<PAGE> 1
As filed with the Securities and Exchange Commission
July 18, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ASCENT PEDIATRICS, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 04-3047405
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
187 BALLARDVALE STREET, SUITE B125, WILMINGTON, MASSACHUSETTS 01887
(Address of Principal Executive Offices) (Zip Code)
1992 STOCK INCENTIVE PLAN
(Full title of the plan)
ALAN R. FOX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ASCENT PEDIATRICS, INC.
187 BALLARDVALE STREET, SUITE B125
WILMINGTON, MA 01887
(Name and address of agent for service)
(508) 658-2500
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==========================================================================================================
Proposed
Title of Each Class of Amount Maximum Proposed Amount of
Securities to be to be Offering Price Maximum Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Common Stock
$.00004 par value per share 1,349,470 $8.3125(1) $11,217,469.38(1) $3,399.24
==========================================================================================================
<FN>
- -----------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as
amended, and based upon the average of the high and low prices of the
Common Stock as reported on the Nasdaq National Market on July 14, 1997.
</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The information required by Part I is included in documents sent or
given to participants in the 1992 Stock Incentive Plan of Ascent Pediatrics,
Inc. (the "Registrant") pursuant to Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of
1934 as amended, (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's prospectus dated May 29, 1997 filed
pursuant to Rule 424(b) under the Securities Act, as amended by a
prospectus supplement filed with the Securities and Exchange Commission
on June 19, 1997 (together, the "Prospectus"), which contains audited
financial statements of the Registrant as of December 31, 1995 and
1996, for the three years in the period ended December 31, 1996 and
cumulative from inception (March 16, 1989) to December 31, 1996.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, par
value $.00004 per share ("Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification.
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Article EIGHTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that no director of the Registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a director,
except to the extent that the Delaware General Corporation law prohibits the
elimination or limitation of liability of directors for breach of fiduciary
duty.
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred in connection with any
litigation or other legal proceeding (other than an action by or in the right of
the Registrant) brought against him by virtue of his position as a director or
officer of the Registrant if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against all expenses (including attorneys' fees)
and amounts paid in settlement incurred in connection with any action by or in
the right of the Registrant brought against him by virtue of his position as a
director or officer of the Registrant if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Registrant, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
Registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a Director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors or officers
the Registrant must indemnify those persons to the full extent permitted by such
law as so amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party
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by reason of such position, if such person shall have acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful; provided that, in the case
of actions brought by or in the right of the corporation no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under the
circumstances.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings.
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1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town of Wilmington, Commonwealth of Massachusetts on the 18th
day of July, 1997.
ASCENT PEDIATRICS, INC.
By: /s/ Alan R. Fox
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Alan R. Fox
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Ascent Pediatrics, Inc.
hereby severally constitute Alan R. Fox, John G. Bernardi and David E. Redlick,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and any
and all subsequent amendments to said Registration Statement, and generally to
do all such things in our names and behalf in our capacities as officers and
directors to enable Ascent Pediatrics, Inc. to comply with all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated below and on the 18th day of July, 1997.
Signature Title
- --------- -----
/s/ Alan R. Fox President, Chief Executive Officer
- ----------------------------- and Director (Principal Executive
Alan R. Fox Officer)
/s/ John G. Bernardi Vice President, Finance and Treasurer
- ----------------------------- (Principal Financial and Accounting Officer)
John G. Bernardi
/s/ Emmett Clemente, Ph.D Chairman
- -----------------------------
Emmett Clemente, Ph.D.
/s/ Robert E. Baldini Vice Chairman
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Robert E. Baldini
/s/ Raymond F. Baddour, Ph.D. Director
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Raymond F. Baddour, Ph.D.
<PAGE> 7
/s/ Michael J.F. Du Cros Director
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Michael J.F. Du Cros
/s/ Thomas W. Janes Director
- -----------------------------
Thomas W. Janes
- ----------------------------- Director
Andre Lamotte, Sc.D.
- ----------------------------- Director
Terrance McGuire
/s/ Lee J. Schroeder Director
- -----------------------------
Lee J. Schroeder
<PAGE> 8
INDEX TO EXHIBITS
NUMBER DESCRIPTION PAGE
- ------ ----------- ----
4.1(1) Amended and Restated Certificate of Incorporation
of the Registrant
4.2(1) Amended and Restated By-laws of the Registrant
4.3(1) Specimen Stock Certificate of Common Stock of
the Registrant
5.1 Opinion of Hale and Dorr LLP, counsel to the
Registrant
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P., independent
accountants
23.3 Consent of KPMG Peat Marwick LLP, independent auditors
24.1 Power of Attorney (included in the signature pages
of this Registration Statement)
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(1) Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-1, as amended, File No. 333-23319 and
incorporated herein by reference.
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EXHIBIT 5.1
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HALE AND DORR LLP
60 State Street
Boston, MA 02109
July 18, 1997
Ascent Pediatrics, Inc.
187 Ballardvale Street, Suite B125
Wilmington, Massachusetts 01887
Re: 1992 Stock Incentive Plan
-------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 1,349,470 shares (the "Shares") of Common Stock,
$.00004 par value per share, of Ascent Pediatrics, Inc., a Delaware corporation
(the "Company"), issuable under the Company's 1992 Stock Incentive Plan (the
"Plan").
We have examined the Amended and Restated Certificate of Incorporation
of the Company, the Amended and Restated By-laws of the Company, and originals,
or copies certified to our satisfaction, of all pertinent records of the
meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies, and the authenticity of the
originals of any such documents.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized for issuance under the Plan, and the Shares, when issued
and paid for in accordance with the terms of the Plan and at a price per share
in excess of the par value per share for such Shares, will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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EXHIBIT 23.2
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Ascent Pediatrics, Inc. on Form S-8 of our report dated May 27,
1997, on our audits of the financial statements of Ascent Pediatrics, Inc. as of
December 31, 1995 and 1996, for each of the three years in the period ended
December 31, 1996 and cumulative from inception (March 16, 1989) to December 31,
1996, which report is included in the Registration Statement on Form S-1 (File
No. 333-23319), as amended, and related Prospectus dated May 29, 1997.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
July 16, 1997
<PAGE> 1
EXHIBIT 23.3
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference on Form S-8 of Ascent
Pediatrics, Inc. of our report, dated February 21, 1997, with respect to the
financial statements of A Product Line of Upsher-Smith Laboratories, Inc.,
included in the Registration Statement on Form S-1 (File No. 333-23319), as
amended, and related Prospectus dated May 29, 1997.
Our report dated February 21, 1997, contains an explanatory paragraph
that states that the financial statements were prepared to present the assets
related to the product line to be sold by Upsher-Smith Laboratories, Inc. and
the net sales and the identified costs and expenses and that they are not
intended to be a complete presentation of the product line's financial position,
results of operations or cash flows.
KPMG PEAT MARWICK LLP
Minneapolis, Minnesota
July 18, 1997
