EXHIBIT 10.5
AMENDMENT NO. 5 TO CONVERTIBLE PROMISSORY NOTE
AMENDMENT NO. 5 TO SECURED CONVERTIBLE PROMISSORY NOTE (this
"Agreement"), dated as of December 23, 2002, by and between eMAGIN CORPORATION,
a Delaware corporation (the "Borrower") and Xxxx Xxxxxx (the "Lender"), each a
party to the Secured Note Purchase Agreement (the "Note Purchase Agreement")
entered into as of November 27, 2001 and a Secured Convertible Promissory Note
(the "Note") dated November 27, 2001. 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 :
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WHEREAS, the parties wish to amend the 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 NOTE
SECTION 1.1 Amendment to Note. By executing this Agreement, the
Borrower and the Lender hereby agree and acknowledge that Section 1 of the Note
is hereby amended by deleting "December 31, 2002" and inserting in the place of
such deletion "January 31, 2003."
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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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:
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Name:
Title:
LENDER:
Xxxx Xxxxxx
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