Exhibit 10.2


 


FIFTH AMENDMENT


TO


NOTE AND WARRANT PURCHASE AGREEMENT


 


THIS FIFTH AMENDMENT TO NOTE AND
WARRANT PURCHASE AGREEMENT (this
“Amendment”) is made and entered into as of October 28, 2010 by and
between TECHNISCAN, INC., (the “Issuer”)
and 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 Note and Warrant Purchase Agreement dated March 30, 2010 entered
into by and among the Issuer, the Lead Investor, and the other investors listed
on Exhibit A thereto, as amended pursuant to that certain Amendment to
Note and Warrant Purchase Agreement dated as of May 19, 2010, that certain
Second Amendment to Note and Warrant Purchase Agreement dated as of September 30,
2010, that certain Third Amendment to Note and Warrant Purchase Agreement dated
as of October 5, 2010, and that certain Fourth Amendment to Note and
Warrant Purchase 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 7.3
of the Agreement, Section 3.2 of the Agreement is hereby amended as
follows:


 


The date October 31, 2010
shall be deleted and replaced with “the Convertibility Date (as defined in the
First Lien Notes)”


 


2.             Issuance
of Certain Additional Equity Securities. 
Issuer hereby agrees to issue to the holders of the First Lien Notes and
the Second Lien Notes (collectively, the “Notes”) on the date of this
Amendment in connection with the extension of the Maturity Date (as defined in
the Notes) to January 31, 2011, in proportion to the principal amounts of
the Notes held by them, an aggregate of (a) 275,000 restricted shares of
common stock of the Issuer, which shall be subject to a customary underwriter
lock-up in agreed form until the earlier of the Maturity Date or, if a
registered offering of equity securities of the Issuer is completed prior to
the Maturity Date, the 6-month anniversary of the closing of such registered
equity offering, and (b) warrants to purchase an aggregate number of
shares of common stock of the Issuer equal to the outstanding principal sum
under the respective Notes divided by the Warrant Price (as defined in Warrant
#W-001 in the name of the Lead Investor) on the date hereof, 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-001 of the Issuer.


 


3.             Reimbursement
of Certain Expenses.  Issuer agrees
to reimburse the Lead Investor on the Convertibility Date (as defined in the
Notes) for up to $17,500 in out-of-pocket expenses (including fees and
disbursements of counsel to the Lead Investor) incurred in connection with
negotiations related to the extension of the Maturity Date of the Notes and
related transactions. and the documentation thereof, upon substantiation by the
Lead Investor of the expenses so incurred.


 


4.             Waiver
of Warrant Price Adjustment. 
Pursuant to Section 11 of each warrant issued in connection with
the Agreement, Lead Investor hereby waives any and all rights any holder of
such warrant(s) has or may have under Section 4(vi) thereof
based on the issuance by the Issuer of the shares of common stock described in Section 2



 

















 


of this Amendment in connection with
the extension of the Maturity Date (as defined in the Notes) to January 31,
2011, April 15, 2011, or such later date as agreed upon by the Issuer and
holders of the Notes.


 


5.            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.


 


6.            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.


 


7.             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.

  	
   

  	
  BIOTEX PHARMA INVESTMENTS, LLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David C. Robinson

  	
   

  	
   

  	
  By:

  	
  /s/ Robert Kessler

  
	
  David C. Robinson

  	
   

  	
   

  	
  Robert Kessler

  
	
  Chief Executive Officer

  	
   

  	
   

  	
  Member