EXHIBIT 10.60
FIRST ADDENDUM TO CONVERTIBLE SUBORDINATED DEBENTURE
1. Reference is hereby made to that certain Convertible Subordinated
Debenture in the original principal amount of $763,208 dated December 22, 1994
(the "Debenture") issued by Memry Corporation (the "Company") to Connecticut
Innovations, Incorporated ("CII") pursuant to the convertible subordinated
purchase agreement by and between the Company and CII dated December 22, 1994,
as amended by the First Amendment to Convertible Subordinated Debenture Purchase
Agreement dated as of the date hereof (the "Purchase Agreement").
2. The second paragraph of the Debenture shall be deleted in its entirety
and the following substituted in lieu thereof:
The unpaid principal amount of this Debenture outstanding from time to
time shall bear interest from the date hereof on the basis of a 360-day
year of twelve 30-day months at a rate equal to five percent (5%) per annum
subject to adjustment as herein provided, said interest to be payable in
consecutive semi-annual installments commencing on June 30, 1995 (at which
time all then accrued and unpaid interest shall be due and payable), and
continuing each December 31 and June 30 thereafter, with the final interest
payment to be made on the earlier of December 31, 1999 or the full
conversion of this Debenture pursuant to the terms of Section 2 hereof.
The interest rate hereunder shall be automatically increased by two percent
(2%) on March 15, 1996 and on each June 15, September 15, December 15 and
March 15 thereafter through and including the Effective Date (as defined
below) if the Registration Statement (as defined in the Debenture Purchase
Agreement (defined below)) is not effective by March 15, 1996. The
"Effective Date" shall mean the date the Registration Statement is declared
effective by the Securities and Exchange Commission free from any stop
orders or suspensions by the Company. Payments of principal and interest
are to be made at the address of the Holder designated above or at such
other place as the Holder of this Debenture shall have notified the Company
in writing.
3. The reference in Section 2.1 of the Debenture to "September 1, 1995"
shall be deleted and replaced with "December 20, 1995."
4. Section 2.2 of the Debenture shall be deleted in its entirety and the
following substituted in lieu thereof:
2.2 Mandatory Conversions. Upon the occurrence of a "Mandatory
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Conversion Event" (as defined below), the Company has the right at the
option and in the sole discretion of the Company, at any time after March
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15, 1995 and on or before the close of business on such date as this
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Debenture has been paid in full, to covert all or any portion of the unpaid
principal amount hereof into such number of shares of Common Stock as is
equal to the quotient of (x) the principal amount of this Debenture being
so converted divided by (y) the Common Stock Conversion Price then in
effect. A "Mandatory Conversion Event" shall be deemed to have occurred
when both (i) the "Minimum Price Level" (as hereinafter defined) has been
achieved and (ii) the "Other Conditions" (as hereinafter defined) have been
satisfied. The "Minimum Price Level" shall have been achieved at such time
as the closing bid price of the Common Stock exceeds either (A) $2.00 per
share (as currently constituted) for a period of sixty consecutive business
days after the date hereof or (B) $2.50 per share (as currently
constituted) for a period of thirty consecutive business days after the
date hereof, in each case, for which such closing bid price is reported
(provided that, if trades of the Common Stock (rather than bid and asked
quotations) are reported on a stock exchange or National Association of
Securities Dealers' or other quotation bureau listing, then the closing
trade price for such date, rather than the closing bid price, shall be used
for purposes of making this determination). The "Other Conditions" shall
have been deemed satisfied if and when (i) the Company has reserved for
issuance a sufficient number of shares of Common Stock to allow for the
full exercise (A) by the Holder hereof of the conversion rights set forth
in this Section 2 and (B) by the holder of the warrants issued pursuant to
the Debenture Purchase Agreement of the unexercised portion of each such
warrant, (ii) no uncured "Event of Default" (as hereinafter defined) exists
hereunder, and no event has occurred which with the giving of notice or the
passage of time would constitute an Event of Default, (iii) no Registration
Default (as defined in the Debenture Purchase Agreement), exists and no
event has occurred which, with the giving of notice or the passage of time,
would constitute a Registration Default, (iv) all shares of the Company's
outstanding Series G Preferred Stock, par value $100 per share, have been
or are being simultaneously converted into Common Stock, (v) the
Company is in full compliance with the terms, conditions and covenants of
the Debenture, including but not limited to, the timely payment of
interest, and (vi) the Company shall not have outstanding any preferred
stock or convertible indebtedness (except for convertible indebtedness
which is being converted into Common Stock no later than the conversion
occurring pursuant to this Section 2.2) or other equity securities which
are senior to the Common Stock.
5. Section 2.3(b) of the Debenture shall be deleted in its entirety and
the following substituted in lieu thereof:
"(b) Automatic Reset Provision. The Common Stock Conversion Price
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shall be adjusted to equal $0.80 effective as of June 14, 1995."
6. Clauses (i) and (ii) of the second sentence of Section 2.3(d) of the
Debenture shall be deleted in their entirety and the following substituted in
lieu thereof:
"(i) the failure by the Company to comply with the provisions of
Section 4.2(a)(ii) of the Debenture Purchase Agreement by March 15, 1996; (ii)
the expiration of each non-overlapping ninety day period from and after March
16, 1996, that a Registration Statement has not been effected;"
7. The reference in Section 2.7 of the Debenture to "September 1, 1995"
shall be deleted and replaced with "December 20, 1995."
8. The term "Debenture" as used in the Debenture shall mean the
Debenture, as amended by this First Addendum.
9. The term "Debenture Purchase Agreement" as used in the Debenture shall
mean the Purchase Agreement.
This First Addendum to Convertible Subordinated Debenture dated October 12,
1995 shall be affixed to the Debenture.
MEMRY CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
Acknowledged and Agreed:
CONNECTICUT INNOVATIONS, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Acting President and
Executive Director
