Exhibit 10.4


 


FORM OF AMENDMENT


TO


SENIOR SECURED CONVERTIBLE PROMISSORY NOTE


 


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 the undersigned holder of the Maker’s senior secured
convertible promissory note (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
            , 2010
entered into by and between the Maker and the Payee, as amended by that certain
First Amendment to Senior Secured Convertible Promissory Note dated as of September 28,
2010, that certain Second Amendment to Senior Secured Convertible Promissory
Note dated as of October 5, 2010, and that certain Third 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, if at any time prior to January 31,
2011, the holders of the First Lien Notes elect to extend the date on which any
outstanding principal balance of and all accrued and unpaid interest on the
First Lien Notes shall be paid in full to April 15, 2011, then the date on
which any outstanding principal balance of and all accrued and unpaid interest
on this Note shall be paid to Payee in full shall also be extended to April 15,
2011, if the Maker (a) issues and delivers to or as directed by Payee
1,000 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 1,000 shares of Common Stock issued to
Payee on or about October 28, 2010 and (b) issues and delivers 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-012 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-012.  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”.


 


(d)         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: