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Exhibit 10.33
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AGREEMENT
This Agreement (this "Agreement") among Ascent Pediatrics, Inc., a Delaware
corporation (the "Company"), and the Purchasers (as defined in the Securities
Purchase Agreement dated May 13, 1998 among the Company and the Purchasers, as
amended (the "Securities Purchase Agreement")) is entered into as of the 26th
day of May, 1999.
WHEREAS, pursuant to the Securities Purchase Agreement the Company issued
and sold to the Purchasers, among other securities, 7,000 shares of Series G
Convertible Exchangeable Preferred Stock, par value $.01 per share ("Series G
Preferred Stock"), of the Company and 8% Subordinated Notes in the aggregate
original principal amount of $9,000,000 (the "Subordinated Notes");
WHEREAS, under the terms of the Series G Preferred Stock set forth in the
Certificate of Designation, Voting Powers, Preferences and Rights of Series G
Convertible Exchangeable Preferred Stock filed with the Secretary of State of
the State of Delaware on May 29, 1998 (the "Series G Certificate of
Designation"), the Company is required to pay a dividend of $142,400 to the
Purchasers on June 1, 1999 (the "Series G Dividend");
WHEREAS, under the terms of the Subordinated Notes as set forth therein,
the Company is required to pay accrued interest of $224,114 to the Purchasers on
June 1, 1999 (the "Subordinated Notes Interest Payment");
WHEREAS, the Company and the Purchasers expect that the closing of the
Company's strategic alliance with Alpharma, Inc. ("Alpharma") under which, among
other things, Alpharma, through its subsidiary Alpharma USPD Inc., will provide
up to $40 million in financing to the Company through a 7.5% convertible
subordinated note, will occur on or prior to July 1, 1999; and
WHEREAS, the Company and the Purchasers desire that the payment of the
Series G Dividend and the Subordinated Notes Interest Payment be deferred from
June 1, 1999 to July 1, 1999;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties have agreed as follows:
1. SERIES G DIVIDEND. The parties acknowledge that, under Section 2.1(b)
of the Series G Certificate of Designation, if the Company does not make the
required Series G Dividend, the Dividend Rate (as defined therein) shall
increase from 8% to 9% as of June 1, 1999 and that, effective upon payment of
the required Series G
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Dividend, the Dividend Rate shall decrease as of the date of such payment to 8%.
In connection with this Agreement, the Company agrees that it shall pay the
Series G Dividend on July 1, 1999 and that at such time, it shall also pay to
the Purchasers dividends in an amount equal to the additional 1% dividend that
accrued during the period from June 1, 1999 through July 1, 1999.
2. SUBORDINATED NOTES INTEREST PAYMENT. The Purchasers agree that the
Subordinated Notes shall hereby be amended to provide that the accrued interest
due and payable on June 1, 1999 under the Subordinated Notes shall instead be
due and payable on July 1, 1999 and hereby waive any default arising under the
Series G Purchase Agreement from the Company's failure to make the required
interest payment on June 1, 1999. In connection with such amendment, the Company
hereby agrees that during the period from June 1, 1999 through July 1, 1999 the
interest rate on the Subordinated Notes shall be increased from 8% to 9% and
that, at such time as the Company pays the Subordinated Notes Interest Payment
otherwise due on June 1, 1999, the Company shall also pay the Purchasers an
amount equal to the additional 1% interest that accrued during such period.
3. Miscellaneous.
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(a) In all respects other than as specifically provided in this
Agreement, the terms of the Series G Preferred Stock and the Subordinated Notes
are hereby ratified and affirmed.
(b) This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, whether written
or oral, relating to the amendment of the Series G Certificate of Designation
and of the Subordinated Notes.
IN WITNESS WHEREOF, the parties have to have executed this Agreement as of
the day and year set forth above.
ASCENT PEDIATRICS, INC.
By: /s/ Xxxx X. Xxx
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Name: Xxxx X. Xxx
Title: President and CEO
XXXXXX XXXX INVESTORS II, L.P.
FS EMPLOYEE INVESTORS LLC
FS PARALLEL FUND L.P.
By: FS PRIVATE INVESTMENTS
LLC, MANAGER
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Member
BANCBOSTON VENTURES, INC.
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Managing Director
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
