Registration Nos. 333-29981
33-88598
As filed with the Securities and Exchange Commission on June 25, 2003.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO FORMS S-8
REGISTRATION STATEMENTS 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 (IRS Employer Identification No.)
incorporation or organization)
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765 Old Saw Mill River Road
Tarrytown, New York 10591
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Emisphere Technologies, Inc. 1997 Stock Option Plan for Outside Directors
Emisphere Technologies, Inc. Non-Qualified Employee Stock Purchase Plan
(Full title of plans)
Michael M. Goldberg, M.D.
Chairman of the Board, President and Chief Executive Officer
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
(Telephone number, including area code, of agent for service)
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COPY TO:
Edwin S. Maynard, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered Per Share Price Registration Fee
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Common Stock, par value
$0.01 per share 300,000 shares (1)(2) $ 4.08 (1) $1,224,000 $99.02
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(1) Represents (a) 100,000 shares issuable upon exercise of options granted
pursuant to the Emisphere Technologies, Inc. Non-Qualified Stock Purchase
Plan and (b) 200,000 shares issuable upon exercise of options to be granted
pursuant to the Emisphere Technologies, Inc. 1997 Stock Option Plan for
Outside Directors an offering price, calculated in accordance with Rule
457(h)(1) under the Securities Act as amended, equal to $4.08, the average
of the high and low prices reported on the Nasdaq National Market on June
20, 2003.
(2) 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.
INCORPORATION BY REFERENCE
OF
REGISTRATION STATEMENTS ON FORM S-8 (FILE NOS. 333-29981 AND 33-88598)
----------------------------------------------------------------------
We are filing this registration statement for the purpose of
registering, in accordance with General Instruction E of Form S-8, an additional
300,000 shares of Common Stock, par value $.01 per share, representing (i)
200,000 shares to be issued under the Emisphere Technologies, Inc. 1997 Stock
Option Plan for Outside Directors ("Outside Director Shares") and (ii) 100,000
shares to be issued under the Emisphere Technologies, Inc. Non-Qualified Stock
Purchase Plan (the "ESPP Shares"). With respect to the Outside Director Shares,
we incorporate by reference into this registration statement on Form S-8 our
previously filed registration statement on Form S-8 (File No. 333-29981, filed
on June 25, 1997) in its entirety, including the exhibits to it. With respect to
the ESPP Shares, we incorporate by reference into this registration statement on
Form S-8 our previously filed registration statement on Form S-8 (File No.
33-88598, filed on January 18, 1995) in its entirety, including the exhibits to
it.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 8. EXHIBITS
EXHIBIT DESCRIPTION
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5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP,
counsel to the Emisphere, regarding the legality of the common
stock being registered.
10.1 Amendment to the Emisphere Technologies, Inc. 1997 Stock
Option Plan for Outside Directors.
10.2 Amendment to the Emisphere Technologies, Inc. Non-Qualified
Employee Stock Purchase Plan.
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP,
counsel to the Emisphere (contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (previously filed).
2
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 New York, State of New York, on June 25, 2003.
EMISPHERE TECHNOLOGIES, INC.
By: /s/ Michael M. Goldberg, M.D.
---------------------------------------
Michael M. Goldberg, M.D.
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Michael M. Goldberg, M.D. Chairman of the Board and
----------------------------- Chief Executive Officer June 25, 2003
Michael M. Goldberg, M.D.
* Director June 25, 2003
-----------------------------
Howard M. Pack
3
SIGNATURE TITLE DATE
--------- ----- ----
* Director June 25, 2003
-----------------------------
Jere E. Goyan, Ph.D.
* Director June 25, 2003
-----------------------------
Mark I. Greene, M.D., Ph.D.
Director
-----------------------------
Joseph R. Robinson, Ph.D.
* Director June 25, 2003
-----------------------------
Robert J. Levenson
/s/ Fredrick D. Cobb (Principal Accounting June 25, 2003
----------------------------- Officer)
Fredrick D. Cobb
* executed pursuant to power-
of-attorney filed previously.
4
EXHIBIT INDEX
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EXHIBIT DESCRIPTION
------- -----------
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP,
counsel to the Emisphere, regarding the legality of the common
stock being registered.
10.1 Amendment to the Emisphere Technologies, Inc. 1997 Stock
Option Plan for Outside Directors.
10.2 Amendment to the Emisphere Technologies, Inc. Non-Qualified
Employee Stock Purchase Plan.
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP,
counsel to the Emisphere (contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (previously filed).
II-1