AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit
10.11
AMENDMENT
TO
This
Amendment to Securities Purchase Agreement dated
as
of July 19, 2007 (“Amendment”),
is
made by and among Viking
Systems, Inc.,
a
Delaware corporation (the “Company”)
and
the purchasers (the “Original
Purchasers”)
listed
on the signature pages to the Securities Purchase Agreement dated as of February
23, 2007 as amended and as may be further amended (the “Purchase
Agreement”).
Recitals
Whereas,
on
February 23, 2007, the Company and the Original Purchasers entered into the
Purchase Agreement. In connection therewith, the Original Purchasers purchased
certain Debentures dated February 23, 2007 (the “Original
Debentures”)
from
the Company.
Whereas,
the
Company desires to issue additional 8% Secured Convertible Debentures due
February 23, 2009 (the “New
Debentures”)
and
additional Warrants to Purchase Common Stock (the “New
Warrants”),
to
certain additional investors (collectively, the “New
Purchasers”)
and
the Company and the Original Purchasers desire to amend the Purchase Agreement
as set forth in this Amendment.
Agreement
Now,
Therefore,
in
consideration of the foregoing premises and the mutual covenants and conditions
set forth below, and in reliance on the recitals set forth above, and for
other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties to this Amendment hereby agree as follows:
1. The
definition of “Debentures” in Section 1.1 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following new definition of
“Debentures”:
““Debentures”
means
the 8% Secured Convertible Debentures due, subject to the terms therein,
on
February 23, 2009, issued by the Company to the Purchasers hereunder or to
certain additional purchasers from time to time, substantially in the form
of
Exhibit
A
attached
hereto.”
2. The
definition of “Warrants” in Section 1.1 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following new definition of
“Warrants”:
““Warrants”
means
collectively the Common Stock purchase warrants substantially in the form
of
Exhibit
C
attached
hereto delivered by the Company to the holders of the Debentures.”
3. Section
4.13(a) is hereby deleted in its entirety and replaced with the following
new
Section 4.13(a):
“(a) Subject
to the terms under this Section 4.13, from the date hereof until the date
that
the Debentures are no longer outstanding, upon any issuance by the Company
or
any of its Subsidiaries of Common Stock or Common Stock Equivalents (a
“Subsequent
Financing”),
each
Purchaser shall have the right to participate in up to an amount of the
Subsequent Financing equal to the lesser of (i) 100% of the Subsequent Financing
or (ii) the aggregate principal amount of Debentures (the “Participation
Maximum”)
on the
same terms, conditions and price provided for in the Subsequent
Financing.”
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4. The
undersigned hereby acknowledge that sales and issuances by the Company of
the
New Debentures and New Warrants may be integrated with the issuance and sale
of
the Original Debentures and related warrants and waive the provisions of
Section
4.4 of the Purchase Agreement with respect to the issuance of the New Debentures
and the New Warrants.
5. Except
as
specifically amended by this Amendment, the terms and conditions of the Purchase
Agreement shall remain unchanged and in full force and effect. This Amendment
shall become effective when executed and delivered by the Company and the
Original Purchasers. This Amendment does not constitute a waiver of any rights
that the Original Purchasers have to approve any offering of securities.
This
Amendment shall not be effective as to any New Debentures or New Purchasers
unless the Original Purchasers shall have consented in writing to the terms
and
conditions of such offering at the time any such offering is made.
6. This
Amendment may be executed in one or more counterparts, each of which shall
constitute an original, and all of which together shall constitute one and
the
same instrument. This Amendment may be executed and delivered by facsimile
and
the parties hereto agree that such facsimile execution and delivery shall
have
the same force and effect as delivery of an original document with original
signatures, and that each party hereto may use such facsimile signatures
as
evidence of the execution and delivery of this Amendment by all parties hereto
to the same extent that an original signature could be used.
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In
Witness Whereof,
each of
the parties hereto has caused this Amendment No. 1 to Purchase Agreement
to be
executed and delivered by its duly authorized officer on the date first set
forth above.
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COMPANY:
Viking
Systems, Inc.,
a
Delaware corporation
By:
_______________________
Name:
Title:
|
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Original
Purchaser:
Name
of Entity: _____________________________________________
Signature
of Authorized Signatory of Entity:
________________________
Name
of Authorized Signatory: _________________________
Title
of Authorized Signatory: __________________________
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