OPTION AGREEMENT
THIS OPTION AGREEMENT ("Option Agreement") is made this
28th day of February, 1997 by and between DYNAMET INCORPORATED, a
Delaware corporation ("New Dynamet"), and XXXXX X. XXXXXXXX, an
individual resident of Pennsylvania ("Buyer").
WITNESSETH:
WHEREAS, New Dynamet is the surviving corporation of
the merger of Dynamet Incorporated, a Pennsylvania corporation,
into New Dynamet, a wholly-owned subsidiary of Xxxxxxxxx
Technology Corporation; and
WHEREAS, New Dynamet owns certain assets related to its
Forged Products Division and all the outstanding preferred stock
of Trigon Incorporated (formerly known as Stelkast Incorporated)
(together, the "Assets"); and
WHEREAS, New Dynamet desires to acquire an option to
sell the Assets to Buyer, and Buyer is willing to grant such an
option to New Dynamet, on the terms and conditions set forth
herein; and
WHEREAS, Buyer desires to acquire an option to purchase
the Assets from New Dynamet, and New Dynamet is willing to grant
such an option to Buyer, on the terms and conditions set forth
herein.
NOW, THEREFORE, the parties hereto, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, and intending to be legally
bound hereby, agree as follows:
1. Buyer hereby grants to New Dynamet an option ("New
Dynamet's Option") for sixty (60) days beginning on the date
hereof (the "Option Period") to sell the Assets to Buyer, in
connection with which Buyer will assume certain liabilities
associated with the Assets ("Assumed Liabilities"), and New
Dynamet hereby grants to Buyer an exclusive option ("Buyer's
Option") for the Option Period to purchase the Assets and assume
the Assumed Liabilities.
2. New Dynamet shall exercise New Dynamet's Option by
giving Buyer written notice thereof. Such notice shall be deemed
to have been duly given if (i) personally delivered, (ii) sent by
facsimile transmission (with transmission confirmed) or (iii)
sent by overnight courier (with delivery confirmed), and shall be
addressed to Xxxxx X. Xxxxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000, telecopy number: (000) 000-0000.
3. Buyer shall exercise Buyer's Option by giving New
Dynamet written notice thereof. Such notice shall be deemed to
have been duly given if (i) personally delivered, (ii) sent by
facsimile transmission (with transmission confirmed) or
(iii) sent by overnight courier (with delivery confirmed), and
shall be addressed or delivered as follows: to New Dynamet at
the offices of Xxxxxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxxx, XX 00000 if delivered today and otherwise at 000
Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx,
Senior Vice President, Chief Financial Officer and Treasurer with
a copy to Xxxxxxxxx Technology Corporation, 000 X. Xxxx Xxxxxx,
Xxxxxxx, XX 00000-0000, Attn: Xxxx X. Xxxxx, Vice President,
General Counsel and Secretary, telecopy number: (000) 000-0000.
4. If Buyer exercises Buyer's Option on the date of
this Option Agreement, the date for the closing of the purchase
of the Assets and assumption of the Assumed Liabilities shall be
this day. In all other cases, if New Dynamet or Buyer exercises
its respective Option, Buyer shall select a date for the closing
of the purchase of the Assets and assumption of the Assumed
Liabilities and shall give notice of such date to New Dynamet at
000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxxx, Senior Vice President, Chief Financial Officer and
Treasurer. If such date is not the date of this Option
Agreement, such date shall be not less than two nor more than
fifteen days after the date that notice of exercise of the
applicable Option is delivered to Buyer or New Dynamet. At any
such closing, the Assets shall be transferred in accordance with
the terms of the asset purchase agreement in the form attached
hereto as Annex 1 (the "Asset Purchase Agreement"). Upon
exercise by Buyer or New Dynamet of its respective Option, the
other Option provided for in this Option Agreement shall
terminate.
5. During the Option Period, New Dynamet will give to
Buyer and Buyer's agents, representatives and consultants full
access, at all reasonable times and upon reasonable notice to New
Dynamet, to the Assets and to all of New Dynamet's records
relating to the Assets.
6. (a) This Option Agreement, the Annex attached
hereto and all schedules, exhibits and documents referenced
therein represent the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified
except in a writing signed by both parties.
(b) This Option Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Pennsylvania without regard to its conflicts of laws doctrine.
(c) The right to acquire the Assets in accordance
with the Asset Purchase Agreement may be assigned by Buyer to any
entity in which Buyer has an ownership interest.
(d) This Option Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns.
(e) This Option Agreement may be executed in two
counterparts, each of which shall be deemed to be an original but
both of which together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this
Option Agreement as of the date first set forth above.
Dynamet Incorporated
By:________________________________
Title:_____________________________
___________________________________
Xxxxx X. Xxxxxxxx
ANNEX 1
Asset Purchase Agreement (this "Agreement"),
dated as of February 28, 1997, by and between
Dynamet Incorporated, a Delaware corporation
("Seller"), and Trigon Incorporated, a
Pennsylvania corporation formerly known as
Stelkast Incorporated ("Buyer").
Seller desires to sell and assign to Buyer, and Buyer
desires to purchase and assume from Seller, all of Seller's
assets and certain of Seller's liabilities relating to Seller's
Forged Products Division and all of the preferred stock of Buyer
owned by Seller on the terms and subject to the conditions set
forth below. In consideration of the representations,
warranties, covenants and agreements contained herein, Seller and
Buyer, each intending to be legally bound hereby, agree as set
forth below:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
1.01. Definitions. As used in this Agreement, the
-----------
following terms have the meanings specified in this Section:
"Affiliate" means, with respect to a specified Person, any
other Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such specified Person.
"Business" means the business of the Forged Products
Division conducted by Seller at 000 Xxxxxx Xxxxxx Xxxx, XxXxxxxx,
Xxxxxxxxxxxx 00000.
"Code" means the Internal Revenue Code of 1986, as amended,
and the applicable rulings and regulations thereunder.
"Encumbrance" means any mortgage, pledge, security interest,
encumbrance, easement, lien, encroachment or claim of any kind or
nature whatsoever or any item similar or related to the
foregoing.
"Governmental Body" means any court, government (federal,
state, local or foreign), commission, bureau, agency or other
regulatory, administrative or governmental authority or
instrumentality.
"Law" means any applicable federal, state, municipal, local
or foreign statute, law, rule, regulation, judgment or order of
any kind or nature whatsoever, including any judgment or order of
any Governmental Body.
"Liabilities" with respect to any Person, means all debts,
liabilities and obligations of such Person of any nature or kind
whatsoever, whether or not due or to become due, accrued, fixed,
absolute, matured, determined, determinable or contingent,
whether or not incurred directly by such Person or by any
predecessor of such Person and whether or not arising out of any
act, omission, transaction, circumstance, sale of goods or
service or otherwise.
"Other Agreement" means each other agreement or document to
be executed and delivered in connection with the transactions
contemplated by this Agreement.
"Person" means and includes a natural person, a corporation,
an association, a partnership, a limited liability company, a
trust, a joint venture, an unincorporated organization, a
Governmental Body or any other legal entity.
"Transitional Services Agreement" means the agreement by and
between Seller and Buyer providing, inter alia, for certain
accounting, personnel, information systems, cash management and
administrative services to be provided for a period of six months
following the Closing Date by Seller to Buyer.
"Trigon Stock" means the 3,501 currently outstanding shares
of Class A 10% Cumulative Preferred Stock, par value $.01 per
share, of Buyer.
1.02. Construction. As used herein, unless the context
------------
otherwise requires: (i) references to "Article" or "Section" are
to an article or section hereof; (ii) all "Exhibits" and
"Schedules" referred to herein are to exhibits and schedules
attached hereto and are incorporated herein by reference and made
a part hereof; (iii) "include," "includes" and "including" are
deemed to be followed by "without limitation" whether or not they
are in fact followed by such words or words of like import; and
(iv) the headings of the various articles, sections and other
subdivisions hereof are for convenience of reference only and
shall not modify, define or limit any of the terms or provisions
hereof.
ARTICLE II
THE TRANSACTION
---------------
2.01. Sale and Purchase of Assets. At the closing under
---------------------------
this Agreement (the "Closing"), Seller shall sell and transfer to
Buyer, and Buyer shall purchase from Seller, (i) all of Seller's
right, title and interest in and to the properties, assets and
rights of Seller that are used in or are related to the conduct
of the Business, wherever such assets are located and whether
real, personal or mixed, tangible or intangible, and (ii) the
Trigon Stock (collectively, the "Purchased Assets"). Without
limiting the generality of the foregoing, the Purchased Assets
shall include the following assets owned by Seller and used in
the Business:
(a) all those certain lots and pieces of ground, together
with the buildings, structures and other improvements erected
thereon, and all easements, rights and privileges appurtenant to
any of the foregoing, owned by Seller and located in Xxxxxx
Township, McMurray, Pennsylvania ("Real Property"), as more
particularly described in Schedule 2.01(a);
(b) all of the inventory, personal property, machinery,
equipment, computers, vehicles, supplies, tools, furniture and
fixtures that are owned by Seller and used in the Business,
including those described in Schedule 2.01(b);
(c) all know-how, trade secrets, trademarks, trade names,
service marks, logos, licenses, patents, copyrights and
applications and registrations, if applicable, for any of the
foregoing ("Intellectual Property") owned by Seller and used in
the Business, including those described in Schedule 2.01(c);
(d) all rights of Seller under the purchase and sales
orders and contracts, license agreements, supply agreements,
labor contracts and other contracts and agreements to which
Seller is a party and that relate to the Business ("Contracts"),
including those listed in Schedule 2.01(d); and
(e) all of Seller's cash, trade and other notes and account
receivables (including accounts receivable from Buyer), advance
payments and prepaid items and expenses arising from the
Business.
2.02. Retained Assets. Seller shall retain and the
---------------
Purchased Assets shall not include the following assets: (i) the
consideration to be delivered to Seller pursuant to this
Agreement, (ii) Seller's minute books, stock book and seal, (iii)
all claims, choices in action, causes of action and judgments in
respect of any Retained Liability, and (iv) all of the Seller's
assets, properties and rights related to businesses of Seller
other than the Business (collectively, the "Retained Assets").
2.03. Assumption of Liabilities. At the Closing, Buyer
-------------------------
shall, pursuant to an Assumption Agreement substantially in the
form of Exhibit 1 (the "Assumption Agreement"), assume and agree
to perform, pay or discharge, when due, to the extent not
theretofore performed, paid or discharged, (a) the Liabilities of
Seller listed in Schedule 2.03, (b) the Liabilities of Seller
specified pursuant to the express terms of the Contracts and
(c) any Liabilities occurring on or before February 28, 1997
relating to or arising from (i) any environmental condition on
the Real Property or any non-compliance with any existing
environmental statute, ordinance, regulation or other
governmental requirement, permit, license or registration
("Environmental Laws") in connection with the operation of the
Business or (ii) the generation, treatment, transportation,
storage, recycling, disposal or release by the Business of any
toxic, hazardous or polluting substance or waste, including
petroleum or radioactive materials, regulated under Environmental
Laws (collectively, the "Assumed Liabilities").
2.04. Retained Liabilities. Except for the Assumed
--------------------
Liabilities, Buyer does not hereby, and shall not, assume or in
any way undertake to pay, perform, satisfy or discharge any other
Liability of Seller (i) existing on the Closing Date or
(ii) arising out of any transactions entered into, or any state
of facts existing, prior to or on the Closing Date or
(iii) arising after the Closing Date with respect to any assets
other than the Purchased Assets (the "Retained Liabilities"), and
Seller shall pay and satisfy when due all Retained Liabilities.
2.05. Purchase Price. The aggregate purchase price for the
--------------
Purchased Assets shall be $2,600,000 and the assumption of the
Assumed Liabilities (the "Purchase Price"). At the Closing, the
Purchase Price shall be paid by Buyer to Seller as follows: (i)
$2,600,000 by cashier's check payable in next day funds or by
wire transfer of immediately available funds if prior to the date
of this Agreement Seller shall have delivered to Buyer
appropriate wire transfer instructions; and (ii) by Buyer's
execution and delivery of the Assumption Agreement.
2.06. Closing. The consummation of the purchase and sale
-------
of the Purchased Assets, the assumption of the Assumed
Liabilities, and the consummation of the other transactions
contemplated hereby shall take place at 11:30 o'clock A.M., local
time, on February 28, 1997 at the offices of Xxxxxxxxxxx &
Xxxxxxxx LLP, 1500 Xxxxxx Building, Pittsburgh, Pennsylvania, or
at such other time or place or on such other date as the parties
agree (the "Closing Date").
2.07. Allocation of Purchase Price. The Purchase Price
----------------------------
shall be allocated among the Purchased Assets in accordance with
the appraisal to be provided by Willamette Management Associates,
Inc. Such appraisal shall be delivered to Buyer and Seller
within sixty (60) days of the Closing Date. Buyer and Seller
shall report the federal, state and local income and other tax
consequences of the purchase and sale contemplated hereby in a
manner consistent with such allocation and appraisal and shall
not take any position inconsistent therewith upon examination of
any tax return, in any refund claim, in any litigation or
otherwise.
2.08. Passage of Title. Title to all Purchased Assets
----------------
shall pass from Seller to Buyer at the Closing, subject to the
terms and conditions of this Agreement. Buyer assumes no risk of
loss to the Purchased Assets prior to the Closing.
2.09. Certain Consents. Nothing in this Agreement shall be
----------------
construed as an attempt to assign any Contract, permit, franchise
or claim included in the Purchased Assets which is by its terms
or in law nonassignable without the consent of the other party or
parties thereto, unless such consent shall have been given, or as
to which all the remedies for the enforcement thereof enjoyed by
Seller would not, as a matter of law, pass to Buyer as an
incident of the assignment provided for by this Agreement. In
order, however, to provide Buyer with the full realization and
value of every Contract, permit, franchise and claim of the
character described in the immediately preceding sentence, Seller
after the Closing shall, at the request and under the direction
of Buyer in the name of Seller or otherwise as Buyer shall
specify, take all reasonable action (including the appointment of
Buyer as attorney-in-fact for Seller) and do or cause to be done
all such things as shall in the opinion of Buyer or its counsel
be necessary or proper (i) to assure that the rights of Seller
under such Contracts, permits, franchises and claims shall be
preserved for the benefit of Buyer and (ii) to facilitate receipt
of the consideration to be received by Seller in and under every
such Contract, permit, franchise and claim, which consideration
shall be held for the benefit of, and shall be delivered to,
Buyer. Nothing in this Section shall in any way diminish
Seller's obligation to obtain all consents and approvals and to
take all such other actions prior to or at the Closing as are
necessary to enable Seller to convey or assign valid title to all
the Purchased Assets to Buyer.
2.10. Pension Plans. At Buyer's election, Seller shall
-------------
transfer from its pension plans to one or more plans established
by Buyer the accrued benefits of transferring employees and an
amount of assets sufficient to comply with the requirements of
Section 414(l) of the Code.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
As an inducement to Buyer to enter into this Agreement and
consummate the transactions contemplated hereby, Seller
represents and warrants to Buyer as follows:
3.01. Organization. Seller is a corporation duly
------------
organized, validly existing and in good standing under the laws
of the State of Delaware, and has the corporate power and
authority to own or lease its properties, carry on the Business
as now conducted, enter into this Agreement and the Other
Agreements to which it is or is to become a party and perform its
obligations hereunder and thereunder.
3.02. Authorization; Enforceability. This Agreement and
-----------------------------
each Other Agreement to which Seller is or is to become a party
have been or will be duly executed and delivered by Seller and
constitute or will constitute the legal, valid and binding
obligations of Seller, enforceable against it in accordance with
their respective terms. All actions contemplated by this
Agreement have been duly and validly authorized by all necessary
proceedings by Seller.
3.03. Encumbrances on Purchased Assets. Seller has not
--------------------------------
created or permitted to exist any Encumbrances upon the Purchased
Assets except those existing prior to the effective time of the
merger of Dynamet Incorporated, a Pennsylvania corporation, with
and into Seller.
3.04. Finders' Fees. Neither Seller nor any of its
-------------
officers, directors or employees has employed any broker or
finder or incurred any Liability for any brokerage fee,
commission or finders' fee in connection with any of the
transactions contemplated hereby or by any Other Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
As an inducement to Seller to enter into this Agreement and
consummate the transactions contemplated hereby, Buyer represents
and warrants to Seller as follows:
4.01. Organization. Buyer is a corporation duly organized,
------------
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, and has the corporate power and
authority to enter into this Agreement and the Other Agreements
to which it is or is to become a party and perform its
obligations hereunder and thereunder.
4.02. Authorization; Enforceability. This Agreement and
-----------------------------
each Other Agreement to which Buyer is or is to become a party
have been or will be duly executed and delivered by Buyer and
constitute or will constitute the legal, valid and binding
obligations of Buyer, enforceable against it in accordance with
their respective terms. All actions contemplated by this
Agreement have been duly and validly authorized by all necessary
proceedings by Buyer.
4.03. Finders' Fees. Neither Buyer nor any of its
-------------
officers, directors or employees has employed any broker or
finder or incurred any Liability for any brokerage fee,
commission or finders' fee in connection with any of the
transactions contemplated hereby or by any Other Agreement.
ARTICLE V
DELIVERIES AT CLOSING
---------------------
5.01. Deliveries by Seller. Seller shall deliver or cause
--------------------
to be delivered to Buyer at the Closing:
(i) A general warranty deed or deeds to the Real
Property in a form acceptable to Buyer, duly executed and
acknowledged by Seller.
(ii) A general warranty xxxx of sale and instrument of
assignment to the other Purchased Assets in a form acceptable to
Buyer, duly executed by Seller.
(iii) Assignments of all transferable or assignable
Contracts, Intellectual Property and licenses, permits and
warranties relating to the Purchased Assets, duly executed by
Seller and in forms acceptable to Buyer.
(iv) Certificates representing the Trigon Stock, which
certificates will be in negotiable form with stock powers duly
executed in blank and all requisite stock transfer stamps
attached.
(v) Title certificates to any motor vehicles included
in the Purchased Assets, duly executed by Seller (together with
any other transfer forms necessary to transfer title to such
vehicles).
(vi) Any other assignments or certificates necessary
or appropriate to legally and validly transfer title of any
Purchased Assets to Buyer, duly executed by Seller and in forms
acceptable to Buyer.
(vii) The Transitional Services Agreement.
(viii) A certificate of the Secretary of Seller
setting forth all resolutions of the Board of Directors of Seller
authorizing the execution and delivery of this Agreement and the
Other Agreements and the performance by Seller of the
transactions contemplated hereby and by the Other Agreements.
(ix) Such other documents as Buyer may reasonably
request.
5.02. Deliveries by Buyer. Buyer shall deliver or cause to
-------------------
be delivered to Seller at the Closing:
(i) A cashier's check or a wire transfer in accordance
with Section 2.05.
(ii) The Assumption Agreement.
(iii) A certificate of the Secretary of Buyer setting
forth all resolutions of the Board of Directors of Buyer
authorizing the execution and delivery of this Agreement and the
Other Agreements and the performance by Buyer of the transactions
contemplated hereby and by the Other Agreements.
(iv) Such other documents as Seller may reasonably request.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
--------------------------------------------
6.01. Survival of Representations. The representations and
---------------------------
warranties made in this Agreement or pursuant hereto shall
survive the Closing.
6.02. Indemnification by Seller. Seller shall indemnify,
-------------------------
defend, save and hold Buyer and its officers, directors,
employees, agents and other Affiliates (collectively, "Buyer
Indemnitees") harmless from and against any and all demands,
claims, allegations, assertions, actions or causes of action,
assessments, losses, damages, deficiencies, Liabilities, costs
and expenses (including reasonable legal fees, interest,
penalties and all reasonable amounts paid in investigation,
defense or settlement of any of the foregoing, whether or not any
such demands, claims, allegations, etc., of third parties are
meritorious) (collectively, "Buyer Damages") asserted against,
imposed upon, resulting to, required to be paid by, or incurred
by, any Buyer Indemnitees, directly or indirectly, in connection
with, arising out of, or resulting from, (i) any Retained
Liability or (ii) any misrepresentation or breach of warranty by
Seller.
6.03. Indemnification by Buyer. Buyer shall indemnify,
------------------------
defend, save and hold Seller and its officers, directors,
employees, agents and other Affiliates (collectively, "Seller
Indemnitees") harmless from and against any and all demands,
claims, allegations, assertions, actions or causes of action,
assessments, losses, damages, deficiencies, Liabilities, costs
and expenses (including reasonable legal fees, interest,
penalties and all reasonable amounts paid in investigation,
defense or settlement of any of the foregoing, whether or not any
such demands, claims, allegations, etc., of third parties are
meritorious) (collectively, "Seller Damages") asserted against,
imposed upon, resulting to, required to be paid by, or incurred
by, any Seller Indemnitees, directly or indirectly, in connection
with, arising out of, or resulting from, (i) any Assumed
Liability, (ii) Buyer's operation of the Business after the
Closing Date or (iii) any misrepresentation or breach of warranty
by Seller.
6.04. Notice of Claims. If any Buyer Indemnitee or Seller
----------------
Indemnitee (an "Indemnified Party") believes that it has suffered
or incurred or will suffer or incur any Buyer Damages or Seller
Damages, as the case may be, ("Damages") for which it is entitled
to indemnification under this Article VI, such Indemnified Party
shall so notify the party or parties from whom indemnification is
being claimed (the "Indemnifying Party") with reasonable
promptness and reasonable particularity in light of the
circumstances then existing. If any action at law or suit in
equity is instituted by or against a third party with respect to
which any Indemnified Party intends to claim any Damages, such
Indemnified Party shall promptly notify the Indemnifying Party of
such action or suit. The failure of an Indemnified Party to give
any notice required by this Section shall not affect any of such
party's rights under this Article VI or otherwise except and to
the extent that such failure is actually prejudicial to the
rights or obligations of the Indemnifying Party.
6.05. Third Party Claims. The Indemnified Party shall have
------------------
the right to conduct and control, through counsel of its
choosing, the defense of any third party claim, action or suit
with respect to which it intends to claim any Damages, and the
Indemnified Party may compromise or settle the same; provided,
that the Indemnified Party shall give the Indemnifying Party
advance notice of any proposed compromise or settlement. The
Indemnified Party shall permit the Indemnifying Party to
participate in the defense of any such claim, action or suit
through counsel chosen by the Indemnifying Party; provided, that
the fees and expenses of such counsel shall be borne by the
Indemnifying Party. If the Indemnified Party permits the
Indemnifying Party to undertake control of the conduct and
settlement of any such claim, action or suit, (i) the
Indemnifying Party shall not thereby permit to exist any
Encumbrance upon any asset of the Indemnified Party; (ii) the
Indemnifying Party shall not consent to any settlement that does
not include as an unconditional term thereof the giving of a
complete release from liability with respect to such claim,
action or suit to the Indemnified Party; (iii) the Indemnifying
Party shall permit the Indemnified Party to participate in such
conduct or settlement through counsel chosen by the Indemnified
Party; and (iv) the Indemnifying Party shall promptly reimburse
the Indemnified Party for the full amount of any Damages,
including fees and expenses of counsel for the Indemnified Party
incurred prior to the assumption of the control of such claim,
action or suit by the Indemnifying Party.
ARTICLE VII
MISCELLANEOUS
--------------
7.01. Costs and Expenses. Buyer and Seller shall each
------------------
pay its respective expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including all
accounting, legal and appraisal fees and settlement charges. All
transfer taxes incurred as a result of the transfer of the
Purchased Assets shall be paid by Buyer, other than real estate
transfer taxes which shall be borne equally by Buyer and Seller.
7.02. Proration of Expenses. All accrued expenses
---------------------
associated with the Real Property, such as electricity, gas, water,
sewer, telephone, property taxes, security services and similar
items, shall be prorated between Buyer and Seller as of the Closing
Date. Buyer and Seller shall settle such amounts on March 14, 1997.
7.03. Further Assurances. Seller shall, at any time and
------------------
from time to time on and after the Closing Date, upon request by
Buyer and without further consideration, take or cause to be
taken such actions and execute, acknowledge and deliver, or cause
to be executed, acknowledged and delivered, such instruments,
documents, transfers, conveyances and assurances as may be
required or desirable for the better conveying, transferring,
assigning, delivering, assuring and confirming the Purchased
Assets to Buyer.
7.04. Notices. All notices and other communications given
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or made pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given or made (i) on the second
business day after the date of mailing, if delivered by
registered or certified mail, postage prepaid, return receipt
requested, (ii) upon delivery, if sent by hand delivery,
(iii) upon delivery, if sent by prepaid courier, with a record of
receipt, or (iv) the next day after the date of dispatch, if sent
by cable, telegram, facsimile or telecopy (with a copy
simultaneously sent by registered or certified mail, postage
prepaid, return receipt requested), to the parties at the
following addresses:
(a) if to Buyer, to:
Trigon Incorporated
000 Xxxxxx Xxxxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a required copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
(b) if to Seller, to:
Dynamet Incorporated
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President, Chief Financial
Officer and Treasurer
with required copies to:
Xxxxxxxxx Technology Corporation
000 X. Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx
Vice President, General Counsel and Secretary
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Either party hereto may change the address to which notice to it,
or copies thereof, shall be addressed, by giving notice thereof
to the other party hereto in conformity with the foregoing.
7.05. Assignment; Governing Law. This Agreement and all
-------------------------
the rights and obligations hereunder shall bind and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement and the rights, interests and
obligations hereunder may not be assigned by either party hereto
without the prior written consent of the other party hereto.
This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania without regard
to its conflicts of laws doctrine.
7.06. Amendment and Waiver; Cumulative Effect. To be
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effective, any amendment of or waiver under this Agreement must
be in writing and be signed by the party against whom enforcement
of the same is sought. Neither the failure of either party
hereto to exercise any right, power or remedy provided under this
Agreement or to insist upon compliance by the other party with
its obligations hereunder, nor any custom or practice of the
parties at variance with the terms hereof, shall constitute a
waiver by either party of its right to exercise any such right,
power or remedy or to demand such compliance. The rights and
remedies of the parties hereto are cumulative and not exclusive
of the rights and remedies that they otherwise might have now or
hereafter, at law, in equity, by statute or otherwise.
7.07. Entire Agreement; No Third Party Beneficiaries. This
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Agreement and the Schedules and Exhibits set forth all of the
promises, covenants, agreements, conditions and undertakings
between the parties hereto with respect to the subject matter
hereof, and supersede all prior or contemporaneous agreements and
understandings, negotiations, inducements or conditions, express
or implied, oral or written. This Agreement is not intended to
confer upon any Person other than the parties hereto any rights
or remedies hereunder, except the provisions of Article VI.
7.08. Severability. If any term or other provision of this
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Agreement is held by a court of competent jurisdiction to be
invalid, illegal or incapable of being enforced under any rule of
law in any particular respect or under any particular
circumstances, such term or provision shall nevertheless remain
in full force and effect in all other respects and under all
other circumstances, and all other terms, conditions and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon a determination
that any such term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
7.9. Counterparts. This Agreement may be executed in two
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counterparts, each of which shall be deemed to be an original but
both of which together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
DYNAMET INCORPORATED
By:___________________________
Title:________________________
TRIGON INCORPORATED
By:___________________________
Title:________________________
