Unassociated Document


    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

    DEFINITIONS


     

    Section
      1. Definitions. Capitalized terms not defined in this Agreement shall
      have the meanings ascribed to such terms in the Purchase Agreement.

    


    ARTICLE
      II

    AMENDMENTS
      AND OTHER AGREEMENTS


     

    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 Interest Shares set forth on Schedule A
      hereto.

     

    Section
      2.2 Effect on Transaction Documents. The foregoing consents and waivers
      are given solely in respect of the matters described herein. Except as expressly
      set forth herein, all of the terms and conditions of the Transaction Documents
      shall continue in full force and effect after the execution of this Agreement,
      and shall not be in any way changed, modified or superseded by the terms set
      forth herein. This Agreement shall not constitute a novation or satisfaction
      and
      accord of any Transaction Document.

     

    Section
      2.3. Waiver of Certain Breaches.  The Transaction Documents
      contain numerous provisions which require the Company to take certain actions
      or
      refrain from taking certain actions (“Requirements”).  Some of the
      Requirements require that Company take certain actions within prescribed time
      periods.  The Company is aware that it has not complied in all
      respects with the Requirements.  Each Purchaser hereby waives any
      breach of the Transaction Documents with respect to the Requirements set forth
      on Exhibit A attached hereto and by this reference made a part
      hereof.

    


    ARTICLE
      III

    MISCELLANEOUS


     

    Section
      3.1 Notices. Any and all notices or other communications or deliveries
      required or permitted to be provided hereunder shall be made in accordance
      with
      the provisions of the Purchase Agreement.

     

    Section
      3.2 Survival. This Agreement shall inure to the benefit of and be binding
      upon the successors and permitted assigns of each of the parties; provided
      however that no party may assign this Agreement or the obligations and rights
      of
      such party hereunder without the prior written consent of the other parties
      hereto.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    Section
      3.3 Execution. This Agreement may be executed in two or more
      counterparts, all of which when taken together shall be considered one and
      the
      same agreement and shall become effective when counterparts have been signed
      by
      each party and delivered to the other party, it being understood that both
      parties need not sign the same counterpart.  In the event that any
      signature is delivered by facsimile transmission, such signature shall create
      a
      valid and binding obligation of the party executing (or on whose behalf such
      signature is executed) with the same force and effect as if such facsimile
      signature page were an original thereof.

     

    Section
      3.4 Severability.  If any provision of this Agreement is held
      to be invalid or unenforceable in any respect, the validity and enforceability
      of the remaining terms and provisions of this Agreement shall not in any way
      be
      affected or impaired thereby and the parties will attempt to agree upon a valid
      and enforceable provision that is a reasonable substitute therefor, and upon
      so
      agreeing, shall incorporate such substitute provision in this
      Agreement.

     

    Section
      3.5 Governing Law. All questions concerning the construction, validity,
      enforcement and interpretation of this Agreement shall be determined pursuant
      to
      the Governing Law provision of the Purchase Agreement.

     

    Section
      3.6 Entire Agreement. The Agreement, together with the exhibits and
      schedules thereto, contain the entire understanding of the parties with respect
      to the subject matter hereof and supersede all prior agreements and
      understandings, oral or written, with respect to such matters, which the parties
      acknowledge have been merged into such documents, exhibits and
      schedules.

     

    Section
      3.7 Construction. The headings herein are for convenience only, do not
      constitute a part of this Agreement and shall not be deemed to limit or affect
      any of the provisions hereof.  The language used in this Agreement
      will be deemed to be the language chosen by the parties to express their mutual
      intent, and no rules of strict construction will be applied against any
      party.

     

    Section
      3.8 Independent Nature of Purchasers’ Obligations and Rights. The
      obligations of each Purchaser hereunder are several and not joint with the
      obligations of any other Purchasers hereunder, and no Purchaser shall be
      responsible in any way for the performance of the obligations of any other
      Purchaser hereunder. Nothing contained herein or in any other agreement or
      document delivered at any closing, and no action taken by any Purchaser pursuant
      hereto, shall be deemed to constitute the Purchasers as a partnership, an
      association, a joint venture or any other kind of entity, or create a
      presumption that the Purchasers are in any way acting in concert with respect
      to
      such obligations or the transactions contemplated by this Agreement. Each
      Purchaser shall be entitled to protect and enforce its rights, including without
      limitation the rights arising out of this Agreement, and it shall not be
      necessary for any other Purchaser to be joined as an additional party in any
      proceeding for such purpose.

     

    Section
      3.9 Termination.  This Agreement may be terminated by any
      Purchaser, as to such Purchaser’s obligations hereunder, by written notice to
      the other parties, if the transactions contemplated hereunder are not effective
      on or before July 31, 2007.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
      executed by their respective authorized signatories as of the date first
      indicated above.

     

    


    VIKING
      SYSTEMS, INC.

     

    


    By:__________________________________________

         Name:
      Donald E. Tucker

         Title:
      President and CEO

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    [PURCHASER
      SIGNATURE PAGES TO VKSY   AMENDMENT AGREEMENT]

     

    IN
      WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
      by their respective authorized signatories as of the date first indicated
      above.

     

    Name
      of
      Purchaser: ________________________________________________________

     

    Signature
      of Authorized Signatory of Purchaser:
      __________________________________

     

    Name
      of
      Authorized Signatory:
      ________________________________________________

     

    Title
      of
      Authorized Signatory:
      _________________________________________________

     

    Email
      Address of
      Purchaser:___________________________________________________