exhibit10-92.htm


     

    
      

      

    

     

    EXHIBIT
10.92

    


    AMENDMENT
AGREEMENT

    


    This
Amendment Agreement (this “Agreement”), dated as
of October 23, 2008 is entered into by and between Imaging Diagnostic Systems,
Inc., a Florida corporation (the “Company”) and
Whalehaven Capital Fund Limited (“Whalehaven”, or the
“Holder”).

    


    WHEREAS, the Company and the
Holder are parties to that certain Securities Purchase Agreement (the “Purchase Agreement”),
dated August 1, 2008, pursuant to which the Company issued to the Holder a 8%
Senior Secured Convertible Debentures due, subject to the terms therein, August
1, 2009 (the “Debenture”) with an
aggregate principal amount of $400,000, and warrants to purchase Common Stock
(the “Warrant”);

    


    WHEREAS, the Company and the
Holder have agreed to (i) include a floor to the conversion price of the
Debenture equal to $0.013, subject to further adjustment therein and (ii)
abandon the Second Closing; and

    


    WHEREAS, capitalized terms
used herein, but not otherwise defined, shall have the meanings ascribed to such
terms as set forth in the Purchase Agreement; and

    


    NOW, THEREFORE, in
consideration of the terms and conditions contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound hereby, agree as
follows:

    


    1. Adjustment of Conversion
Price.  The Company and the Holder hereby agree to adjust the
Conversion Price to include a floor on the Conversion Price equal to $0.013 per
share, subject to further adjustment as set forth in the
Debenture.  As such, Section 4(c) of the Debenture is hereby deleted
in its entirety and replace with the following:

     

    “Conversion
Price.  The conversion price in effect on any Conversion Date
shall be equal to the lesser of (a) $0.019, subject to adjustment herein (the
“Set Price”)
and (b) 80% of the average of the 3 lowest Closing Prices during the 10 Trading
Days immediately prior to the applicable Conversion Date (subject to adjustment
herein) (the “Conversion Price”);
provided, however, the
Conversion Price shall in no event be less than $0.013, subject to further
adjustment herein.”

     

    2. Abandonment of Second
Closing. The Company and the Holder hereby agree to abandon the Second
Closing as required pursuant to Section 2.1(b) of the Purchase Agreement. All
references to “Second Closing” and “Second Closing Date” and “Second Closing
Subscription Amount” shall be hereinafter disregarded and the Holder shall have
no further obligation to fund the Second Closing Subscription
Amount.

     

    3. Representations and
Warranties of the Company.  The Company hereby makes the
representations and warranties set forth below to the Holders as of the date of
its execution of this Agreement:

     


    
      
         


      

      
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    i. Authorization;
Enforcement.  The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder and
thereunder.  The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company, the Board of Directors
or the Company’s stockholders in connection therewith other than in connection
with the Required Approvals.  This Agreement has been duly executed by
the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.

     

    ii. No
Conflicts.  The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby or thereby to which it is a party do not and will not: (i)
conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result
in the creation of any Lien upon any of the properties or assets of the Company
or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument (evidencing a Company
or Subsidiary debt or otherwise) or other understanding to which the Company or
any Subsidiary is a party or by which any property or asset of the Company or
any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not have or reasonably be expected to
result in a Material Adverse Effect.

     

    iii. Equal
Consideration.  No consideration has been offered or paid to
any person to amend or consent to a waiver, modification, forbearance or
otherwise of any provision of any of the Transaction Documents.

     

    iv. No
Defaults.  No Event of Default has occurred and is continuing
as of the date hereof.

     


    
      
         


      

      
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    v. Survival and Bring
Down.  All of the Company’s representations and warranties
contained in this Agreement shall survive the execution, delivery and acceptance
of this Agreement by the parties hereto.  The Company expressly
reaffirms that each of the representations and warranties set forth in the
Purchase Agreement, continues to be true, accurate and complete in all material
respects as of the date hereof (except for any representation and warranty made
as of a certain date, in which case such representation and warranty shall be
true, accurate and complete as of such date), and the Company hereby remake and
incorporate herein by reference each such representation and warranty as though
made on the date of this Agreement.

     

    4. Representations and
Warranties of the Holders.  The Holder hereby makes the
representation and warranty set forth below to the Company as of the date of its
execution of this Agreement. The Holder represents and warrants that (a) the
execution and delivery of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on its behalf and (b) this Agreement has been duly executed and delivered
by the Holder and constitutes the valid and binding obligation of the Holder,
enforceable against it in accordance with its terms except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.

     

    5. Public
Disclosure.  On or before 9:30 am (NY time) on the Trading Day
immediately following the date hereof, the Company shall file a Current Report
on Form 8-K, reasonably acceptable to the Holder disclosing the material terms
of the transactions contemplated hereby and attaching this Agreement as an
exhibit thereto. The Company shall consult with the Holder in issuing any other
press releases with respect to the transactions contemplated
hereby.

     

    6. Effect on Transaction
Documents. Except as expressly set
forth above, all of the terms and conditions of the Transaction Documents shall
continue in full force and effect after the execution of this Agreement and
shall not be in any way changed, modified or superseded by the terms set forth
herein, including, but not limited to, any other obligations the Company may
have to the Holders under the Transaction Documents.  Notwithstanding the
foregoing, this Agreement shall be deemed for all purposes as an amendment to
any Transaction Document as required to serve the purposes hereof, and in the
event of any conflict between the terms and provisions of any other Transaction
Document, on the one hand, and the terms and provisions of this Agreement, on
the other hand, the terms and provisions of this Agreement shall
prevail.

    


    7. Amendments and
Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company and the Holders.

    


    8. Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be delivered as set forth in the Purchase
Agreement.

     


    
      
         


      

      
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    9. Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties; provided, however, that no
party may assign this Agreement or the obligations and rights of such party
hereunder without the prior written consent of the other parties
hereto.

    


    10. Execution and
Counterparts. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart.  In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature page were an original
thereof.

    


    11. Fees and
Expenses.  Except as expressly set forth herein, the Company
shall pay the fees and expenses of advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by the parties incident to the
negotiation, preparation, execution, delivery and performance of this
Agreement.

    


    12. Governing
Law.  All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined pursuant to
the Governing Law provision of the Purchase Agreement.

    


    13. Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.

    


    14. Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise this Agreement and, therefore, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments hereto. In addition, each and every reference to share prices in
this Agreement shall be subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar transactions of
the Common Stock that occur after the date of this Agreement.

    


    15. Entire
Agreement.  The Agreement, together with the exhibits and
schedules thereto, contain the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.

    


    [SIGNATURE
PAGE FOLLOWS]


    
      
         


      

      
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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.

     

     

    IMAGING
DIAGNOSTIC SYSTEMS, INC.

     

    


    By:  /s/ Linda
B. Grable

    Name: Linda
B. Grable

    Title:
Chief Executive Officer

     

    


     

    
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      [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK

      SIGNATURE
PAGE FOR HOLDER FOLLOWS]

    

    
 

    


    
      
         

      

      
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    [HOLDER’S
SIGNATURE PAGE TO IMDS AMENDMENT AGREEMENT]

     

    IN
WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.

     

    


    Name of Holder: Whalehaven
Capital Fund Limited

    Signature of
Authorized Signatory of Holder:  /s/ Brian
Mazzella

    Name of
Authorized Signatory:  Brian Mazzella

    Title of
Authorized Signatory:  CFO

    


    


    [SIGNATURE
PAGES CONTINUE]

     

    
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