AMENDMENT NO 1 TO WARRANT ISSUANCE AGREEMENT
Exhibit 99.2
AMENDMENT
NO 1
TO
Amendment
No. 1 (the “Amendment”), dated as
of March 25, 2008, to the Warrant Issuance Agreement (the “Agreement”) is made
and entered into as of January 30, 2008, by and between eMagin Corporation, a
Delaware corporation (the “Company”), and Moriah
Capital, L.P., a Delaware limited partnership (the “Lender”).
Capitalized
terms not otherwise defined herein have the meaning set forth in the
Agreement.
The
parties agree as follows:
1. Inclusion of New Warrant and
New Warrant Shares.
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1.1
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References
in the Agreement to “Warrant” shall include both (a) Warrant No. 323,
dated January 30, 2008, for 750,000 shares of the Company’s common stock,
issued to the Lender (the “January
Warrant”), and (b) Warrant No. 324, dated March 25, 2008, for
250,000 shares of the Company’s common stock, issued to the Lender, in the
form annexed hereto as Exhibit A (the
“March
Warrant”).
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1.2
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References
in the Agreement to “Warrant Shares”
are hereby amended to include both (a) the shares of Company common stock
underlying the January Warrant and (b) the shares of Company common stock
underlying the March Warrant.
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2. Registration Statement –
Warrant Shares. Section 3.2 of the Agreement is hereby amended and
restated in its entirety to read as follows:
3.2 Registration Statement
–Warrant Shares. The Company shall file a Registration
Statement (as defined in the Registration Rights Agreement) for
the shares of common stock underlying the Warrant (the “Warrant Shares”) no
later than April 29, 2008 (such deadline referred to as the “Warrant Shares Filing
Date”), with an Effectiveness Date (as defined in the Registration Rights
Agreement) no later than one hundred twenty (120) days from the Warrant Shares
Filing Date.”
3. Closing; Deliveries.
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3.1
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Closing Obligations of
Company. On or prior to the date hereof, the Company shall have
taken and shall take all actions necessary to issue the March Warrant to
Lender and to consummate the transactions contemplated hereby, including,
without limitation, delivery or causing to be delivered to Lender on the
date hereof the following:
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(i)
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The March
Warrant, duly executed and delivered by the
Company;
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(ii)
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An
amendment to the Loan Agreement relating to certain waivers requested by
the Company, in form and substance satisfactory to Lender;
and
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1
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(iii)
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such
other certificates, documents, receipts and instruments as Lender or its
legal counsel may reasonably
request.
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3.2
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Closing Obligations of
Lender. On or prior to the date hereof, Lender shall
have taken and shall take all actions necessary for consummation by Lender
of the transactions contemplated
hereby.
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4. Remaining Provisions of
Agreement Unchanged. Except as set forth herein, the Agreement is
unmodified and shall remain in full force and effect.
5. Waiver. Lender
hereby confirms that the execution of this Amendment shall serve as Lender’s
waiver of any claim that may have otherwise been made against the Company
because the Registration Statement was not filed within thirty days of January
30, 2008 (the “Original Filing Date”), including any liquidated damages on
account thereof, and hereby confirms that an Event of Default did not occur
because the Registration Statement was not filed by the Original Filing
Date.
6. Execution of this
Amendment. This Amendment 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.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to
Warrant Issuance Agreement as of the date set forth in the first paragraph
hereof.
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EMAGIN
CORPORATION
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By:
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/s/ Xxxxxxx X.
Xxxxxx
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Xxxxxxx
X. Xxxxxx
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Interim
Chief Financial Officer
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| MORIAH CAPITAL L.P. | |||
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By:
Moriah Capital Management, L.P., General Partner
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| By: Moriah Capital Management, GP, LLC, General Partner | |||
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By:
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/s/ Alexandre Speaker | |
| Name: Alexandre Speaker | |||
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Title:
Manager
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EXHIBIT
A
FORM
OF MARCH WARRANT
[ATTACHED]
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