Registration No. 333-
UNITED STATES
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
(State of other jurisdiction of incorporation or organization)
13-3306985
(IRS Employer Identification Number)
240 Cedar Knolls Road, Suite 200
Cedar Knolls, NJ 07927
(978) 532-8000
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Michael V. Novinski
President and Chief Executive Officer
Emisphere Technologies, Inc.
240 Cedar Knolls Road, Suite 200
Cedar Knolls, NJ 07927
(978) 532-8000
With a copy to:
Timothy C. Maguire, Esq.
Brown Rudnick LLP
One Financial Center
Boston, MA 02111
(617) 856-8200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From time to time or at one
time after the effective date of this Registration Statement as determined by the Registrant.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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.
þ
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. þ 333-146212
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. o
If this Form is a registration statement pursuant to General Instruction I. D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I. D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Maximum |
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Title of Each Class |
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Offering |
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Proposed Maximum |
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Amount of |
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of Securities to |
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Amount to be |
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Price Per |
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Aggregate |
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Registration |
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be Registered |
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Registered |
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Unit (1) |
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Offering Price |
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Fee(2) |
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Common Stock, par
value $0.01 per share |
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$ |
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Warrants |
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Total Registration Fee |
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1,400,000 |
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0.70 |
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980,000 |
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54.68 |
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Based on the public offering price of $0.70 per unit. |
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The registrant previously registered 7,000,000 shares of its common
stock, with a proposed maximum aggregate offering price of
$29,610,000, pursuant to a registration statement on Form S-3 (SEC
File No. 333-146212) for which the registrant paid a registration fee
of $909.03. |
TABLE OF CONTENTS
Explanatory Note
This Registration Statement on Form S-3 is being filed by Emisphere Technologies, Inc. pursuant to
Rule 462(b) and General Instruction IV of Form S-3, both as promulgated under the Securities Act of
1933, as amended, with respect to the registration of an additional 1,400,000 shares of its common
stock, par value $0.01 per share. The contents of the Registration Statement on Form S-3 (File No.
333-146212), filed by Emisphere Technologies, Inc. with the Securities and Exchange Commission,
which was declared effective on October 1, 2007, is incorporated by reference into, and shall be
deemed part of, this Registration Statement. The required opinion and consent are listed on an
Exhibit Index attached hereto and filed herewith.
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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-3 and
has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cedar Knolls, State of New York on August
19, 2009.
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EMISPHERE TECHNOLOGIES INC |
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By:
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/s/ Michael V. Novinski
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Michael V. Novinski |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Michael V. Novinski and
Michael R. Garone, and each of them singly, 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, 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 perform each and every
act and thing requisite and necessary to be done in connection therewith, 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 his 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, this Registration Statement has
been signed by the following persons in the capacities indicated and on the dates indicated:
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| NAME AND SIGNATURE |
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TITLE |
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| /s/ Michael V. Novinski
Michael V. Novinski |
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President and Chief Executive Officer
(principal executive
officer)
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August 19, 2009 |
| /s/ Franklin M. Berger
Franklin M. Berger, C.F.A. |
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Director
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August 19, 2009 |
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