exv10w13



 





Exhibit 10.13




LOCK-UP AGREEMENT




     THIS
AGREEMENT (this “Agreement”) is dated as of December 27, 2007 by and among
NovaRay Medical, Inc., a Delaware corporation (the “Company”), and certain stockholders of
the Company listed on Schedule A attached hereto (collectively, the
“Stockholders”).



     WHEREAS, to induce the Company and the investors (the “Investors”) to enter into the
Series A Convertible Preferred Stock Purchase Agreement dated as of the date hereof (the
“Purchase Agreement”) by and among the Company and the Investors, the Stockholders have
agreed not to sell any shares of the Company’s common stock (the “Common Stock”), that such
Stockholders presently own or may acquire after the date hereof, except in accordance with the
terms and conditions set forth herein. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Purchase Agreement.



     NOW, THEREFORE, in consideration of the covenants and conditions hereinafter contained, the
parties hereto agree as follows:



     1. Restriction on Transfer; Term. The Stockholders hereby agree with the Company that
the Stockholders will not offer, sell, contract to sell, assign, transfer, hypothecate, pledge or
grant a security interest in, or otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition of (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise by the Company or
any affiliate of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, any of the shares of Common Stock from the period commencing on
the Initial Closing and expiring on the date that is twelve (12) months following the Effectiveness
Date (as defined in Section 1 of the Registration Rights Agreement) (the “Period”). The
restrictions in the first sentence of this Section 1 shall not apply to (a) shares of Common Stock
or other securities acquired in open market transactions or otherwise after the Initial Closing,
(b) transfers made (1) to Stockholder’s spouse, lineal descendants, father, mother, brother or
sister or any trust for the benefit of any such family member (collectively, “Immediate Family
Members”) or (2) to a trust or otherwise for bona fide estate planning purposes if the
beneficiaries of such trust consist solely of Stockholder and/or his Immediate Family Members so
long as in the case of each of (1) and (2) the transferee agrees to be bound by the restrictions of
this Section 1 and (d) shares of Common Stock or other securities owned by the spouse of
Stockholder or any other Immediate Family Member other than any securities subject to this Section
1 that are acquired by a transferee pursuant to the exception in (c) above.



     2. Ownership. During the Period, the Stockholders shall retain all rights of ownership
in the Common Stock, including, without limitation, voting rights and the right to receive any
dividends, if any, that may be declared in respect thereof.



     3. Company and Transfer Agent. The Company is hereby authorized to disclose the
existence of this Agreement to its transfer agent. The Company and its transfer agent are hereby
authorized to decline to make any transfer of the Common Stock if such transfer would constitute a
violation or breach of this Agreement and the Purchase Agreement.



 









 





     4. Notices. All notices, demands, consents, requests, instructions and other
communications to be given or delivered or permitted under or by reason of the provisions of this
Agreement or in connection with the transactions contemplated hereby shall be in writing and shall
be deemed to be delivered and received by the intended recipient as follows: (i) if personally
delivered, on the business day of such delivery (as evidenced by the receipt of the personal
delivery service), (ii) if mailed certified or registered mail return receipt requested, four (4)
business days after being mailed, (iii) if delivered by overnight courier (with all charges having
been prepaid), on the business day of such delivery (as evidenced by the receipt of the overnight
courier service of recognized standing), or (iv) if delivered by facsimile transmission, on the
business day of such delivery if sent by 6:00 p.m. in the time zone of the recipient, or if sent
after that time, on the next succeeding business day (as evidenced by the printed confirmation of
delivery generated by the sending party’s telecopier machine). If any notice, demand, consent,
request, instruction or other communication cannot be delivered because of a changed address of
which no notice was given (in accordance with this Section 4), or the refusal to accept same, the
notice, demand, consent, request, instruction or other communication shall be deemed received on
the second business day the notice is sent (as evidenced by a sworn affidavit of the sender). All
such notices, demands, consents, requests, instructions and other communications will be sent to
the following addresses or facsimile numbers as applicable.


If to the Company:



Novaray Medical, Inc.

1850 Embarcadero

Palo Alto, CA 94303

Attention: Chief Financial Officer

Tel. No.: (408) 966-5738

Fax No.: (650) 565-8601



With copies to:



Morrison & Foerster, LLP

755 Page Mill Road

Palo Alto, California 94304-1018

Attn: Michael C. Phillips

Facsimile: (650) 494-0792



If to any Stockholder:



At the address of such Stockholder set forth below the signature below



or to such other address as any party may specify by notice given to the other party in accordance
with this Section 4.




     5. Amendment. This Agreement may not be modified, amended, altered or supplemented,
except by a written agreement executed by each of the parties hereto.



 









 





     6. Entire Agreement. This Agreement contain the entire understanding and agreement of
the parties relating to the subject matter hereof and supersedes all prior and/or contemporaneous
understandings and agreements of any kind and nature (whether written or oral) among the parties
with respect to such subject matter, all of which are merged herein.



     7. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be performed in that
state, without regard to any of its principles of conflicts of laws or other laws which would
result in the application of the laws of another jurisdiction. This Agreement shall be construed
and interpreted without regard to any presumption against the party causing this Agreement to be
drafted.



     8. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES UNCONDITIONALLY AND
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED
IN NEW YORK COUNTY AND THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH
RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY OBJECTION TO VENUE IN NEW YORK COUNTY OR SUCH DISTRICT, AND AGREES THAT SERVICE OF ANY
SUMMONS, COMPLAINT, NOTICE OR OTHER PROCESS RELATING TO SUCH SUIT, ACTION OR OTHER PROCEEDING MAY
BE EFFECTED IN THE MANNER PROVIDED IN SECTION 4.



     9. Severability. The parties agree that if any provision of this Agreement be held to
be invalid, illegal or unenforceable in any jurisdiction, that holding shall be effective only to
the extent of such invalidity, illegally or unenforceability without invalidating or rendering
illegal or unenforceable the remaining provisions hereof, and any such invalidity, illegally or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. It is the intent of the parties that this Agreement be fully enforced to
the fullest extent permitted by applicable law.



     10. Binding Effect; Assignment. This Agreement and the rights and obligations
hereunder may not be assigned by any party hereto without the prior written consent of the other
parties hereby. This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.



     11. Headings. The section headings contained in this Agreement (including, without
limitation, section headings and headings in the exhibits and schedules) are inserted for reference
purposes only and shall not affect in any way the meaning, construction or interpretation of this
Agreement. Any reference to the masculine, feminine, or neuter gender shall be a reference to



 









 




such other gender as is appropriate. References to the singular shall include the plural and
vice versa.




     12. Counterparts. This Agreement may be executed in two or more counterparts, and by
the different parties hereto in separate counterparts, each of which when executed shall be deemed
to be an original, and all of which, when taken together, shall constitute one and the same
document. This Agreement shall become effective when one or more counterparts, taken together,
shall have been executed and delivered by all of the parties.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




 









 








     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



	 	 	 	 	 
	 	NOVARAY MEDICAL, INC.

 	 
	 	By:  	/s/ Jack Price	 
	 	 	Name:  	Jack Price 	 
	 	 	Title:  	CEO 	 



 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



BIOBRIDGE, LLC




	 	 	 	 	 	 	 
	By:

	 	/s/ Lynda Wijcik
	 	 
	 	 	 	 	 
	 

	 	Name:	 	Lynda Wijcik	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Mng. Partner	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 





 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



LYNDA WIJCIK




	 	 	 	 	 	 	 
	By:

	 	/s/ Lynda Wijcik
	 	 
	 	 	 	 	 
	 

	 	Name:	 	Lynda Wijcik	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 





 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



WHEATLEY MEDTECH PARTNERS LP




	 	 	 	 	 	 	 
	By:

	 	/s/ Barry Rubenstein
	 	 
	 	 	 	 	 
	 

	 	Name:	 	Barry Rubenstein	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	CEO, Wheatley Medtech Partners, LLC

General Partner	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 





 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



HEARTSTREAM CAPITAL B.V.



	 	 	 	 	 	 	 
	By:

	 	/s/ George Hersbach
	 	 
	 	 	 	 	 
	 

	 	Name:	 	George Hersbach	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	President & CEO	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 




  









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



MARC WHYTE



	 	 	 	 	 	 	 
	By:

	 	/s/ Marc Whyte
	 	 
	 	 	 	 	 
	 

	 	Name:	 	Marc Whyte	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 





 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



EDWARD SOLOMON



	 	 	 	 	 	 	 
	By:

	 	/s/ Edward Solomon
	 	 
	 	 	 	 	 
	 

	 	Name:	 	Edward Solomon	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 





 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



JACK PRICE



	 	 	 	 	 	 	 
	By:

	 	/s/ Jack Price
	 	 
	 	 	 	 	 
	 

	 	Name:	 	Jack Price	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 




  









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



TRIPLE RING TECHNOLOGIES, INC.




	 	 	 	 	 	 	 
	By:

	 	/s/ Joseph A. Heanue	 	 
	 	 	 	 	 
	 

	 	Name:	 	Joseph A. Heanue	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	President	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 




  









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above herein.



FOUNTAINHEAD CAPITAL PARTNERS LIMITED



	 	 	 	 	 	 	 
	By:

	 	/s/ Carol Dodge
	 	/s/ Eileen O’Shea
	 	 	 	 	 
	 

	 	Name:	 	Carol Dodge	 	Eileen O’Shea
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Director	 	Director
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Address:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 	 	 





 









 








Schedule A




	 	 	 
	STOCKHOLDER	 	AMOUNT OF SHARES BENEFICIALLY OWNED
	1. BioBridge LLC

	 	1,077,665
	2. Lynda Wijcik

	 	1,452,585
	3. Wheatley MedTech Partners LP

	 	2,109,021
	4. Heartstream Capital B.V.

	 	821,198
	5. Marc Whyte

	 	381,231
	6. Edward Solomon

	 	381,231
	7. Jack Price

	 	642,000
	8. Triple Ring Technologies, Inc.

	 	1,332,000
	9. Fountainhead Capital Partners Limited

	 	1,803,732