<PAGE> 1
As filed with the Securities and Exchange Commission on August 6, 1999
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 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
ALAN R. FOX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ASCENT PEDIATRICS, INC.
187 BALLARDVALE STREET, SUITE B125
WILMINGTON, MASSACHUSETTS 01887
(Name and Address of Agent for Service)
(978) 658-2500
(Telephone number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================== ================== ================ ================ ==============
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ------------------------------- ------------------ ---------------- ---------------- --------------
<S> <C> <C> <C> <C>
Depositary Shares, each
representing one share of 1,850,000 shares $1.75(1) $3,237,500(1) $900.02
Common Stock,
$.00004 par value per share,
subject to a call option and
evidenced by a depositary
receipt
- ------------------------------- ------------------ ---------------- ---------------- --------------
Common Stock, (2) N/A N/A (3)
$.00004 par value per share
=============================== ================== ================ ================ ==============
</TABLE>
<PAGE> 2
- ---------------
(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
Depositary Shares as reported on the OTC Bulletin Board on August 3,
1999.
(2) Such number of shares of Common Stock as are represented by the
Depositary Shares registered hereby.
(3) Because the Common Stock is issued for no consideration, no
registration fee is required with respect thereto.
<PAGE> 3
Page 1 of 8 pages. Exhibit
Index begins on page 8.
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 Equity 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.
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:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Commission on March 31,
1999;
(ii) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, as filed with the Commission on May 17,
1999;
(iii) The Company's Current Reports on Form 8-K as filed with the
Commission on January 8, 1999, February 22, 1999, July 2, 1999
and July 27, 1999;
(iv) The description of the Common Stock of the Company contained
in the Company's Registration Statement on Form 8-A, as filed
with the Commission on April 4, 1997, including any amendments
or reports filed for the purpose of updating such description;
and
(v) The description of the Depositary Shares of the Company
contained in the Company's Registration Statement on Form 8-A,
as filed with the Commission on May 27, 1999 and as amended on
such date, including any other amendments or reports 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
<PAGE> 4
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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. Indemnification.
Article EIGHTH of the Registrant's Second 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
2
<PAGE> 5
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 Second 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.
Article NINTH also permits the Registrant to purchase and maintain
insurance, at the Registrant's expense, to protect any director against any
expense, liability or loss incurred by such director in such capacity or arising
out of his status as such.
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 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
3
<PAGE> 6
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.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
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.
4
<PAGE> 7
(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.
5
<PAGE> 8
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 6th
day of August, 1999.
ASCENT PEDIATRICS, INC.
By: /s/ Alan R. Fox
---------------------------------------
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,
Esq., 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 6th day of August, 1999.
Signature Title
--------- -----
/s/ Alan R. Fox President, Chief Executive Officer and
- ------------------------------- Director
Alan R. Fox (Principal Executive Officer)
/s/ John G. Bernardi Vice President, Finance and Treasurer
- ------------------------------- (Principal Financial and Accounting Officer)
John G. Bernardi
[Signature page to 1992 Equity Incentive Plan]
6
<PAGE> 9
/s/ Emmett Clemente, Ph.D. Chairman of the Board of Directors
- -------------------------------
Emmett Clemente, Ph.D.
/s/ Robert E. Baldini Vice Chairman of the Board of Directors
- -------------------------------
Robert E. Baldini
/s/ Thomas L. Anderson Director
- -------------------------------
Thomas L. Anderson
/s/ Raymond F. Baddour, Ph.D. Director
- -------------------------------
Raymond F. Baddour, Ph.D.
/s/ Nicholas Daraviras Director
- -------------------------------
Nicholas Daraviras
Director
- -------------------------------
Andre Lamotte, Sc.D.
/s/ James Luikart Director
- -------------------------------
James Luikart
/s/ Lee J. Schroeder Director
- -------------------------------
Lee J. Schroeder
[Signature page to 1992 Equity Incentive Plan]
7
<PAGE> 10
EXHIBIT INDEX
-------------
NUMBER DESCRIPTION
4.1(1) Second Amended and Restated Certificate of Incorporation of
the Registrant.
4.2(1) Amended and Restated By-laws of the Registrant.
4.3 Certificate of Merger of Bird Merger Corporation into Ascent
Pediatrics, Inc., dated July 23, 1999.
4.4(3) Depositary Agreement dated as of February 16, 1999, as amended
by the Supplemental Agreement, by and among the Registrant,
Alpharma USPD Inc. and State Street Bank and Trust Company.
4.5(4) Supplemental Agreement dated as of July 1, 1999 by and among
the Registrant, Alpharma Inc., Alpharma USPD Inc., State
Street Bank and Trust Company and each of the Original Lenders
named therein.
4.6(3) Form of Depositary Receipt 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 PricewaterhouseCoopers LLP, independent
accountants.
23.3 Consent of KPMG LLP.
24.1 Power of Attorney (included in the signature pages of this
Registration Statement).
- ------------
(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.
(2) Previously filed with the Commission on June 2, 1998 as an Exhibit to
the Registrant's Current Report on Form 8-K and incorporated herein by
reference.
8
<PAGE> 11
(3) Previously filed with the Commission on February 22, 1999 as an Exhibit
to the Registrant's Current Report on Form 8-K and incorporated herein
by reference.
(4) Previously filed with the Commission on July 2, 1999 as an Exhibit to
the Registrant's Post-Effective Amendment to its Registration Statement
(File No. 333-79383) and incorporated herein by reference.
9
<PAGE> 1
Exhibit 4.3
-----------
CERTIFICATE OF MERGER
OF
BIRD MERGER CORPORATION
(A DELAWARE CORPORATION)
INTO
ASCENT PEDIATRICS, INC.
(A DELAWARE CORPORATION)
Ascent Pediatrics, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
Name State of Incorporation
---- ----------------------
Ascent Pediatrics, Inc. Delaware
Bird Merger Corporation Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of
Subsection (c) of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation of the merger is
Ascent Pediatrics, Inc., a Delaware Corporation.
FOURTH: That the amendments or changes in the Restated Certificate of
Incorporation of Ascent Pediatrics, Inc., a Delaware corporation, which is the
surviving corporation, that are to be effected by the merger are as follows:
That the following Article FOURTEENTH be and hereby is inserted
immediately following Article THIRTEENTH of the Restated Certificate of
Incorporation of the surviving corporation:
"FOURTEENTH. The Board of Directors of the Corporation may discuss,
consider and take any actions relating to any of the following matters, without
the participation or consent of any Alpharma Director (as defined below), upon
the approval of a majority of the Non-Alpharma Directors (as defined below) of
the Corporation then in office:
<PAGE> 2
(a) approve any amendment or waiver by the Corporation of the form
of Depositary Receipt (as defined in the Depositary Agreement
dated as of February 16, 1999 by and among the Corporation,
Alpharma USPD, Inc., a Delaware corporation ("Alpharma"), and
State Street Bank and Trust Company, as amended (the
"Depositary Agreement")) or any provision of the Depositary
Agreement pursuant to Section 9.01 of the Depositary
Agreement;
(b) consent to any waiver or exception to Section 6.1 of the
Master Agreement dated as of February 16, 1999 by and between
the Corporation, Alpharma and Alpharma, Inc., a Delaware
corporation ("Parent"), as amended (the "Master Agreement");
(c) exclude any Alpharma Director from access to any documents or
other materials provided to the other members of the Board of
Directors of the Corporation which relate to any matter with
respect to which the Corporation and Alpharma have a potential
conflict of interest if counsel to the Corporation advises the
Non-Alpharma Directors that such exclusion is appropriate
given such potential conflict of interest;
(d) approve any amendment or waiver by the Corporation of any
provision of the Master Agreement pursuant to Section 8.5(a)
thereof; or
(e) make any other determination under the terms of the Depositary
Agreement, the Master Agreement or the Loan Agreement dated as
of February 16, 1999 by and among the Corporation, Alpharma
and Parent, as amended (the "Loan Agreement"), or that
otherwise relates to any matter with respect to which the
Corporation and Alpharma have a potential conflict of interest
if counsel to the Corporation has advised the Corporation to
such effect.
Any act or decision done or made by a majority of the Non-Alpharma Directors
pursuant to this Article FOURTEENTH shall be regarded as the act of the Board of
Directors of the Corporation. For purposes of this Article FOURTEENTH, (i) the
"Non-Alpharma Directors" shall mean all members of the Board of Directors of the
Corporation at any time in office, excluding any Alpharma Director then in
office, and (ii) the "Alpharma Director" shall mean the member of the Board of
Directors of the Corporation nominated by Alpharma and appointed to the Board of
Directors pursuant to Section 6.5 of the Loan Agreement and any successor to or
replacement of such director then in office who was elected to the Board of
Directors upon the nomination of Alpharma. This Article FOURTEENTH shall
terminate and be of no further force or effect from and after the Option
Expiration Date (as defined in the Depositary Agreement).
That the following Article FIFTEENTH be and hereby is inserted immediately
following Article FOURTEENTH of the Restated Certificate of Incorporation of the
surviving corporation:
<PAGE> 3
FIFTEENTH. The Board of Directors of the Corporation may not, without
the consent of the Alpharma Director then in office, authorize the issuance of
any securities of the Company convertible into any equity security of the
Company (including Depositary Shares (as defined in the Depositary Agreement)),
or any rights, options or warrants to acquire any equity security of the
Company, which, following the Option Closing (as defined in the Depositary
Agreement) (whether or not convertible, vested, exercisable or exchangeable on
the Option Closing Date (as defined in the Depositary Agreement)), are not
convertible into or exercisable or exchangeable solely for the cash that the
holders thereof would have received had they converted, exercised or exchanged
such convertible securities, rights, options and warrants for such equity
security of the Company immediately prior to the Option Closing Date. This
Article FIFTEENTH shall terminate and be of no further force or effect from and
after the Option Expiration Date."
FIFTH: That the executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of said
principal place of business is 187 Ballardvale Street, Suite B-125, Wilmington,
Massachusetts 01887.
SIXTH: That a copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation upon request and without cost to any
stockholder of any constituent corporation.
SEVENTH: That this Certificate of Merger shall be effective upon
filing.
IN WITNESS WHEREOF, Ascent Pediatrics, Inc. has caused this Certificate
to be executed by its Chief Executive Officer this 23 day of July, 1999.
ASCENT PEDIATRICS, INC.
(a Delaware corporation)
By: /s/ Alan R. Fox
-----------------------------
Alan R. Fox
Chief Executive Officer
<PAGE> 1
HALE AND DORR LLP
COUNSELLORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
607-526-6000 o FAX 617-526-5000
Exhibit 5.1
August 6, 1999
Ascent Pediatrics, Inc.
187 Ballardvale Street, Suite B125
Wilmington, Massachusetts 01887
Re: 1992 Equity 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 1,850,000 shares of Depositary Shares (the "Depositary
Shares"), each representing one share of Common Stock, $.00004 par value per
share (the "Common Stock"), subject to a call option and evidenced by a
depositary receipt, of Ascent Pediatrics, Inc., a Delaware corporation (the"
Company"), issuable under the Company's 1992 Equity Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company and
the By-laws of the Company, each as amended and restated to date, and originals,
or copies certified to our satisfaction, of all pertinent records of the
meetings of the directors and stockholders of the Company, the Depositary
Agreement dated as of February 16, 1999, as amended, by and among the Company,
Alpharma USPD Inc. and State Street Bank and Trust Company (the "Depositary
Agreement"), the Agreement and Plan of Merger dated as of February 16, 1999 by
and between the Company and Bird Merger Corporation (the "Merger Agreement"),
the Registration Statement and such other documents relating to the Company as
we have deemed material for the purposes of this opinion.
In our 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.
Washington, DC Boston, MA London, UK*
- --------------------------------------------------------------------------------
HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
<PAGE> 2
Ascent Pediatrics, Inc.
August 6, 1999
Page 2
We assume that the appropriate action will be taken, prior to the offer
and sale of the shares in accordance with the Plan, to register and qualify the
shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of the Commonwealth of Massachusetts, the
Delaware General Corporation Law statute and the federal laws of the United
States of America.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the Depositary Shares covered by the Registration
Statement to be issued under the Plan, as described in the Registration
Statement, and such shares when issued in accordance with the terms of the
Depositary Agreement, the Merger Agreement and the Plan will be legally issued,
fully paid and non-assessable.
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
<PAGE> 1
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference into this
registration statement for the 1992 Equity Incentive Plan on Form S-8 of Ascent
Pediatrics, Inc. of our report, which includes an explanatory paragraph
regarding the Company's ability to continue as a going concern, dated February
24, 1999, relating to the financial statements of Ascent Pediatrics, Inc., which
appear in Ascent Pediatrics, Inc.'s Annual Report to Shareholders on Form 10-K
for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
August 4, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report incorporated herein by reference.
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.
/s/ KPMG LLP
KPMG LLP
Minneapolis, Minnesota
August 4, 1999
