EXHIBIT 10.3
SECOND AMENDMENT TO PURCHASE AGREEMENT
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THE SECOND AMENDMENT, dated as of December 10, 1996, to AGREEMENT, dated as of
August 12, 1996, as previously amended by AMENDMENT TO PURCHASE AGREEMENT dated
as of November 22, 1996, between XXXXXXXXX-XXXX COMPANY, a New Jersey
corporation ("Parent"), and GENCOR INDUSTRIES, INC., a Delaware corporation
("Buyer").
W I T N E S S E T H:
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WHEREAS, Parent and Buyer have entered into that certain Purchase Agreement,
dated as of August 12, 1996 (the "Agreement"), which was amended by Parent and
Buyer by an amendment (the "First Amendment"), pursuant to which Buyer has
agreed to purchase Parent's Process Equipment Division; and
WHEREAS, Parent and Buyer desire to further amend the Agreement by this
Second Amendment as hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, Parent and Buyer agree as follows:
1. Definitions. Unless otherwise indicated herein, all capitalized terms
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used herein will have the same meanings as such terms have in the Agreement and
First Amendment.
2. Purchase Price. Buyer and Seller agree that the attached "CPH
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Closing" sheet (which shows a net payment due of $60,886,697) is the closing
settlement amount called for by the Agreement and First Amendment provided,
however, that Buyer and Seller agree that any amounts therein which relate to
amounts referenced in Section 2.5(c)(ii) of the Agreement as amended by the
First Amendment shall be the subject of verification and shall be paid within
forty-five (45) days of the Closing Date. The parties will also settle
additional amounts not reflected in the attached schedule which are covered by
the provisions of Section 2.5(c) and (d) of the Agreement, as amended by the
First Amendment. The parties will also agree on the amount referred to in
Section 2.7(c)(i)(C) of the Agreement as the book value as reflected on the
Adjusted Closing Balance of the technology transferred to the CPM China JV and
its affiliates.
3. Clarification with Respect to Silver Engineering
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(a) As set forth in Section 3 of the First Amendment, Silver
Engineering transferred certain assets to Xxxxxxxxx-Xxxx Company pursuant to a
certain General Conveyance of Assets and Assumption of Liabilities signed by
Silver Engineering and Parent as of September 30, 1996 and subsequent thereto,
Parent and California Pellet Mill Company entered into a certain General
Conveyance of Assets and Assumption of Liabilities dated as of September 30,
1996. Notwithstanding said General Conveyance of Assets and Assumption of
Liabilities Agreements (the "Conveyance Agreements") or any of the terms and
provisions therein to the contrary, Parent agrees that California Pellet Mill
Company following the Closing will have no obligation or responsibility for any
debts, liabilities, contracts, commitments, licenses, duties and/or obligations
to Parent unless the same are set forth in the Balance Sheet or the Adjustment
Closing Balance Sheet.
(b) Further, Parent agrees that the terms and provisions of Section
8.3 of the Agreement shall govern and control in the case of any liability or
obligation which is at the same time covered by the Conveyance Agreements and
the Agreement; with the result, for example, that if California Pellet Mill
Company owes Parent $1,000 as a result of the Collateral Agreements and Parent
owes Buyer $1,000 as a result of Section 8.3 of the Agreement, then only Section
8.3 of the Agreement shall govern and control.
4. Ancillary Agreement. Parent and Buyer shall work together for a
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reasonable time following the Closing to assure a smooth transition of the
functions mentioned in the December 3, 1996 letter attached herein, it being
recognized that the party receiving services or benefits will be required to pay
reasonable compensation therefor.
5. Other Provisions Unaffected. All other provisions of the Agreement
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shall remain in effect as set forth in the Agreement and First Amendment.
IN WITNESS WHEREOF, the parties have executed or caused this Second
Amendment to the Agreement and the First Amendment to be executed as of the date
first above written.
XXXXXXXXX-XXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary
GENCOR INDUSTRIES, INC.
By: /s/ X.X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: Chairman, President
and Chief Executive Officer
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