UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 1, 2010
Cardica, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
(State or Other Jurisdiction
of Incorporation)
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000-51772
(Commission
File Number)
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94-3287832
(IRS Employer
Identification No.)
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900 Saginaw Drive, Redwood City, CA
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94063
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code: (650) 364-9975
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (
see
General
Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01 Entry into a Material Agreement.
On April 1, 2010, Cardica, Inc. (the Company) entered into an amendment (the Note
Agreement Amendment) to its subordinated convertible note agreement, dated June 16, 2003 and as
amended to date, with Century Medical (collectively the Note Agreement). Under the terms of Note
Agreement Amendment, the Company agreed to make a principal payment of $600,000 to Century Medical
by April 8, 2010, with the remaining $1.4 million principal amount owed to Century Medical becoming
due on June 17, 2011, or one year later than the maturity date prior to the Note Agreement
Amendment. In the event that the Company obtains at least $10 million in equity or debt financing
during the period from April 1, 2010 through the new maturity date, the Company shall prepay at
least an additional $400,000 of the then-outstanding principal within ten business days after the
date on which the amount of such aggregate financing was at least $10 million.
In connection with the Note Agreement Amendment, the Company entered into an amendment to its
distribution agreement, dated June 16, 2003 and as amended to date, with Century Medical, Inc.
(Century Medical) (the Distribution Agreement Amendment). Under the terms of the Distribution
Agreement Amendment, the Company agreed that, during the time during which any amounts are
outstanding under the Note Agreement, the Company will not increase the price to Century Medical
of the Companys PAS-Port® Proximal Anastomosis System being distributed by Century Medical.
The foregoing descriptions of the Note Agreement Amendment and Distribution Agreement
Amendment are summaries of the material terms of such agreements and documents, do not purport to
be complete and are qualified in their entirety by reference to the Distribution Agreement
Amendment and the Note Agreement Amendment, which are filed
as Exhibit 10.8.1 and
Exhibit 10.10.2, respectively, to this current report on Form 8-K and are incorporated by reference
herein.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
Reference is made to the Note Agreement Amendment described more fully in Item 1.01 above. The
Note Agreement Amendment amends the Note Agreement and, accordingly, the terms of that certain
promissory note due June 17, 2008 previously issued by the Company to Century Medical, as
previously amended.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit No.
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Description
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10.8.1
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Amendment No. 4 to Distribution Agreement, dated
April 1, 2010, by and between Cardica, Inc. and
Century Medical, Inc.
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10.10.2
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Amendment No. 3 to Subordinated Convertible Note
Agreement, dated April 1, 2010, by and between
Cardica, Inc. and Century Medical, Inc.
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Portions of this exhibit (indicated by asterisks) have been
omitted pursuant to a request for confidential treatment. Omitted
portions of this exhibit have been filed separately with the
Securities and Exchange Commission.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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Cardica, Inc.
(Registrant)
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Date: April 7, 2010
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/s/ Robert Y. Newell
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Robert Y. Newell, Chief Financial Officer
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INDEX OF EXHIBITS
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Exhibit No.
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Description
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10.8.1
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Amendment No. 4 to Distribution Agreement, dated
April 1, 2010, by and between Cardica, Inc. and
Century Medical, Inc.
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10.10.2
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Amendment No. 3 to Subordinated Convertible Note
Agreement, dated April 1, 2010, by and between
Cardica, Inc. and Century Medical, Inc.
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Portions of this exhibit (indicated by asterisks) have been
omitted pursuant to a request for confidential treatment. Omitted
portions of this exhibit have been filed separately with the
Securities and Exchange Commission.
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Exhibit 10.8.1
AMENDMENT NO. 4 TO DISTRIBUTION AGREEMENT
This AMENDMENT NO. 4 TO DISTRIBUTION AGREEMENT (this Amendment) is made and entered into as of
April 1, 2010 (the Effective Amendment Date) by and between Century Medical, Inc., a Japanese
corporation with its principal place of business located at 1-6-4 Ohsaki, Shinagawa-Ku, Tokyo,
141-8588, Japan (DISTRIBUTOR), and Cardica, Inc., a Delaware corporation with its principal place
of business located at 900 Saginaw Drive, Redwood City, California 94063 USA (COMPANY).
1 R E C I T A L S
WHEREAS, DISTRIBUTOR and COMPANY have entered into that certain Distribution Agreement
effective as of June 16, 2003, as amended by that First Amendment to Distribution Agreement entered
into March 30, 2007, as further amended by that Second Amendment to Distribution Agreement dated
June 13, 2007, and as further amended by that Amendment No. 3 to Distribution Agreement dated
January 24, 2008 (collectively, the Distribution Agreement);
WHEREAS, concurrent with the execution of this Amendment, DISTRIBUTOR and COMPANY are entering
into that certain Amendment No. 3 to Convertible Subordinated Note Agreement, pursuant to which,
among other things, the Maturity Date of the Note (as such terms are defined therein) will be
extended; and
WHEREAS, in connection therewith, DISTRIBUTOR and COMPANY have agreed to amend certain
provisions contained in the Distribution Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to and on the terms and conditions herein set forth, the Parties agree as
follows:
A.
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Definitions
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Unless otherwise defined herein, all capitalized terms in this
Amendment shall have the respective meanings ascribed to them in the Distribution Agreement.
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B.
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Amendment to Section 8.1.
Section 8.1 of the Distribution Agreement is hereby deleted in its
entirety and replaced with the following provision:
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COMPANY shall sell the Products to DISTRIBUTOR at the prices set forth in
Schedule 1
. Payments on purchase orders shall be due at the end of the
month immediately following the month of shipment of the Products to
DISTRIBUTOR. Payment shall be made by wire transfer in U.S. funds to an
account designated in writing by COMPANY. All shipments of Products shall be
billed to DISTRIBUTOR at the price in effect for each Product in accordance
with this Section 8.1 and
Schedule 1
, on the date of DISTRIBUTORs
purchase order for such Products. COMPANY shall have the right to change the
prices of the Products no more than once each Contract Year consistent with
prices charged to third-party international distributors of the Products,
taking into consideration such factors as exchange rates, device-specific
reimbursement rates for the Products in the Territory, if any, competition, and the like, by notifying
DISTRIBUTOR in writing of any such change at least ninety (90) days prior to
the effective date of any
1
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
such change;
provided
,
however
, that until the date on
which COMPANY repays all principal and accrued interest under that certain
Amended and Restated Note issued by COMPANY in an aggregate principal amount of
$3,000,000 pursuant to that certain Subordinated Convertible Note Agreement
dated June 16, 2003, as amended by Amendment No. 1 to Convertible Subordinated
Note Agreement dated August 6, 2003, as further amended by Amendment No. 2 to
Convertible Subordinated Note Agreement dated March 30, 2007, and as further
amended by Amendment No. 3 to Convertible Note Agreement of even date herewith
(collectively, the Note Agreement), COMPANY shall not raise the prices of any
of the Products listed on
Schedule 1
. Notwithstanding the foregoing,
in no event shall any price increase exceed [*]% of the then current price for
such Product. DISTRIBUTOR shall have the right to request a change in price,
taking into consideration such factors as exchange rates, device-specific
reimbursement rates for the Products in the Territory, if any, competition, and
the like, by notifying COMPANY in writing of any such request and the reason
for such request which request COMPANY shall consider in good faith.
C.
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Reduction and Maintenance of Current MPL.
Notwithstanding Section 8.6 of the Distribution
Agreement, the Parties hereby agree that (1) the MPL currently in effect for Contract Year 6
shall immediately be reduced to 1,800 units, (2) the MPL for Contract Year 7 shall be 1,800
units, and (3) COMPANY shall not increase the MPL until the date on which COMPANY repays all
principal and accrued interest under the Note (as defined in the Note Agreement).
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D.
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Schedule 1, Products and Prices.
Schedule 1
of the Distribution Agreement, Products
and Prices, is hereby deleted and replaced with a new
Schedule 1
, attached hereto.
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E.
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Entire Agreement.
Except as specifically modified or amended hereby, the Distribution
Agreement shall remain in full force and effect and, as modified or amended, is hereby
ratified, confirmed and approved. This Amendment and the Distribution Agreement constitute
the entire and final agreement between the Parties on the subject matter hereof and supersede
any and all prior oral or written agreements or discussions on the subject matter hereof.
This Amendment and the Distribution Agreement may not be modified in any respect except in a
writing which states the modification and is signed by both Parties hereto.
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F.
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Conflicts.
This Amendment shall be governed by all the terms and conditions of the
Distribution Agreement. In the event of any conflict between the terms of the Distribution
Agreement and the terms of this Amendment, the terms of this Amendment shall control.
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[Remainder of this page intentionally left blank]
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
IN WITNESS WHEREOF
, the Parties have caused this Amendment to be executed as of the Effective
Amendment Date.
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COMPANY:
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CARDICA, INC.
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/s/ Bernard Hausen
Name: Bernard Hausen
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Title: President and CEO
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DISTRIBUTOR:
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CENTURY MEDICAL, INC.
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/s/ Akira Hoshino
Name: Akira Hoshino
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Title: President & CEO
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
2 Schedule 1
. Products and Prices
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$[*] FCA per Pas-Port, Proximal Device.
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In accordance with Section 8.1 of the Distribution Agreement, as amended, this price shall be
valid until the date on which COMPANY repays all principal and accrued interest under that
certain Amended and Restated Note issued by COMPANY in an aggregate principal amount of
$3,000,000 pursuant to the Note Agreement.
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If the selling price to DISTRIBUTOR exceeds [*]% of COMPANYs average U.S. selling price, then
DISTRIBUTOR shall have the right to discuss pricing matters with COMPANY. COMPANY shall reasonably
disclose its average U.S. selling price to DISTRIBUTOR upon written request by DISTRIBUTOR.
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Exhibit 10.10.2
AMENDMENT NO. 3 TO
SUBORDINATED CONVERTIBLE NOTE AGREEMENT
This
AMENDMENT NO. 3 TO SUBORDINATED CONVERTIBLE NOTE AGREEMENT
(this
Amendment
) is
dated as of April 1, 2010 and entered into by and between Cardica, Inc., a Delaware corporation
(the
Company
), and Century Medical, Inc. (
Century
). Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Note Agreement (as defined
below).
RECITALS
WHEREAS,
the Company and Century have entered into that certain Convertible Note
Agreement dated as of June 16, 2003, as amended by Amendment No. 1 to Subordinated Convertible Note
Agreement dated August 6, 2003, and Amendment No. 2 to Subordinated Convertible Note Agreement
dated March 30, 2007 (the
Second Note Amendment
) (collectively, the
Note Agreement
);
WHEREAS,
pursuant to the terms of the Note Agreement and the Note issued thereunder, the
Company has borrowed from Century $3,000,000;
WHEREAS,
pursuant to the terms of the Second Note Amendment, the Company repaid $1,000,000 of
the principal and the maturity date of the remaining principal, including accrued and unpaid
interest, was extended for two years to June 17, 2010;
WHEREAS,
pursuant to the terms of the Second Note Amendment, Section 8.7 of the Note Agreement
(as numbered prior to the execution of the Second Note Amendment) was inadvertently replaced;
WHEREAS,
the Company has requested an extension of the Maturity Date of the Note to allow the
Company to repay the Loan in installments through June 17, 2011;
WHEREAS,
the Company and Century desire to amend the Note Agreement (1) in accordance with the
terms hereof to extend the Maturity Date of the Note in consideration of prepayment of $600,000 of
the principal under the Note and certain amendments to the distribution arrangement between the
parties, and (2) to re-insert the language of Section 8.7 referred to above;
WHEREAS,
the Company and Century desire to amend that certain Distribution Agreement dated as
of June 16, 2003, as amended by that certain First Amendment to Distribution Agreement dated March
30, 2007, that certain Second Amendment to Distribution Agreement dated June 13, 2007, and that
certain Amendment No. 3 to Distribution Agreement dated January 24, 2008 (collectively, the
Amended Distribution Agreement
);
WHEREAS,
upon execution of this Amendment and concurrent execution of Amendment No. 4 to
Distribution Agreement,
Schedule I
to the Note shall be updated and replaced as more fully
described below; and
WHEREAS,
the Company and Century desire to make certain representations, warranties, covenants
and agreements in connection with entering into this Amendment and desire to prescribe certain
conditions precedent to this Amendment.
NOW, THEREFORE,
in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
1. AMENDMENTS TO THE NOTE AGREEMENT
1.1
The title Subordinated Convertible Note Agreement shall be deleted and replaced by Secured
Note Agreement and all such references in the Note Agreement shall be amended accordingly.
1.2
Section 1.4(b) of the Note Agreement is hereby deleted in its entirety and replaced with the
following:
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(b)
Loan Payment.
The Company shall repay the entire outstanding principal amount of the
Loan in three or more installments in the amounts and on the Repayment Dates set forth in
the attached Principal Repayment Schedule, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived;
provided, however
,
that in the event of any prepayment of principal pursuant to Section 1.4(c) or (d) below,
(i) the Principal Repayment Schedule shall be revised to reflect such prepayment, with such
prepayment being applied to the principal amount due on the Maturity Date, and (ii)
corresponding changes shall be made to the installments set forth on Schedule I to the
Note.
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1.3
Section 1.4 of the Note Agreement is hereby amended by adding a new Section 1.4(d) to read as
follows:
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(d)
Mandatory Prepayment.
If the Company obtains, in the aggregate, at least $10 million
in equity or debt financing during the period from April 1, 2010 to the Maturity Date, the
Company shall prepay no less than $400,000 of the outstanding principal within ten (10)
Business Days of the date on which such aggregate financing equaled or exceeded $10 million.
The Company shall provide notice to Century, promptly, but in any event within five (5)
days, upon the Companys receipt of such financing.
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1.4
Section 2.1 of the Note Agreement is hereby amended by amending the definition of:
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A.
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Century by replacing Section 9.10 with Section 9.2;
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B.
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Event of Default by replacing Section 9.8 with Section 9.1;
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C.
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Maturity Date by replacing June 17, 2010 with June 17, 2011;
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D.
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Registered Holders by replacing Section 9.10 with Section 9.2.
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1.5
Article 7 of the Note Agreement is hereby amended by replacing the header and first sentence of
said Article with the following:
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7. Events of Default.
If any of the events specified in this Article 7 shall occur (herein
individually referred to as an
Event of Default
), Century shall have the right to declare
the entire principal and unpaid accrued interest thereon immediately due and payable, by
notice in writing to the Company:
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1.6
Article 8 of the Note Agreement is hereby amended by adding a new Section 8.3 to read as
follows:
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8.3 Financing Statements and Other Actions.
With respect to Collateral, the Company
covenants:
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(a) to execute and deliver to Century all financing statements, notices and other
documents from time to time reasonably requested by Century to maintain a perfected security
interest in the Collateral in favor of Century; perform such other acts as directed by
Century, and execute and deliver to Century such additional conveyances, assignments,
agreements and instruments, as Century may at any time reasonably request in connection with
the administration and enforcement of this Agreement or Centurys rights, powers and
remedies hereunder;
(b) not to sign or authorize the signing of any financing statement or other document
naming the Company as debtor or obligor, or acquiesce or cooperate in the issuance of any
bill of lading, warehouse receipt or other document or instrument of title with respect to
any Collateral, except those negotiated to Century, or those naming Century as secured
party, or with Centurys prior written consent which shall not be unreasonably withheld; and
(c) not to sell, transfer, lease or otherwise dispose of any Collateral, except for
fair consideration and in the ordinary course of the Companys business.
1.7
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Article 10 of the Note Agreement is hereby amended by amending:
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A.
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Section 10.3 to replace Section 9.10 with Section 9.2;
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B.
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Section 10.6 to replace Section 11.6 with Section 10.6;
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C.
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Section 10.11 to replace Articles 2, 6, 7, 8, 9, 10 and 11 with Articles 2, 6, 7, 8, 9
and 10.
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1.8
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The Note Agreement is amended by adding
Schedule I
, Principal Repayment Schedule.
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2.
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AMENDMENT TO THE NOTE
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Schedule I
of the Note shall be updated and replaced as set forth in
Schedule I
to
this Amendment.
3.
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CONDITIONS TO EFFECTIVENESS
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Section 1 of this Amendment shall become effective as of the date hereof only upon the satisfaction
of all of the following conditions precedent:
A. The Company shall have delivered to Century two (2) originally executed copies of
this Amendment;
B. The Company shall have delivered to Century two (2) originally executed copies of
Amendment No. 4 to Distribution Agreement of even date herewith; and
C. The Company shall have taken all corporate and other proceedings required to be taken in
connection with the transactions contemplated hereby.
4. COMPANYS REPRESENTATIONS AND WARRANTIES
In order to induce Century to enter into this Amendment and to amend the Note Agreement in the
manner provided herein, the Company represents and warrants to Century that the following
statements are true, correct and complete.
4.1
Corporate Power and Authority
. The Company has all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions contemplated by, and to
perform its obligations under, the Note Agreement as amended by this Amendment (for purposes of
Section 4 and Section 5 of this Amendment, the
Amended Note Agreement
).
4.2
Authorization of Agreements
. The execution and delivery of this Amendment and the
performance of the Amended Note Agreement have been duly authorized by all necessary corporate
action on the part of the Company.
4.3
No Conflict
. The execution and delivery by the Company of this Amendment and the
performance by the Company of the Amended Note Agreement do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to the Company, the
Certificate of Incorporation or Bylaws of the Company or any order, judgment or decree of any court
or other agency of government binding on the Company, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any contract to which the
Company is a party, (iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of the Company (other than Liens created in favor of Century), or (iv)
require any approval of stockholders or any approval or consent of any Person under any contract to
which the Company is a party.
4.4
Governmental Consents
. The execution and delivery by the Company of this Amendment and
the performance by the Company of the Amended Note Agreement do not and will not require any
registration with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body, except qualification (or taking
such action as may be necessary to secure an exemption from qualification, if available) of the
issuance of the Note under applicable federal and state securities laws, which filings and
qualifications, if required, will be accomplished by the Company in a timely manner.
4.5
Binding Obligation
. This Amendment has been duly executed and delivered by the Company
and this Amendment and the Amended Note Agreement are the legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors rights generally or by equitable principles relating to enforceability.
5. MISCELLANEOUS
5.1
Reference to and Effect on the Note Agreement
.
A. On and after the date hereof, each reference in the Note Agreement to this Agreement,
hereunder, hereof, herein or words of like import referring to the Note Agreement
shall mean and be a reference to the Amended Note Agreement.
B. Except as specifically amended by this Amendment, the Note Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment shall not, except as expressly
provided herein, constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of Century under, the Note Agreement or the Note.
5.2
Fees and Expenses
. The Company acknowledges that, in accordance with Section 9.4
of the Note Agreement, all costs, fees and expenses (including, without limitation, reasonable
attorneys fees) incurred by Century with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of the Company.
5.3
Headings
. Section and subsection headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
5.4
Counterparts
. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to the same document.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
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COMPANY:
CARDICA, INC.
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By:
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/s/ Bernard Hausen
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Name:
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Bernard Hausen
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Title:
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President and CEO
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CENTURY:
CENTURY MEDICAL, INC.
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By:
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/s/ Akira Hoshino
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Name:
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Akira Hoshino
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Title:
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President & CEO
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SCHEDULE I
PRINCIPAL REPAYMENT SCHEDULE
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Amount
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Repayment Date
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$
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1,000,000
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Within five (5) Business Days of the execution of Amendment No.
2 to Subordinated Convertible Note Agreement
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$
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600,000
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Within five (5) Business Days of the execution of Amendment No.
3 to Subordinated Convertible Note Agreement
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$
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1,400,000
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June 17, 2011 (the Maturity Date)
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$
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400,000
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Mandatory Prepayment. If the Company obtains, in the
aggregate, at least $10 million in equity or debt financing
during the period from April 1, 2010 to the Maturity Date, the
Company shall prepay no less than $400,000 of the outstanding
principal within ten (10) Business Days of the date on which
such aggregate financing equaled or exceeded $10 million. The
Company shall provide notice to Century, promptly, but in any
event within five (5) days, upon the Companys receipt of such
financing.
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