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As filed with the Securities and Exchange Commission on June 19, 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
HALSEY DRUG CO., INC.
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(Exact name of issuer as specified in its charter)
New York 11-0853640
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
695 No. Perryville Road, Rockford, Illinois 61107
(815) 399-2060
(Address, Including Zip Code, and Telephone Number, including Area Code,
of Registrant's Principal Executive Offices)
Halsey Drug Co., Inc., 1998 Stock Option Plan
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(Full title of the plan)
Peter A. Clemens, Vice President and Chief Financial Officer
Halsey Drug Co., Inc., 695 No. Perryville Road, Rockford, Illinois 61107
(815) 399-2060
(Name, address, including Zip Code, and telephone number, including
Area Code of Agent for Service)
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Copies to:
John P. Reilly, Esq.
St. John & Wayne, L.L.C.
Two Penn Plaza East, Newark, New Jersey 07105
(973) 491-3600
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
to be to be price per offering Registration
registered registered (1) share price Fee
---------- -------------- ----- ----- ---
Common Stock $.01 par value 1,351,100 $2.375 (2) $ 3,208,863 $ 803
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 90,000 $ 2.50 (3) $ 225,000 $ 57
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 1,350 $2.1875 (4) $ 2,953 $ 1
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 10,000 $1.50 (5) $ 15,000 $ 4
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 10,000 $1.25 (6) $ 12,500 $ 4
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 65,000 $1.1875 (7) $ 77,188 $ 20
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 286,500 $1.1250 (8) $ 322,313 $ 81
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 5,000 $2.3125 (9) $ 11,563 $ 3
per share, issuable upon
exercise of Plan Options
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Common Stock, $.01 par value 709,000 $1.8750 (10) $ 1,329,375 $ 333
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 650,000 $1.1250 (11) $ 731,250 $ 183
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 1,000 $1.1875 (12) $ 1,188 $ 1
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 6,667 $ .8906 (13) $ 5,938 $ 2
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 200,000 $2.50 (14) $ 500,000 $ 125
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 5,000 $ .6406 (15) $ 3,203 $ 1
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 40,000 $1.14 (16) $ 45,600 $ 12
per share, issuable upon
exercise of Plan Options
Common Stock, $.01 par value 60,000 $1.01 (17) $ 60,600 $ 16
per share, issuable upon
exercise of Plan Options
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Common Stock, $.01 par value 4,609,383 $2.145 (18) $ 9,884,127 $2,472
per share, reserved for
future issuance
TOTAL 8,100,000 $ 26.9512 $16,439,661 $4,118
========= ============= =========== ======
(1) The aggregate amount of securities registered hereunder is 8,100,000 shares
of Common Stock. Pursuant to Rule 416 promulgated under the Securities Act of
1933, as amended, this Registration Statement covers such additional shares of
Common Stock to be offered or issued to prevent dilution as a result of future
stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $2.375 per share of
Common Stock for shares subject to options granted under the Plan.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $2.50 per share of
Common Stock for shares subject to options granted under the Plan.
(4) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $2.1875 per share of
Common Stock for shares subject to options granted under the Plan.
(5) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.50 per share of
Common Stock for shares subject to options granted under the Plan.
(6) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.25 per share of
Common Stock for shares subject to options granted under the Plan.
(7) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.1875 per share of
Common Stock for shares subject to options granted under the Plan.
(8) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.1250 per share of
Common Stock for shares subject to options granted under the Plan.
(9) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $2.3125 per share of
Common Stock for shares subject to options granted under the Plan.
(10) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.8750 per share of
Common Stock for shares subject to options granted under the Plan.
(11) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.1250 per share of
Common Stock for shares subject to options granted under the Plan.
(12) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.1875 per share of
Common Stock for shares subject to options granted under the Plan.
(13) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $.8906 per share of
Common Stock for shares subject to options granted under the Plan.
(14) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $2.50 per share of
Common Stock for shares subject to options granted under the Plan.
(15) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $.6406 per share of
Common Stock for shares subject to options granted under the Plan.
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(16) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.14 per share of
Common Stock for shares subject to options granted under the Plan.
(17) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $1.01 per share of
Common Stock for shares subject to options granted under the Plan.
(18) The fee with respect to these shares has been calculated pursuant to
paragraphs (h) and (c) of Rule 457 upon the basis of $2.145, the average of the
bid and asked price per share of the Registrant's Common Stock on June 13, 2001,
a date within five (5) business days prior to the date of filing of this
Registration Statement, as reported by the National Association of Securities
Dealers' Over-the-Counter Bulletin Board.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I, Item 1, of Form S-8 to be contained in
the Section 10(a) Prospectus to be sent or given to participants in our 1998
Stock Option Plan, as amended, is omitted from the Registration Statement in
accordance with Rule 428(b)(1) under the Securities Act and the Note to Part I
of Form S-8. In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as a part of this
Registration Statement or as a Prospectus or Prospectus Supplement pursuant to
Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as a Prospectus or Prospectus Supplement pursuant to
Rule 424.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE
Halsey Drug Co., Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement on Form S-8 (this "Registration
Statement") the following documents that have been filed previously with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000 as filed and as amended from time
to time;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
3. The Registrant's Definitive Proxy Statement for Registrant's
2001 Annual Meeting of Shareholders, filed on April 27, 2001;
and
4. The description of the Registrant's Common Stock as described
in Form 8-A filed with the Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date hereof and 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 and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superceded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supercedes that statement. Any such statement so
modified or superceded shall not constitute a part of this Registration
Statement, except as so modified or superceded.
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ITEM 4. DESCRIPTION OF SECURITIES
The description of the Company's Common Stock is hereby incorporated by
reference to the description thereof contained in the Company's Registration
Statement under Section 12(g) of the Exchange Act on Form 8-A as filed with the
Commission.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock to be offered hereby has been passed
upon for the Company by St. John & Wayne, L.L.C., Two Penn Plaza East, Newark,
New Jersey 07105. St. John & Wayne, L.L.C. owns 34,913 shares of the
Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 722 of the New York Business Corporation Law (the "BCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorney's fees, in connection
with actions or proceedings, whether civil or criminal (other than an action by
or in the right of the corporation, referred to as a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to amounts paid in settlement
and reasonable expenses (including attorney's fees) incurred in connection with
the defense or settlement of such actions, and the statute does not apply in
respect of a threatened action, or a pending action that is settled or otherwise
disposed of, and requires court approval before there can be any indemnification
where the person seeking indemnification has been found liable to the
corporation. Section 721 of the BCL provides that Article 7 of the BCL is not
exclusive of other indemnification that may be granted by a corporation's
certificate of incorporation or by-laws. Article IV, Section 6 of the
Registrant's by-laws requires the Registrant to indemnify its officers and
directors to the fullest extend permitted under the BCL.
Set forth below is Article Twelfth of the Registrant's Restated
Certificate of Incorporation:
TWELFTH: Any person made a party to any action, suit or proceeding by
reason of the fact that he, his testator or intestate, is or was a
director, officer or employee of this Corporation or of any corporation
which he served as such at the request of this Corporation, shall be
indemnified by the Corporation against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him in
connection with the defense of such action, suit or proceeding, or in
connection with any appeal therein, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such
officer, director or employee is liable for negligence or misconduct in
the performance of his duties. Such right of indemnification shall not
be deemed exclusive of any other rights to which such director, officer
or employee may be entitled by law.
Set report below is Article 4, Section 6 of the Registrant's Restated
By-Laws:
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SECTION 6. Indemnification . It is expressly provided that any and
every person made a party to any action, suit, or proceeding by or in
the right of the corporation to procure a judgment in its favor by
reason of the fact that he, his testator or intestate, is or was a
director or officer of this corporation or of any corporation which be
served as such at the request of this corporation, may be indemnified
by the corporation to the full extent permitted by law, against any and
all reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of such
action or in connection with any appeal therein, except in relation to
matters as to which it shall be adjudged in such action, suit or
proceeding that such officer or director has breached his duty to the
corporation.
It is further expressly provided that any and every person made a party
to any action, suit, or proceeding other than one by or in the right of
the corporation to procure a judgment in its favor, whether civil or
criminal, including an action by or in the right of any other
corporation of any type or kind, domestic or foreign, which any
director or officer of the corporation served in any capacity at the
request of the corporation, by reason of the fact that he, his testator
or interstate, was a director or officer of the corporation, or served
such other corporation in any capacity, may be indemnified by the
corporation, to the full extent permitted by law, against judgments,
fines, amounts paid in settlement, and reasonable expenses, including
attorneys' fees, actually and necessarily incurred as a result of such
action, suit or proceeding, or any appeal therein, if such person acted
in good faith for a purpose which he reasonably believed to be in the
best interests of the corporation and, in criminal actions or
proceedings, in addition, had no reasonable cause to believe that his
conduct was unlawful.
In addition to such other rights of indemnification as they may have as
directors or as members of the committee (the "Committee") administering the
Registrant's 1998 Stock Option Plan (the "Plan"), under the terms of the Plan,
the members of the Committee shall be indemnified by the Registrant against the
reasonable expenses, including attorney's fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Registrant) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Board member is liable for negligence or misconduct in the performance of his
duties; provided that within 60 days after institution of any such action, suit
or proceeding a Board member shall in writing offer the Registrant the
opportunity, at its own expense, to handle and defend the same.
The Registrant maintains a director's and officer's liability insurance
policy that, subject to the terms and conditions of the policy, provides
coverage up to $5,000,000 in the aggregate (subject to a $100,000 retention per
loss) arising from any wrongful act (as defined by the policy) committed by a
director or officer in his or her capacity as a director or officer of the
Registrant. The policy reimburses the Registrant for amounts spent in lawful
indemnification of a director or officer or amounts provided by the Registrant
to indemnify its directors and officers as required or permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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NOT APPLICABLE
ITEM 8. EXHIBITS
Number Description
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5.1 Opinion of St. John & Wayne , L.L.C. as to the legality of the
Common stock of Registrant covered by this Registration
Statement
23.1 Consent of Grant Thornton LLP.
23.2 Consent of St. John & Wayne, L.L.C. (included in Exhibit 5.1)
24.1 Powers of Attorney (included on page S-1 hereof)
99.1 Halsey Drug Co., Inc. 1998 Stock Option Plan
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offer 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 and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 20 percent 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 (a)(1)(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 with
or furnished to the SEC by the
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registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by
reference in the registration statement.
2. 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.
3. 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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 of 1933, 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 City of Rockford, State of Illinois, on June 14, 2001.
HALSEY DRUG CO., INC.
By: /s/ Michael Reicher
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Michael Reicher, Chairman and
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEYS
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael Reicher and Gerald Price, or
either of them, his true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him and his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
Exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and deed requisite and necessary to be done in connection with the
above premises, and fully for all intents and purposes as he might or could do
in person, hereby ratifying and conforming all that said attorney-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signatures Title Date
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/s/ Michael Reicher Chairman and President June 14,2001
------------------- and Chief Executive Officer
Michael Reicher
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/s/ William G. Skelly Director June 14, 2001
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William G. Skelly
/s/ Gerald F. Price President, Chief June 14, 2001
------------------- Operating Officer and
Gerald F. Price Director
/s/ Peter A. Clemens Vice President, June 14, 2001
-------------------- Chief Financial Officer
Peter A. Clemens and Secretary (Principal
Financial and Accounting
Officer)
/s/ Alan J. Smith Director June 14, 2001
-----------------
Alan J. Smith
/s/ Bruce F. Wesson Director June 14, 2001
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Bruce F. Wesson
/s/ William Sumner Director June 14, 2001
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William Sumner
/s/ Srini Conjeevaram Director June 14, 2001
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Srini Conjeevaram
/s/ Zubeen Shroff Director June 14, 2001
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Zubeen Shroff
/s/ Joel Liffmann Director June 14, 2001
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Joel Liffmann
S-2
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INDEX OF EXHIBITS
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ITEM
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5.1 Opinion of St. John & Wayne , L.L.C. as to the legality of the
Common stock of Registrant covered by this Registration
Statement
23.1 Consent of Grant Thornton LLP.
23.2 Consent of St. John & Wayne, L.L.C. (included in Exhibit 5.1)
24.1 Powers of Attorney (included on page S-1 hereof)
99.1 Halsey Drug Co., Inc. 1998 Stock Option Plan