Registration No. 333-_____________
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)
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| DELAWARE
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2834
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13-3306985 |
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| (State or other jurisdiction of
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(Primary Standard Industrial
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(I.R.S. Employer |
| incorporation or organization)
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Classification Code Number)
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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)
MICHAEL V. NOVINSKI
President, 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 C. Maguire, Esq.
Brown Rudnick Berlack Israels LLP
One Financial Center
Boston, MA 02111
617-856-8200
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 or interest investment 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 333-133087
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
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 $0.01 per
share |
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— |
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$ — |
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Warrants |
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— |
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Total Registration Fee |
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400,000 |
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$3.785 |
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$1,514,000 |
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$46.48 |
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Based on the public offering price of $3.785. |
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The registrant previously registered 6,000,000 shares of its
common stock, with a proposed maximum aggregate offering price of
$ 48,300,000, pursuant to a registration statement on Form S-3
(SEC File No. 333-133087) for which the registrant paid a
registration fee of $5,685. |
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 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. 333-133087), filed by Emisphere Technologies, Inc. with the Securities and
Exchange Commission, which was declared effective on May 2, 2006, 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.
1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits.
All exhibits filed with or incorporated by reference in Registration Statement No. 333-133087
are incorporated by reference into, and shall be deemed to be a part of, this Registration
Statement, except for the following, which are filed herewith.
The following exhibits are filed with or incorporated by reference into this registration
statement.
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Description |
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5.1
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Opinion of Brown Rudnick Berlack Israels LLP |
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23.1
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Consent of Brown Rudnick Berlack Israels LLP (included in Exhibit 5.1). |
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23.2
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Consent of PricewaterhouseCoopers LLP |
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24.1
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Power of Attorney (included on signature page) |
II-1
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 Tarrytown, State of New York on August 16,
2007.
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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
William T. Rumble, 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 below by the persons whose signatures appear below, which persons have signed such
Registration Statement in the capacities indicated:
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| NAME AND SIGNATURE |
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TITLE |
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DATE |
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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 16, 2007 |
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/s/ Stephen K. Carter, M.D.
Stephen K. Carter, M.D.
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Director
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August 16, 2007 |
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/s/ Mark H. Rachesky, M.D.
Mark H. Rachesky, M.D.
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Director
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August 16, 2007 |
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/s/ Michael Weiser, M.D.
Michael Weiser, M.D.
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Director
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August 16, 2007 |
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/s/ John D. Harkey, Jr.
John D. Harkey, Jr.
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Director
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August 16, 2007 |
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/s/ William T. Rumble, C.P.A.
William T. Rumble, C.P.A.
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Corporate Controller
(principal accounting officer)
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August 16, 2007 |
II-2