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As filed with the Securities and Exchange Commission on June 26, 2001
Registration No. 333-
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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 Registration 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)
1999 STOCK INCENTIVE PLAN
CALIFORNIA STOCK OPTION PLAN
(Full Title of the Plan)
EMMETT CLEMENTE, PH.D.
PRESIDENT AND CHAIRMAN OF THE BOARD
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)
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CALCULATION OF REGISTRATION FEE
PROPOSED
TITLE OF AMOUNT MAXIMUM PROPOSED AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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Depositary Shares, each
representing one share of
Common Stock,
.00004 par value per share,
subject to a call option and
evidenced by a depositary
receipt 950,000(1) (2) $ 388,650(2) $ 97.16(2)
- ----------------------------- ----------- --------------- ------------------- --------------
Common Stock
.00004 par value per share (3) N/A N/A (4)
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(1) Consists of 750,000 shares issuable pursuant to the 1999 Stock
Incentive Plan and 200,000 shares issuable pursuant to the California Stock
Option Plan.
(2) 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, where an exercise price has not been established, the average of
the high and low closing per share prices of Depositary Shares as reported on
the Over-The-Counter Bulletin Board on June 20, 2001. In such cases where an
exercise price has been established, the weighted average exercise price has
been used.
(3) Such number of shares of Common Stock as are represented by the
Depositary Shares registered hereby.
(4) Because the Common Stock is issued for no consideration, no
registration fee is required with respect thereto.
Exhibit Index on page 8.
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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 1999 Stock Incentive Plan and the California Stock Option
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:
(1) The registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to
Rule 424(b) of the Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(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, contained in the Registrant's registration statement on Form
8-A dated April 4, 1997 and filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
(4) The description of the Depositary Shares of the Registrant, par
value $.00004 per share, contained in the Registrant's Registration Statement on
Form 8-A dated May 27,1999 and 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 Securities offered have been
sold or which deregisters all Securities 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The Assistant Secretary to the Registrant, David E. Redlick, Esq., is a
senior partner of Hale and Dorr LLP, counsel to the corporation. Hale and Dorr
LLP has opined as to the securities being offered by this Registration
Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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.
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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 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.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
1. The undersigned 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
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(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
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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.
(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 26th
day of June, 2001.
ASCENT PEDIATRICS, INC.
By: /s/ Emmett Clemente, Ph.D.
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Emmett Clemente, Ph.D.
President and Chairman of the Board
POWER OF ATTORNEY
We, the undersigned officers and directors of Ascent Pediatrics, Inc.,
hereby severally constitute Emmett Clemente, Ph.D. and Stuart M. Falber, 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 26th day of June, 2001.
Signature Title
- ----------------------------- -------------------------------------------------------
/s/ Emmett Clemente, Ph.D. President and Chairman of the Board
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Emmett Clemente, Ph.D. (Principal Executive, Financial and Accounting Officer)
___________________
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Robert E. Baldini
Vice Chairman of the Board of Directors
/s/ Raymond F. Baddour, Sc.D.
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Raymond F. Baddour, Sc.D.
Director
/s/ Nicholas Daraviras
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Nicholas Daraviras
Director
___________________
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James E. Flynn
Director
___________________
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Brian P. Friedman
Director
/s/ Joseph R. Ianelli
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Joseph R. Ianelli
Director
___________________
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Andre L. Lamotte, Sc.D.
Director
/s/ James L. Luikart
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James L. Luikart
Director
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INDEX TO EXHIBITS
NUMBER DESCRIPTION
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4.1(1) Amended and Restated Certificate of Incorporation of the Registrant.
4.2(2) Certificate of Designation, Voting Powers, Preferences and Rights of
Series G Convertible Exchangeable Preferred Stock of the Registrant.
4.3(3) Certificate of Designation, Voting Powers, Preferences and Rights of
Series H Convertible Exchangeable Preferred Stock of the Registrant.
4.4(1) Amended and Restated By-laws of the Registrant.
4.5(1) Specimen Certificate for shares of Common Stock, par value $.00004
per share, of the Registrant.
4.6(2) Specimen Certificate for Depositary Shares, $.00004 par value, 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.
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 May 27, 2000 as an Exhibit to
the Registrant's Registration Statement on Form S-4, as amended (File No.
333-79383), and incorporated herein by reference.
(3) Previously filed with the Commission on January 16, 2001 as an Exhibit
to the Registrant's Current Report on Form 8-K (File No. 333-22347) and
incorporated herein by reference.