Exhibit 10.3
AMENDMENT NO. 5 TO THE SECURED CONVERTIBLE PROMISSORY NOTES
AMENDMENT NO. 5 TO THE SECURED CONVERTIBLE PROMISSORY NOTES (this
"Agreement"), dated as of December 20, 2002, by and between eMAGIN CORPORATION,
a Delaware corporation (the "Borrower") and Xx. Xxxxxxxx D.A. Sackler (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, and the Subscription Agreements dated January
14, 2002 (collectively, the "Purchase Agreements") pursuant to which three
Secured Convertible Promissory Notes were issued in the aggregate principal
amount of $1,200,000 (collectively the "Notes", and each individually the
"Note"). All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings provided to such terms in the Notes.
W I T N E S S E T H :
WHEREAS, the parties wish to amend each Note to extend its maturity
date;
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 THE NOTES
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 each Note is hereby amended by deleting "December 20,
2002" from such section and inserting "January 31, 2003" in the place of such
deletion.
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 Notes and all references to the Notes pursuant to the Note Purchase
Agreements and the other documents referenced therein shall be deemed to be
references to the Notes 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 Notes, the Note Purchase Agreements 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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2
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:
--------------------------------
Name:
Title:
LENDER:
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XXXXXXXX X.X. XXXXXXX
