AMENDMENT AGREEMENT
EXHIBIT
10.98
THIS
AMENDMENT AGREEMENT (this “Agreement”), dated as
of December 10, 2008 is entered into by and between Imaging Diagnostic Systems,
Inc., a Florida corporation (the “Company”), Whalehaven
Capital Fund Limited (“Whalehaven”) and
Alpha Capital Anstalt (“Alpha” and
collectively with Whalehaven, the “Holders”).
WHEREAS, the Company and
Whalehaven are parties to that certain Securities Purchase Agreement (the “August Purchase
Agreement”), dated August 1, 2008, pursuant to which the Company issued
to Whalehaven a 8% Senior Secured Convertible Debentures due, subject to the
terms therein, August 1, 2009 (the “August Debenture”)
with an aggregate principal amount of $400,000 and common stock purchase
warrants (the “Warrants”) to
purchase up to 22,222,222 shares of Common Stock, of which 22,222,222 shares of
Common Stock in the individual amounts set forth on Schedule A attached
hereto remain outstanding (the “Existing
Warrants”);
WHEREAS, on November 26, 2008,
Whalehaven sold a portion of the August Debenture and the Warrants to Alpha
pursuant to the Securities Purchase Agreement, dated as of such date, by and
among Whalehaven and Alpha, and, as a result, Alpha and Whalehaven are holders
of the August Debenture and the Warrants;
WHEREAS, the Company and the
Holders are parties to that certain Securities Purchase Agreement (the “November Purchase
Agreement” and together with the August Purchase Agreement, the “Purchase
Agreements”), dated November 20, 2008, pursuant to which the Company
issued to the Holders 8% Senior Secured Convertible Debentures due, subject to
the terms therein, November 20, 2009 (the “November Debentures”
and together with the August Debenture, the “Debentures”) with an
aggregate principal amount of $400,000;
WHEREAS, the Company has
requested that the Holders agree to certain waivers and amendments under the
Transaction Documents, and the Holders have agreed to such request, subject to
the terms and conditions of this Agreement; and
WHEREAS, capitalized terms
used herein, but not otherwise defined, shall have the meanings ascribed to such
terms as set forth in the Purchase Agreements.
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:
3. Company
from all Holders equal to $105,000, otherwise pursuant
to the terms of the Existing Warrants. The cash exercise price to be
paid by each Holder for such Existing Warrants shall be referred to as such
Holder’s “Exercise
Amount”. Each Holder shall execute and deliver such Holder’s
Exercise Amount to the bank account designated in writing by the Company set
forth on Schedule
C attached hereto; provided, however, that a
Holder shall not be required to exercise such certain portion of its Existing
Warrant to the extent that Section 2(d) of the Existing Warrants is violated by
the resulting Common Stock issuance of such certain portion. The date of the
closing of the exercise of the Existing Warrants and other transactions
contemplated hereunder shall be referred to as the “Closing”.
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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.
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(a) the
accuracy in all material respects on the date of the Closing of the
representations and warranties of the Company contained herein;
(b) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing shall have been performed;
(c) all
parties to the Purchase Agreements shall have agreed to the terms and conditions
of this Agreement, including exercising their respective Existing Warrants
pursuant to this Agreement;
(d) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof; and
(e) from
the date hereof to the Closing, trading in the Common Stock shall not have been
suspended by the Commission (except for any suspension of trading of limited
duration agreed to by the Company, which suspension shall be terminated prior to
the Closing), and, at any time prior to the Closing, trading in securities
generally as reported by Bloomberg Financial Markets shall not have been
suspended or limited, or minimum prices shall not have been established on
securities whose trades are reported by such service, or on any Trading Market,
nor shall a banking moratorium have been declared either by the United States or
New York State authorities nor shall there have occurred any material outbreak
or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of each Holder, makes it
impracticable or inadvisable to consummate the transactions
hereunder.
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[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/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: CEO
********************
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR HOLDERS 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/ Xxxxx
Xxxxxxxx
Name of
Authorized Signatory: Xxxxx Xxxxxxxx
Title of
Authorized Signatory: CFO
Address
for Notice of Holder:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx Xxxxxx, XX
00000
Address
for Delivery of Securities for Holder (if not same as above):
Existing
Warrants to be exercised: 5,000,000
New
Warrants with an exercise price of $0.015, subject to adjustment
therein 11,666,667
[SIGNATURE
PAGES CONTINUE]
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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: Alpha Capital Anstalt
Signature of Authorized Signatory of
Holder: /s/ Xxxxxx
Xxxxxxxx
Name of
Authorized Signatory: Xxxxxx Xxxxxxxx
Title of
Authorized Signatory: Director
Address
for Notice of Holder:
Alpha Capital Anstalt
Pradafant 7, 9490
Furstentums
Vaduz, Liechtenstein
Address
for Delivery of Securities for Holder (if not same as above):
Alpah Capital Anstalt
c/o LH Financial Services
Corp.
000 Xxxxxxx Xxxx Xxxxx, 0xx
Xxxxx
Xxx Xxxx, XX 00000
Existing
Warrants to be exercised: 2,000,000
New
Warrants with an exercise price of $0.015, subject to adjustment
therein 3,555,555
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Schedule
A
Existing
Warrants
|
Name
of Holder
|
Number
of Existing Warrants
|
|
Whalehaven
Capital Fund Limited
|
16,666,667
|
|
Alpha
Capital Anstalt
|
5,555,555
|
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Schedule
B
Existing
Warrants to be Exercised
|
Name
of Holder
|
Number
of Existing Warrants to be Exercised
|
|
Whalehaven
Capital Fund Limited
|
5,000,000
|
|
Alpha
Capital Anstalt
|
2,000,000
|
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Schedule
C
Bank
Account for Exercise Amount
[to be
completed by the company]
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