EX 10.14


     

    PREFERRED
      STOCKHOLDER 

     

    AGREEMENT
      AND CONSENT 

    


    This
      Agreement and Consent is made as of the 28th
      day of
      September, 2007, between Diomed Holdings, Inc. (the “Company”),
      a
      Delaware corporation, and the undersigned (the “Holder”),
      who
      is the registered holder of shares of Series 2006 Preferred Stock (the
“Preferred
      Stock)
      issued
      by the Company pursuant to the Securities Purchase Agreement, dated as of July
      27, 2006, between the Company and the Purchasers of Preferred Stock named
      therein (the “2006
      Purchase Agreement”).
      Capitalized terms used below with definition shall have the respective meanings
      given them in the Company’s Certificate of Incorporation, as amended through the
      date hereof (as so amended, the “Certificate
      of Incorporation”).

    


    The
      Company proposes to enter into a Loan Agreement with Hercules Technology Growth
      Capital, Inc. or an affiliate thereof (“Hercules”)
      pursuant to which Hercules will loan to the Company on a secured basis up to
      the
      aggregate principal amount of $10,000,000 on the terms and conditions described
      in the Term Sheet annexed hereto as Exhibit
      A
      and as
      the Company and Hercules shall agree in the definitive documentation related
      thereto (the “Financing”).
      

    


    The
      Company further proposes to amend certain terms and provisions of its
      outstanding Variable Rate Convertible Debentures due October 2008 (the
“Debentures”)
      pursuant to which the holders of such Debentures will consent to the Financing
      and such Debentures will become secured obligations of the Company on the terms
      and conditions described in the Term Sheet annexed hereto as Exhibit
      B
      and as
      the Company and the holders of the Debentures shall agree (subject to the
      approval of Hercules) in the definitive documentation related thereto (the
      “Refinancing”).

    


    For
      itself and on behalf of all subsequent holders of the Preferred Stock held
      by
      it, and in consideration of the mutual promises set forth in this Agreement
      and
      Consent, the Holder and the Company hereby agree as follows: 

     

    1.
      In
      order to induce the Holder to provide its consent as provided in this Agreement
      and Consent, the Company hereby agrees that at such time as the Holder exercises
      its right to convert any shares of Preferred Stock under Section 4 of Section
      2A
      of ARTICLE FIFTH of the Certificate of Incorporation, then, in addition to
      such
      shares as may be issuable under the terms and conditions of such Section, the
      Company will further issue and deliver such additional shares of Common Stock
      as
      the Holder would be entitled to receive if the Exchange Rate were $0.70.


    


    2.
      If the
      Holder holds warrants issued by the Company pursuant to the Securities Purchase
      Agreement, dated September 30, 2005, between the Company and the purchasers
      named therein by operation of the anti-dilution provisions contained therein,
      then, as a result of the Financing and Refinancing, the exercise price of such
      warrants shall be reduced to $1.75 and the number of underlying shares of common
      stock will be increased accordingly.

    


    3.
      In
      connection with the Financing and the Refinancing, and notwithstanding anything
      to the contrary in the 2006 Purchase Agreement or the Company’s Certificate of
      Incorporation, the Holder hereby irrevocably:

     

    
      	 	
              a.

            	
              consents
                to the Financing and the Refinancing, including, without limitation,
                (i)
                the incurrence by the Company of indebtedness pursuant to the Financing
                and Refinancing and to the grant of any and all security interests
                by the
                Company and its subsidiaries as are required to be granted in their
                assets
                pursuant to the Financing and the Refinancing and (ii) the repayment
                and
                prepayment of the indebtedness arising out of the Financing and
                Refinancing as required or permitted under the terms and conditions
                of the
                Financing and Refinancing; 

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              b.

            	
              agrees
                that the issuance of the warrants proposed to be issued to Hercules
                pursuant to the terms of the Financing and the change in conversion
                price
                of the Debentures pursuant to the terms of the Refinancing (and the
                equivalent change to the warrants issued to those persons who purchased
                the Debentures) will not result in any antidilution adjustment to
                the
                Preferred Stock and further waives (i) any and all rights and benefits
                which might otherwise arise under the Company’s Certificate of
                Incorporation or the 2006 Purchase Agreement pursuant to an antidilution
                adjustment as a result of the Financing or Refinancing and (ii) any
                right
                to any notice of any change in the conversion or exercise price of
                any
                other outstanding security of the Company arising from the Financing
                or
                Refinancing beyond the notice provided by this Agreement and Consent;
                

            


    

     

    
      	 	
              c.

            	
              agrees
                that notwithstanding the consideration to be delivered by the Company
                pursuant to Section 2 below, the rights of the Holder to vote the
                shares
                of the Preferred Stock owned by it pursuant to Section 2(a) of Section
                2A
                of ARTICLE FIFTH of the Certificate of Incorporation shall be determined
                on the basis that the Exchange Rate remains $1.15;
                

            


    

     

    
      	 	
              d.

            	
              agrees
                that notwithstanding the terms and conditions of this Agreement and
                Consent, the Financing and the Refinancing, no Dividend Commencement
                Event
                (as defined in Section 1 of Section 2A of the Certificate of
                Incorporation) has occurred and no Dividends have become due and
                payable;

            


    

     

    
      	 	
              e.

            	
              agrees
                that neither the Financing nor the Refinancing shall be deemed to
                be a
                “Subsequent Financing” as defined in the 2006 Purchase Agreement and
                therefore that the 2006 Purchase Agreement does not afford to the
                Holder
                any participation rights in the Financing or the Refinancing; and
                

            


    

     

    
      	 	
              f.

            	
              consents
                to the issuance of the warrants proposed to be issued to Hercules
                pursuant
                to the terms of the Financing for purposes of Section 4.27(j) of
                the 2006
                Purchase Agreement.

            


    

     

    4.
      This
      Agreement and Consent shall be effective simultaneously with the closing of
      the
      Financing and Refinancing, provided
      that it
      shall at such time have been executed and delivered to the Company by the
      holders of Preferred Stock constituting not less than 65% of the Preferred
      Stock
      issued and outstanding on September 10, 2007.

    


    5.
      All
      other terms and conditions of the Preferred Stock and the 2006 Purchase
      Agreement remain in full force and effect. 

    


    [Signature
      Page Follows}

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the undersigned have signed this Agreement and Consent as
      of
      the date and year set forth above.

     

    
      	
              NAME OF INVESTOR:

            	 


    

    
      	
              NUMBER SHARES PREFERRED STOCK HELD:
                

            	 


    

     

    
      	
              By:

            	 
	 	
              (Signature
                of authorized person above)

            


    

    


    
      	
              Name
                and Title:

            	 


    

    


    
      	
              DIOMED
                HOLDINGS, INC.

            
	 	 
	 	 
	
              By:
                

            	 
	 	
              David
                Swank, Chief Financial Officer

            


    

    


    [Signature
      Page to Preferred Stockholder

    Agreement
      and Consent]

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    


     

     

    EXHIBIT
      A

     

    Below
      is a summary of the principal business considerations

    related
      to our growth capital financing loan proposal.

    


    
      	
              Commitment
                Amount:

            	 	
              $

            	
              10,000,000

            	 
	
              Interest
                Rate (1)

            	 	 	
              Prime
                + 3.20

            	
              %

            
	
              Deferred
                Interest Charge (2)

            	 	 	
              9.50

            	
              %

            


    

     

    
      	 	
              (1)

            	
              Wall
                Street Journal Prime, which surveys large US banks and publishes
                the
                consensus prime rate. As of the date of this Document,
                Prime is 8.25%.

            


    

    
      	
            	(2)	
              One
                time payment due at maturity and calculated against funds
                borrowed.

            


    

     

    
      	
              Lender:

            	 	
              Hercules
                Technology Growth Capital, Inc. and any affiliate or
                transferee.('Hercules”
                or 'Lender”).

            
	 	 	 
	
              Borrower:

            	 	
              Diomed
                Holdings, Inc. and its subsidiaries. ('Diomed”
                or 'Borrower”).

            
	 	 	 
	
              Term
                Sheet Expiration:

            	 	
              September
                26, 2007.

            
	 	 	 
	
              Loan
                Closing:

            	 	
              Best
                efforts to close by October 2, 2007.

            
	 	 	 
	
              Availability
                Period:

            	 	
              The
                commitment is available as follows:

            
	 	 	 
	 	 	
              Tranche
                A: $6.0
                million of Loan Commitment is funded at closing.

            
	 	 	 
	 	 	
              Tranche
                B: Remaining
                $4.0 million will be available at Borrower’s option beginning January 31,
                2008 and will remain available through March 30, 2008.

            
	 	 	 
	
              Use
                of Proceeds:

            	 	
              The
                proceeds of the Loan will be used for general corporate
                purposes.

            
	 	 	 
	
              Interest-only
                Period:

            	 	
              Through
                June 1, 2008.

            
	 	 	 
	
              Amortization:

            	 	
              Beginning
                on July 1, 2008, Borrower shall repay Principal on a schedule comprised
                of
                twenty-four equal monthly principal and interest
                payments.

            
	 	 	 
	
              Maturity:

            	 	
              July
                1, 2010.

            
	 	 	 
	
              Collateral:
                

            	 	
              The
                Loan will be secured by a perfected first position lien on all of
                the
                borrower's assets, including Intellectual Property (“IP”). This lien will
                allow for licensing in the normal course of business.

            
	 	 	 
	
              Warrant:
                

            	 	
              A
                warrant (the “Warrant”) will be issued by Borrower to Lender to purchase
                $100,000 worth of shares of common stock at an Exercise Price of
                $0.70.

            
	 	 	 
	
              Option
                to invest: 

            	 	
              Borrower
                shall grant to Lender the option to invest up to $1.0 million in
                a
                subsequent institutional equity financing on the same terms, conditions,
                and pricing offered to the investors in such subsequent equity financing.
                This option to invest does not apply to equity transactions with
                strategic
                partners or regular shelf registered
                offerings.

            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    The
      information contained herein is confidential and may not be released by you
      or
      your representative in

    written
      or verbal form without the prior written consent of the
      Lender

     

    
      	
              Success
                Fee:

            	 	
              Borrower
                shall remit the following cash payments to Lender:

            
	 	 	 
	 	 	
              1)
                $200,000 at Loan Closing.

            
	 	 	
              2)
                $900,000 on June 30, 2008

            
	 	 	
              3)
                Borrower shall remit a cash payment to Lender in an amount equal
                to 1.00%
                of any gross consideration paid for the acquisition of the business
                of
                Diomed Holdings and its operating subsidiaries.

            
	 	 	 
	
              Financial
                Covenants:

            	 	
              No
                financial ratio covenants.

            
	 	 	 
	
              Reporting
                Requirements: 

            	 	
              Borrower
                will furnish to Lender monthly and quarterly financial statements,
                annual
                audited financial statements and all materials provided to the
                shareholders along with other financial information Lender reasonably
                requests or generally provided to other Holders of the common
                stock.

            
	 	 	 
	
              Expenses:
                

            	 	
              Borrower
                shall pay the invoiced expenses, including UCC searches, filing costs,
                and
                other miscellaneous expenses, and reasonable fees of counsel (in-house
                and
                outside) applicable to drafting, negotiating and/or finalizing the
                Loan.

            
	 	 	 
	
              Commitment
                Fee: 

            	 	
              A
                Commitment Fee of 2.0% of the Commitment Amount is required in order
                for
                Lender to commence the due diligence process. In the event that the
                transaction is not approved, the Commitment Fee shall be returned
                in its
                entirety to Borrower (minus due diligence expenses). In the event
                of
                approval, the Commitment Fee will be applied in its entirety as a
                Facility
                Fee and towards the Lender’s non-legal transaction costs and due diligence
                expenses {Paid}.

            


    

     

    The
      information contained herein is confidential and may not be released by you
      or
      your representative in

    written
      or verbal form without the prior written consent of the
      Lender

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    In
      consideration of the time, cost and expense devoted, and to be devoted, by
      the
      Lender in connection with
      the
      transaction contemplated by this proposal, Borrower agrees that until Loan
      Closing (the “Exclusive Period”) it will not (a) solicit or entertain any
      proposal, (b) negotiate with any other person, or
      (c)
      provide any information with respect to Borrower to any person who might be
      expected to propose
      alternate financing, or Commitment Fee will be deemed earned in
      full.

     

    The
      proposed terms and conditions are provided for discussion purposes only and
      do
      not represent an agreement
      or commitment to lend, provided however that the terms entitled and associated
      with “Expenses”,
      “Commitment Fee” and “Exclusive Period” shall be binding obligations of the
      parties hereto.
      The actual terms and conditions upon which the Lender may agree to extend credit
      to the Borrower are subject to satisfactory completion of due diligence,
      internal credit approvals, satisfactory review of documentation and such other
      terms and conditions as may be determined by Lender and which would be contained
      in definitive legal documents for the loan contemplated hereby.

     

    If
      the
      basic terms are acceptable, please fax an executed copy of this letter to
      866-468-8916 and wire payment
      of the Commitment Fee. This
      offer will expire at 5PM (ET) on September 26, 2007 unless
      accepted
      by Borrower or extended by Lender. We look forward to your response. Please
      feel
      free to call us at 617-261-6553 (work) or 617-877-9663 (cell).

     

    We
      appreciate your consideration of this proposal. We look forward to the
      opportunity to work together and establish a long-term strategic relationship
      with you and Diomed, Inc.

     

    Sincerely,

     

    
      	
              Parag
                Shah

            	
              R.
                Bryan Jadot

            
	
              Sr.
                Managing Director & Group Head, Life Sciences

            	
              Principal,
                Life Sciences

            
	
              Hercules
                Technology Growth Capital, Inc.

            	
              Hercules
                Technology Growth Capital, Inc.

            


    

     

    AGREED
      AND ACCEPTED this _____ day
      of                                                        
  2007

     

    Diomed,
      Inc.

     

    
      	
              By:

            	 
	
              Name:

            	 
	
              Title:

            	 


    

     

    The
      information contained herein is confidential and may not be released by you
      or
      your representative in

    written
      or verbal form without the prior written consent of the
      Lender

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      B

     

    Diomed
      Holdings, Inc.

    Restructuring
      of Variable Rate Convertible Debentures

     

    
      	
              Issuer:

            	 	
              Diomed
                Holdings, Inc.

            
	 	 	 
	
              Issue:

            	 	
              $7
                Million Variable Rate Convertible Debentures due October 2008


              (the
                “Debentures”), of which approximately $3.7 million are issued and
                outstanding.

            
	 	 	 
	
              Existing
                Terms:

            	 	
              Except
                as modified by definitive documentation and further to this term
                sheet,
                all original terms of the Debentures and associated documents shall
                remain
                in effect.

            
	 	 	 
	
              Conversion
                Price:

            	 	
              The
                Conversion Price will be $0.70 per share.

            
	 	 	 
	
              Coupon:

            	 	
              The
                coupon will be the greater of (i) 6-month LIBOR plus 5.00% and (ii)
                10%,
                per annum on the unpaid/unconverted principal balance payable quarterly
                in
                cash.

            
	 	 	 
	
              Rank:

            	 	
              The
                Debentures shall be secured obligations of the Company, subordinate
                to the
                new debentures issued by the Company in favor of
                Hercules.

            
	 	 	 
	
              Investor(s)
                Trading Restriction:

            	 	
              The
                Investor(s) and its affiliates will agree not to trade in the Company’s
                Common Stock until the earlier of (i) the announcement of the Closing
                of
                this transaction, or (ii) termination of discussions between the
                Investor(s) and the Company regarding this transaction.

            
	 	 	 
	
              Expense
                Reimbursement:

            	 	
              The
                Company shall pay up to $5,000 to the Investor(s) (individually)
                for
                outside legal expenses reasonably incurred in relation to documentation
                of
                this restructuring. 

            
	 	 	 
	
              Documentation:

            	 	
              The
                definitive documentation shall contain such additional and supplementary
                provisions, including without limitation representations, warranties,
                covenants, agreements, payments, options and remedies, as are appropriate
                to preserve and protect economic benefits intended to be conveyed
                to the
                Company and to the Investor(s) pursuant hereto.


            


    

    


    
      
        
        

      

      
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