AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
Exhibit
10.7
AMENDMENT
NO. 1 TO
This
Amendment No. 1 to Registration Rights 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 Registration Rights Agreement dated as of February
23, 2007 as amended hereby and as may be further amended (the “Rights
Agreement”).
Recitals
Whereas,
on
February 23, 2007, the Company and the Original Purchasers entered into the
Rights Agreement. In connection therewith, the Original Purchasers purchased
certain 8% Secured Convertible Debentures due February 23, 2009 (the
“Original
Debentures”)
from
the Company and received certain registration rights with respect to the
Original Debentures and certain securities of the Company issued in connection
therewith.
Whereas,
the
Company desires to sell additional 8% Secured Convertible Debentures due
February 23, 2009 (the “New
Debentures”)
to
certain investors (each a “New
Purchaser”
and
collectively, the “New
Purchasers”)
and
the Original Purchasers and the Company desire to amend the Rights Agreement
to
allow the Company to add the New Purchasers as Purchasers and Holders under
the
Rights Agreement and to include the Company’s Common Stock issuable upon
conversion of the New Debentures and certain other securities of the Company
issued in connection therewith as Registrable Securities.
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
following definitions are hereby added to the Rights Agreement under Section
1
“Definitions”:
“Debentures”
means,
the 8% Secured Convertible Debentures due, subject to the terms therein,
on
February 23, 2009, issued by the Company to the Purchasers under that certain
Securities Purchase Agreement dated February 23, 2007, as may be amended
from
time to time (the “Original
Purchase Agreement”)
and
that certain Securities Purchase Agreement dated on or about July 31, 2007,
as
may be amended from time to time (the “New
Purchase Agreement”
and
collectively, the “Financing
SPAs”),
each
entered into between the Company and the purchasers signatory
thereto.
“Warrants”
means
collectively the Common Stock purchase warrants issued to the Purchasers
pursuant to the Financing SPAs, each of which shall be exercisable immediately
and each of which is in the form attached to its respective Financing
SPA.
1
“Warrant
Shares”
means
the shares of Common Stock issuable upon exercise of the Warrants.
2. The
following paragraph is hereby added as Section 6(p) to the Rights
Agreement:
“(p) If
at any
time subsequent to the date hereof, the Company sells Debentures to additional
purchasers, then, notwithstanding anything else in this Agreement to the
contrary, this Agreement may be amended, without the consent of any party
hereto, to add such additional purchasers (the “New Purchasers”) as Purchasers
and Holders. Each such New Purchaser shall execute a counterpart signature
page
to this Agreement. Upon execution of such counterpart signature page, the
Debentures purchased by such New Purchaser shall be considered “Debentures” for
all purposes under this Agreement, ranking equally in all respects to all
other
Debentures, and such New Purchaser shall be deemed to be a “Purchaser” and a
“Holder” for all purposes under this Agreement, with all the rights and
obligations of a Purchaser and a Holder hereunder, on a pari-passu basis
with
each other Purchaser and Holder, in each case as if such New Purchaser had
purchased such Debentures concurrently with each other Purchaser and such
New
Purchaser were an original signatory hereto.”
3. Except
as
specifically amended by this Amendment, the terms and conditions of the Rights
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.
4. 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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2
In
Witness Whereof,
each of
the parties hereto has caused this Amendment No. 1 to Registration Rights
Agreement to be executed and delivered by its duly authorized officer on
the
date first set forth above.
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Address
Of Grantor:
0000
Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx
000
Xxx
Xxxxx, Xxxxxxxxxx 00000
|
Viking
Systems, Inc.,
a
Delaware corporation
By:
________________________
Name:
Title:
|
[Signatures
Continue on Following Page]
Original
Purchaser:
Name
of Entity: ______________________________________
Signature
of Authorized Signatory of Entity:
________________________
Name
of Authorized Signatory: _________________________
Title
of Authorized Signatory: __________________________
