Exhibit 10.11
AMENDMENT TO EXECUTIVE EMPLOYMENT
AGREEMENT
This Amendment to Executive
Employment Agreement (the “Amendment”) is entered into
as of July 2, 2009, by and between NovaRay Medical, Inc., a
Delaware corporation with its principal place of business at 39655
Eureka Drive, Newark, California 94560 (“Company”) and
Marc C. Whyte (“Executive”) (collectively, the
“parties”). All capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in that certain
Executive Employment Agreement dated as of December 19, 2007
with Executive (the “Agreement”).
RECITALS
WHEREAS, the Company and Executive
entered into the Agreement;
WHEREAS, the Company and Executive
desire to amend the Agreement to be as set forth herein.
NOW, THEREFORE, in compliance with
Section 16 of the Agreement and in consideration of the mutual
promises and covenants set forth herein and in the Agreement and
Statement of Work, the Client and the Company hereby agree as
follows:
Section 2.1 of the Agreement is
herby amended to read in its entirety:
Position. Executive shall be
employed in the position of Chief Executive Officer and President
reporting to the Company’s Board of Directors. Executive is
responsible for setting and the execution of the marketing and
selling strategy of the Company, overseeing all business and
related concerns of Company, and setting and ensuring that the
overall strategic and financial position of Company is achieved.
Executive shall perform additional duties now or hereafter as
reasonably assigned by Company.
Section 2.3 of the Agreement is
herby amended to read in its entirety:
Work Location. Executive’s
principal place of work shall be located in Newark, at
Company’s offices.
Section 4.1 of the Agreement is
hereby amended to read in its entirety:
“ Salary . As
compensation for the proper and satisfactory performance of all
duties to be performed by Executive hereunder, Company shall pay to
Executive a base salary of $310,000.00 per year, less applicable
withholdings (the “Base Salary”). Until the receipt of
gross proceeds from equity or debt or other financing obtained by
Company of at least Five Million Dollars ($5,000,000) in the
aggregate after July 7, 2009, eighty percent
(80%) of the Base Salary or $10,333
for each applicable semi-monthly pay period, less applicable
withholdings, shall be paid in accordance with the Company’s
regularly established payroll practice. The remaining $2,584 for
each applicable semi-monthly pay period, less applicable
withholdings, shall be paid in the event of (i) a receipt of
gross proceeds from equity or debt or other financing obtained by
Company of at least Five Million Dollars ($5,000,000) in the
aggregate after July 7, 2009, (ii) a termination of
Executive’s employment under the Agreement by the Company
without Cause or (iii) a termination of Executive’s
employment under the Agreement by Executive for Good Reason. After
the receipt of gross proceeds from equity or debt or other
financing obtained by Company of at least Five Million Dollars
($5,000,000) in the aggregate after July 7, 2009, the Base
Salary shall be paid in accordance with the Company’s
regularly established payroll practice. In the event
Executive’s employment under this Agreement is terminated by
either party, for any reason, Executive will be entitled to receive
such amount of his salary earned as provided in this Section
through the date of such termination.”
Section 4.2 of the Agreement is
hereby amended to read in its entirety:
Incentive
Compensation.
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(a)
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Discretionary Incentive Compensation
. Executive may be granted incentive
compensation in the Company’s discretion. If Company, in its
sole and absolute discretion, grants Executive incentive
compensation, the terms, amount and payment of such incentive
compensation will be determined solely by Company. Such incentive
compensation may be payable in either cash or stock of the Company
or any combination thereof at the election of the Company and
pursuant to terms and conditions established by the Board of
Directors of the Company.
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(b)
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Debt or
Equity Financing . In the
event the Company receives aggregate gross proceeds not less than
$3,000,000 from debt or equity financings after July 7, 2009
and prior to December 31, 2010 (excluding proceeds from funds
managed by Vision Capital Advisors, LLC), Executive shall receive
incentive compensation set forth in Section 4.3(c) below for
raising such additional debt or equity financing provided that
Executive is employed with the Company at the time of such receipt
of gross proceeds.
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(c)
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Calculation
. The method described in this
section are to be used as guidelines for determining such incentive
compensation. The Board of Directors of the Company in its sole and
absolute discretion may adjust percentages up or down based on the
terms of such debt or equity financing transaction. In the event
the Company receives aggregate gross proceeds not less than
$3,000,000 from equity financings after July 7, 2009 and prior
to December 31, 2010 (excluding proceeds from funds managed
by
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Vision Capital Advisors, LLC),
such compensation will be initially based on a percentage of
Executive’s base salary listed in Table 1 below taking into
account the amount raised and the pre-money valuation. In the event
the Company receives aggregate gross proceeds not less than
$3,000,000 from straight debt financings after July 7, 2009
and prior to December 31, 2010 (excluding proceeds from funds
managed by Vision Capital Advisors, LLC), such compensation will be
initially based on a percentage of Executive’s base salary
listed in the $80M pre-money valuation row in Table 1 below. In the
event the Company receives aggregate gross proceeds not less than
$3,000,000 from convertible debt financings after
July
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