AMENDMENT NO. 1 TO LOCKBOX AGREEMENT
Exhibit
10.6
AMENDMENT
NO. 1 TO LOCKBOX AGREEMENT
THIS
AMENDMENT NO. 1 TO LOCKBOX AGREEMENT,
dated as
of July 23, 2007 (this “Agreement”), by and between EMAGIN
CORPORATION,
a
Delaware corporation (the “Company”), and ALEXANDRA
GLOBAL MASTER FUND LTD.,
a
British Virgin Islands international business company, as collateral agent
(in
such capacity, the “Collateral Agent”) on behalf of the Holders (such
capitalized term and all other capitalized terms used herein having the
respective meanings provided herein), amends the LOCKBOX
AGREEMENT,
dated
as of July 21, 2006 (the “Lockbox Agreement”), made by the
Company to the Collateral Agent.
W I T N E S S E T H:
WHEREAS,
the
Company and the Collateral Agent are parties to the Lockbox
Agreement;
WHEREAS,
the
Company and the Collateral Agent wish to amend the Lockbox Agreement as provided
in this Agreement; and
NOW
THEREFORE, in
consideration of the premises and the mutual covenants made herein and for
other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1 As
used
in this Agreement, the terms “Agreement”, “Company”, “Collateral Agent” and
“Lockbox Agreement” shall have the respective meanings assigned to such terms in
the introductory paragraph of this Agreement.
1.2 Capitalized
terms used in this Agreement and not defined in this Agreement shall have the
respective meanings provided in the Lockbox Agreement.
1.3 All
the
agreements or instruments herein defined shall mean such agreements or
instruments as the same may from time to time be supplemented or amended or
the
terms thereof waived or modified to the extent permitted by, and in accordance
with, the terms thereof and of this Agreement.
1.4 The
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
“Amended
Lockbox Agreement” means the Lockbox Agreement, as amended by this
Agreement.
“Amended
Notes” means the Amended and Restated 8% Senior Secured Convertible Notes due
2008 issued by the Company upon amendment and restatement of the
Notes.
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“Amended
Patent and Trademark Security Agreement” means the Patent and Trademark Security
Agreement dated as of July 21, 2006, by and between the Company and the
Collateral Agent, as amended by Amendment No. 1 to Patent and Trademark Security
Agreement, dated as of July 23, 2007, by and between the Company and the
Collateral Agent.
“Amended
Pledge and Security Agreement” means the Pledge and Security Agreement, dated as
of July 21, 2006, by and between the Company and the Collateral Agent, as
amended by Amendment No. 1 to the Pledge and Security Agreement, dated as of
July 23, 2007 by and between the Company and the Collateral Agent.
“Amendment
Agreements” means the several Amendment Agreements, dated as of July 23, 2007 by
and between the Company and the Holders.
“Amendment
Transaction Documents” means the Amended Notes, the Amended Warrants, the
Certificate Designations, the Amended Patent and Trademark Security Agreement,
the Amended Pledge and Security Agreement, the Amended Lockbox
Agreement and
the
other agreements, instruments and documents contemplated hereby and
thereby.
“Certificate
of Designations” means the Certificate of Designations of Series A Senior
Secured Convertible Preferred Stock of the Company as filed with the Secretary
of State of the State of Delaware.
“Effective
Date” shall have the meaning provided in Section 4.
“Effective
Time” shall have the meaning provided in the Amendment Agreements.
“Holders”
means with respect to any time prior to the Effective Time on the Effective
Date
the holders of Notes and with respect to any time after the Effective Time
on
the Effective Date, the holders from time to time of any Amended Notes or shares
of Series A Preferred Stock.
“Series
A
Preferred Stock” means the Series A Senior Secured Convertible Preferred Stock,
par value $0.001 per share, of the Company.
2. Amendments.
2.1 Amendments
to Lockbox Agreement. Upon
the
terms and subject to the conditions of this Agreement, the Lockbox Agreement
is
hereby amended as follows:
(a) Amendment
of Certain Definitions.
Section
1(a) of the Lockbox Agreement shall be amended by deleting the terms “Additional
Note Purchase Agreement”, “Event of Default”, “Holder”, “Note Purchase
Agreements”, “Majority Holders”, “Notes” and “Transaction Documents” and the
accompanying definitions thereof and substituting in lieu thereof in their
respective alphabetical order the following:
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“Additional
Note Purchase Agreement” means the Note Purchase Agreement, dated as of July 21,
2006, as amended on March 28, 2007, by and between the Company and Stillwater
LLC, as amended by the Amendment Agreement, pursuant to which the Company issued
the Additional Note.
“Event
of
Default” means:
(1) the
failure by the Company to perform in any material respect any obligation of
the
Company under this Agreement as and when required by this Agreement;
or
(2) the
failure by the Company to pay the Optional Redemption Price or the Mandatory
Redemption Price; or
(3) the
breach by the Company of any other material covenant or other term or condition
of the Certificate of Designations; or
(4) any
representation or warranty made by the Company pursuant to this Agreement shall
have been untrue in any material respect when made or deemed to have been made;
or
(5) the
failure by the Company to perform in any material respect any obligation of
the
Company under the Lockbox Agreement as and when required by the Lockbox
Agreement;
(6) any
representation or warranty made by the Company pursuant to the Lockbox Agreement
shall have been untrue in any material respect when made or deemed to have
been
made;
(7) any
Event
of Default, as that term is defined in any of the Notes.
“Holder”
means any Buyer or any holder from time to time of any Note or any Preferred
Shares.
“Majority
Holders” means at any time (i) such of the holders of Notes who hold Notes
which, based on the outstanding principal amounts thereof, represent a majority
of the aggregate outstanding principal amount of the Notes at such time, and
(ii) such of the holders of Preferred Shares which shares constitute a majority
of the outstanding Preferred Shares at such time.
“Note
Purchase Agreements” means the several Note Purchase Agreements, dated as of
July 21, 2006, by and between the Company and the respective Buyer party
thereto, as amended by the Amendment Agreement, pursuant to which the Company
issued the Notes, including, without limitation, the Additional Note Purchase
Agreement.
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“Notes”
means the Amended and Restated 8% Senior Secured Convertible Notes due 2008
issued by the Company upon amendment and restatement of the Company’s 6% Senior
Secured Convertible Notes due 2007-2008, as amended, originally issued pursuant
to the Note Purchase Agreements, including, without limitation, the Additional
Note.
(b) Additional
Defined Terms. Section
1(a) of the Lockbox Agreement shall be amended by adding new defined terms
and
definitions thereof, in the places constituting their respective alphabetical
orders, as follows:
“Amendment
Agreement” means the several Amendment Agreements, dated as of July 23, 2007, by
and between the Company and the Holders.
“Certificate
of Designations” means the Certificate of Designations of Series A Senior
Secured Convertible Preferred Stock of the Company as filed with the Secretary
of State of the State of Delaware.
“Mandatory
Redemption Price” shall have the meaning assigned to such term in the
Certificate of Designations.
“Optional
Redemption Price” shall have the meaning assigned to such term in the
Certificate of Designations.
“Preferred
Shares” means shares of Series A Senior Secured Convertible Preferred Stock
issued by the Company.
3. Effect
of Amendment; Confirmation.
(a) From
and
after the Effective Date, the rights and obligations of the Company, the
Collateral Agent and the Holders under the Lockbox Agreement and the Transaction
Documents and all other agreements, documents and instruments contemplated
hereby and thereby shall apply with full force and effect to the Lockbox
Agreement, as amended by this Agreement, and each reference to the Lockbox
Agreement in the Transaction Documents shall be deemed to be a reference to
the
Lockbox Agreement, as amended by this Agreement and each reference in the
Lockbox Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words
of like import shall mean and be a reference to the Lockbox Agreement as amended
hereby, and this Agreement and the Lockbox Agreement shall be read together
and
construed as a single instrument.
(b) Except
as
amended by this Agreement, the Lockbox Agreement shall remain in full force
and
effect in accordance with its respective terms.
(c) The
execution, delivery and effectiveness of this Agreement shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy
of
the Collateral Agent, the Company or the Holders under the Lockbox Agreement
or
any of the Transaction Documents, nor constitute a waiver or amendment of any
other provision of the Lockbox Agreement or any of the Transaction Documents
or
for any purpose except as expressly set forth herein.
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(d) Nothing
in this Agreement or in connection with the transactions contemplated by this
Agreement or otherwise shall be construed, directly or indirectly, by
implication or otherwise to impair the validity, enforceability, priority,
perfection or other attributes of the security interest granted pursuant to
the
Lockbox Agreement.
4. Effectiveness.
The
amendment of the Lockbox Agreement pursuant to this Agreement shall become
effective on the date (the “Effective Date”) when all of the following
conditions are satisfied:
(a) The
Collateral Agent shall have received Acknowledgement and Consents, in the form
attached hereto as Exhibit
A,
from
the Majority Holders; and
(b) On
the
Effective Date the Effective Time under all of the Amendment Agreements shall
have occurred.
5. Miscellaneous.
5.1 Waiver
and Amendments; Successors and Assigns.
The
provisions of Section 15 of the Lockbox Agreement shall be applicable to this
Agreement as if this Agreement were the “Agreement” referred to in Section 15 of
the Lockbox Agreement.
5.2 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
5.3 Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
5.4 Notices.
Any
notice required or permitted under this Agreement shall be given as provided
in
the Lockbox Agreement.
5.5 Severability.
If
one or
more provisions of this Agreement are held to be unenforceable under applicable
law, such provision shall be excluded from this Agreement and the balance of
this Agreement shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
5.6 Entire
Agreement.
This
Agreement and the other Amendment Transaction Documents and other documents
contemplated hereby and thereby constitute the entire agreement among the
parties hereof with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and
thereof.
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5.7 Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
5.8 Applicable
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without regard to principles of conflicts of laws, except
to the extent that under the New York Uniform Commercial Code the laws of
another jurisdiction govern matters of perfection and the effect of perfection
or non-perfection of any security interest granted under the Lockbox Agreement,
as amended by this Agreement.
5.9 Counterparts;
Execution.
This
Agreement may be executed in any number of counterparts and by the parties
hereto on separate counterparts, but all the counterparts taken together shall
be deemed to constitute one and the same instrument. This Agreement, once
executed by a party, may be delivered to the other party hereto by electronic
or
telephone line facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
5.10 Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF,
the
Company and the Collateral Agent have caused this Agreement to be duly executed
and delivered by their respective officers or other representatives thereunto
duly authorized as of the date first above written.
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EMAGIN
CORPORATION
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Name:
Title:
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ALEXANDRA GLOBAL MASTER
FUND LTD., as Collateral
Agent
By: ALEXANDRA
INVESTMENT MANAGEMENT, LLC,
as
Investment Advisor
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| By: | /s/ | |
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Name:
Title:
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EXHIBIT
A
ACKNOWLEDGEMENT
AND CONSENT
To:
ALEXANDRA GLOBAL MASTER FUND LTD.,
As
Collateral Agent
c/o
Alexandra Investment Management, LLC
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Re:
eMagin Corporation
Reference
is made to the Lockbox Agreement, dated as of July 21, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Lockbox Agreement”)
by and between eMagin Corporation, a Delaware corporation (the “Company”), to
Alexandra Global Master Fund Ltd., a British Virgin Islands international
business company, as collateral agent (in such capacity, the “Collateral Agent”)
on behalf of the Holders. Capitalized terms used herein and not otherwise
defined herein are used herein as defined in the Lockbox Agreement.
The
Company has requested that the Holders consent to an Amendment to the Lockbox
Agreement on the terms described in that certain Amendment No. 1 to the Lockbox
Agreement (“Amendment No. 1 to Lockbox Agreement”), the form of which is
attached hereto.
Pursuant
to Section 15 of the Lockbox Agreement, the undersigned Holder hereby consents
to the terms of Amendment No. 1 to Lockbox Agreement and authorizes the
Collateral Agent to execute and deliver Amendment No. 1 to Lockbox Agreement
on
its behalf.
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Very
truly yours,
NAME
OF HOLDER:
______________________________
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Dated
as of July 23, 2007
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By: | /s/ |
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Name:
Title:
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