Third Amendment to Purchase and Sale Agreement and Preliminary Escrow Instructions dated as of February 27, 2005, with Pulte Home Corporation

Exhibit 10.8.3

 

[Portion of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond, California]

This Third Amendment to Purchase and Sale Agreement and Preliminary Escrow Instructions (the “Third Amendment”) is entered into as of February 27, 2005, between DICON FIBEROPTICS, INC., a California corporation (“Seller”) and PULTE HOME CORPORATION, a Michigan corporation (“Buyer”).

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, and a Second Amendment to Purchase and Sale Agreement and Preliminary Escrow Instructions as of April 29, 2004 (collectively, the “Agreement”).

The parties agree as follows:

1.

Section 13.2.1 of the Agreement is hereby amended and restated in its entirety to read as follows:

“13.2.1

Extension of Closing Date if City has not approved the Tentative Map. Buyer may elect to extend the Closing Date as provided and subject to the conditions precedent in this Section 13.2.1.

1^st Extension: If the City has not approved the Tentative Map on or before the date of February 28, 2005, Buyer may extend the Closing Date to the date of March 30, 2005.

2^nd Extension: If Buyer has extended the Closing Date as provided under the 1^st extension and if the City has not approved the Tentative Map on or before the date of March 30, 2005, Buyer may extend the Closing Date to the date of April 29, 2005.

3^rd Extension: If Buyer has extended the Closing Date as provided under the 2^nd extension and if the City has not approved the Tentative Map on or before the date of April 29, 2005, Buyer may extend the Closing Date to the date of May 31, 2005.

4^th Extension: If Buyer has extended the Closing Date as provided under the 3^rd extension and if the City has not approved the Tentative Map on or before the date May 31, 2005, Buyer may extend the Closing Date to the date of June 30, 2005.

5^th Extension: If Buyer has extended the Closing Date as provided under the 4^th extension and if the City has not approved the Tentative Map on or before the date of June 30, 2005, Buyer may extend the Closing Date to the date of July 29, 2005.

6^th Extension: If Buyer has extended the Closing Date as provided under the 5^th extension and if the City has not approved the Tentative Map on or before the date of July 29, 2005, Buyer may extend the Closing Date to the date of August 29, 2005.

Each of the 1^st, 2^nd, and 3^rd extensions is subject to the conditions precedent that, on or before the Closing Date as in effect prior to each 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, and (b) Seller shall have received from Buyer by wire transfer an extension payment in the amount of Twenty Five Thousand Dollars ($25,000.00).

Each of the 4^th, 5^th and 6^th extensions is subject to the conditions precedent that, on or before the Closing Date as in effect prior to each 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 extension payments under this Section 13.2.1 are not applicable to the Purchase Price. The extension deposits under this Section 13.2.1 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.

2.

Section 22 of the Agreement is hereby amended to change the address for notices to Buyer as follows:

PULTE HOME CORPORATION

6210 Stoneridge Mall Road, 5^th Floor

Pleasanton, CA 94588

Attn: Steve Kalmbach

Fax No.: (925) 249-4373

 

3.

The parties hereby affirm the Purchase and Sale Agreement and Preliminary Escrow Instructions dated as of February 27, 2004, the First Amendment to Purchase and Sale Agreement and Preliminary Escrow Instructions dated as of March 1, 2004, and the Second Amendment to Purchase and Sale Agreement and Preliminary Escrow Instructions dated as of April 29, 2004.

 

IN WITNESS HEREOF, the parties hereto have executed this Third Amendment as of the date first above written.

Seller:	Buyer:
DICON FIBEROPTICS, INC.,	PULTE HOME CORPORATION
a California corporation	a Michigan corporation
By: /s/ Ho-Shang Lee	By: /s/ Steven Kalmbach
Name:  Ho-Shang Lee, Ph.D.	Name:  Steven Kalmbach
Its: President & CEO	Its:  Division President

 

CHICAGO TITLE COMPANY hereby acknowledges that it has received originally executed counterparts or a fully executed original of the foregoing Third 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/ Laurie J. Edwards  

Name:  Laurie J. Edwards

Its:  Assistant Vice President

Date of Execution:  5-3-05