Exhibit
10.1


 


SUPPLEMENT NUMBER TWO TO


ORIGINAL EQUIPMENT MANUFACTURING AGREEMENT


AND ENGINEERING SUPPORT AGREEMENT


 


between


 


Esaote
S.p.A., a company organized under the laws of the Republic of Italy and with
registered seat in  Genova, Italy
(hereinafter referred to as “Esaote”)


 


- of the one Party -


 


TechniScan, Inc.,
a Delaware corporation (“TS Delaware”) through its successor in interest,
TechniScan, Inc., a Delaware corporation (hereinafter referred to as “TechniScan”)


 


- of the other Party -


 


Esaote
and TechniScan are hereinafter referred to individually as a “Party” and
collectively as the “Parties”


 


Recitals


 


WHEREAS,
Esaote and TS Delaware entered into that certain Original Equipment
Manufacturing with an Effective Date of 11 February 2008 (the “Agreement”);


 


WHEREAS,
TechniScan, as the successor-in-interest to TS Delaware, is now a party to the
Agreement;


 


WHEREAS,
the Parties wish to supplement certain provisions under the Agreement and to
provide for the provision of additional services by Esaote in consideration for
the additional consideration provided in this Supplement Number One (the “Supplement”);


 


WHEREAS,
as of June 28th, 2010,
TechniScan Delaware instituted a series of transactions consisting of: (i) 
1 for 4 reverse split of the foregoing TechniScan Delaware common stock held by
Esaote; and (iv) a further raise of capital with
a minimum close of $6 million or more, and repayment or conversion of the
convertible notes currently outstanding such that the Intellectual Property of
the Company is no longer encumbered (“Qualified Financing”), to
fund TechniScan’s operations through 2012 (all of the foregoing transactions
collectively constituting the “Transactions”).


 


WHEREAS, TechniScan has requested that ESAOTE provide
additional components, development services and miscellaneous costs to support
the further development of the Products 
as proposed in Annex 1 hereto (the “Supplemental Support”);


 


WHEREAS, Esaote and TechniScan have agreed that Esaote
shall provide the Supplemental Support valued at the sum of up to One Million
Eight Thousand Four Hundred Seventeen Dollars ($1,008,417) (the “Supplemental
Amount”) and Esaote shall receive additional shares of common stock, as
provided herein;


 

















 


WHEREAS, Esaote and TechniScan have agreed that if a
Qualified Financing is not completed by December 31st , 2010 this Supplement Two becomes
void.


 


WHEREAS, Esaote began providing the Supplemental
Support on or about October 1, 2009 and, as of July 2010 has expended
approximately €255,000 in Supplemental Services (currency conversion to be
determined effective the date of closing of a Qualified Financing).


 


NOW,
THEREFORE, the Parties enter into this Supplement as follows:


 


Article 1

Supplemental Services


 


Esaote
shall provide the Esaote system components, development services as outlined in
Annex 1 attached hereto and be as outlined below:


 


1.1.  Esaote will provide the following engineering
support services, Esaote Products and Modified Esaote Products:


 


(a)           the continuing modification of the
Esaote Product into the Modified Esaote Product;


 


(b)           the supply of the Modified Esaote
Product and a non-exclusive license to the executable version of the related
software exclusively for incorporation by TechniScan into the Products;


 


(c)           the contribution of engineering and
design support and original equipment manufacturing prototype equipment and
supplies necessary to incorporate the Modified Esaote Products into the
Products and technical assistance related to the completion and manufacture of
the Products incorporating the Modified Esaote Products;


 


(d)           the supply of spare parts relevant to
the Modified Esaote Products; and


 


(e)           the technical assistance on the
Modified Esaote Products and spare parts including training in the service, installation
and application of Modified Esaote Product, to TechniScan’s designated
technical personnel.


 


1.2.  Except as
expressly provided in the budget contained in Annex 1 with regard to travel
expenses and the costs of its own personnel, Esaote shall not be required to
pay any amounts to any third party or to make advances to or on behalf of
TechniScan.  If the actual value of the
Supplemental Services is less than the amounts estimated on Annex 1, Esaote
shall not have any obligation to provide any consideration or compensation in
respect of such shortfall.  Furthermore,
Esaote shall be permitted to cease providing Supplemental Services once it
determines, in its reasonable judgment, that the value of the Supplemental
Services equals or exceeds the Supplemental Amount.


 


1.3  In consideration of the Supplemental
Services, Esaote shall receive, additional shares of common stock of TechniScan
in an amount equal to the Supplemental Amount as determined once the
Qualified Financing is completed.  The
value of the Common Stock paid for the 


 


2

















 


services
contemplated herein shall be determined at the same price paid by Investors in
the Qualified Offering.


 


1.4  TechniScan will provide a complete business
plan to Esaote as soon as practicable after the date of this Supplement.


 


Article 2

Progress Toward Completion of Contemplated Transactions


 


It is expressly acknowledged and agreed that
the progress toward and realization of each of the enumerated steps of the Transactions
to the reasonable satisfaction of Esaote shall be a continuing condition
precedent to Esaote’s continuing delivery of the Supplemental Support provided
herein.


 


2.1.  Upon request, TechniScan shall provide a
written or oral update on the status of the Transactions to Esaote or its
representatives or counsel, including Gerald Richardson and/or Esaote’s
counsel, Baker & Daniels LLP.


 


2.2.  If Esaote
determines that any one or more steps of the Transactions or Phase 2 of the
Program (as defined below) are not progressing to its satisfaction, it shall
provide written notice thereof to TechniScan by email or fax to the attention
of David Robinson or any other representative appointed by TechniScan to accept
such communications.


 


2.3.  TechniScan shall, within twenty business days
of its receipt of the notice from Esaote referenced above, provide a written
update on the status of the Transactions or Phase 2 of the Program, including
such information or documents which Esaote may reasonably request.


 


2.4  If
Esaote is not satisfied with the information received from TechniScan, it may
either suspend the Supplemental Services or terminate this Supplement by
providing a second written notice to TechniScan within twenty business days of
its receipt of the update from TechniScan pursuant to Section 2.3
hereof.  If Esaote has not received the
response required under Section


 


2.3, it may suspend the Supplemental Services
until such time that it is satisfied with the response of TechniScan.  If Esaote incurs incremental expenses as a
result of the suspension and resumption of the Supplemental Services, such
incremental expenses shall be included with the costs of the Supplemental
Services and shall count towards Esaote’s maximum obligations hereunder.


 


Article 3

Intellectual Property Issues


 


3.1.  The Parties agree that the project plan to be
included in Annex 1 shall set forth the additional contribution to the Program
by Esaote (“Phase 2 of the Program”) and sets out inter alia:


 


·              the contribution in
terms of technology, know-how, manpower, materials, assistance, etc. of
each of the Parties;


 


3

















 


·              the time schedule for
development, sample production, tests and relevant milestones which are
necessary to periodically assess and verify the results from time to time
obtained.


 


3.2.  The intellectual property rights, including
Program Rights developed through the continuation of the Program shall be as
provided in the Agreement.


 


Article 4

Term; No Amendment to the Agreement


 


4.1.  Term


 


If a Qualified Financing is not completed by December 31st , 2010 this Supplement Two becomes
void.


 


If a Qualified Financing is completed by December 31st, 2010 this Supplement shall be
effective upon execution hereof and shall continue in effect for the then
remaining term of the Agreement; provided that the termination of the
Supplemental Services by Esaote shall not terminate the Agreement, except as
otherwise indicated by Esaote when permitted to terminate the Agreement
pursuant to the terms thereof.


 


4.2.  No Amendment to Agreement


 


4.2.1  The provisions of this Agreement are intended
to be supplemental to the provisions contained in the Agreement and this
Supplement is not intended to amend the Agreement except as expressly provided
herein.


 


4.2.2  If at any time this Supplement is found to be
conflicting with any express provision contained in the Agreement, then the
conflicting provision contained in this Supplement shall be deemed to be
controlling over the conflicting provision contained in the Agreement.


 


4.3.  TechniScan
Acknowledgement


 


TechniScan acknowledges and agrees that it is
the successor-in-interest to TS Delaware and TechniScan hereby acknowledges
that it has assumed all of the rights and obligations of TS Delaware  existing under the Agreement and all of its
other agreements involving Esaote.


 


4.4.  Effect
of Termination


 


4.4.1  This Supplement shall be deemed to be
terminated if Esaote terminates its obligations to provide the Supplemental
Services as provided herein.


 


4.4.2  The termination of the Agreement shall
terminate Esaote’s obligations to provide the Supplemental Services beginning
on the effective date of the termination date of the Agreement.


 


[SIGNATURES ON FOLLOWING PAGE]


 


4

















 


IN
WITNESS WHEREOF, the Parties hereto have caused this Supplement Number One to
Original Equipment Manufacturing Agreement to be executed in duplicate by their
authorized officers on the dates and the places mentioned below:


 


 


	
  Genova,
  September 2nd, 2010

  	
   

  	
   

  
	
  Esaote
  S.p.A.

  	
   

  	
  TechniScan, Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Fabrizio Landi

  	
   

  	
  By: 

  	
  /s/ David C. Robinson

  
	
   

  	
   

  	
   

  
	
  Name:
  Fabrizio Landi

  	
   

  	
  Name:
  David C. Robinson

  
	
   

  	
   

  	
   

  
	
  Title: CEO & General Manager

  	
   

  	
  Title: President & CEO

  
					



 


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