Page 101 of 117 Pages
EXHIBIT D
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ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
This Assignment, Assumption and Consent Agreement ("Assignment
Agreement"), dated as of April 29, 1997, is by and among TRIUMPH-CONNECTICUT
LIMITED PARTNERSHIP, a Connecticut Limited Partnership (the "Principal
Purchaser"), ▇▇▇▇▇▇▇ ▇. LICK, an individual residing in Boston, Massachusetts
(the "New Purchaser"), and ASCENT PEDIATRICS, INC., a Delaware corporation (the
"Company"). Capitalized terms used herein with definition shall have the
meanings ascribed to such terms in the Securities Purchase Agreement referenced
below.
RECITALS:
A. Pursuant to a Securities Purchase Agreement dated as of January 31,
1997, as amended (the "Securities Purchase Agreement"), among the Company, the
Principal Purchaser and certain other purchasers identified therein
(collectively with the Principal Purchaser, the "Purchasers"), the Company (i)
issued and sold to the Principal Purchaser at the First Closing $1,685,714.29
principal amount of Notes and Series A Warrants to purchase 222,545 shares of
Common Stock of the Company, and (ii) agreed to issue and sell to the Principal
Purchaser at the Second Closing $4,214,285.71 principal amount of Notes, Series
A Warrants to purchase 333,818 shares of Common Stock, and Series B Warrants to
purchase 216,363 shares of Common Stock of the Company.
B. The Principal Purchaser desires to sell, assign and transfer to the
New Purchaser, and the New Purchaser desires to purchase and assume from the
Principal Purchaser, a 0.33898305% interest in and to the rights and interests
of the Principal Purchaser in, to and under the Securities Purchase Agreement
and all Notes and Warrants issued and sold, and all additional Notes and
Warrants to be issued and sold to the Principal Purchaser by the Company
thereunder.
AGREEMENTS
NOW, THEREFORE, the parties hereto, each intending to be legally bound,
hereby agree as follows:
1. Assignment. For other good and valuable consideration the receipt
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and sufficiency of which are hereby acknowledged, the Principal Purchaser hereby
sells and assigns, without recourse, to the New Purchaser, and the New Purchaser
hereby purchases and assumes, without recourse, from the Principal Purchaser,
effective as of the date first set forth above (the "Effective Date"), a
0.33898305% interest in and to the rights, interests and obligations of the
Principal Purchaser in, to and under the Securities Purchase Agreement and all
Notes and Warrants issued and sold, and all additional Notes and Warrants to be
issued and sold, to the Principal Purchaser by the Company thereunder. The New
Purchaser hereby represents and warrants to the Principal Purchaser and the
Company that the New Purchaser has received and
Page 102 of 117 Pages
fully reviewed complete copies of the Transaction Documents, and the New
Purchaser hereby makes and agrees to be bound by all the representations,
warranties and agreements of the Purchasers set forth in the Securities Purchase
Agreement and the other Transaction Documents. The Company hereby consents to
the assignment of the interest assigned to the New Purchaser by the Principal
Purchaser pursuant to this Assignment Agreement and agrees with the Principal
Purchaser and the New Purchaser that from and after the Effective Date (i) the
New Purchaser shall be a party to and be bound by all the provisions of the
Securities Purchase Agreement and the other Transaction Documents, and, to the
extent of the interest assigned to the New Purchaser by the Principal Purchaser
pursuant to this Assignment Agreement, the New Purchaser shall have the rights
and obligations of a "Purchaser" thereunder, and (ii) the Principal Purchaser
shall, to the extent of the interest assigned to the New Purchaser by the
Principal Purchaser pursuant to this Assignment Agreement, relinquish its rights
and be released from its obligations under the Securities Purchase Agreement.
2. Contemporaneously with the execution of this Assignment Agreement,
the Principal Purchaser is delivering to the Company the original Note in the
principal amount of $1,685,714.29 registered in the name of the Principal
Purchaser, and the original Series A Warrant certificate for the purchase of
222,545 shares of Common Stock of the Company registered in the name of the
Principal Purchaser, and, in substitution for and replacement of such original
Note and Series A Warrant certificate, the Principal Purchaser and the New
Purchaser hereby request that the Company issue and deliver the following new
Notes and Series A Warrant certificates to the Principal Purchaser and the New
Purchaser: (i) an original Note in the principal amount of $1,680,000.00
registered in the name of the Principal Purchaser, (ii) an original Note in the
principal amount of $5,714.29 registered in the name of the New Purchaser, (iii)
an original Series A Warrant certificate for the purchase of 221,791 shares of
Common Stock of the Company registered in the name of the Principal Purchaser,
and (iv) an original Series A Warrant certificate for the purchase of 754 shares
of Common Stock of the Company registered in the name of the New Purchaser, in
each case, dated January 31, 1997.
3. The parties hereby further agree that in accordance with the terms of
the Securities Purchase Agreement, at the Second Closing, the Company shall
issue, sell and cause to be delivered to each of the Principal Purchaser and the
New Purchaser, an additional Note in the principal amount specified opposite
such Purchaser's name on the signature pages hereto, an additional Series A
Warrant certificate to purchase the number of shares of Common Stock opposite
such Purchaser's name on the signature pages hereto, and a Series B Warrant
certificate to purchase the number of shares of Common Stock opposite such
Purchaser's name on the signature pages hereto, in each case dated the date of
the Second Closing and registered in such Purchaser's name, against payment of
the purchase price therefor in the amount specified opposite such Purchaser's
name on the signature pages hereto.
3. This Assignment, Acceptance and Consent Agreement shall be governed
by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
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Page 103 of 117 Pages
ASSIGNMENT, ACCEPTANCE AND
CONSENT AGREEMENT
PURCHASER SIGNATURE PAGE
Accepted and agreed as of the
date first written above:
TRIUMPH-CONNECTICUT LIMITED
PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address: c/o Triumph Capital
Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate Purchase Price to be paid
by Purchaser at Second Closing: $ 4,200,000.00
Tax ID No.: ▇▇-▇▇▇▇▇▇▇
Credit for Closing Fee owed to
Purchaser at Second Closing: ($ 84,000.00)
Net Purchase Price to be paid
by Purchaser at Second Closing: $ 4,116,000.00
Principal amount of Notes to
be purchased by Purchaser at
Second Closing: $ 4,200,000.00
Shares of Common Stock
Series A Warrants to be issued
to Purchaser at Second Closing: 332,687
Shares of Common Stock
issuable upon exercise of
Series B Warrants to be issued
to Purchaser at Second Closing: 215,630
3
Page 104 of 117 Pages
ASSIGNMENT, ACCEPTANCE AND
CONSENT AGREEMENT
SIGNATURE PAGE
Accepted and agreed as of the
date first written above:
/s/ ▇▇▇▇▇▇▇ ▇. Lick
-------------------
▇▇▇▇▇▇▇ ▇. Lick
Address:
c/o Triumph Capital Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate Purchase Price to be paid
by Purchaser at Second Closing: $14,285.71
Tax ID No.: ###-##-####
Credit for Closing Fee owed to
Purchaser at Second Closing: ($ 285.71)
Net Purchase Price to be paid
by Purchaser at Second Closing: $14,000.00
Principal amount of Notes to
be purchased by Purchaser at
Second Closing: $14,285.71
Shares of Common Stock
issuable upon exercise of
Series A Warrants to be issued
to Purchaser at Second Closing: 1,131
Shares of Common Stock
issuable upon exercise of
Series B Warrants to be issued
to Purchaser at Second Closing: 733
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Page 105 of 117 Pages
ASSIGNMENT, ACCEPTANCE AND
CONSENT AGREEMENT
SIGNATURE PAGE
Accepted and agreed as of the
date first written above:
ASCENT PEDIATRICS, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Finance
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