AMENDMENT NO. 1 TO PARTIAL SETTLEMENT AGREEMENT
Exhibit 99.2
AMENDMENT NO. 1 TO PARTIAL SETTLEMENT AGREEMENT
This amendment to the Partial Settlement Agreement dated January 5, 2011, by and between Xxxxx
Controls Company, L.L.C. (“Xxxxx”) and Enova Systems, Inc. (“Enova”), is made this 14th day of
January, 2011.
WHEREAS, Enova alleges that the Inspection has revealed that some of the Inventory is missing.
The items of Inventory that Enova alleges are missing include, among other things, 164 Cold Plate
P120 units and 119 Cold Plate P90 units (the “Missing Cold Plates”). The Missing Cold Plates are
valued, according to Attachment B to the Partial Settlement Agreement, at $173,215.17;
WHEREAS, Enova and Xxxxx have agreed that the amount Enova shall pay Xxxxx pursuant to the
Partial Settlement Agreement shall be reduced by the value of the Missing Cold Plates
($173,215.17)., making the aggregate amount Enova shall pay Xxxxx pursuant to the Partial
Settlement Agreement the amount of $1,824,574.83; and
WHEREAS, Enova has already funded the Escrow Payment into the Escrow Account.
NOW, THEREFORE, in consideration of the covenants and promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, subject to the conditions precedent identified in the Partial
Settlement Agreement and this Amendment No. 1, the parties hereto agree that the Partial Settlement
Agreement is amended as follows:
1. The first paragraph only of Section 2(c) is deleted in its entirety and
replaced with the following:
If Enova decides to accept the Inventory, then Xxxxx shall cause the Inventory to be
shipped to Enova upon Xxxxx’ receipt of both: (i) Enova’s written designation that it has accepted the Inventory, pursuant to
paragraph 2(b) hereof and (ii) a Joint Certificate in the form attached hereto as
Attachment C (the “Joint Certificate”) signed by an Enova Authorized Representative
listed on Exhibit C to the Escrow Agreement. Immediately upon Xxxxx’ shipment of all
or any portion of the Inventory to Enova, Xxxxx and Enova shall transmit to the Escrow
Agent the Joint Certificate pursuant to paragraph 5(a) of the Escrow Agreement. The
parties agree that the Joint Certificate shall be prepared and transmitted to the
Escrow Agent in a manner sufficient under the terms of the Escrow Agreement to cause
the Escrow Agent to disburse the full balance of funds in the Escrow Account in
accordance therewith.
2. All other provisions of the Partial Settlement Agreement remain unaffected by this
Amendment No. 1.
IN WITNESS WHEREOF, the parties hereto agree to the foregoing by the signatures of their
authorized representatives below as of the date set forth above.
By: Xxx Xxxxx
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By: Xxxx Xxxxxxx | |||
Title: President & Chief Executive Officer
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Title: Chief Operating Officer |