exv10w10w2









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:





	 	 	“(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.”




1.3 Section 1.4 of the Note Agreement is hereby amended by adding a new Section 1.4(d) to read as
follows:





	 	 	“(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 Company’s receipt of such financing.”




1.4 Section 2.1 of the Note Agreement is hereby amended by amending the definition of:





	 	A.	 	“Century” by replacing “Section 9.10” with “Section 9.2”;
	 
	 	B.	 	“Event of Default” by replacing “Section 9.8” with “Section 9.1”;
	 
	 	C.	 	“Maturity Date” by replacing “June 17, 2010” with “June 17, 2011”;
	 
	 	D.	 	“Registered Holders” by replacing “Section 9.10” with “Section 9.2”.




1.5 Article 7 of the Note Agreement is hereby amended by replacing the header and first sentence of
said Article with the following:





	 	 	“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:”




1.6 Article 8 of the Note Agreement is hereby amended by adding a new Section 8.3 to read as
follows:





	 	 	“8.3 Financing Statements and Other Actions. With respect to Collateral, the Company
covenants:




 









 












     (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 Century’s 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 Century’s 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 Company’s business.”




	1.7	 	Article 10 of the Note Agreement is hereby amended by amending:






	 	A.	 	Section 10.3 to replace “Section 9.10” with “Section 9.2”;
	 
	 	B.	 	Section 10.6 to replace “Section 11.6” with “Section 10.6”;
	 
	 	C.	 	Section 10.11 to replace “Articles 2, 6, 7, 8, 9, 10 and 11” with “Articles 2, 6, 7, 8, 9
and 10”.






	1.8	 	The Note Agreement is amended by adding Schedule I, Principal Repayment Schedule.
	 
	2.	 	AMENDMENT TO THE NOTE




Schedule I of the Note shall be updated and replaced as set forth in Schedule I to
this Amendment.





	3.	 	CONDITIONS TO EFFECTIVENESS




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. COMPANY’S 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.



	 	 	 	 	 
	 	COMPANY:


CARDICA, INC.

 	 
	 	By:  	                       /s/ Bernard Hausen
 	 
	 	 	Name:  	Bernard Hausen 	 
	 	 	Title:  	President and CEO 	 
	 
	 	CENTURY:


CENTURY MEDICAL, INC.

 	 
	 	By:  	/s/ Akira Hoshino
 	 
	 	 	Name:  	Akira Hoshino 	 
	 	 	Title:  	President & CEO 	 



 









 






	 	 	 	 	 



SCHEDULE I




PRINCIPAL REPAYMENT SCHEDULE



	 	 	 	 	 
	Amount	 	Repayment Date
	$	1,000,000	 	 	Within five (5) Business Days of the execution of Amendment No.
2 to Subordinated Convertible Note Agreement

	 	 	 	 	 

	$	600,000	 	 	Within five (5) Business Days of the execution of Amendment No.
3 to Subordinated Convertible Note Agreement

	 	 	 	 	 

	$	1,400,000	 	 	June 17, 2011 (the Maturity Date)

	 	 	 	 	 

	$	400,000	 	 	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 Company’s receipt of such
financing.