FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT AND PRELIMINARY ESCROW INSTRUCTIONS [Portion of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond, California]
Exhibit
10.8.5.
FIFTH
AMENDMENT TO
AND
PRELIMINARY ESCROW INSTRUCTIONS
[Portion
of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond,
California]
This
Fifth Amendment to Purchase and Sale Agreement and Preliminary Escrow
Instructions (the "Fifth
Amendment") is
entered into as of November 17, 2005, between DICON FIBEROPTICS, INC., a
California corporation ("Seller") and
PULTE
HOME CORPORATION, a Michigan corporation ("Buyer").
RECITALS
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A.
|
Seller
and Buyer entered into a Purchase and Sale Agreement and Preliminary
Escrow Instructions as of February 27, 2004, a First Amendment to
Purchase
and Sale Agreement and Preliminary Escrow Instructions as of March
1,
2004, a Second Amendment to Purchase and Sale Agreement and Preliminary
Escrow Instructions as of April 29, 2004, a Third Amendment to Purchase
and Sale Agreement and Preliminary Escrow Instructions as of February
27,
2005, and a Fourth Amendment to Purchase and Sale Agreement and
Preliminary Escrow Instructions as of July 27, 2005 (collectively,
the
"Agreement").
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|
B.
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Seller and Buyer desire to amend and restate certain provisions of the Agreement as provided in this Fifth Amendment. |
The
parties agree as follows:
AGREEMENT
| 1. |
Section
3.5 of the Agreement is hereby amended by adding the following sentence
at
the end of the Section.
|
"The
payment under this Section 3.5 is hereinafter referred to as the 'Payment'."
| 2. |
Section
3.6 of the Agreement is hereby amended by deleting the entire Section
after the Section number 3.6 and by inserting therein the
following:
|
"This
Section is intentionally left blank."
| 3. |
Section
6.4 of the Agreement is hereby amended and restated in its entirety
to
read as follows:
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| "6.4 | Recording of Acceptable Parcel Maps. The parcel maps prepared by Buyer, approved by Seller, and approved by the City, pursuant to this Section 6 are referred to as the 'Acceptable Parcel Maps'. The Acceptable Parcel Maps shall be recorded in the Official Records of the County no later than the earlier of (a) December 14, 2005, or (b) the Close of Escrow." |
| 4. |
A
new Section 10.2.8 is hereby added to the Agreement to read as
follows:
|
| "10.2.8 | Discount on Sales to DiCon
Employees.
Pulte shall give DiCon employees a 10% discount from the sales price
of no
more than |
|
ten
(10) JSK
HSL
|
| 5. |
Section
11.1 of the Agreement is hereby amended by adding the words "AND
ALL THE
EXTENSION DEPOSITS AND ALL THE EXTENSION PAYMENTS RECEIVED BY SELLER
UNDER
SECTIONS 13.2.1 AND 13.2.2" on line 21 thereof after the words "THE
PAYMENT" and before the words "AS LIQUIDATED
DAMAGES".
|
Seller's
Initials HSL Buyer's
Initials JSK
| 6. |
Section
11.3 of the Agreement is hereby amended by adding the words "AND
ALL THE
EXTENSION DEPOSITS AND ALL THE EXTENSION PAYMENTS RECEIVED BY SELLER
UNDER
SECTIONS 13.2.1 AND 13.2.2" on lines 7 and 8 thereof after the words
"THE
PAYMENT" and before the words "AS LIQUIDATED
DAMAGES".
|
Seller's
Initials HSL Buyer's
Initials JSK
| 7. |
Section
13.2.2 of the Agreement is hereby amended and restated in its entirety
to
read as follows:
|
"13.2.2 Extension
of Closing Date.
Buyer
may elect to extend the Closing Date as provided and subject to the conditions
precedent in this Section 13.2.2.
1st
Extension: Buyer may extend the Closing Date to the date of December 14,
2005.
2nd
Extension: If Buyer has extended the Closing Date as provided under the
1st
extension under this Section 13.2.2, Buyer may extend the Closing Date to the
date of December 29, 2005.
The
1st
extension under this Section 13.2.2 is subject to the conditions precedent
that,
on or before the Closing Date as in effect prior to such extension (a) Seller
and Escrow Agent shall each have received from Buyer a written notice of
Buyer¡¦s election to extend the Closing Date, (b) Seller shall have received
from Buyer by wire transfer an extension payment in the amount of Fifty Thousand
Dollars ($50,000.00), and (c) Seller shall have received from Buyer by wire
transfer an extension deposit in the amount of One Hundred Thousand Dollars
($100,000.00).
The
2nd
extension under this Section 13.2.2 is subject to the conditions precedent
that,
on or before the Closing Date as in effect prior to such extension (a) Seller
and Escrow Agent shall each have received from Buyer a written notice of
Buyer¡¦s election to extend the Closing Date, (b) Seller shall have received
from Buyer by wire transfer an extension payment in the amount of One Hundred
Thousand Dollars ($100,000.00), and (c) Seller shall have received from Buyer
by
wire transfer an extension deposit in the amount of One Hundred Thousand Dollars
($100,000.00).
The
extension payments described in subsection (b) of each of the two immediately
preceding paragraphs in this Section 13.2.2 are not applicable to the Purchase
Price. The extension deposits described in subsection (c) of each of the two
immediately preceding paragraphs in this Section 13.2.2 actually received by
Seller shall be applied to the Purchase Price on the Close of Escrow. The
extension payments and the extension deposits are non-refundable under any
and
all circumstances including, but not limited to, any termination of Buyer's
obligation to purchase and Seller's obligation to sell the Purchase Property
under this Agreement."
| 8. |
Except
as amended and restated by this Fifth Amendment, all terms, conditions
and
provisions of the Agreement shall remain in full force and
effect.
|
| 9. |
This
Fifth Amendment may be executed by the different parties hereto on
separate counterparts each of which, when so executed, shall be deemed
an
original but all such counterparts shall constitute but one and the
same
agreement.
|
IN
WITNESS HEREOF, the
parties hereto have executed this Fifth Amendment as of the date first above
written.
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Seller:
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Buyer:
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|
DICON
FIBEROPTICS, INC.,
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PULTE
HOME CORPORATION
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|
a
California corporation
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a
Michigan corporation
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|
By: /s/
Ho-Xxxxx Xxx
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By:
/s/
Xxxxxx Xxxxxxxx
|
|
Name:
Ho-Xxxxx
Xxx, Ph.D.
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Name:
Xxxxxx
Xxxxxxxx
|
|
Its:
President & CEO
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Its:
Division
President
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Acceptance
by Escrow Holder
CHICAGO
TITLE COMPANY hereby acknowledges that it has received originally executed
counterparts or a fully executed original of the foregoing Fifth Amendment
to
Purchase and Sale Agreement and Preliminary Escrow Instructions and agrees
to
act as Escrow Agent thereunder and to be bound by and perform the terms thereof
as such terms apply to Escrow Agent.
CHICAGO
TITLE COMPANY
By:
/s/Xxxxxx X. Xxxxxxx
Name:
Xxxxxx
X.
Xxxxxxx
Its: Assistant
Vice President
Date
of
Execution: 12/1/2005
