Exhibit 10.3


 


FORM OF AMENDMENT


TO


SENIOR SECURED CONVERTIBLE PROMISSORY NOTE


TO FIRST LIEN HOLDERS


 


THIS
              
AMENDMENT TO SENIOR SECURED CONVERTIBLE PROMISSORY NOTE (this “Amendment”) is made and entered into as of October 28,
2010 by and among TECHNISCAN, INC.,
(the “Maker”) and                                         
(together with its successors and assigns, “Payee”).


 


R E C I T A L S:


 


WHEREAS,
the Maker and the Payee desire to revise that certain Senior Secured
Convertible Promissory Note dated March 30, 2010 entered into by and
between the Maker and the Payee, as amended by that certain Amendment to Senior
Secured Convertible Promissory Note dated as of May 10, 2010, that certain
Second Amendment to Senior Secured Convertible Promissory Note dated as of September 30,
2010, that certain Third Amendment to Senior Secured Convertible Promissory
Note dated as of October 5, 2010, and that certain Fourth Amendment to
Senior Secured Convertible Promissory Note dated as of October 13, 2010
(collectively, the “Note”).


 


NOW, THEREFORE, in consideration of the foregoing and the mutual benefits
to be derived from this Amendment, including pursuant to Section 2 below,
the parties hereto hereby agree as follows:


 


1.            Amendment
of the Note.  Pursuant to Section 11 of the Note:


 


(a)  Section 3
of the Note is deleted in its entirety and replaced with the following:


 


Any outstanding principal balance
and accrued unpaid interest shall be paid to Payee in full no later than January 31,
2011; provided, however, at any time prior to January 31,
2011, Payee may at its sole option (and shall, upon the timely exercise and
consummation by TMS Capital Holdings LLC (“TMS”) of the option contained
in Section 2.01(c) of the Participation Agreement dated as of October 28,
2010 between TMS and Payee) elect, by written notice to Maker, that any
outstanding principal balance of and all accrued and unpaid interest on this
Note shall be paid to Payee in full no later than April 15, 2011, and if
Payee makes such election the Maker (a) shall issue and deliver to or as
directed by Payee 10,000 shares of Common Stock, as evidenced by a stock
certificate(s) in the name or names specified by Payee representing such
shares, having the same restrictions on sale or transfer as the 10,000 shares
of Common Stock issued to Payee on or about October 28, 2010 and (b) shall
issue and deliver to or as directed by Payee a Warrant(s) to purchase an
aggregate number of shares of Common Stock equal to the then outstanding
principal sum under this Note divided by the then current Warrant Price (as
defined in Warrant #W-002 in the name of Payee), which Warrant(s) shall be
exercisable for five years from the date of issuance and shall otherwise be in
the same form as Warrant #W-002.  The
date on which principal and interest becomes due in accordance with this Section 3
is referred to herein as the “Maturity Date”.


 


(b)  Section 4(a) of
the Note is deleted in its entirety and replaced with the following:


 


In connection with the closing of
a Qualified Financing (as defined below), Maker may at its option offer Payee
in writing, at least five business days prior to such closing, the opportunity
to elect, by written notice to Maker within two business days thereafter, to 


 

















 


convert all or a portion of the
Note into QF Securities (as defined below) at the same price and on the same
terms as other investors in the Qualified Financing. If for any reason Payee
does not timely elect to convert into QF Securities or if for any reason Maker
fails to timely offer Payee the opportunity to convert, Maker shall within five
business days of the closing of such Qualified Financing prepay the principal
of and all accrued and unpaid interest on this Note (the “Payoff Amount”).
Payee has no right to convert this Note into other securities of Maker prior to
the Maturity Date unless Maker has consummated a Qualified Financing and failed
to pay the Payoff Amount in full within five business days following the
closing of such Qualified Financing.  If
the Payoff Amount or any portion thereof is outstanding on the earlier of the
sixth business day following the closing of a Qualified Financing and the day
following the Maturity Date (the earlier of such dates being referred to herein
as the “Convertibility Date “), Payee may, at its sole option, convert
the principal amount of this Note and accrued and unpaid interest thereon (the “Convertible
Amount”) in whole or in part into (i) if a Qualified Financing has
been consummated (whether before or after the Maturity Date), QF Securities at
the same price and on the same terms as other investors in the Qualified
Financing, (ii) whether or not a Qualified Financing has been consummated,
Shares, as provided in paragraph (b) below, or (iii) whether or not a
Qualified Financing has been consummated, as provided in paragraph (c) below.
For purposes herein, a “Qualified Financing” shall mean the sale by
Maker of either Shares and/or other securities that are convertible into or
exercisable for Shares (collectively, “QF Securities”) for cash for investment
purposes, pursuant to which Maker receives gross proceeds (subject only to
customary selling commissions and transaction expenses) of not less than FIVE
MILLION DOLLARS ($5,000,000) in one or more closings.  For the avoidance of doubt, if Payee elects
to convert any portion of the Convertible Amount pursuant to clause (i) above,
Payee shall be entitled to receive the number and type of QF Securities as
would be received in exchange for a cash investment in the Qualified Financing
equal to the Convertible Amount and shall be entitled to retain the warrants
being acquired by Payee pursuant to the Purchase Agreement.  Maker shall deliver to Payee the applicable
number and type of QF Securities within three Trading Days of receipt of Payee’s
election to convert into QF Securities as provided above. No fractional QF
Securities will be issued in connection with any conversion of the Conversion
Amount, but instead will be rounded up to the nearest whole QF Security.  The date notice of conversion of all or any
portion of the Note is given by Payee to Maker (pursuant to this Section 4(a) or
as elsewhere provided in the Note) is referred to as the “Conversion Date”.


 


(c)          Section 4(b) of the Note is hereby amended by
adding the following phrase at the beginning:


 


Beginning on the Convertibility
Date,


 


(d)  Section 4(c) of
the Note is hereby amended by deleting the words “Beginning on
the day following the Maturity Date” in the first line thereof and
substituting therefore the words “Beginning on the
Convertibility Date”.


 


(e) 
Sections 6(b)(iv)(B) and (C) of the Note are hereby amended as
follows:


 


The date October 31, 2010
shall be deleted and replaced with” the Convertibility Date”


 

















 


(c)  Section 6(b)(v) of
the Note is deleted in its entirety and replaced with the following:


 


the Registration Statement fails
to become effective for any reason prior to the Convertibility Date;


 


2.             Waiver
of Conversion Price Adjustment.  Payee hereby waives any and all rights Payee
has or may have under Section 5(vi) of the Note based on the issuance
by the Maker of shares of common stock described in Section 3 of the Note
in connection with the extension of the Maturity Date (as defined in the Note)
to January 31, 2011, April 15, 2011, or such later date as agreed
upon by the Maker and Payee.


 


3.             Continued
Effect of the Note.  All provisions of the Note, except as
modified by this Amendment, shall remain in full force and effect and are
reaffirmed.  Other than as stated in this
Amendment, this Amendment shall not operate as a waiver of any condition or
obligation imposed on the parties under the Note.


 


4.            Interpretation
of Amendment.  In the event of any conflict, inconsistency,
or incongruity between any provision of this Amendment and any provision of the
Note, the provisions of this Amendment shall govern and control.


 


5.             Counterparts.  This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same agreement.  A facsimile or e-mailed “.pdf” data file copy
of an original written signature shall be deemed to have the same effect as an
original written signature.


 


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first set forth above.


 


	
  TECHNISCAN, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David C. Robinson

  	
   

  	
  By:

  	
   

  
	
   

  	
  David C. Robinson

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Chief Executive Officer

  	
   

  	
  Name: