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Exhibit 10.10
(Revised June 22, 2007)
CONSENT, WAIVER AND AMENDMENT AGREEMENT
(Convertible
Debentures)
This
Consent, Waiver and Amendment Agreement (this
“Agreement”) is entered into as of June 22, 2007,
by and between each of the undersigned purchasers, acting
individually (individually a “Purchaser” and
collectively the “Purchasers”), and Viking
Systems, Inc., a Delaware corporation (the
“Company”).
Pursuant
to a securities purchase agreement dated February 24, 2007
among the Company and the Purchasers (the “Purchase
Agreement”), the Purchasers were issued secured
convertible debentures (the “Debentures”) and
warrants (the “Warrants”) to purchase shares of
Common Stock, par value $.001 per share (the “Common
Stock”) and in the individual amounts set forth below
such Purchaser’s name on the signature pages to the
Purchase Agreement;
The
Company and the Purchasers desire to provide for the issuance
of shares of the Company’s common stock to the
purchasers for (i) the payment of Liquidated Damages related
to registration rights matters; and (ii) the payment of
accrued interest.
The
Company and Purchasers desire to amend certain terms of the
Transaction Documents and waive certain provisions and other
matters contained in the Transaction Documents.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained
in this Agreement, and for good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the
Purchasers and the Company agree as follows:
ARTICLE I
DEFINITION S
Section
1. Definitions . Capitalized terms not defined in this
Agreement shall have the meanings ascribed to such terms in
the Purchase Agreement.
ARTICLE I I
AMENDMENTS AND OTHER AGREEMENT S
Section
2.1 Consent, Waivers and other Agreements.
a)
The Transaction Documents provide that the Company shall file
various registration statements to register the Registrable
Securities as defined in the Registration Rights
Agreement). The Company has not filed a
registration statement as to the shares underlying the
Debentures and the Warrants (the “ Unregistered
Shares ”) issued pursuant to the Transaction
Documents. The Purchasers hereby agree to waive the
requirements of Section 2(c) of the Registration Rights
Agreement, and agree that the Company shall not be required to
file a Registration Statement with the Commission seeking to
register any of the Unregistered Shares for resale by the
Purchasers prior to (i) the later of July 31, 2007 or (ii)
unless and until it receives a written request (a “
Demand Notice ”, and the registration statement
to be filed in connection therewith, a “ Demand
Registration ”) by the Purchasers holding a majority
or more of the Registrable Securities. For clarity, in
connection with any Demand Registration, the “Filing
Date” for purposes of the Registration Rights Agreement
shall be the 30th calendar day following the date of the
Demand Notice and the “Effectiveness Date” shall
be the 120th calendar day following the Demand
Notice.
b)
Each Purchaser, severally, and not jointly with the other
Purchasers, hereby agrees that in lieu of the payment of (i)
accrued but unpaid cash Liquidated Damages under Section 2(b)
of the Registration Rights Agreement as to the Unregistered
Shares in the amounts set forth on Schedule A hereto;
(ii) the payment of accrued interest on the Debentures in the
amounts set forth on Schedule A hereto; and (iii) for
the other consideration given to the Purchasers hereunder,
each Purchaser agrees to accept, and the Company agrees to
issue to the Purchasers, an aggregate of 2,389,570 shares of
Common Stock (“ Liquidated Damages and Interest
Shares ”), subject to adjustment for reverse and
forward stock splits and the like). Each Purchaser
shall receive a number of Liquidated Damages and
Interes
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