Exhibit 10.1


 


FIFTH AMENDMENT


TO


REGISTRATION RIGHTS AGREEMENT


 


THIS FIFTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT (this
“Amendment”) is made and entered into as of October 28, 2010 by and
among TECHNISCAN, INC., (the “Issuer”),
BIOTEX PHARMA INVESTMENTS, LLC (the “Lead
Investor”).


 


R E C I T A L S:


 


WHEREAS, the Issuer and the Lead Investor desire to revise that
certain Registration Rights Agreement dated March 30, 2010 entered into by
and among the Issuer, the Lead Investor, and the other holders listed on
Schedule I thereto, as amended pursuant to that certain Amendment to
Registration Rights Agreement dated as of May 10, 2010, that certain
Second Amendment to Registration Rights Agreement dated as of September 30,
2010, that certain Third Amendment to Registration Rights Agreement dated as of
October 5, 2010 and that certain Fourth Amendment to Registration Rights
Agreement dated as of October 13, 2010 (collectively, the “Agreement”).


 


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


 


1.            Amendment
of the Agreement.  Pursuant to Section 10 of the Agreement:


 


(a)           clause
(i) of the definition of “Effectiveness Deadline”
in Section 1 shall be revised to read as follows:


 


(i) with respect to the
initial Registration Statement required to be filed pursuant to Section 2(a),
the earliest of (A) the Convertibility Date (as defined in the First Lien
Notes), and (B) the date any other registration statement covering equity
securities of the Issuer becomes effective and


 


(b)           clause
(i) of the definition of “Filing Deadline”
in Section 1 shall be revised to read as follows:


 


(i) with respect to the
initial Registration Statement required to be filed pursuant to Section 2(a),
the Maturity Date and


 


(c)           the
definition of “Registrable Securities” in Section 1
shall be revised to read as follows:


 


“Registrable Securities” means (i) the
Conversion Shares, (ii) the Warrant Shares, (iii) all shares of
capital stock issued in connection with any extension of the maturity of the
Notes, (iv) all shares of capital stock issued or issuable upon exercise
of warrants issued in connection with any extension of the maturity of the
Notes and (v) any capital stock of the Issuer issued or issuable with
respect to the Conversion Shares, the Warrant Shares, the shares of capital
stock described in (iii) or (iv) above, the Notes or the Warrants,
including, without limitation, (1) as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise and (2) shares
of capital stock of the Issuer into which the shares of Common Stock are
converted or exchanged and shares of capital stock of a Successor Entity (as
defined in the Notes) into which the 


 

















 


shares of Common Stock are
converted or exchanged, in each case, without regard to any limitations on
conversion of the Notes or exercise of the Warrants.


 


(d)           the
definition of “Required Registration Amount”
in Section 1 shall be revised to read as follows:


 


“Required Registration Amount” means 100% of the sum of (i) the maximum number of
Conversion Shares issued or issuable pursuant to the Notes,(ii) the
maximum number of Warrant Shares issued or issuable pursuant to the Warrants,(iii) the
maximum number of shares of capital stock issued in connection with any
extension of the maturity of the Notes, (iv) the maximum number of shares
of capital stock issued or issuable upon exercise of warrants issued in
connection with any extension of the maturity of the Notes  and (v) the maximum number of
Registrable Securities included in clause (v) of the definition thereof,
in each case, as of the Trading Day (as defined in the Warrants) immediately
preceding the applicable date of determination (without taking into account any
limitations on the conversion of the Notes or the exercise of the Warrants set
forth therein).  For the avoidance of
doubt, for purposes of Section 2(d), each and every day shall be an “applicable
date of determination” within the meaning of the preceding sentence. For
purposes of the initial Registration Statement filed pursuant hereto, the
Required Registration Amount shall be determined assuming the accrual of
interest on the Notes at least through the Maturity Date (as defined in the
Notes).


 


(e)           Section 2(a) shall be revised by adding “(i)”after the words “Mandatory Registration”
and adding the following as Section 2(a)(ii) :


 


(ii) The parties acknowledge
that the Registration Statement on Form S-1 filed by the Issuer on or
about May 28, 2010 constitutes the initial Registration Statement required
to be filed pursuant to this Section 2(a). 
On or prior to the Filing Deadline, and prior to the effectiveness
thereof, the Issuer will amend such Registration Statement so that (A) it
covers the Required Registration Amount following the issuance of the shares of
Common Stock and Warrants being issued in connection with the extension of the
Maturity Date of the First Lien Notes and the Second Lien Note (collectively,
the “Notes”) to January 31, 2011 and, if the Maturity Date of the
Notes is extended to April 15, 2011 pursuant to Section 3 of the
Notes, the Required Registration Amount following the issuance of the shares of
Common Stock and Warrants issued in connection with the extension of the
Maturity Date of the Notes to April 15, 2011 and (B) TMS Capital
Holdings LLC is added as a selling stockholder.


 


(f)            Section 9
shall be revised to read as follows:


 


All or any portion of the rights
under this Agreement shall be automatically assignable by each Investor to any
transferee, assignee or participant (as the case may be) of all or any portion
of such Investor’s Registrable Securities, Notes or Warrants if: (i) such
Investor agrees in writing with such transferee, assignee or participant (as
the case may be) to assign all or any portion of such rights, and a copy of
such agreement is furnished to the Issuer within a reasonable time after such
transferee, assignee or participant (as the case may be); (ii) the Issuer
is, within a reasonable time after such transfer, assignment or participation
(as the case may be), furnished with written notice of (a) the name and
address of such transferee, assignee or participant (as the case may be), and 


 

















 


(b) the securities with
respect to which such registration rights are being assigned; and (iii) such
transferee, assignee or participant (as the case may be) agrees in writing with
the Issuer to be bound by all of the provisions contained herein.


 


2.            Continued
Effect of the Agreement.  All provisions of the Agreement, 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 Agreement.


 


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


 


4.             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 to Registration Rights Agreement as of the date first
set forth above.


 


 


	
  TECHNISCAN, INC.

  	
  BIOTEX PHARMA INVESTMENTS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David C. Robinson

  	
   

  	
   

  	
  By:

  	
  /s/ Robert Kessler

  
	
  David C. Robinson

  	
   

  	
  Robert Kessler

  
	
  Chief Executive Officer

  	
   

  	
  Member