies, Inc. (the “Company”) is being filed to register a total of 300,000 additional shares of the Company’s common stock, $0.01 par value per share, which may be issued from time to time under the Company’s Qualified Employee Stock Purchase Plan.   The contents of the Registration Statement on Form S-8, filed on November 27, 2002 (File No. 333-101525) are incorporated herein by reference.

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PART II.

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8.

EXHIBITS

Exhibit
Number

 

Description of Exhibit

 

4.1

 

Amendment to the Emisphere Technologies, Inc. Qualified Employee Stock Purchase Plan.

 

 

 

5.1

 

Opinion of Brown Rudnick Berlack Israels LLP, counsel to Emisphere, regarding the legality of the common stock being registered.

 

 

 

23.1

 

Consent of PricewaterhouseCoopers LLP (regarding the registrant).

 

 

 

23.2

 

Consent of Brown Rudnick Berlack Israels LLP, counsel to Emisphere (contained in Exhibit 5.1).

 

 

 

24.1

 

Powers of Attorney (included on signature page).

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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 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 Tarrytown, State of New York on August 16, 2005.

 

EMISPHERE TECHNOLOGIES INC

 

 

 

 

 

 

 

By:

/s/ MICHAEL M. GOLDBERG

 

 

 

 

Michael M. Goldberg, M.D.
Chairman of the Board
and Chief Executive Officer

          KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael M. Goldberg and Elliot M. Maza, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other 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 to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.

          Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the persons whose signatures appear below, which persons have signed such Registration Statement in the capacities indicated:

NAME AND SIGNATURE

 

TITLE

 

DATE

 

 

/s/ MICHAEL GOLDBERG

 

Director, Chairman of the Board
and Chief Executive Officer
(principal executive officer)

 

August 16, 2005

 

 

Michael M. Goldberg, M.D.

 

 

 

 

 

 

 

/s/ HOWARD PACK

 

Director

 

August 16, 2005

 

 

Howard M. Pack

 

 

 

 

 

 

 

/s/ ROBERT LEVENSON

 

Director

 

August 16, 2005

 

 

Robert J. Levenson

 

 

 

 

 

 

 

/s/ ARTHUR DUBROFF

 

Director

 

August 16, 2005

 

 

Arthur Dubroff

 

 
 

 

  

 

  

/s/ STEPHEN CARTER

 

Director

 

August 16, 2005

 

 

Stephen K. Carter, M.D.

 

 

 

 

 

 

 

/s/ MICHAEL BLACK

 

Director

 

August 16, 2005

 

 

Michael E. Black

 

 

 

 

 

 

 

/s/ ELLIOT MAZA

 

Chief Financial Officer (principal financial and accounting officer)

 

August 16, 2005

 

 

Elliot M. Maza, J.D., C.P.A.

 

 

2


EXHIBIT INDEX

Exhibit
Number

 

Description of Exhibit

 

4.1

 

Amendment to the Emisphere Technologies, Inc. Qualified Employee Stock Purchase Plan.

 

 

 

5.1

 

Opinion of Brown Rudnick Berlack Israels LLP, counsel to Emisphere, regarding the legality of the common stock being registered.

 

 

 

23.1

 

Consent of PricewaterhouseCoopers LLP (regarding the registrant).

 

 

 

23.2

 

Consent of Brown Rudnick Berlack Israels LLP, counsel to Emisphere (contained in Exhibit 5.1).

 

 

 

24.1

 

Powers of Attorney (included on signature page).

3