AMENDMENT NO. 1 TO THE SECURED CONVERTIBLE PROMISSORY NOTE
AMENDMENT NO. 1 TO THE SECURED CONVERTIBLE PROMISSORY NOTE (this
"Agreement"), dated as of August 30, 2002, by and between eMAGIN CORPORATION, a
Delaware corporation (the "Borrower") and Ginola Limited, an Isle of Man company
(assignee of Rainbow Gate Corporation) (the "Lender"), each a party to the
Secured Note Purchase Agreement entered into as of November 27, 2001, as amended
by the Omnibus Amendment, Waiver and Consent Agreement dated January 14, 2002
(the "Purchase Agreement") pursuant to which a Secured Convertible Promissory
Note was issued in the principal amount of $300,000 (the "Note"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided to such terms in the Note.
W I T N E S S E T H :
WHEREAS, the parties wish to amend the Note to extend its maturity
date and revise the "Default" section of the Note;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
ARTICLE ONE
AMENDMENT TO NOTE
SECTION 1.1 Amendment to Note. By executing this Agreement, the
Borrower and the Lender hereby agree and acknowledge as follows:
(a) Section 1 of the Note is hereby amended by deleting "August 30, 2002"
from such section and inserting "September 30, 2002" in the place of such
deletion;
(b) Section 8(i) of the Note is hereby amended by deleting "or" from such
section;
(c) Section 8(j) of the Note is hereby amended by deleting "." from such
section and inserting "; or" in the place of such deletion;
(d) Section 8 of the Note is hereby amended by adding at the end thereof
the following paragraph:
"(k) The Borrower ceases operations or fails to carry on its
current overall level of operations."
ARTICLE TWO
MISCELLANEOUS
SECTION 2.1 Counterparts.This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which counterparts when executed and delivered (including delivery by
way of facsimile) shall be an original, but all of which shall together
constitute one and the same instrument. A complete set of counterparts shall be
lodged with the Borrower.
SECTION 2.2 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
excluding conflict of law principles that would cause the application of laws of
any other jurisdiction.
SECTION 2.3 Effective Date. This Agreement shall become effective (the
"Effective Date") as of the date first referenced above.
SECTION 2.4 Effect of Amendment. From and after the Effective Date,
the Note and all references to the Note pursuant to the Note Purchase Agreement
and the other documents referenced therein shall be deemed to be references to
the Note as modified hereby. This Agreement is limited as specified and shall
not constitute a modification, amendment, acceptance or waiver of any other
provision of the Note, the Note Purchase Agreement or any other document
referenced therein or herein.
SECTION 2.5 Headings. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
SECTION 2.6 Further Assurances. From and after the date of this
Agreement, upon the request of any party hereto, each party shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
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IN WITNESSES WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
BORROWER:
eMAGIN CORPORATION
By:
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Name:
Title:
LENDER:
GINOLA LIMITED
By:
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Name:
Title:
