OMNIBUS AMENDMENT TO THE SERIES A-1 SENIOR SECURED 10% CONVERTIBLE NOTES AND THE SERIES A-2 SENIOR SECURED 10% NOTE OF NOVARAY MEDICAL, INC.
OMNIBUS
AMENDMENT
TO
THE
SERIES
A-1 SENIOR SECURED 10% CONVERTIBLE NOTES
AND
THE
SERIES
A-2 SENIOR SECURED 10% NOTE
OF
NOVARAY
MEDICAL, INC.
THIS OMNIBUS AMENDMENT TO THE SERIES
A-1 SENIOR SECURED 10% CONVERTIBLE NOTES AND THE SERIES A-2 SENIOR SECURED 10%
NOTE OF NOVARAY MEDICAL, INC. (this “Amendment”),
dated as of June 16, 2010, is made by and between NovaRay Medical, Inc., a
Delaware corporation (the “Company”),
Vision Opportunity Master Fund, Ltd. (“VOMF”),
BIOBRIDGE LLC (“Biobridge”)
and Triple Ring Technologies, Inc. (“Triple
Ring,” and collectively with VOMF and Biobridge, the “Holders”).
Preliminary
Statement
WHEREAS, the Company is the issuer and
the Holders are the holders of certain Series A-1 Senior Secured 10% Convertible
Notes and Series A-2 Senior Secured 10% Note of the Company issued pursuant to
that certain Note and Warrant Purchase Agreement dated as of March 11, 2010 as
amended by Amendment No. 1 to the Note and Warrant Purchase Agreement dated as
of March 29, 2010, Amendment No. 2 to the Note and Warrant Purchase Agreement
dated as of April 20, 2010 and Amendment No. 3 to the Note and Warrant Purchase
Agreement dated as of June 16, 2010, each as listed on Exhibit
A attached hereto (collectively, the “Notes”);
and
WHEREAS, the Company and the Holders
desire to amend the maturity date of the Notes as described herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
1. Capitalized
Terms. Capitalized terms used, but not defined, herein, shall
have the meanings ascribed to such terms in the respective Notes.
2. Amendments to Notes.
The second paragraph of each of the Notes is hereby deleted in its entirety and
replaced with the following:
“All
payments under or pursuant to this Note shall be made in United States Dollars
in immediately available funds to the Holder at the address of the Holder as set
forth in the Purchase Agreement or at such other place as the Holder may
designate from time to time in writing to the Company or by wire transfer of
funds to the Holder’s account, instructions for which are attached hereto as
Exhibit
A. Unless otherwise converted in accordance with the terms of this Note,
the outstanding principal balance and all accrued Interest (as defined herein)
of this Note shall be due and payable on August 31, 2010 (the “Maturity
Date”) or at such earlier time as provided herein.”
3. Consent to Amendment.
The Company and the Holders hereby consent to and approve the amendment to the
Notes as set forth in this Amendment.
4. Further
Assurances. From and after the date of this Amendment, upon
the request of either Holder or the Company, each of the Company and the Holders
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Amendment.
5. Entire
Agreement. This Amendment and the Notes constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements and understandings, both written and
oral, between the parties with respect thereto.
6. Amendments. No
amendment, supplement, modification or waiver of this Amendment shall be binding
unless executed in writing by all parties hereto.
7. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one contract. Each party shall be entitled to rely on a facsimile
signature of any other party hereunder as if it were an original.
8. Governing
Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to any of the conflicts of law principles which would result in the
application of the substantive law of another jurisdiction.
9. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
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of page intentionally left blank]
IN WITNESS WHEREOF, the parties have
executed this Amendment as of the date first above written.
|
NOVARAY
MEDICAL, INC.
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title:
Chief Executive Officer
VISION
OPPORTUNITY MASTER FUND, LTD.
By: /s/ Xxxx
Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Portfolio Manager
BIOBRIDGE
LLC
By:
/s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
TRIPLE
RING TECHNOLOGIES, INC.
By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
President
|
||
EXHIBIT
A
|
Series
of Note
|
Holder
|
Principal
Amount
|
Issue
Date
|
||
|
1.
|
Series
A-1
|
Vision
Opportunity Master Fund, Ltd.
|
$1,075,000.00
|
March
11, 2010
|
|
|
2.
|
Series
A-1
|
Vision
Opportunity Master Fund, Ltd.
|
$600,000.00
|
April
13, 2010
|
|
|
3.
|
Series
A-1
|
Vision
Opportunity Master Fund, Ltd.
|
$600,000.00
|
May
5, 2010
|
|
|
4.
|
Series
A-1
|
BIOBRIDGE
LLC
|
$225,000.00
|
March
11, 2010
|
|
|
5.
|
Series
A-2
|
Triple
Ring Technologies, Inc.
|
$350,000.00
|
March
11, 2010, amended
|
|
