SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) FEBRUARY 23, 1996
EMISPHERE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-10615 13-3306985
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
15 SKYLINE DRIVE, HAWTHORNE, NEW YORK 10532
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (914) 347-2220
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
(a) ADOPTION OF RIGHTS PLAN. On February 23, 1996, the Board of
Directors of Emisphere Technologies, Inc. (the "Company") declared a
dividend of one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $.01 per share (the "Common
Shares"), of the Company. The dividend is payable on March 15, 1996 (the
"Record Date") to the stockholders of record at the close of business on
that date. Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series A Junior Participating
Cumulative Preferred Stock, par value $.01 per share (the "Preferred
Shares"), of the Company at a price of $80 per one one-hundredth of a
Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement
(the "Rights Agreement") between the Company and Continental Stock Transfer
& Trust Company, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of 20% or more of
the outstanding Common Shares or (ii) 10 business days (or such later date
as may be determined by action of the Board of Directors prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would result in
the beneficial ownership by a person or group of 20% or more of the
outstanding Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to any of
the Common Share certificates outstanding as of the Record Date, by such
Common Share certificate with a copy of this Summary of Rights attached
thereto.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the Common Shares. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates
for Common Shares outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common
Shares represented by such certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Shares as
of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on February 23, 2006 (the "Final Expiration Date"),
unless the Final Expiration Date is extended or unless the Rights are
earlier redeemed or exchanged by the Company, in each case, as described
below.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Right are
subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders
of the Preferred Shares of certain rights or warrants to subscribe for or
purchase Preferred Shares with a conversion price less than the then-
current market price of the Preferred Shares or (iii) upon the distribution
to holders of the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject
to adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable
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in Common Shares or subdivisions, consolidations or combinations of the
Common Shares occurring, in any such case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per
Common Share. In the event of liquidation, the holders of the Preferred
Shares will be entitled to a minimum preferential liquidation payment of
$100 per share but will be entitled to an aggregate payment of 100 times
the payment made per Common Share. Each Preferred Share will have 100
votes, voting together with the Common Shares. Finally, in the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged, each Preferred Share will be entitled to receive 100 times the
amount received per Common Share. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a
Preferred Share purchasable upon exercise of each Right should approximate
the value of one Common Share.
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets
or earning power are sold after a person or group has become an Acquiring
Person, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock
of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. In the event
that any person or group of affiliated or associated persons becomes an
Acquiring Person, proper provision shall be made so that each holder of a
Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to receive upon
exercise such number of one one-hundredths of a Preferred Share as shall
equal the result obtained by (x) multiplying the then current Purchase
Price by the number of one one-hundredths of a Preferred Share for which a
Right is then exercisable and dividing that product by (y) 50% of the then
current per share market price of the Company's Common Shares.
At any time after any person or group becomes an Acquiring Person and
prior to the acquisition by such person or group of 50% or more of the
outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group which
will have become void), in whole or in part, for consideration consisting
of one-half the securities of the Company that would be issuable at such
time upon exercise of one Right.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1%
in such Purchase Price. No fractional Preferred Shares will be issued
(other than fractions which are integral multiples of one one-hundredth of
a Preferred Share, which may, at the election of the Company, be evidenced
by depositary receipts) and in lieu thereof, an adjustment in cash will be
made based on the market price of the Preferred Shares on the last trading
day prior to the date of exercise.
At any time prior to the tenth day following the acquisition by a
person or group of affiliated or associated persons of beneficial ownership
of 20% or more of the outstanding Common Shares, the Board of Directors of
the Company may redeem the Rights in whole, but not in part, at a price of
$.01 per Right (the "Redemption Price"); PROVIDED, HOWEVER, that, for the
120-day period after any date of a change (resulting from a proxy or
consent solicitation) in a majority of the Board of Directors of the
Company in office at the commencement of such solicitation, the Rights may
only be redeemed if (A) there are directors then in office who were in
office at the commencement of such solicitation and (B) the Board of
Directors of the Company, with the concurrence of a majority of such
directors then in office, determines that such redemption is, in their
judgment, in the best interests of the Company and its stockholders. The
Redemption
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of the Rights may be made effective at such time on such basis
with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of
the Company without the consent of the holders of the Rights, except that
from and after a Distribution Date no such amendment may adversely affect
the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement,
which is hereby incorporated herein by reference.
As of February 23, 1996, there were 8,370,512 shares of Common Stock
outstanding (as well as a further 2,815,389 shares reserved for issuance
upon exercise of outstanding stock options). Each outstanding share of
Common Stock at the close of business on the Record Date will receive one
Right. As long as the Rights are attached to the Common Stock, the Company
will issue one Right with each new share of Common Stock so that all such
shares will have attached rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the
Company without conditioning the offer on the Rights being redeemed or a
substantial number of Rights being acquired. However, the Rights should
not interfere with any tender offer or merger approved by the Company
(other than with an Acquiring Person) because the Rights do not become
exercisable in the event of an acquisition exempted by the Company's Board
of Directors.
Attached hereto as Exhibit 1 and incorporated herein by reference are
copies of the Rights Agreement and the exhibits thereto, as follows:
Exhibit A -- Certificate of Designations of the Series A Junior
Participating Cumulative Preferred Stock; Exhibit B -- Form of Rights
Certificate; and Exhibit C -- Summary of Rights to Purchase Preferred
Shares. THE FOREGOING DESCRIPTION OF THE RIGHTS IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE RIGHTS AGREEMENT AND SUCH EXHIBITS THERETO.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA Financial Information and
Exhibits.
(C) EXHIBITS.
4. Rights Agreement, dated as of February 23, 1996, by and between
Emisphere Technologies, Inc. and Continental Stock Transfer &
Trust Company, as Rights Agent, which includes the form of
Certificate of Designations setting forth the terms of the Series
A Junior Participating Cumulative Preferred Stock, par value
$0.01 per share, as Exhibit A, the form of Right Certificate as
Exhibit B and the Summary of Rights to Purchase Preferred Shares
as Exhibit C.
99. Press Release issued March 5, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
EMISPHERE TECHNOLOGIES, INC.
Date: March 5, 1996 By: /S/ MICHAEL M. GOLDBERG
Michael M. Goldberg, M.D.
Chairman and Chief
Executive Officer
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EXHIBIT INDEX
EXHIBIT DESCRIPTION OF THE EXHIBIT PAGE
4. Rights Agreement, dated as of February 23, 1996, by and between
Emisphere Technologies, Inc. and Continental Stock Transfer &
Trust Company, as Rights Agent.
99. Press Release issued March 5, 1996.
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