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EXHIBIT C
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WAIVER AND AMENDMENT
MARCH 13, 1997
WHEREAS, a Securities Purchase Agreement (the "Securities Purchase
Agreement") by and among Ascent Pediatrics, Inc. (the "Company"), Triumph-
Connecticut Limited Partnership ("Triumph"), and certain other purchasers listed
on the signature pages thereto (together with Triumph, the "Purchasers") was
executed on January 31, 1997;
WHEREAS, at the First Closing and pursuant to Section 1.3 of the
Securities Purchase Agreement, the Purchasers purchased from the Company Notes
in the aggregate principal amount of $2,000,000 and Series A Warrants to
purchase in the aggregate 264,036 shares of Common Stock of the Company at an
aggregate purchase price of $2,000,000;
WHEREAS, Section 1.4 of the Securities Purchase Agreement provides for a
Second Closing wherein the Purchasers shall purchase from the Company Notes in
the aggregate principal amount of $5,000,000, Series A Warrants to purchase in
the aggregate of 396,054 shares of Common Stock of the Company, and Series B
Warrants to purchase in the aggregate 256,072 shares of Common Stock of the
Company, at an aggregate purchase price of $5,000,000.
WHEREAS, Section 3.1 of the Securities Purchase Agreement sets forth
certain conditions precedent to the Purchasers' obligations at the Second
Closing; and
WHEREAS, Section 14.3 of the Securities Purchase Agreement provides that
the Securities Purchase Agreement may be amended, modified or supplemented, and
waivers or consents to departures from the provisions of the Securities Purchase
Agreement may be given, if the same are in writing and signed by the Company,
the holders of a majority of the principal amount of the Notes and the holders
of a majority of the Warrants.
NOW, THEREFORE, in contemplation of the Second Closing, for good and
valuable consideration and pursuant to Section 14.3 of the Securities Purchase
Agreement, the Company and Triumph, as a holder of the majority of the principal
amount of the Notes and the Warrants, expressly agree to the following:
1. That Section 3.1(l)(ii) of the Securities Purchase Agreement be
waived in its entirety;
2. That Section 3.1(q) be amended so that it shall read in the entirety
as follows:
"3.1(q) ADDITIONAL CONDITIONS TO SECOND CLOSING. Prior to or
contemporaneous with the Second Closing, the Company shall have
either (x)
Page 100 of 117 Pages
received the Primsol Solution Final FDA Approval or (y) closed a
Qualified Public Offering." and
3. That Section 8.2(b) be amended so that it shall read in its entirety
as follows:
"(b) LIMITATIONS ON ADDITIONAL INDEBTEDNESS. The Company
shall not, and shall not permit any of its Subsidiaries to, incur,
directly or indirectly, any Indebtedness (including Acquired
Indebtedness), other than (a) the Indebtedness evidenced by the
Notes, (b) Senior Indebtedness, and (c) the Series A Preferred, the
Series B Preferred, the Series D Preferred, the Series E Preferred
and the Series F Preferred, (d) up to $5,500,000 of purchase money
Indebtedness in connection with the Feverall Acquisition, and (e)
Indebtedness in an aggregate amount not in excess of $500,000 secured
by Capitalized Leases or Purchase Money Liens."
Capitalized terms used here but not otherwise defined herein have the
meanings ascribed thereto in the Securities Purchase Agreement.
IN WITNESS WHEREOF, The Company and Triumph have duly executed this Waiver
and Amendment under seal as of the date first above written.
TRIUMPH-CONNECTICUT
LIMITED PARTNERSHIP
as Principal Purchaser
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
ASCENT PEDIATRICS, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President, Finance
