Exhibit
10.4
OMNIBUS AMENDMENT
TO THE
WARRANTS TO
PURCHASE
SHARES OF COMMON
STOCK
OF
NOVARAY MEDICAL,
INC.
THIS OMNIBUS AMENDMENT TO THE
WARRANTS TO PURCHASE SHARES OF COMMON STOCK OF NOVARAY MEDICAL,
INC. (this “ Amendment ”), dated as of
October 27, 2009, is made by and between NovaRay Medical, Inc., a
Delaware corporation (the “ Issuer ”),
[ ],
Vision Opportunity Master Fund, Ltd. (“ VOMF
”) and Vision Capital Advantage Fund, L.P. (“
VCAF ,” and collectively with VOMF, the “
Holders ”).
Preliminary
Statement
WHEREAS, the Issuer is the issuer
and the Holders are the holders of certain warrants to purchase
shares of Common Stock of the Issuer, each as listed on
Exhibit A attached hereto (collectively, the “
Warrants ”); and
WHEREAS, the Issuer and the Holders
desire to amend certain provisions of the Warrants 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
Warrants.
2. Amendments to Warrants;
Warrant Price . The definition of “Warrant Price”
in Section 8 of each of the Warrants is hereby deleted
in its entirety and replaced with the following:
“ Warrant Price
” initially means $1.50 , as such price may be
adjusted from time to time as shall result from the adjustments
specified in this Warrant, including Section 4
hereto.
3. Amendments to Warrants;
Expiration Date . The definition of “Expiration
Date” in Section 8 of each of the Warrants is
hereby deleted in its entirety and replaced with the
following:
“ Expiration
Date ” means October 27, 2014.
4. Further Assurances . From
and after the date of this Amendment, upon the request of either
Holder or the Issuer, each of the Issuer 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.
