SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT") is made and entered into as of
December 29, 2000, by and between Ascent Pediatrics, Inc., a Delaware
corporation ("PLEDGOR"), and FS Ascent Investments LLC, a Delaware limited
liability company ("PLEDGEE").
W I T N E S S E T H:
-------------------
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Pledgor and Pledgee are entering into a Loan Agreement dated the date
hereof (the "INVESTMENTS/ASCENT LOAN AGREEMENT") under which Pledgee has agreed
to lend Pledgor an aggregate of up to six million dollars ($6,250,000) and
pursuant to which Pledgor is executing and delivering to Pledgee a Promissory
Note dated the date hereof (the "INVESTMENTS/ASCENT PROMISSORY NOTE");
WHEREAS, Pledgor owns the product entitled "Primsol", Trimethroprim
hydrochloride 50 mg/5 ml for the treatment of acute otitis media ("Primsol",
including the trademark listed on Schedule 1 hereto);
-----------
WHEREAS, Pledgor has agreed to grant a security interest in certain of
its assets to Pledgee to secure the Obligations (as defined herein) under the
Investments/Ascent Loan Agreement and the Investments/Ascent Promissory Note.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINED TERMS. As used in this Agreement, the following terms shall have
-------------
the respective meanings assigned to them:
(a) "EVENT OF DEFAULT" shall have the same meaning assigned to
such term in the Investment/Ascent Loan Agreement;
(b) "GOODWILL" shall mean all goodwill, trade secrets, product
dossiers, proprietary or confidential information, technical information,
procedures, formulae, quality control standards, designs, operation and training
manuals, customer lists, distribution agreements and general intangibles now or
hereafter owned by Pledgor insofar as any of the foregoing relates primarily to
Primsol;
(c) "GOVERNMENTAL AUTHORITY" shall mean any agency,
instrumentality, department, commission, court, tribunal or board of any
government, whether foreign or domestic and whether national, federal, state,
provincial or local;
(d) "LICENSE AGREEMENT" shall mean the License Agreement dated the date
hereof, between Pledgor and Pledgee, substantially in the form attached hereto
as Exhibit A.
(e) "MATERIAL ADVERSE EFFECT" shall mean, when used in connection
with Pledgor, any development, change or effect that is materially adverse to
the business, properties (including, without limitation, the Collateral),
assets, net worth, financial condition, results of operations or future
prospects (including, without limitation, future equity value) of Pledgor and
its subsidiaries taken as a whole;
(f) "OBLIGATIONS" shall mean all obligations of Pledgor under the
Investments/Ascent Loan Agreement and the Investments/Ascent Note, including any
extension, modification, substitution, amendment or renewal thereof;
(g) "PERMITTED LIEN" shall have the same meaning as set forth in
the Investments/Ascent Loan Agreement.
(h) "PRIMSOL NDA" shall mean the New Drug Application issued by
the U.S. Food and Drug Administration permitting the manufacture, sale and
marketing of Primsol;
(i) "PRIMSOL INVENTORY" shall mean, insofar as it relates to
Primsol, all raw materials, work in-process, and finished inventory of Pledgor
of every type or description and all documents of title covering such inventory,
and shall specifically include, insofar as it relates to Primsol, all
"inventory" as such term is defined in the UCC, now or hereafter owned by
Pledgor;
(j) "PRIMSOL RECEIVABLES" shall mean, insofar as it relates to
Primsol, any "account" as such term is defined in the UCC, now owned or
hereafter acquired by Pledgor, including, but not limited to, all of Pledgor's
rights to payment for goods sold or leased or services performed by Pledgor,
whether now in existence or arising from time to time hereafter, including,
without limitation, rights evidenced by an account, note, contract, security
agreement, chattel paper, or other evidence of indebtedness or security,
together with: (i) all security pledged, assigned, hypothecated, or granted to
or held by Pledgor to secure the foregoing, (ii) all of Pledgor's right, title,
and interest in and to any goods, the sale of which gave rise thereto, (iii) all
guarantees, endorsements, and indemnifications on, or of, any of the foregoing,
(iv) all powers of attorney for the execution of any evidence of indebtedness or
security or other writing in connection therewith, (v) all books, records,
ledger cards, and invoices relating thereto, (vi) all evidences of the filing of
financing statements and other statements and the registration of other
instruments in connection therewith and amendments thereto, notices to other
creditors or secured parties, and certificates from filing or other registration
officers, (vii) all credit information, reports, and memoranda relating thereto,
and (viii) all other writings related in any way to the foregoing;
(k) "PRIMSOL TRADEMARK" shall mean the trademark listed in
Schedule 1; and (a) the right to sue or otherwise recover for any and all past,
----
present and future infringements and misappropriations thereof, (b) all income,
royalties, damages and other payments now or hereafter due and/or payable with
respect thereto (including, without limitation, payments under all agreements
and contracts entered into in connection therewith, and damages and payments for
past or future infringements thereof) and (c) the right to use and register and
all rights corresponding thereto and all other rights of any kind whatsoever of
Pledgor accruing thereunder or pertaining thereto, together, in each case, with
the goodwill of the business connected with the use of, and symbolized by, each
such trademark, service mark, trade name, trade dress or other indicia of trade
origin;
(l) "TERMINATION DATE" shall mean the date on which all of the
Obligations have been fully paid and satisfied;
(m) "TOLL MANUFACTURING AGREEMENT" shall mean the agreement dated
October 17, 1994, between Pledgor and Lyne Laboratories, Inc. ("LYNE"), pursuant
to which Primsol is manufactured for Pledgor; and
(n) "UCC" means the Uniform Commercial Code as the same may, from time
to time, be in effect in the State of Massachusetts; provided, however, in the
-------- -------
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the Bank's security interest in the
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of Massachusetts, the term "UCC" shall mean
the Uniform Commercial Code as in effect in such other jurisdiction for purposes
of the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions.
2. GRANT OF SECURITY INTEREST. As security for the prompt and complete
--------------------------
payment and performance when due of all of the Obligations, Pledgor hereby
grants a continuing first priority security interest in (a "LIEN") all of
Pledgor's right, title and interest in, to and under, and the proceeds from the
following, whether presently existing or hereafter created or acquired
(collectively, the "COLLATERAL", with clauses (a) through (d) below to be
referred to in this Agreement as the "INTELLECTUAL PROPERTY COLLATERAL" and
clauses (e) through (g) below as the "NON-INTELLECTUAL PROPERTY COLLATERAL"):
(a) the Primsol Trademark;
(b) the Goodwill;
(c) all products and proceeds of the foregoing, including any
claim or proceeding of Pledgor against third parties for any (i) past, present
or future infringement, unfair competition, or dilution of the Primsol Trademark
and (ii) injury to the Goodwill associated with the foregoing;
(d) the Primsol NDA;
(e) the Toll Manufacturing Agreement;
(f) all Primsol Inventory; and
(g) each and every Primsol Receivable.
3. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants to
-------------------------------
Pledgee, that, as of the date of this Assignment:
(a) Pledgor does not own any patent or trademark with respect to
Primsol that is registered with the United States Patent and Trademark Office or
any similar offices or agencies of the United States, any state or territory
thereof, or any other country or political subdivision, other than the Primsol
Trademark;
(b) Pledgor is not a party to, or an assignee of a party to,
intellectual property license agreement with respect to Primsol;
(c) Pledgor does not own any patent or trademark material to the
conduct of its Primsol business, other than the Primsol Trademark registration
(except logos, prints, labels, designs, works, and general intangibles that are
not and cannot be registered with the United States Patent and Trademark
Office);
(d) Pledgor owns and has good and marketable title to, free and clear
of all Liens, the Primsol Trademark; and has not granted any license, rights or
privileges in or to the Intellectual Property Collateral to any party, except as
otherwise set forth herein;
(e) The Primsol Trademark registration has been duly and properly
issued;
(f) The Primsol Trademark is valid, in use and in full force and
effect;
(g) The Primsol Trademark has not been adjudged invalid or
unenforceable, in whole or in part by any court of competent jurisdiction; nor
has any holding, decision or judgment been rendered by any Governmental
Authority which would limit, cancel or question the validity, registrability or
enforceability of the Primsol Trademark in the applicable jurisdictions;
(h) No action or proceeding is pending or, to the Company's knowledge,
threatened (i) seeking to limit, cancel or question the Company's ability to use
the Intellectual Property Collateral in any jurisdiction or (ii) which would be
reasonably likely to have a Material Adverse Effect on the value of the
Intellectual Property Collateral throughout the world.
(i) Pledgor has not commenced and does not currently intend to
commence any suit or action against others in connection with the violation or
enforcement of its rights in any of the Intellectual Property Collateral;
(j) Pledgor is and shall at all times remain the sole and
exclusive owner of the entire and unencumbered right, title and interest in and
to the Primsol Trademark, free and clear of any Liens, including licenses and
covenants by Pledgor not to sue third persons, except for the interest of
Pledgee under this Agreement or the interest of any person holding through
Pledgee;
(k) Pledgor will enter into written agreements as necessary with
each of its present and future employees, and consultants that will enable it to
comply with the covenants herein contained;
(l) To Pledgor's knowledge, no Person other than Pledgor has claimed or
is claiming it either owns any right, title or interest in the Primsol
Trademark, or has any right, title or interest superior to Pledgor's rights in
the Primsol Trademark (other than as in (j));
(m) Except as identified herein, Pledgor has not granted any release,
covenant not to sue, or non-assertion assurance to any Person with respect to
the Primsol Trademark;
(n) The Primsol NDA is in full force and effect and is not subject to
any "warning letters" or other enforcement actions by or on behalf of the U.S.
Food and Drug Administration.
(o) The Toll Manufacturing Agreement is a valid and legally binding
obligation of Pledgor and, Pledgor's knowledge, Lyne, and neither the Pledgor,
nor to the Pledgor's knowledge, Lyne is in default under said agreement;
(p) Pledgor is the sole owner of the Non-Intellectual Property
Collateral, free and clear of any Lien thereon, except for the Lien created by
this Agreement or the interest of any person holding through Pledgee;
(q) Pledgor has the legal right to grant a security interest in the
Non-Intellectual Property Collateral, as provided for in this Agreement;
(r) No security agreement, financing statement or equivalent security or
lien instrument or continuation statement covering all or any part of the
Non-Intellectual Property Collateral is on file or of record in any public
office, except for the Lien created by this Agreement or the interest of any
person holding through Pledgee;
(s) No consent, approval, authorization or other order of any person, and no
consent, authorization, approval, or other action by and no notice to or filing
with, any Governmental Authority is required (i) for the execution, delivery and
performance of this Agreement or (ii) for the Pledgor's grant a security
interest in the Collateral;
(t) The Pledgor's grant of a security interest in the Collateral pursuant to
this Agreement creates a valid and continuing Lien on and a perfected security
interest in such Collateral and the proceeds thereof, securing the payment of
the Obligations, subject to no prior Lien other than the Permitted Liens; and
(u) This Agreement has been duly executed and delivered by Pledgor and
constitutes a legal, valid and binding obligation of Pledgor enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, or other similar laws affecting the rights of creditors
generally or by the application of general equity principles.
4. COVENANTS.
---------
(a) In no event shall Pledgor, either by itself or through any
employee, licensee or designee, file an application for the registration of any
Intellectual Property Collateral with the United States Patent and Trademark
Office or any similar office or agency in the United States or any other country
or any political subdivision thereof without giving Pledgee and Alpharma USPD,
Inc., a Maryland corporation ("Alpharma"), prior written notice thereof and,
upon the request of Pledgee or Alpharma, Pledgor shall execute and deliver, for
filing with any such office or agency as Pledgee and Alpharma may reasonably
deem appropriate, (i) an amendment to this Agreement adding a description of
such Intellectual Property Collateral to Schedule 1 and (ii) any other
-----------
agreements, instruments, documents and papers as Pledgee and Alpharma may
reasonably request to evidence Pledgee's Lien on such Intellectual Property
Collateral;
(b) Subject to Section 4(a) hereof, Pledgor shall take all
reasonable actions to maintain and pursue each application, to obtain the
relevant registration, and to maintain the registration of all of the
Intellectual Property Collateral that is material to the conduct of Pledgor's
business with the United States Patent and Trademark Office or other appropriate
filing office or agency in which registration is necessary to protect its rights
therein, including the filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition and interference and cancellation
proceedings.
(c) In the event that any of Pledgor's rights under any
Intellectual Property Collateral are infringed, misappropriated or diluted by a
third party, Pledgor (i) shall notify Pledgee and Alpharma promptly after it
learns thereof, (ii) unless Pledgor shall reasonably determine that such
Intellectual Property Collateral is not material to the conduct of its business,
shall promptly sue such party for infringement, misappropriation or dilution and
recover any and all damages for such infringement, misappropriation or dilution,
and (iii) shall take such other actions as Pledgor shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property
Collateral.
(d) Pledgor shall promptly notify Pledgee and Alpharma, in
writing, of any suit, action or proceeding brought against it relating to,
concerned with or affecting any of the Collateral which, if determined
adversely, is likely to have a Material Adverse Effect and shall, upon request
by Pledgee or Alpharma, deliver to Pledgee and Alpharma a copy of all pleadings,
papers, orders, or decrees theretofore or thereafter filed in any such suit,
action or proceeding, and shall keep Pledgee and Alpharma fully advised and
informed, in writing, of the progress of any such suit, action or proceeding;
(e) Pledgor shall notify Pledgee and Alpharma immediately if it
knows or has reason to know (i) that any application or registration relating to
any Intellectual Property Collateral that is material to the conduct of its
business may become abandoned or dedicated or (ii) that there has been or likely
may be an adverse determination or development (including the institution of, or
any adverse determination or development in, any proceeding in the United States
Patent and Trademark Office or any court) regarding (A) its ownership of any
Intellectual Property Collateral that is material to the conduct of its
business, (B) its right to register such Intellectual Property Collateral, or
(C) its right to keep and maintain such Intellectual Property Collateral;
(f) Pledgor shall, from time to time at its own expense, promptly
execute, deliver, file and record all further instruments, endorsements and
other documents, and take such further action consistent with the terms of this
Agreement, as may be required by law for Pledgee or Alpharma to obtain, or as
Pledgee or Alparma may deem necessary in obtaining, the full benefits of this
Agreement and of the rights, remedies and powers herein granted, including,
without limitation, (i) the filing of any financing statements, in form
reasonably acceptable to Pledgee and Alpharma, under the Uniform Commercial Code
in effect in any jurisdiction with respect to the security interests granted
hereby; (ii) furnish to Pledgee and Alpharma from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Pledgee or Alpharma may reasonably
request, all in reasonable detail and in form reasonably satisfactory to Pledgee
and Alpharma; (iii) execute and deliver the Trademark Assignment and cause it to
be duly filed on an expedited basis with the United States Patent and Trademark
Office; and (iv) execute and deliver any other trademark security agreement
relating to the Primsol Trademark cause it to be perfected outside the United
States;
(g) Pledgor will mark its books and records pertaining to such
Collateral to evidence this Agreement and the Lien on and security interest in
such Collateral granted by this Agreement; and
(h) Except as provided hereunder, Pledgor will not create, permit or suffer
to exist, and will defend the Collateral against, and take such other action as
is necessary to remove, any Lien on such Non-Intellectual Property Collateral
and will defend the right, title and interest of Pledgee and Alpharma in and to
any of such Pledgor's rights in and to the interests comprising such
Non-Intellectual Property Collateral against the claims and demands of all
persons whomsoever.
5. PLEDGEE'S APPOINTMENT AS ATTORNEY-IN-FACT.
--------------------------------------------
(a) Pledgor hereby irrevocably constitutes and appoints Pledgee and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of Pledgor and in the name of Pledgor or in its own name, from time to
time in Pledgee's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute and deliver any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement and, without limitation, hereby gives
Pledgee the power and right, on behalf of Pledgor, without notice to or assent
by Pledgor to pay or discharge taxes, Liens, security interests or other
encumbrances levied or placed on or threatened against the Collateral;
(b) Pledgee agrees that, except upon the occurrence of an Event of
Default, it will forebear from exercising the power of attorney or any rights
granted to Pledgee pursuant to this Section 5. The power of attorney granted
pursuant to this Section 5 is a power coupled with an interest and shall be
irrevocable until the Obligations are indefeasibly paid and satisfied in full;
(c) The powers conferred on Pledgee hereunder are solely to protect
Pledgee's and Alpharma's interests in the Collateral and shall not impose any
duty upon it to exercise any such powers. Pledgee shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers and
neither it nor any of its officers, directors, employees or agents shall be
responsible to Pledgor for any act or failure to act, except for its own gross
negligence or willful misconduct; and
(d) Pledgor authorizes Pledgee, at any time and from time to time upon the
occurrence of any Event of Default, to execute any endorsements, assignments or
other instruments of conveyance or transfer with respect to the Collateral.
6. REMEDIES, RIGHTS UPON DEFAULT.
--------------------------------
(a) If any Event of Default shall occur and be continuing, in addition
to all other rights and remedies granted to Pledgee in this Agreement and in any
other instrument or agreement securing, evidencing or relating to the
Obligations: (i) Pledgee may exercise all rights and remedies of a secured
party under the UCC; (ii) Pledgor hereby grants to Pledgee an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to Pledgor) (A) to use, license or sublicense any of the
Intellectual Property Collateral now owned or hereafter acquired by Pledgor and
wherever the same may be located and (B) to have access to all media in which
any of the licensed items may be recorded or stored and all computer and
automatic machinery software and programs used for the compilation or printout
thereof and (iii) Pledgee's rights under the License Agreement will become
effective.
(b) Pledgor hereby waives presentment, demand, protest or any notice (to the
maximum extent permitted by applicable law) of any kind in connection with this
Agreement or the Collateral.
7. APPLICATION OF PROCEEDS. Upon the occurrence of an Event of
-------------------------
Default, Pledgee shall apply all the proceeds of any sale, disposition or other
realization upon all or any part of the Collateral to the Obligations as Pledgee
may determine.
8. USE AND PROTECTION OF INTELLECTUAL PROPERTY COLLATERAL.
------------------------------------------------------------
Notwithstanding anything to the contrary contained herein, unless an Event of
Default has occurred and is continuing, Pledgor may continue to use, exploit,
license, enjoy and protect the Intellectual Property Collateral in the ordinary
course of its business, and Pledgee shall from time to time execute and deliver,
upon the reasonable written request of Pledgor, any and all instruments,
certificates or other documents, in the form so requested, that in the
reasonable judgment of Pledgor are necessary or appropriate to permit Pledgor to
continue to do so.
9. TERMINATION AND RELEASE. On the Termination Date, the rights of
-------------------------
Pledgee hereunder shall terminate and Pledgee shall execute and deliver to
Pledgor all releases, powers of attorney other instruments as may be necessary
or proper to terminate the Lien granted to Pledgee hereunder and to revest in
Pledgor full title to the Collateral, subject to any disposition thereof which
may have been made by Pledgee pursuant thereto.
10. REINSTATEMENT. This Agreement shall remain in full force and
-------------
effect and continue to be effective should any petition be filed by or against
Pledgor for liquidation or reorganization, should Pledgor become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
by appointed for all or any significant part of Pledgor's assets, and shall
continue to be effective or be reinstated, as the case may be, if it any time
payment and performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Obligations, whether as a "voidable preference"
or "fraudulent conveyance" under the Bankruptcy Code, or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or part thereof, is rescinded, reduced, restored, or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
11. NOTICES. Except as otherwise provided herein, any notice hereunder
-------
shall be in writing, and shall be deemed to have been validly served, given or
delivered upon receipt after transmittal by hand or by Federal Express or
similar service, or by facsimile transmission, or five business days after
deposit in the United States mail, registered mail, with proper postage prepaid,
and addressed to the party to be notified at the following addresses (or such
other address as such party shall designate by notice to the other party
hereunder):
If to Pledgee, to:
FS Ascent Investments LLC
c/o FS Private Investments LLC
55 East 52nd Street
New York, New York 10055-0002
Attention: James L. Luikart
Facsimile: (212) 409-5874
with a copy (which shall not constitute notice) to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Attention: Melvin Epstein, Esq.
Facsimile: (212) 806-6006
with a copy (which shall not constitute notice) to:
Alpharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Attention: Chief Legal Officer
Facsimile: (201) 592-1481
If to Pledgor, to:
Ascent Pediatrics, Inc.
187 Ballardvale Street, Suite B125
Willmington, Massachusetts 01887
Attention: Chief Executive Officer
Facsimile: (978) 658-3939
with a copy (which shall not constitute notice) to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109-1803
Attention: Stuart Falber
Facsimile: (617) 526-5000
Failure to deliver any copies pursuant to this Section 11 shall not impair the
validity of any notice otherwise complying therewith.
12. SEVERABILITY. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction or affect the remainder
of this Agreement.
13. GOVERNING LAW. This Agreement shall be governed by, and be construed
--------------
and enforced in accordance with, the internal laws of the State of New York,
without regard to the provisions thereof relating to conflict of laws.
14. CONTINUING ASSIGNMENT. This Agreement shall create a continuing
----------------------
assignment of, Lien on and security interest in each and all of the Collateral
and shall: (a) remain in full force and effect until the Termination Date; (b)
be binding upon Pledgor, its successors and permitted assigns, as applicable and
(c) inure to the benefit of Pledgee and its successors, transferees and assigns.
Pledgor may not assign or transfer any or all of its rights and obligations
hereunder without the express written consent of Pledgee.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Pledgor
------------------------
and shall inure to the benefit of, and be enforceable by, Pledgee and its
successors and assigns. For the avoidance of doubt, Pledgee may assign its
rights under this Agreement to Alpharma or any of Alpharma's affiliates.
16. AMENDMENTS. None of the terms or provisions of this Agreement may be
----------
waived, altered, modified or amended except in writing duly signed for and on
behalf of Pledgee and Pledgor.
17. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original but all of which
-
together shall constitute one and the same instrument.
18. ACCEPTANCE OF FACSIMILE SIGNATURES. The parties agree that this
-------------------------------------
Agreement will be considered signed when the signature of a party is delivered
by facsimile transmission. Such facsimile signature shall be treated in all
respects as having the same effect as an original signature.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed and delivered by such party or its duly authorized office on the
date first set forth above.
ASCENT PEDIATRICS, INC.
By: /s/ Emmett Clemente
----------------------
Name: Emmett Clemente
Title: Chief Executive Officer
FS ASCENT INVESTMENTS LLC
By: FS PRIVATE INVESTMENTS, LLC,
MANAGER
By: /s/ James Luikart
--------------------
Name: James L. Luikart
Title: Managing Member
SCHEDULE I
-----------
INTELLECTUAL PROPERTY
---------------------
PRIMSOL TRADEMARK:
- ------------------
Registration No. 1941818, issued by the U.S. Patent and Trademark Office on
December 12, 1995
------
EXHIBIT A
---------
[License Agreement]