Exhibit 10.9
SECOND AMENDMENT TO SERIES J-A
WARRANT TO PURCHASE SHARES OF COMMON STOCK
NUMBER W-JA-07-1a
This Second Amendment to Series J-A
Warrant to Purchase Shares of Common Stock Number W-JA-07-1a (the
“Amendment”) is entered into as of July 2, 2009
(the “Effective Date”), by and between NovaRay Medical,
Inc., a Delaware corporation (the “Issuer”) and Vision
Opportunity Master Fund, Ltd. (“Vision”). All
capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in that certain Series J-A Warrant to
Purchase Shares of Common Stock Number W-JA-07-1 issued as of
December 27, 2007 as amended by that certain Amendment to
Series J-A Warrant to Purchase Shares of Common Stock Number
W-JA-07-1 (the “Series J-A Warrant”).
RECITALS
WHEREAS, pursuant to the Note and
Warrant Purchase Agreement dated as of July 2, 2009 (the
“Note Purchase Agreement”), Vision loaned the Issuer
$2,750,000;
WHEREAS, the Issuer and Vision
desire to amend the Series J-A Warrant to decrease the Warrant
Price as defined therein to $2.67, to amend Section 4(d)(i)(A)
to be as set forth herein and to amend the definition of the term
“Additional Shares of Common Stock” to be as set forth
herein;
NOW, THEREFORE, in compliance with
Section 10 of the Series J-A Warrant and in consideration of
the mutual promises and covenants set forth herein and in the
Series J-A Warrant, the Issuer and Vision hereby agree as
follows:
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1.
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Vision
represents that it has not transferred or assigned the Series J-A
Warrant or any part thereof to any third party.
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2.
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In the event
the Issuer receives at least $2,750,000 in principal from a loan
after July 1, 2009 but prior to July 7, 2009,
Section 4(d)(i)(A) of the Series J-A Warrant shall be amended
to read in its entirety:
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“If the Issuer shall issue,
after July 2, 2009 (the “Purchase Date”), any
Additional Shares of Common Stock (as defined below) without
consideration or for a consideration per share less than the
Warrant Price in effect immediately prior to the issuance of such
Additional Shares of Common Stock, the Warrant Price for this
Warrant in effect immediately prior to each such issuance shall
(except as otherwise provided in this Section 4(d)(i)) be
adjusted concurrently with such issuance to a price determined by
multiplying such Warrant Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding and
deemed issued pursuant to Section 4(d)(i)(E) immediately prior
to such issuance plus the number of shares of Common Stock that the
aggregate consideration received by this Issuer for such issuance
would purchase at such Warrant Price; and the denominator of which
shall be the number of shares of Common Stock outstanding and
deemed issued pursuant to Section 4(d)(i)(E) immediately prior
to such issuance plus the number of shares of such Additional
Shares of Common Stock.”
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3.
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In the event
the Issuer receives at least $2,750,000 in principal from a loan
after July 1, 2009 but prior to July 7, 2009, the
definition of “Additional Shares of Common Stock” in
Section 8 of the Series J-A Warrant shall be amended to read
in its entirety:
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“means any shares of Common
Stock issued (or deemed to have been issued pursuant to
Section 4(d)(i)(E)) by this Corporation after the Purchase
Date other than: (a) shares of Common Stock issued pursuant to
a transaction described in Section 4(c) hereof; (b) up to
3,750,000 shares of Common Stock (as adjusted for any stock splits,
stock dividends, combinations, recapitalizations or the like)
issued or deemed i
