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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) December 2, 2003
EMISPHERE TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 1-10615 13-3306985
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
765 Old Saw Mill River Road, Tarrytown, New York 10591
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(Address of Principal Executive Offices) (Zip Code)
(914) 347-2220
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(Registrant's telephone number, including area code)
N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On December 2, 2003, Emisphere Technologies, Inc. (the "Company") was
served with a Complaint in an action brought by Eli Lilly and Company ("Lilly")
in the United States District Court for the Southern District of Indiana,
Indianapolis Division, seeking (1) a declaratory judgment declaring that Lilly
is not in breach of its agreements with the Company concerning oral formulations
of recombinant parathyroid hormone (PTH) and (2) an order preliminarily and
permanently enjoining the Company from terminating those agreements. Lilly
alleges in its Complaint that Lilly was responding to a letter received from
Emisphere dated September 26, 2003 demanding a milestone payment that was due
Emisphere, and a further demand that Lilly assign all ownership rights in a
certain patent application published on September 4, 2003 with the World
Intellectual Property Organization (WO 03/072195).
On January 22, 2004, the Company filed an answer in the action,
asserting affirmative defenses and counterclaims for patent infringement, unfair
competition under the Lanham Act and breach of contract. The Company alleges
that Lilly filed certain patent applications relating to the use of Emisphere
proprietary technology in combination with GLP 1 and various GLP 1 analogues, in
violation of a License Agreement between Lilly and the Company dated April 7,
1998, and a Research Collaboration and Option Agreement between Lilly and the
Company dated June 8, 2000 (collectively, the "Agreements"), and that the
activities disclosed in such applications infringe upon the Company's patents.
The Company is also alleging that Lilly has breached the Agreements by
failing to make a milestone payment, as required upon the completion of Oral PTH
Product Phase I studies.
The Company is demanding that Lilly be preliminarily and permanently
enjoined and restrained from making, using, selling, disclosing, licensing,
transferring or otherwise misappropriating or commercializing the Emisphere
technology and patents; and that Emisphere be awarded damages for Lilly's patent
infringement and breach of contract; and that Lilly pay to the Company the
milestone payment described above.
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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.
Dated: January 27, 2004
By: /s/ Michael M. Goldberg, M.D
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Name: Michael M. Goldberg
Title: Chief Executive Officer
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