-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BIp/FPpQauLy8NHTLn0ScZrz9pfl/+BQNDBwSVh34veCCURvZ+bmdlZnd+Jqi+CE nRxUuxUNfYe3t/HoTXL6zw== 0000950130-00-001256.txt : 20000315 0000950130-00-001256.hdr.sgml : 20000315 ACCESSION NUMBER: 0000950130-00-001256 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 4 333-30358 FILED AS OF DATE: 20000314 EFFECTIVENESS DATE: 20000314 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMISPHERE TECHNOLOGIES INC CENTRAL INDEX KEY: 0000805326 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 133306985 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: SEC FILE NUMBER: 333-32374 FILM NUMBER: 568460 BUSINESS ADDRESS: STREET 1: 765 OLD SAW MILL RIVER ROAD CITY: TARRYTOWN STATE: NY ZIP: 10591 BUSINESS PHONE: 9143472220 MAIL ADDRESS: STREET 1: 765 OLD SAW MILL RIVER ROAD CITY: TARRYTOWN STATE: NY ZIP: 10591 FORMER COMPANY: FORMER CONFORMED NAME: CLINICAL TECHNOLOGIES ASSOCIATES INC DATE OF NAME CHANGE: 19920128 S-3MEF 1 FORM S-3 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) 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
============================================================================================================== 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) Common Stock, ($.01 par value) 287,500 shares $ 72.75 $20,915,625 $ 5,522 ==============================================================================================================
(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. ================================================================================ 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 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 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. ------------------------------- 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 * - ----------------------------------- Controller and Chief Accounting Office Joseph D. Poveromo /s/ Charles H. Abdalian, Jr. * By:___________________________________________________ Charles H. Abdalian, Jr. Attorney-in-fact II-3 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. EX-5.1 2 LEGAL OPINION OF PAUL WEISS RIFKIND WHARTON 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 --------- 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 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. 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 EX-23.1 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP 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 EX-23.2 4 CONSENT OF PRICEWATERHOUSECOOPERS LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----