EX-2.1 2 d595038dex21.htm EX-2.1 EX-2.1

EXHIBIT 2.1

Execution Version

 

 

MASTER SALE AND PURCHASE AGREEMENT

between

DOVER PRINTING & IDENTIFICATION, INC.,

DOVER CORPORATION

(solely for purposes of Sections 11.3(b), 11.4 and 11.16)

and

LTX-CREDENCE CORPORATION

dated as of

September 6, 2013

 

 


TABLE OF CONTENTS

 

         Page(s)  
ARTICLE I  

PURCHASE AND SALE

     2   

Section 1.1.

 

Acquired Shares

     2   

Section 1.2.

 

Acquired Assets and Liabilities

     2   

Section 1.3.

 

Designated Purchasers

     4   

Section 1.4.

 

Local Agreements

     4   
ARTICLE II  

PURCHASE PRICE; PAYMENT

     5   

Section 2.1.

 

Purchase Price

     5   

Section 2.2.

 

Payment at Closing

     6   

Section 2.3.

 

Cash Purchase Price Adjustment

     7   

Section 2.4.

 

Cash Purchase Price Adjustment Payments

     10   

Section 2.5.

 

Purchase Price Allocation

     11   
ARTICLE III  

REPRESENTATIONS AND WARRANTIES

     14   

Section 3.1.

 

Representations and Warranties of Dover

     14   

Section 3.2.

 

Representations and Warranties of Buyer

     37   

Section 3.3.

 

No Other Representations or Warranties

     39   
ARTICLE IV  

COVENANTS PRIOR TO CLOSING

     39   

Section 4.1.

 

Access to Information Concerning Properties and Records; Confidentiality

     39   

Section 4.2.

 

Conduct of Business Pending the Closing

     40   

Section 4.3.

 

Further Actions

     43   

Section 4.4.

 

Certain Filings

     43   

Section 4.5.

 

Notification

     44   

Section 4.6.

 

Intercompany Accounts

     45   

Section 4.7.

 

Exclusivity

     45   

Section 4.8.

 

Title Insurance

     46   

Section 4.9.

 

Surveys

     46   

Section 4.10.

 

Release of Dover Guarantees

     47   
ARTICLE V  

ADDITIONAL COVENANTS

     47   

Section 5.1.

 

Tax Matters

     47   

Section 5.2.

 

Employee Matters

     58   

Section 5.3.

 

Post-Closing Access to Information

     61   

Section 5.4.

 

Trade Names

     62   

Section 5.5.

 

Insurance

     63   

Section 5.6.

 

Further Assurances

     65   

Section 5.7.

 

Non-Competition; Non-Solicitation

     65   

Section 5.8.

 

Proprietary Information

     67   

 

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Section 5.9.

 

Cooperation in Litigation

     68   

Section 5.10.

 

Transaction Confidentiality Agreements

     68   

Section 5.11.

 

Relocation Payment Adjustments

     68   

ARTICLE VI

 

CONDITIONS PRECEDENT TO BUYER’S OBLIGATIONS

     70   

Section 6.1.

 

Conditions Precedent to Buyer’s Obligations

     70   

Section 6.2.

 

Frustration of Conditions Precedent

     71   

ARTICLE VII

 

CONDITIONS PRECEDENT TO DOVER’S OBLIGATIONS

     71   

Section 7.1.

 

Conditions Precedent to Dover’s Obligations

     71   

Section 7.2.

 

Frustration of Conditions Precedent

     72   

ARTICLE VIII

 

CLOSING

     72   

Section 8.1.

 

Closing Date

     72   

Section 8.2.

 

Items to be Delivered by Dover

     73   

Section 8.3.

 

Items to be Delivered by Buyer

     74   

ARTICLE IX

 

INDEMNIFICATION

     75   

Section 9.1.

 

Indemnification by Dover

     75   

Section 9.2.

 

Indemnification by Buyer

     77   

Section 9.3.

 

Procedures Relating to Indemnification

     78   

Section 9.4.

 

Procedures Relating to Indemnification for Third Party Claims

     79   

Section 9.5.

 

Determination of Indemnification Amounts

     80   

Section 9.6.

 

Subrogation Rights

     82   

Section 9.7.

 

Exclusive Remedy

     82   

Section 9.8.

 

Purchase Price Adjustment

     82   

Section 9.9.

 

Set-Off Against Promissory Note Payments

     82   

ARTICLE X

 

TERMINATION

     83   

Section 10.1.

 

General

     83   

Section 10.2.

 

Procedure for Termination

     83   

Section 10.3.

 

Survival; Liabilities in Event of Termination

     84   

ARTICLE XI

 

MISCELLANEOUS

     84   

Section 11.1.

 

Publicity

     84   

Section 11.2.

 

Assignment

     84   

Section 11.3.

 

Parties in Interest; No Third-Party Beneficiaries

     84   

Section 11.4.

 

Governing Law; Consent to Jurisdiction; WAIVER OF JURY TRIAL

     85   

Section 11.5.

 

Amendment

     85   

Section 11.6.

 

Waiver

     85   

Section 11.7.

 

Notice

     85   

Section 11.8.

 

Expenses

     87   

 

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Section 11.9.

 

Schedules

     87   

Section 11.10.

 

Interpretive Provisions

     87   

Section 11.11.

 

Section Headings; Table of Contents

     87   

Section 11.12.

 

No Strict Construction

     88   

Section 11.13.

 

Entire Agreement

     88   

Section 11.14.

 

Counterparts

     88   

Section 11.15.

 

Partial Invalidity

     88   

Section 11.16.

 

Specific Performance

     88   

Section 11.17.

 

Definitions

     88   

EXHIBITS

 

Exhibit A    ECT Equity Sellers and ECT Acquired Companies
Exhibit B    ECT Asset Sellers
Exhibit C    MT Equity Sellers and MT Acquired Companies
Exhibit D    MT Asset Sellers
Exhibit E    Acquired Registered IP
Exhibit F    Illustrative Working Capital Calculation
Exhibit G    Form of IP Termination Agreement
Exhibit H    Form of Promissory Note and Subordination Agreement
Exhibit I    Supply Agreement
Exhibit J    Form of Transition Services Agreement
Exhibit K    Accounting Principles
Exhibit L    Form of Local Agreements
Exhibit M    Form of ProWorks License Agreement

 

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MASTER SALE AND PURCHASE AGREEMENT

THIS MASTER SALE AND PURCHASE AGREEMENT (this “Agreement”) is made and effective as of September 6, 2013 between DOVER PRINTING & IDENTIFICATION, INC., a Delaware corporation (“Dover”), Dover Corporation, a Delaware Corporation (“Parent”) (solely for purposes of Sections 11.3(b), 11.4 and 11.16), and LTX-Credence Corporation, a Massachusetts corporation (“Buyer”).

WHEREAS, Dover and certain of its Affiliates own, indirectly through certain wholly owned Subsidiaries set forth in the “Seller” column on Exhibit A hereto (the “ECT Equity Sellers”), all of the issued and outstanding capital stock and other equity interests of each Subsidiary set forth in the “Company” column on Exhibit A hereto (the “ECT Acquired Companies”);

WHEREAS, Dover and certain of its Affiliates own, indirectly through certain wholly owned Subsidiaries set forth on Exhibit B hereto (the “ECT Asset Sellers”), the ECT Assets (as defined below);

WHEREAS, the ECT Acquired Companies and the ECT Asset Sellers are engaged in the research and development, design, manufacture, assembly, production, marketing, distribution, sale and repair of probes, assembled board and bare board test equipment, and fixturing products and the provision of services related thereto (the “ECT Business”);

WHEREAS, Dover and certain of its Affiliates own, indirectly through certain wholly owned Subsidiaries set forth in the “Seller” column on Exhibit C hereto (the “MT Equity Sellers” and, together with the ECT Equity Sellers, the “Equity Sellers”), all of the issued and outstanding capital stock and other equity interests of each Subsidiary set forth in the “Company” column on Exhibit C hereto (the “MT Acquired Companies” and, together with the ECT Acquired Companies and the Subsidiaries of all of such companies, the “Acquired Companies”);

WHEREAS, Dover and certain of its Affiliates own, indirectly through certain wholly owned Subsidiaries set forth on Exhibit D hereto (the “MT Asset Sellers” and, together with the ECT Asset Sellers, the “Business Asset Sellers”), the MT Assets (as defined below);

WHEREAS, the MT Acquired Companies and the MT Asset Sellers are engaged in the research and development, design, manufacture, assembly, production, marketing, distribution, sale and repair of semiconductor test handlers, semiconductor test contactors and sockets and semiconductor test load boards, and the provision of services related thereto (the “MT Business” and, together with the ECT Business, the “Acquired Businesses”);

WHEREAS, Delaware Capital Formation, Inc., a Delaware corporation and an Affiliate of Dover, and DTG International GmbH, a Swiss limited liability company and an Affiliate of Dover (collectively, the “Registered IP Sellers” and, together with the Business Asset Sellers, the “Asset Sellers”), own the Acquired Registered IP;

WHEREAS, Buyer desires to purchase the Acquired Businesses from the Equity Sellers and the Asset Sellers, and Dover desires to cause the Equity Sellers and the Asset Sellers to sell the Acquired Businesses to Buyer, all upon the terms and subject to the conditions set forth in this Agreement; and

 

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WHEREAS, capitalized terms used but not defined in the context of the Section in which such terms first appear shall have the meanings set forth in Section 11.17.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants, agreements and conditions set forth in this Agreement, and intending to be legally bound, Dover and Buyer agree as follows:

ARTICLE I

PURCHASE AND SALE

Section 1.1. Acquired Shares. Upon the terms, and subject to the conditions, set forth in this Agreement, at the Closing:

(a) Dover shall cause each ECT Equity Seller to sell and transfer to Buyer, and Buyer shall purchase and accept from each such ECT Equity Seller, all right, title and interest in and to all of the issued and outstanding capital stock and other equity interests of each ECT Acquired Company, in each case free and clear of all Liens (other than restrictions on transfer imposed by applicable securities Law); and

(b) Dover shall cause each MT Equity Seller to sell and transfer to Buyer, and Buyer shall purchase and accept from each such MT Equity Seller, all right, title and interest in and to all of the issued and outstanding capital stock and other equity interests of each MT Acquired Company, in each case free and clear of all Liens (other than restrictions on transfer imposed by applicable securities Law).

All of the shares of capital stock and other equity interests referred to in Sections 1.1(a) and 1.1(b) shall hereafter be referred to as the “Acquired Shares.”

Section 1.2. Acquired Assets and Liabilities.

(a) Assets. Upon the terms, and subject to the conditions, set forth in this Agreement, and subject to the provisions of Section 1.2(c), at the Closing, Dover shall cause each Asset Seller to sell and transfer to Buyer, and Buyer shall purchase and accept from each such Asset Seller, as applicable, all right, title and interest in and to all of the ECT Assets, the MT Assets and the Acquired Registered IP (collectively, the “Acquired Assets”), in each case free and clear of all Liens (other than Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions). Notwithstanding the foregoing, Dover shall not cause any Asset Seller to sell or transfer to Buyer, and Buyer shall not purchase or accept from any Asset Seller, any of the Excluded Assets.

(b) Liabilities. Upon the terms set forth in this Agreement and subject to the provisions of Section 1.2(c), at the Closing, Buyer shall assume and agree to pay, perform and discharge all of the ECT Liabilities, the MT Liabilities and all Liabilities of the Registered IP Sellers related primarily or exclusively to the Acquired Registered IP (collectively, the

 

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Assumed Liabilities”). Notwithstanding the foregoing, Buyer shall not assume, nor be deemed to have assumed any, and Dover or the applicable Asset Seller shall remain liable for and pay, perform and discharge, all of the Excluded Liabilities.

(c) Nonassignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that any Acquired Asset is not assignable to Buyer without the consent, approval, waiver, agreement or action of any other Person (other than Dover or its Affiliates), pursuant to Contract or otherwise (each such asset, a “Nonassignable Asset”), there shall be no assignment or attempted assignment to Buyer of such Nonassignable Asset at the Closing under this Agreement in the absence of such Person’s consent, approval, waiver, agreement or action, unless otherwise agreed by the Parties, and this Agreement shall not be deemed to constitute an assignment or attempted assignment thereof. In the case of each Nonassignable Asset, Dover shall, and shall cause each of its Affiliates to, use its reasonable best efforts to obtain the consent, approval, waiver, agreement or action of such Person to the assignment of such Nonassignable Asset to Buyer, and, to the extent reasonably requested by Dover, Buyer shall, and shall cause its Affiliates to, cooperate with such efforts; provided, that, for the avoidance of doubt, nothing in this Agreement shall require either Party or any of their respective Affiliates to pay any money to, commence or participate in any litigation, offer or grant any accommodation or undertake any Liability (in each case financial or otherwise) to any Governmental Entity (other than filing fees as contemplated by the last sentence of Section 4.4(a) or any other comparable filing fees payable to a Governmental Entity) or other third party. If any such consent, approval, waiver, agreement or action is not obtained from such Person prior to the Closing, without limiting any other obligation under this Section 1.2(c), then the Parties shall, to the extent permitted by applicable Law, agree to any reasonable arrangement requested by either Party whereby, from and after the Closing, (i) Dover provides or causes to be provided to Buyer the benefits intended to be assigned to Buyer arising from or relating to such Nonassignable Asset, and Dover agrees to enforce, upon the written request of Buyer and for the benefit of Buyer (at Buyer’s sole expense), any rights of Dover or its Affiliates in respect of such Nonassignable Asset, and (ii) Buyer pays, performs and discharges all of the Liabilities of Dover or its Affiliates arising from or relating to such Nonassignable Asset to the extent such Liabilities would constitute Assumed Liabilities under this Agreement, and Buyer agrees to indemnify Dover and its Affiliates with respect to any Losses incurred by Dover or its Affiliates as a result of Buyer’s failure to pay, perform and discharge such Assumed Liabilities; provided, however, that once such consent, approval, waiver, agreement or action is obtained (if ever), such Nonassignable Asset shall promptly be assigned by Dover or its Affiliates to Buyer at no additional cost to Buyer. For the avoidance of doubt, this Section 1.2(c) shall in no way limit or prejudice any condition set forth in Article VI, any representation or warranty of Dover set forth in this Agreement or any other document or instrument executed and delivered in connection herewith or, except for any covenant or agreement otherwise obligating Dover to assign (or cause the assignment of) any Nonassignable Asset for which a consent, approval, waiver, agreement or action of any other Person required to assign such Nonassignable Asset has not been obtained, any covenant or agreement of Dover or any of its Affiliates set forth in this Agreement or any other document or instrument executed and delivered in connection herewith.

(d) Post-Closing Asset Transfers. At any time following the Closing, upon Buyer’s written request, Dover shall promptly transfer and deliver (or cause to be transferred and delivered) to Buyer or the applicable Designated Purchaser without the payment of any further

 

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consideration therefor, any assets, rights or properties that properly constitute assets, rights or properties of any Acquired Business that were intended to be transferred pursuant to the terms hereof, but were not transferred to Buyer or the applicable Designated Purchaser at Closing, including, for the avoidance of doubt, any asset, right or property of Dover or any of its Affiliates used exclusively or primarily in connection with any Acquired Business, other than Excluded Assets. At any time following the Closing, upon Dover’s written request, Buyer shall promptly transfer and deliver (or cause to be transferred and delivered) to Dover (or any of its Affiliates, as directed by Dover) without the payment of any consideration therefor, any assets, rights or properties that did not properly constitute assets, rights or properties of any Acquired Business at Closing and which were inadvertently transferred to Buyer or a Designated Purchaser at Closing, including, for the avoidance of doubt, any asset, right or property of Dover or any of its Affiliates included in the Excluded Assets.

Section 1.3. Designated Purchasers. Buyer has designated the entities set forth on Schedule 1.3 to acquire the Acquired Shares and Acquired Assets, and to assume the Assumed Liabilities, set forth thereon (each such entity, a “Designated Purchaser”). Buyer may, upon written notice delivered to Dover not less than five (5) business days prior to the Closing Date, update Schedule 1.3 to further assign its rights and obligations, in whole or in part, under this Agreement to one or more of its Affiliates. Buyer shall be and remain jointly and severally liable for all obligations of Buyer and any such Designated Purchaser under this Agreement and under all documents and instruments to be executed and delivered by Buyer or any such Designated Purchaser pursuant hereto.

Section 1.4. Local Agreements.

(a) Execution and Delivery. The Parties acknowledge and agree that the implementation of the transactions contemplated by Sections 1.1 and 1.2 will be effected at the Closing in foreign jurisdictions pursuant to local transfer agreements. The local transfer agreements with respect to the implementation of the transactions in China, the Philippines, Germany, the United States, Malaysia, Hungary and Singapore shall be in substantially the form attached hereto as Exhibit L, and all other local transfer agreements, if any, shall be as mutually agreed upon by the Parties prior to the Closing Date. The Parties shall negotiate in good faith such agreements or changes, additions and supplements to such agreements, as applicable (as so changed, added to or supplemented, the “Local Agreements”) as shall reasonably be required to give effect to the transactions contemplated by this Agreement, which shall be in a form mutually agreed upon by the Parties prior to the Closing, under the fundamental principle that the operative provisions governing the transactions contemplated by Sections 1.1 and 1.2 shall be contained in this Agreement to the maximum extent practicable so as to avoid confusion regarding the terms of such transactions. The Parties will cooperate to prepare the Local Agreements as soon as reasonably practicable following the date hereof and will execute and deliver or cause their respective Affiliates to execute and deliver such Local Agreements at the Closing upon the terms and subject to the conditions of this Agreement. Unless otherwise required by applicable local Law (on a country-by-country basis), the Local Agreements shall not contain any representations, warranties, covenants or conditions.

 

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(b) Conflict with this Agreement. To the extent the provisions of this Agreement are inconsistent with or additional to the provisions of a Local Agreement, except as otherwise required by local Law the provisions of this Agreement shall prevail and the Parties shall cause (i) the provisions of the applicable Local Agreement to be adjusted to the extent necessary to give effect to the provisions of this Agreement subject to being compliant with any applicable local Law in the applicable jurisdiction and (ii) the applicable Asset Seller or Equity Seller and Buyer or the applicable Designated Purchaser (if not Buyer directly) to (A) comply to the extent lawful with the provisions of this Agreement as though they were bound by such provisions in place of the provisions of the applicable Local Agreement and (B) waive or refrain from enforcing any provisions in the applicable Local Agreement that are inconsistent with the provisions of this Agreement. For the avoidance of doubt, the applicable Local Agreement will be entered into solely for the purpose of implementing (in the relevant jurisdictions) the sale, purchase and delivery of the Acquired Shares and the Acquired Assets, and the assignment and assumption of the Assumed Liabilities, as provided under the provisions of this Agreement.

(c) Claims under Local Agreements.

(i) By Dover. Dover shall not, and Dover shall cause the Equity Sellers and the Asset Sellers not to, bring any claim against Buyer or any Designated Purchaser, if applicable, in respect of or based upon the Local Agreements, except to the extent necessary to implement any purchase and assignment of the Acquired Shares and the Acquired Assets or any assignment of the Assumed Liabilities, in a manner consistent with the provisions of this Agreement. The foregoing shall not limit any rights or remedies of Dover contained in this Agreement.

(ii) By Buyer. Buyer shall not, and Buyer shall cause each Designated Purchaser, if applicable, not to, bring any claim against Dover or any Equity Seller or Asset Seller in respect of or based upon the Local Agreements, except to the extent necessary to implement any purchase and assignment of the Acquired Shares and the Acquired Assets or any assignment of the Assumed Liabilities, in a manner consistent with the provisions of this Agreement. The foregoing shall not limit any rights or remedies of Buyer contained in this Agreement.

ARTICLE II

PURCHASE PRICE; PAYMENT

Section 2.1. Purchase Price.

(a) In consideration for the Acquired Shares and the Acquired Assets, Buyer or the Designated Purchasers shall (i) assume the Assumed Liabilities as provided in Section 1.2(b), (ii) issue the Promissory Note to Dover or its designee(s) and (iii) pay to Dover or its designee(s) cash in an amount equal to (the “Cash Purchase Price”):

(A) $73,500,000 (the “Base Cash Purchase Price”);

(B) plus the amount, if any, by which the Closing Date Working Capital exceeds the Working Capital Target;

(C) or minus the absolute value of the amount, if any, by which the Closing Date Working Capital is less than the Working Capital Target;

 

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(D) plus an amount equal to the Closing Date Cash; provided, that, with respect to any portion of the Closing Date Cash which is Excess Cash in a given jurisdiction, Buyer or the Designated Purchasers, as applicable, shall only pay an amount equal to (x) the “Applicable Percentage” for such jurisdiction, as indicated on Schedule 2.1, multiplied by (y) the amount of such Excess Cash for such jurisdiction);

(E) minus an amount equal to any Closing Date Acquired Companies Indebtedness;

(F) minus an amount equal to any Closing Date Acquired Companies Transaction Costs Liabilities; and

(G) minus an amount equal to any Closing Date Acquired Companies Specified Employee Liabilities.

(b) Not less than five (5) business days prior to the Closing Date, Dover shall deliver to Buyer a statement setting forth a good faith and reasonable estimate by Dover of (i) (A) Cash and Cash Equivalents as of the close of business on the business day immediately prior to the Closing Date (the “Estimated Closing Date Cash”) (provided, that, with respect to the Estimated Closing Date Cash, Dover shall deliver an updated good faith and reasonable estimate by Dover of such amount one (1) business day prior to the Closing Date), (B) Acquired Companies Indebtedness as of the close of business on the business day immediately prior to the Closing Date (the “Estimated Closing Date Acquired Companies Indebtedness”), (C) Acquired Companies Transaction Costs Liabilities as of the close of business on the business day immediately prior to the Closing Date (the “Estimated Closing Date Acquired Companies Transaction Costs Liabilities”) and (D) Acquired Companies Specified Employee Liabilities as of the close of business on the business day immediately prior to the Closing Date (the “Estimated Closing Date Acquired Companies Specified Employee Liabilities”) and (ii) based on such estimates, the calculation of the Cash Purchase Price pursuant to Section 2.1(a), all in reasonable detail prepared in accordance with the Accounting Principles.

Section 2.2. Payment at Closing.

(a) Subject to fulfillment or waiver (in the event permissible) of the conditions set forth in Article VI and Article VII, at the Closing, Buyer shall (i) deliver the Promissory Note, duly executed, to Dover or its designee(s) and (ii) pay to the Equity Sellers and the Asset Sellers, in accordance with Section 2.2(b), by wire transfer of immediately available funds to the bank account or accounts specified by Dover in writing at least two (2) business days prior to the Closing Date, an aggregate amount equal to (the “Closing Payment”):

(i) the Base Cash Purchase Price;

(ii) plus an amount equal to the Estimated Closing Date Cash (excluding the portion thereof to be paid by atg L&M to Dover Germany on the Closing Date in accordance with Section 5.12(a)); provided, that, with respect to any portion of the Estimated Closing Date Cash which is Excess Cash in a given jurisdiction, Buyer or the Designated

 

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Purchasers, as applicable, shall only pay an amount equal to (x) the “Applicable Percentage” for such jurisdiction, as indicated on Schedule 2.1, multiplied by (y) the amount of such Excess Cash for such jurisdiction);

(iii) minus an amount equal to the Estimated Closing Date Acquired Companies Indebtedness;

(iv) minus an amount equal to the Estimated Closing Date Acquired Companies Transaction Costs Liabilities; and

(v) minus an amount equal to the Estimated Closing Date Acquired Companies Specified Employees Liabilities.

(b) (i) If Schedule 2.5(a) has been attached to this Agreement in accordance with Section 2.5(a), Buyer shall remit the Closing Payment to the Equity Sellers and the Asset Sellers in accordance with Schedule 2.5(a); provided, however, that the amount otherwise remitted to one of the Equity Sellers or Asset Sellers, as designated by Dover (the “Designated Seller”), pursuant to Schedule 2.5(a) shall be increased (or decreased) by the amount, if any, by which the Closing Payment exceeds (or is less than) the Base Cash Purchase Price. (ii) If no Schedule 2.5(a) has been attached to this Agreement in accordance with Section 2.5(a), Buyer shall remit the Closing Payment to Dover. Dover shall be deemed to have received the Closing Payment on behalf of the applicable Equity Sellers and Asset Sellers.

Section 2.3. Cash Purchase Price Adjustment.

(a) Not later than sixty (60) days following the Closing Date, Buyer shall (i) prepare, in accordance with the Accounting Principles and in a manner consistent with the illustration set forth on Exhibit F (which sets forth the Working Capital as if the Closing occurred on the Most Recent Balance Sheet Date), and deliver to Dover a consolidated balance sheet of the Acquired Businesses (for the avoidance of doubt, reflecting the Acquired Assets, the Assumed Liabilities, assets of the Acquired Companies and liabilities of the Acquired Companies, but excluding Excluded Assets and Excluded Liabilities) as of the close of business on the business day immediately prior to the Closing Date (the “Preliminary Closing Date Balance Sheet”) and (ii) prepare and deliver to Dover a certificate setting forth in reasonable detail Buyer’s calculation of (A) Working Capital as of the close of business on the business day immediately prior to the Closing Date (the “Preliminary Working Capital Determination”), (B) Cash and Cash Equivalents as of the close of business on the business day immediately prior to the Closing Date (the “Preliminary Cash Determination”) ; provided, that, with respect to any portion of the Preliminary Cash Determination which is Excess Cash in a given jurisdiction, Buyer or the Designated Purchasers, as applicable, shall only pay an amount equal to (x) the “Applicable Percentage” for such jurisdiction, as indicated on Schedule 2.1, multiplied by (y) the amount of such Excess Cash for such jurisdiction), (C) Acquired Companies Indebtedness as of the close of business on the business day immediately prior to the Closing Date (the “Preliminary Acquired Companies Indebtedness Determination”), (D) Acquired Companies Transaction Costs Liabilities as of the close of business on the business day immediately prior to the Closing Date (the “Preliminary Acquired Companies Transaction Costs Liabilities Determination”), (E) Acquired Companies Specified Employee Liabilities as of the close of business on the business

 

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day immediately prior to the Closing Date (the “Preliminary Acquired Companies Specified Employee Liabilities Determination” and, together with the Preliminary Closing Date Balance Sheet, the Preliminary Working Capital Determination, the Preliminary Acquired Companies Indebtedness Determination, the Preliminary Acquired Companies Transaction Costs Liabilities Determination and the Preliminary Acquired Companies Specified Employee Liabilities Determination, the “Preliminary Closing Statement”). Until such time as the calculation of the amounts shown on the Closing Date Balance Sheet and the Closing Date Working Capital, Closing Date Cash, Closing Date Acquired Companies Indebtedness, Closing Date Acquired Companies Transaction Costs Liabilities and Closing Date Acquired Companies Specified Employee Liabilities determinations are final and binding upon the Parties pursuant to this Section 2.3, Dover and its accountants (at Dover’s expense) shall, upon reasonable notice and during normal business hours, be permitted to discuss with Buyer and its accountants the Preliminary Closing Statement and shall be provided complete and accurate copies of, and have reasonable access upon reasonable notice at reasonable times during normal business hours to, subject to Dover’s entry into a customary confidentiality and release agreement with Buyer’s accountants (if required thereby), the work papers and supporting records of Buyer and its accountants so as to allow Dover and its accountants to verify the accuracy of the Preliminary Closing Statement; provided that such access shall not include documents the disclosure of which would violate any obligation of Buyer or any of its Affiliates with respect to confidentiality, jeopardize protections afforded Buyer or any of its Affiliates under the attorney-client privilege or the attorney work product doctrine or similar doctrine or protection, or violate any applicable Law.

(b) Dover shall have an opportunity to review the Preliminary Closing Statement for a period of sixty (60) days. If Dover concurs with the Preliminary Closing Statement, Dover shall deliver a written statement to Buyer within such sixty (60) day period accepting the Preliminary Closing Statement (an “Acceptance Notice”), in which case the Preliminary Closing Date Balance Sheet, the Preliminary Working Capital Determination, the Preliminary Cash Determination, the Preliminary Acquired Companies Indebtedness Determination, the Preliminary Acquired Companies Transaction Costs Liabilities Determination and the Preliminary Acquired Companies Specified Employee Liabilities Determination set forth therein shall be final and binding on the Parties, effective as of the date on which Buyer receives the Acceptance Notice, as the “Closing Date Balance Sheet,” the “Closing Date Working Capital,” the “Closing Date Cash,” the “Closing Date Acquired Companies Indebtedness,” the “Closing Date Acquired Companies Transaction Costs Liabilities,” and the “Closing Date Acquired Companies Specified Employee Liabilities,” respectively. If Dover disagrees with any aspect of the Preliminary Closing Statement, Dover shall deliver written notice to Buyer prior to the expiration of such sixty (60) day period indicating in reasonable detail the basis for such disagreement (a “Dispute Notice”). Any such Dispute Notice shall specify those items or amounts as to which Dover disagrees, and Dover shall be deemed to have agreed with all other items and amounts contained in the Preliminary Closing Statement. If Dover does not deliver an Acceptance Notice or a Dispute Notice within such sixty (60) day period, Dover shall be deemed to have accepted the Preliminary Closing Statement, in which case the Preliminary Closing Date Balance Sheet, the Preliminary Working Capital Determination, the Preliminary Cash Determination, the Preliminary Acquired Companies Indebtedness Determination, the Preliminary Acquired Companies Transaction Costs Liabilities Determination and the Preliminary Acquired Companies Specified Employee Liabilities Determination set forth therein

 

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shall be final and binding on the Parties, effective as of the expiration of such sixty (60) day period, as the “Closing Date Balance Sheet,” the “Closing Date Working Capital,” the “Closing Date Cash,” the “Closing Date Acquired Companies Indebtedness,” the “Closing Date Acquired Companies Transaction Costs Liabilities,” and the “Closing Date Acquired Companies Specified Employee Liabilities,” respectively.

(c) If Dover delivers a Dispute Notice to Buyer in a timely manner, the Parties shall attempt in good faith to resolve the disagreements set forth in such Dispute Notice for a period of thirty (30) days (or such longer period as they may mutually agree in writing) after Buyer’s receipt of such Dispute Notice. If the Parties are able to resolve the disagreements set forth in the Dispute Notice prior to the expiration of such thirty (30) day period (or such longer period as they may mutually agree), then the Parties shall reduce such resolution to writing as the “Closing Date Balance Sheet,” the “Closing Date Working Capital,” the “Closing Date Cash,” the “Closing Date Acquired Companies Indebtedness,” the “Closing Date Acquired Companies Transaction Cost Liabilities” and the “Closing Date Acquired Companies Specified Employee Liabilities”, which shall be final and binding on the Parties.

(d) If Dover and Buyer are not able to resolve the disagreements set forth in the Dispute Notice within thirty (30) days (or such longer period as they may mutually agree in writing) after Buyer’s receipt of such Dispute Notice, then such disagreements shall be promptly referred to Deloitte LLP or, if Deloitte LLP cannot or does not agree to serve, another independent accounting firm of national reputation mutually acceptable to Dover and Buyer (the “Independent Auditor”). The Independent Auditor shall resolve only the specific disputes presented to it by the Parties based on the Dispute Notice as promptly as reasonably practicable and shall endeavor to complete such process within a period of no more than thirty (30) days following the engagement thereof by the Parties. The Independent Auditor shall apply the provisions of this Agreement concerning the determination of the amounts set forth in the Preliminary Closing Statement, including, for the avoidance of doubt, the Accounting Principles and Exhibit F, and the Independent Auditor’s decision shall be solely based on (i) whether any item objected to was prepared in accordance with this Agreement or (ii) whether such item objected to contains a mathematical or clerical error. The Independent Auditor shall deliver to Buyer and Dover concurrently a written statement setting forth its determination, which shall be final and binding on Buyer and Dover, absent manifest error, effective as of the date the Independent Auditor’s written statement is received by Buyer and Dover, and the Preliminary Closing Date Balance Sheet, the Preliminary Working Capital Determination, the Preliminary Cash Determination, the Preliminary Acquired Companies Indebtedness Determination, the Preliminary Acquired Companies Transaction Costs Liabilities Determination and the Preliminary Acquired Companies Specified Employee Liabilities Determination resulting from the Independent Auditor’s determination shall be final and binding on the Parties as the “Closing Date Balance Sheet,” the “Closing Date Working Capital,” the “Closing Date Cash,” the “Closing Date Acquired Companies Indebtedness,” the “Closing Date Acquired Companies Transaction Cost Liabilities” and the “Closing Date Acquired Companies Specified Employee Liabilities”, respectively.

(e) The Parties shall make available to the Independent Auditor (if applicable) such books, records and other information (including work papers) as the Independent Auditor may reasonably request in order to review the Preliminary Closing Statement and Dispute

 

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Notice; provided that such access shall not include documents the disclosure of which would violate any obligation of a Party or any of its Affiliates with respect to confidentiality, jeopardize protections afforded a Party or any of its Affiliates under the attorney-client privilege or the attorney work product doctrine or similar doctrine or protection, or violate any applicable Law. The fees and disbursements of the Independent Auditor shall be paid by Dover, on the one hand, and Buyer, on the other hand, based on the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party.

Section 2.4. Cash Purchase Price Adjustment Payments. Promptly (but not later than five (5) business days) after the final determination of the Closing Date Balance Sheet pursuant to Section 2.3, the Parties shall take the actions set forth in this Section 2.4, as applicable.

(a) Working Capital Adjustment.

(i) If the Closing Date Working Capital (as finally determined after giving effect to any adjustment pursuant to Section 2.3) exceeds the Working Capital Target, then Buyer shall pay or cause to be paid (by the Designated Purchaser or otherwise) to Dover or the Designated Seller (as directed by Dover), by wire transfer of immediately available funds to the bank account or accounts specified by Dover, a dollar amount equal to the amount by which the Closing Date Working Capital exceeds the Working Capital Target.

(ii) If the Closing Date Working Capital (as finally determined after giving effect to any adjustment pursuant to Section 2.3) is less than the Working Capital Target, then Dover shall pay or cause to be paid (by the Designated Seller or otherwise) to Buyer or the Designated Purchaser (as directed by Buyer), by wire transfer of immediately available funds to the bank account or accounts specified by Buyer, a dollar amount equal to the absolute value of the difference between the Closing Date Working Capital and Working Capital Target.

(iii) If the Closing Date Working Capital (as finally determined after giving effect to any adjustment pursuant to Section 2.3) is equal to the Working Capital Target, no payments will be made by the Parties pursuant to this Section 2.4(a).

(b) Non-Working Capital Adjustment.

(i) If the Cash Purchase Price (as finally determined after giving effect to any adjustment pursuant to Section 2.3 and excluding the portion thereof to be paid by atg L&M to Dover Germany on the Closing Date in accordance with Section 5.12(a)) exceeds the Closing Payment (in each case, without regard for the Working Capital), then Buyer shall pay or cause to be paid (by the Designated Purchaser or otherwise) to Dover or the Designated Seller (as directed by Dover), by wire transfer of immediately available funds to the bank account or accounts specified by Dover, a dollar amount equal to the amount of such excess.

(ii) If the Closing Payment exceeds the Cash Purchase Price (as finally determined after giving effect to any adjustment pursuant to Section 2.3 and excluding the portion thereof to be paid by atg L&M to Dover Germany on the Closing Date in accordance with Section 5.12(a)) (in each case, without regard for the Working Capital), then Dover shall pay or cause to be paid (by the Designated Seller or otherwise) to Buyer or the Designated Purchaser (as directed by Buyer), by wire transfer of immediately available funds to the bank account or accounts specified by Buyer, a dollar amount equal to the amount of such excess.

 

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(iii) For the avoidance of doubt, if the Cash Purchase Price (as finally determined after giving effect to any adjustment pursuant to Section 2.3) is equal to the Closing Payment (in each case, without regard for the Working Capital), no payments will be made by the Parties pursuant to this Section 2.4(b).

(c) Netting of Payments. Buyer and Dover shall each net any amounts owed from the other Party pursuant to this Section 2.4 in making any payments to such party pursuant to this Section 2.4.

Section 2.5. Purchase Price Allocation.

(a) Agreed Allocation. Following the date hereof, Dover and Buyer shall attempt in good faith to agree on an allocation of the Base Cash Purchase Price and the original principal amount of the Promissory Note among the Acquired Shares and the aggregate Acquired Assets to be sold by each Asset Seller, based on their relative net fair market values. If Dover and Buyer are able to agree on such an allocation not later than ten (10) days prior to the Closing Date, then such agreed allocation shall be set forth on a written schedule and attached to this Agreement as Schedule 2.5(a) not later than five (5) days prior to the Closing Date and the Closing Payment shall be remitted in accordance with Section 2.2(b)(i). If Dover and Buyer are unable to agree on such an allocation earlier than ten (10) days prior to the Closing Date (or such later time as the parties mutually agree), the Closing Payment shall be remitted in accordance with Section 2.2(b)(ii).

(b) Post-Closing Allocation.

(i) Within ninety (90) days following the determination of the Closing Date Balance Sheet pursuant to Section 2.3, Buyer shall deliver to Dover (A) a schedule (the “Preliminary Allocation Schedule”) setting forth in reasonable detail (1) to the extent properly taken into account for tax purposes, the amount of Assumed Liabilities with respect to each Asset Seller and the amount of liabilities of each Acquired Company disregarded as an entity separate from its owner pursuant to Treasury Regulation Section 301.7701-3 (each, a “Disregarded Acquired Company”) and (2) an allocation of the sum of the Cash Purchase Price and the original principal amount of the Promissory Note among the Acquired Shares and the aggregate Acquired Assets sold by each Asset Seller and (B) with respect to each Asset Seller and each Disregarded Acquired Company, a schedule further allocating (1) among the Acquired Assets sold by such Asset Seller, an amount equal to the Assumed Liabilities with respect to such Asset Seller and the amount allocated to such Acquired Assets on the Preliminary Allocation Schedule, and (2) among the assets of such Disregarded Acquired Company, an amount equal to the liabilities of such Disregarded Acquired Company and the amount allocated to the Acquired Shares of such Disregarded Acquired Company on the Preliminary Allocation Schedule (the schedule for each such Asset Seller or Disregarded Acquired Company, a “Preliminary Asset Allocation Schedule”). The allocation of the Cash Purchase Price and the original principal amount of the Promissory Note contained in the Preliminary Allocation Schedule shall be based on the relative fair market values of the Acquired Shares and the net fair

 

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market value of the aggregate Acquired Assets sold by each Asset Seller. If Schedule 2.5(a) has been attached to this Agreement in accordance with Section 2.5(a), the Preliminary Allocation Schedule shall be consistent with Schedule 2.5(a), adjusted to reflect (x) differences between the Base Cash Purchase Price and the final Cash Purchase Price and (y) differences between the Assumed Liabilities and the liabilities of the Acquired Companies on the Closing Date and the those taken into account in preparing Schedule 2.5(a) (such adjustments, the “Post-Closing Allocation Adjustments”) (it being understood that as a result of such adjustments, certain allocated amounts may be more than as allocated on Schedule 2.5(a), while at the same time other allocated amounts may be less). Each Preliminary Asset Allocation Schedule shall be prepared in accordance with Section 1060 of the Code and applicable Treasury Regulations thereunder (modified or supplemented, to the extent agreed to by Dover and Buyer in writing, to take into account any similar provision of state, local or foreign Law, as appropriate).

(ii) Dover shall have an opportunity to review the Preliminary Allocation Schedule and each Preliminary Asset Allocation Schedule for a period of sixty (60) days. If Dover concurs with the Preliminary Allocation Schedule, Dover shall deliver a written statement to Buyer within such sixty (60) day period accepting the Preliminary Allocation Schedule (an “Allocation Acceptance Notice”), in which case the Preliminary Allocation Schedule shall upon such delivery be final and binding on the Parties. If Dover disagrees with any aspect of the Preliminary Allocation Schedule, Dover shall deliver written notice thereof to Buyer prior to the expiration of such sixty (60) day period indicating in reasonable detail the basis for such disagreement (an “Allocation Dispute Notice”). If Dover delivers an Allocation Dispute Notice to Buyer, the Parties shall attempt in good faith to resolve the disagreements set forth in such Allocation Dispute Notice for a period of thirty (30) days (or such longer period as they may mutually agree in writing) after Buyer’s receipt of such Allocation Dispute Notice. If the Parties are able to resolve the disagreements set forth in the Allocation Dispute Notice prior to the expiration of such thirty (30) day period (or such longer period as they may mutually agree in writing), then the Parties shall reduce such resolution to writing, which upon the Parties doing so shall be final and binding on the Parties (the Preliminary Allocation Schedule, when final and binding pursuant to an Allocation Acceptance Notice or the resolution of an Allocation Dispute Notice, the “Final Allocation Schedule”). Each of Dover and Buyer shall (and each Party shall cause its respective Affiliates to) file all Tax Returns in a manner consistent with the Final Allocation Schedule, if any, and neither Dover nor Buyer shall (and neither Party shall permit its respective Affiliates to) take any position for Tax purposes inconsistent with the Final Allocation Schedule.

(iii) If Dover and Buyer are not able to resolve the disagreements set forth in the Allocation Dispute Notice within thirty (30) days (or such longer period as they may mutually agree in writing) after Buyer’s receipt of such Allocation Dispute Notice, then each of the Parties shall be entitled to allocate the Cash Purchase Price (as finally determined pursuant to Section 2.4) and the original principal amount of the Promissory Note among the Acquired Shares and the aggregate Acquired Assets sold by each Asset Seller in any manner it so determines in its sole discretion and neither shall have any obligation to the other with respect to any such allocation; provided, that if Schedule 2.5(a) has been attached to this Agreement in accordance with Section 2.5(a), such allocation shall be consistent with Schedule 2.5(a), increased or decreased to reflect such Party’s allocation of the Post-Closing Allocation Adjustments in the manner such Party so determines in its sole discretion, and neither shall have any obligation to the other with respect to any such allocation.

 

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(iv) If the Parties agree on a Final Allocation Schedule and Dover concurs with one or more Preliminary Asset Allocation Schedules, Dover shall, within thirty (30) days of the Parties’ agreement on a Final Allocation Schedule pursuant to Section 2.5(b)(ii), deliver with respect to each such Preliminary Asset Allocation Schedule a written statement to Buyer accepting the Preliminary Asset Allocation Schedule (each, an “Asset Allocation Acceptance Notice”), in which case such Preliminary Asset Allocation Schedule shall, with respect to the relevant assets, be final and binding on the Parties. If the Parties agree on a Final Allocation Schedule but Dover disagrees with any aspect of one or more Preliminary Asset Allocation Schedules, then within thirty (30) days of the Parties’ agreement on a Final Allocation Schedule pursuant to Section 2.5(b)(ii), Dover shall deliver with respect to each such Preliminary Asset Allocation Schedule written notice thereof to Buyer indicating in reasonable detail the basis for such disagreement (each, an “Asset Allocation Dispute Notice”). The Parties shall attempt in good faith to resolve the disagreements set forth in any Asset Allocation Dispute Notice for a period of thirty (30) days (or such longer period as they may mutually agree in writing) after Buyer’s receipt of such Asset Allocation Dispute Notice. If the Parties are able to resolve the disagreements set forth in the Asset Allocation Dispute Notice prior to the expiration of such thirty (30) day period (or such longer period as they may mutually agree in writing), then the Parties shall reduce such resolution to writing, which shall be final and binding on the Parties (each Preliminary Asset Allocation Schedule, when final and binding pursuant to an Asset Allocation Acceptance Notice or the resolution of an Asset Allocation Dispute Notice, a “Final Asset Allocation Schedule”). Each of Dover and Buyer shall (and each Party shall cause its respective Affiliates to) file all Tax Returns in a manner consistent with each Final Asset Allocation Schedule, if any, and neither Dover nor Buyer shall (and neither Party shall permit its respective Affiliates to) take any position for Tax purposes inconsistent with any Final Asset Allocation Schedule. If, at the conclusion of the foregoing procedures, Dover and Buyer are not able to resolve the disagreements set forth in any Asset Allocation Dispute Notice, then each of the Parties shall be entitled to allocate, with respect to the assets to which such Asset Allocation Dispute Notice relates, the amounts allocated to such assets pursuant to the Final Allocation Schedule together with the associated Assumed Liabilities or liabilities of the Disregarded Acquired Company, as applicable, in any manner it so determines in its sole discretion and neither shall have any obligation to the other with respect to any such allocation. If the Parties do not agree on a Final Allocation Schedule pursuant to Section 2.5(b)(ii), then, except to the extent the Parties agree in writing otherwise, each of the Parties shall be entitled to make an allocation among the assets to which each Preliminary Asset Allocation Schedule relates in any manner it so determines in its sole discretion and neither shall have any obligation to the other with respect to any such allocation.

(c) Amounts Received or Paid by Dover. The amount received or paid by Dover, the Designated Seller or any other designee of Dover pursuant to Section 2.4, net of the amount paid to Dover or the Designated Seller pursuant to Section 2.2(b)(i), shall be deemed to have been received or paid, as the case may be, by such Person on behalf of the applicable Equity Sellers and Asset Sellers.

 

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ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1. Representations and Warranties of Dover. Dover makes the following representations and warranties to Buyer:

(a) Due Organization and Power.

(i) Dover, Equity Sellers and Asset Sellers. Each of Dover, the Equity Sellers and the Asset Sellers is a company duly organized, validly existing and (in jurisdictions where such concept is applicable) in good standing under the laws of its jurisdiction of organization, which jurisdictions are listed in Schedule 3.1(a)(i)(A). Dover has all requisite corporate power and authority to enter into this Agreement and the other documents and instruments to be executed and delivered by Dover pursuant hereto and to carry out the transactions contemplated hereby and thereby. Each Equity Seller and Asset Seller has all requisite company power and authority to enter into the documents and instruments to be executed and delivered by such Equity Seller and Asset Seller pursuant hereto and to carry out the transactions contemplated hereby and thereby. Each of the Asset Sellers is duly qualified or licensed to do business as a foreign corporation in, and (in jurisdictions where such concept is applicable) is in good standing under the laws of, each jurisdiction listed with respect to such Asset Seller on Schedule 3.1(a)(i)(B), which jurisdictions constitute the only jurisdictions wherein, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, the character of the properties owned by it, or the nature of its business, makes such licensing or qualification necessary, except where the failure to be so qualified, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a material Liability to any Acquired Business.

(ii) Acquired Companies. Each of the Acquired Companies is a company duly organized, validly existing and (in jurisdictions where such concept is applicable) in good standing under the laws of its jurisdiction of organization, which jurisdictions are listed on Schedule 3.1(a)(ii)(A). Each of the Acquired Companies has all requisite company power and authority to own, operate and lease its properties and to carry on its respective business as and where such business was conducted immediately prior to the date of this Agreement. Each of the Acquired Companies is duly qualified or licensed to do business as a foreign corporation in, and is in good standing under the laws of, each jurisdiction listed with respect to such Acquired Company on Schedule 3.1(a)(ii)(B), which jurisdictions constitute the only jurisdictions wherein the character of the properties owned by it, or the nature of its business, makes such licensing or qualification necessary, except where the failure to be so qualified, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a material Liability to any Acquired Business. Dover has provided to Buyer materially complete and accurate copies of the charter, bylaws and other organizational documents of each Acquired Company, each as amended to date. No Acquired Company is in material default under or in material violation of any provision of its charter, bylaws or other organizational documents, and there exists no condition or event which, after notice, lapse of time or both, would result in any such material default or material violation.

 

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(b) Authority. The execution and delivery of this Agreement and the other documents and instruments to be executed and delivered by Dover pursuant hereto and the consummation by Dover of the transactions contemplated hereby and thereby have been duly authorized by Dover. The execution and delivery of the documents and instruments to be executed and delivered by any Equity Seller or Asset Seller pursuant hereto and the consummation by such Person of the transactions contemplated hereby and thereby will be duly authorized by such Person upon delivery thereof, or consummation thereby, as applicable, by such Equity Seller or Asset Seller. No other corporate act or proceeding on the part of Dover or its shareholders is necessary to authorize this Agreement or the other documents and instruments to be executed and delivered by Dover pursuant hereto or the consummation of the transactions contemplated hereby and thereby. Assuming the due execution and delivery by Buyer, this Agreement constitutes a valid and binding agreement of Dover, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar Laws relating to or affecting creditors’ rights generally, and by general equitable principles. When executed and delivered by each party thereto, the other documents and instruments to be executed and delivered by Dover, any Equity Seller or any Asset Seller pursuant hereto will constitute valid and binding agreements of such parties, as the case may be, enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar Laws relating to or affecting creditors’ rights generally, and by general equitable principles.

(c) Ownership. Schedule 3.1(c)(i) sets forth the name, jurisdiction of organization, authorized equity interests and ownership of each of the Acquired Companies, and the names of the officers and directors of each Acquired Company. The Acquired Shares constitute all of the issued and outstanding shares of, and other equity interests in, the ECT Acquired Companies and the MT Acquired Companies. All of the Acquired Shares and other equity interests in any Acquired Company have been duly authorized and validly issued and are fully paid, non-assessable and free of all preemptive rights. Except as set forth on Schedule 3.1(c)(ii), (i) there are no securities convertible into, or exercisable or exchangeable for, any capital stock or other securities of any Acquired Company authorized or outstanding, (ii) there are no, and no Acquired Company has any obligation to issue any, options, warrants or other rights to purchase or subscribe to capital stock or other securities of any Acquired Company or securities that are convertible into, or exercisable or exchangeable for, capital stock or other securities of any Acquired Company, (iii) no Acquired Company has any obligation to issue or distribute to holders of any shares of its capital stock or other securities any evidences of indebtedness or assets of any Acquired Company, (iv) no Acquired Company has any obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of capital stock or other securities of any Acquired Company or any interest therein or to pay any dividend or to make any other distribution in respect thereof, (v) there are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to any Acquired Company, (vi) there are no Contracts of any kind relating to the issuance, sale or transfer of any capital stock or other securities of any Acquired Company, any such convertible, exercisable or exchangeable securities or any such options, warrants or other rights and (vii) no Acquired Company has issued any voting debt. Each of the Acquired Companies has issued and sold the Acquired Shares and other equity interests in any Acquired Company in material compliance with all applicable Laws. No Acquired Company owns or controls, directly or indirectly, or has any direct or indirect equity participation or similar interest in any Person that is not another Acquired Company.

 

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(d) Title to Acquired Shares. Each Equity Seller is the sole record and beneficial owner of all of the Acquired Shares set forth opposite such Equity Sellers’s name on Schedule 3.1(d) and Exhibit A or Exhibit C, as applicable, free and clear of all Liens (other than restrictions on transfer imposed by applicable securities Law and Permitted Liens). No Equity Seller is a party to any voting trust, proxy, or other agreement or understanding with respect to the voting or transfer of any Acquired Shares. Each Equity Seller has the power and authority to sell, transfer, assign and deliver the Acquired Shares to Buyer as provided in this Agreement, and such delivery will convey to Buyer good and valid title to such Acquired Shares, free and clear of any and all Liens (other than restrictions on transfer imposed by applicable securities Law).

(e) No Violation. Neither the execution and delivery by Dover, any Equity Seller or any Asset Seller, as the case may be, of this Agreement or the other documents and instruments to be executed and delivered by Dover, the Equity Sellers and the Asset Sellers pursuant hereto, nor the consummation by Dover, any Equity Seller or any Asset Seller of the transactions contemplated hereby and thereby (i) will violate any Law or Order applicable to Dover, any Equity Seller, any Asset Seller or any Acquired Company in any material respect, (ii) will require any authorization, consent or approval by, filing with or notice to any Governmental Entity (including any authorization, consent or approval required by any Competition Law applicable to the transactions contemplated hereby and any authorizations, consents, approvals, filings or notice requirements applicable with respect to the transfer of the Acquired Shares) except for (A) those identified on Schedule 3.1(e)(ii) and (B) such authorizations, consents, approvals, filings or notices, the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to adversely affect the Acquired Businesses in any material respect, prevent or materially delay the consummation of any of the transactions contemplated hereby or result in any material Liability to any Acquired Business or (iii) subject to obtaining the consents referred to in Schedule 3.1(e)(iii), will violate or conflict with, or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, will result in the loss of a benefit, or the imposition of a Liability under, or will result in the termination of, or accelerate the performance required by, or result in the creation of any Lien (other than Permitted Liens) upon any of the Acquired Shares, Acquired Assets, or assets of the Acquired Companies under (A) any term or provision of the corporate charter, bylaws or similar organizational documents of Dover, any Equity Seller, any Asset Seller or any Acquired Company or (B) any Contract to which any Asset Seller (to the extent related to any Acquired Asset, Assumed Liability or Acquired Business) or any Acquired Company is a party or by which any Asset Seller (to the extent related to any Acquired Asset, Assumed Liability or Acquired Business) or any Acquired Company or any of their respective assets or properties are bound or affected, or any Permit held by any Asset Seller (to the extent related to any Acquired Asset, Assumed Liability or Acquired Business) or any Acquired Company, except, in the case of clause (B), for such violations, conflicts, defaults, terminations, accelerations or Liens that would not, individually or in the aggregate, reasonably be expected to adversely affect the Acquired Businesses in any material respect, prevent or materially delay the consummation of any of the transactions contemplated hereby or result in any material Liability to any Acquired Business.

 

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(f) Financial Statements; Undisclosed Liabilities; Accounts Receivable; Inventory.

(i) Schedule 3.1(f)(i)(A) contains complete and accurate copies of the audited consolidated balance sheets of the Acquired Businesses as of December 31, 2010, 2011 and 2012 and the related audited consolidated statements of income and cash flows of the Acquired Businesses for each of the three (3) years then ended (collectively, the “Annual Financial Statements”) and the consolidated unaudited balance sheet of the Acquired Businesses as of June 30, 2013 (such date, the “Most Recent Balance Sheet Date” and such balance sheet, the “Most Recent Balance Sheet”) and the related consolidated unaudited statements of income and cash flows for the six (6) months then ended (the “Most Recent Financial Statements” and, collectively with the Annual Financial Statements, the “Financial Statements”). Except as set forth in Schedule 3.1(f)(i)(B), the Financial Statements (x) were prepared in accordance with GAAP as in effect on the date of such Financial Statements and applied on a consistent basis in such Financial Statements and (y) fairly present, in all material respects, the financial position, results of operations and cash flows of the Acquired Businesses on a consolidated basis as of their respective dates and for the respective periods covered thereby; provided that the Most Recent Financial Statements are subject to normal recurring year-end and audit adjustments (which, individually and in the aggregate, will not be material) and do not include footnotes.

(ii) Except (A) as set forth in Schedule 3.1(f)(ii), (B) to the extent expressly provided for on the face of the Most Recent Balance Sheet or described in the footnotes related thereto, (C) for Liabilities incurred in the Ordinary Course of Business since the Most Recent Balance Sheet Date and (D) for performance obligations under Contracts entered into in the Ordinary Course of Business, neither any Acquired Company nor, to the extent any such Liability is an Assumed Liability, any Asset Seller, is subject to any material Liabilities.

(iii) Each Acquired Company and, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, each Asset Seller maintains books and records accurately reflecting their respective assets and liabilities in all material respects and maintains internal controls and procedures which are designed to provide reasonable assurance that (A) the Financial Statements are fairly presented in all material respects, (B) transactions entered into by the Acquired Businesses are executed in accordance with management’s authorization, (C) transactions are recorded as necessary to permit the preparation of the consolidated financial statements of the Acquired Businesses in conformity with GAAP and with Dover Corporation’s internal accounting policies and to maintain accountability of assets, and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(iv) No Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller has effected any securitization transactions or “off-balance sheet arrangements” (as defined in Item 303 (a)(4) of Regulation S-K of the SEC). Except as set forth on Schedule 3.1(f)(iv), no Acquired Company nor, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller has received any non-audit services from such entity’s respective auditors.

 

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(v) All accounts receivable reflected on the Most Recent Balance Sheet (other than those paid since such date) are valid receivables subject to no setoffs or counterclaims and have arisen only from bona fide transactions in the Ordinary Course of Business, net of the applicable reserve for bad debts on the Most Recent Balance Sheet. All accounts receivable of any Acquired Company or included in the Acquired Assets that have arisen since the Most Recent Balance Sheet Date are valid receivables subject to no setoffs or counterclaims and have arisen only from bona fide transactions in the Ordinary Course of Business, net of a reserve for bad debts related to such accounts receivable in an amount proportionate to the reserve shown on the Most Recent Balance Sheet. No Acquired Company or Asset Seller has received any written notice from an account debtor stating that any account receivable of any Acquired Company or that is included in the Acquired Assets in an amount in excess of $5,000 is subject to any contest, claim or set off by such account debtor, except for such accounts receivable that are adequately reserved for in the Financial Statements.

(vi) All inventory of the Acquired Companies or included in the Acquired Assets, whether or not reflected on the Most Recent Balance Sheet, consists of a quality and quantity usable and saleable in the Ordinary Course of Business in all material respects, except for obsolete items and items of below-standard quality, all of which have been written-off, written-down to net realizable value or adequately reserved for, on the Most Recent Balance Sheet.

(g) Tax Matters. Except as set forth in Schedule 3.1(g):

(i) Tax Filings and Payments. Each Acquired Company (or applicable Consolidated Tax Group of which an Acquired Company is or was a member) has properly filed on a timely basis all Tax Returns that it was required to file, and all such Tax Returns are true, correct and complete in all material respects. All Taxes shown to be due on such Tax Returns have been timely paid. Each Acquired Company (or applicable Consolidated Tax Group) has paid on a timely basis all Taxes, whether or not shown on any Tax Return, that were due and payable and for which the Acquired Company was liable.

(ii) Audits. No examination or audit or similar Proceeding relating to any Tax Return of the Acquired Companies by any Governmental Entity is currently in progress or has been threatened in writing. None of the Acquired Companies has (A) agreed in writing to waive any statute of limitations with respect to Taxes or agreed in writing to extend the period for assessment or collection of any Taxes, which waiver or extension is still in effect, or (B) requested in writing any extension of time within which to file any Tax Return, which Tax Return has not yet been filed. All material deficiencies asserted in writing or assessments made in writing as a result of any examination of the Tax Returns referred to in Section 3.1(g)(i) have been paid in full or otherwise resolved. There are no material Liens for Taxes upon the assets of the Acquired Companies or the Acquired Assets except for Permitted Liens for Taxes not yet due.

(iii) Withholding Taxes. All material Taxes which the Acquired Companies are required by Law to withhold or to collect for payment have been duly withheld and collected and have been paid to the appropriate Governmental Entity or set aside or reserved on the books of the Acquired Companies, as relevant. The Acquired Companies have complied with all information reporting and backup withholding requirements, including the maintenance of required records with respect thereto, in connection with amounts paid to any employee, independent contractor, creditor, or other third party.

 

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(iv) Divisive Transactions. During the last three (3) years, none of the Acquired Companies has been a party to any transaction treated by the parties thereto as one to which Section 355 of the Code applied.

(v) Affiliated Group. None of the Acquired Companies is or has ever been a member of a Consolidated Tax Group, other than a Consolidated Tax Group of which the common parent is Dover Corporation or an entity that is presently a direct or indirect Subsidiary of Dover Corporation. Except as a result of filing consolidated, combined, unitary or similar Tax Returns with such a Consolidated Tax Group, none of the Acquired Businesses has any actual or potential Liability for the Taxes of another Person under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of federal, state, local or foreign Law) or as a transferee or successor.

(vi) Tax Returns. Dover has made available to Buyer complete and accurate copies of all material Tax Returns filed by or on behalf of the Acquired Companies (which, in the case of Tax Returns of a Consolidated Tax Group, shall be limited to the portions of such Tax Returns relating to the Acquired Companies) relating to 2009, 2010 and 2011.

(vii) Basis Reduction. The sale of the Acquired Shares pursuant to this Agreement will not result in the reduction of any Tax Attributes of any Acquired Company pursuant to the rules of Treasury Regulation Section 1.1502-36. None of the Acquired Companies has incurred (or been allocated) any dual consolidated loss within the meaning of Section 1503 of the Code.

(viii) FIRPTA. No transaction contemplated by this Agreement is subject to withholding under Section 1445 of the Code (relating to “FIRPTA”).

(ix) Adjustments After the Closing Date. None of the Acquired Companies will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of (A) any adjustments under Section 481 of the Code (or any similar adjustments under any corresponding provision of state, local or foreign Tax Law) as a result of a change of any method of accounting in a taxable year or period ending on or prior to the Closing Date, or (B) any written closing agreements as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed on or prior to the Closing Date.

(x) Pass-Through Interests. None of the Acquired Companies has made an entity classification (“check-the-box”) election under Section 7701.

(xi) Reportable Transactions. With respect to each transaction in which any of the Acquired Companies has participated that is a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(1), such participation has been properly disclosed on IRS Form 8886 (Reportable Transaction Disclosure Statement) and on any corresponding form required under state or local law.

 

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(xii) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 3.1(g) (other than Sections 3.1(g)(ix) and (x)) shall cause Dover to be liable for any Taxes for which Dover is not expressly liable pursuant to Section 5.1 (relating to Tax matters).

(h) Absence of Certain Changes. Since the Most Recent Balance Sheet Date through the date hereof, (i) there has been no Material Adverse Effect and (ii) except as set forth in Schedule 3.1(h), the Acquired Businesses have been conducted only in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Balance Sheet Date through the date hereof, except as set forth in Schedule 3.1(h), none of the Acquired Companies or the Asset Sellers (with respect to the Acquired Assets) has taken any action which, if taken after the date hereof and prior to the Closing, would require the consent of Buyer pursuant to Section 4.2.

(i) No Proceedings. Except as set forth in Schedule 3.1(i), there are no outstanding Orders involving any of the Acquired Companies or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller, and there are no pending or, to Dover’s Knowledge, threatened, (i) Proceedings involving Dover or any of its Affiliates seeking to prevent or delay the transactions contemplated hereby or (ii) Proceedings involving any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller which, if decided adversely, would reasonably be expected to result in a material Liability to any Acquired Business.

(j) Compliance With Laws and Orders. Except as set forth in Schedule 3.1(j), (i) no Acquired Company or Asset Seller is conducting, or has conducted since January 1, 2010, any of the Acquired Businesses in violation in any material respect of any applicable Laws or Orders, and (ii) since January 1, 2010, neither Dover nor any of its Affiliates has received written or, to Dover’s Knowledge, any other notice indicating that any of the Acquired Businesses is not being, or has not been, conducted in all material respects in accordance with applicable Law or Orders.

(k) Licenses and Permits. Schedule 3.1(k)(i) sets forth a list of all material Permits held by any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller. Except as set forth in Schedule 3.1(k)(ii), each Acquired Company and each Assets Seller owns, holds or possesses all material Permits required for the conduct of the Acquired Businesses substantially as they are currently conducted. Each such material Permit is in full force and effect and each Acquired Company and each Asset Seller is currently, and has been since January 1, 2010, in material compliance with each such material Permit. To the Knowledge of the Dover, no suspension or cancellation of any such material Permit is threatened and there is no basis for believing that any such Permit will not be renewable upon expiration.

(l) Environmental Matters. Except as set forth in Schedule 3.1(l):

(i) the operations of each Acquired Business comply, and, since January 1, 2010, have complied, in all material respects, with all applicable Environmental Laws and all Permits required to be obtained with respect to such operations under applicable Environmental Laws (“Environmental Permits”);

 

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(ii) since January 1, 2010, no Hazardous Substances have been produced, sold, used, stored, transported, handled, released, discharged or disposed of at or from the Acquired Real Property, or at any real property previously owned, leased, or operated by any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller or any predecessor entity, in a manner or in a quantity or condition that would reasonably be expected to give rise to any material Liability under any Environmental Laws, and no Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller has any material Liability arising from the release of any Hazardous Substance into the environment;

(iii) No Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller is a party to or bound by any Order or other legally binding agreement with any Governmental Entity entered into in connection with any legal Liability arising under any Environmental Law that has not been satisfied or fulfilled in all material respects;

(iv) to Dover’s Knowledge, no facts, events or conditions relating to any property formerly (for which any Acquired Company or Asset Seller would have Liability under Environmental Laws) or currently owned, leased or operated by any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller will prevent, hinder or limit continued material compliance with any Environmental Laws thereby, or give rise to any material investigatory, remedial or corrective obligations or other material Liability under any Environmental Laws on the part of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller;

(v) there are no existing or, to Dover’s Knowledge, threatened Proceedings instituted or pending that arise out of any alleged violation of or Liability under any Environmental Laws by any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller; and

(vi) the Acquired Companies and Asset Sellers possess all material Environmental Permits required to operate the Acquired Businesses, and each Environmental Permit held by any Acquired Company is in full force and effect.

(vii) Dover has made available to Buyer materially complete and accurate copies of all environmental assessment reports and audits relating to premises currently operated and, to Dover’s Knowledge, formerly operated by any Acquired Company, or to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller, which Dover or any of its Affiliates has in its possession or control.

Notwithstanding anything to the contrary contained herein, none of the representations and warranties contained elsewhere in this Section 3.1 shall relate to environmental matters, which are exclusively the subject of this Section 3.1(l).

(m) Title to Acquired Assets; Sufficiency of Assets. Each Business Asset Seller has sole good and valid title to or, with respect to leased personal property, valid leasehold interests in, all of the Acquired Assets of such Business Asset Seller, as applicable, and the

 

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Acquired Assets owned or purported to be owned by such Business Asset Seller are held free and clear of all Liens (other than Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions). Each Acquired Company has sole good and valid title to or, with respect to leased personal property, valid leasehold interests in, all of the assets, rights and properties of such Acquired Company, as applicable, and the assets, rights and properties owned or purported to be owned by each Acquired Company are held free and clear of all Liens (other than Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions). Upon execution and delivery of the instruments of conveyance referred to in Section 8.2(b), Buyer or a Designated Purchaser will become the true and lawful owner of, and receive good and valid title to, or a valid lease or license to use, all of the Acquired Assets. Except for the services to be provided by Dover following the Closing pursuant to Exhibits A-2, A-3, A-4, A-13, A-14, A-16, A-17, A-20, A-22, A-23a, A-24, A-26, A-27, A-29, A-30, A-31, A-32, A-33, A-34 and A-37 of the Transition Services Agreement, the assets, rights and properties to which an Acquired Company has good and valid title or a valid lease or license to use, together with the Acquired Assets, are sufficient for the conduct of the Acquired Businesses as presently conducted or as has been conducted since January 1, 2010. Each such tangible asset is reflected in the Financial Statements (other than to the extent acquired since the date hereof in the Ordinary Course of Business), is in good operating condition and repair (subject to normal wear and tear) and is suitable in all material respects for the purposes for which it presently is used by the applicable Acquired Company or Business Asset Seller. Other than the Acquired Registered IP, ECT Assets, MT Assets and any Intellectual Property exclusively related to the ProWorks system of solutions as assigned to Dover by Everett Charles Technologies LLC, pursuant to an Assignment of Intellectual Property Agreement effective as of August 23, 2013, no Intellectual Property owned by or licensed to Dover or any of its Affiliates is necessary or useful for the conduct of any of the Acquired Businesses as presently conducted or as has been conducted during the twelve (12) months preceding the date of this Agreement.

(n) Real Property.

(i) Schedule 3.1(n)(i) sets forth a true and complete list of (A) all real property leasehold and subleasehold interests or rights to use or occupy held by the Acquired Companies and Business Asset Sellers (the “Acquired Leased Real Property”) and the Acquired Company or Business Asset Seller which holds such interest or right to use or occupy, (B) all leases, subleases, licenses and other agreements for the use and occupancy by the Acquired Companies and Business Asset Sellers of such Acquired Leased Real Property (the “Leases”), and (C) all owned real property of the Acquired Companies and all real property included in the Acquired Assets (the “Acquired Owned Real Property” and, together with the Acquired Leased Real Property, the “Acquired Real Property”) and the Business Asset Seller or Acquired Company which owns such Acquired Owned Real Property. The Acquired Real Property constitutes all of the real property used in the Acquired Businesses.

(ii) Each Acquired Company and Business Asset Seller identified in Schedule 3.1(n)(i) has valid leasehold or subleasehold interests or rights to use or occupy the Acquired Leased Real Property, subject, in the case of Acquired Owned Real Property, only to Permitted Real Property Exceptions. Each Lease is legal, binding, valid, enforceable and in full force and effect, except as would not, individually or in the aggregate, reasonably be expected to adversely affect any Acquired Business in any material respect. None of the Acquired

 

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Companies or Business Asset Sellers, as applicable, or, to the Knowledge of Dover, any other party thereto, is in or, to the Knowledge of Dover, is alleged to be in, breach or default in any material respect under any Lease, nor does there exist any event or condition which, after notice, lapse of time or both, would result in any such breach or default by any Acquired Company or Business Asset Seller or, to the Knowledge of Dover, any other party thereto. Except as set forth on Schedule 3.1(n)(ii), there are no disputes, oral agreements, forbearance programs, licenses, collateral assurances, undertakings, side agreements or concessions in effect as to any Lease. No Acquired Company or Business Asset Seller has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the leasehold or subleasehold under any Lease. All facilities leased or subleased pursuant to any Lease are supplied with utilities and other services adequate in all material respects for the operation of said facilities. To Dover’s Knowledge, there is no Lien, easement, covenant or other restriction applicable to the real property subject to any Lease which would reasonably be expected to impair the current uses or the occupancy by any Acquired Company or Business Asset Seller of the property subject thereto. No construction, alteration or other leasehold improvement work with respect to any Lease remains to be paid for or performed by any Acquired Company or Business Asset Seller.

(iii) Each Acquired Company or Business Asset Seller identified in Schedule 3.1(n)(i) owns fee simple good and marketable title to the Acquired Owned Real Property, insurable, in the case of property located in the United States, by a recognized national title insurance company at standard rates, free and clear of any Lien, subject only to Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions.

(iv) The Acquired Owned Real Property is not subject to any Order to be sold or condemned, expropriated or otherwise taken by any Governmental Entity with or without payment of compensation therefor, and to the Knowledge of Dover, no such condemnation, expropriation or taking has been proposed.

(v) Except as set forth on Schedule 3.1(n)(i), there are no leases, subleases, licenses or agreements, written or oral, granting to any party or parties (other than the applicable Business Asset Seller or Acquired Company) the right of use or occupancy of any portion of any Acquired Owned Real Property.

(vi) There are no outstanding options or rights of first refusal to purchase any Acquired Owned Real Property, or any portion thereof or interest therein.

(vii) To Dover’s Knowledge, all facilities located on any Acquired Owned Real Property are supplied with utilities and other services necessary for the operation of such facilities, including gas, electricity, water, telephone, sanitary sewer and storm sewer, all of which services are adequate for their present use and in accordance with all applicable Laws.

(viii) No Business Asset Seller or Acquired Company has received notice of and, to the Knowledge of Dover, there is no proposed or pending proceeding to change or redefine the zoning classification of all or any portion of any Acquired Owned Real Property.

(ix) The improvements constructed on any Acquired Owned Real Property are in good condition and proper order, free of roof leaks, insect infestation, and material construction defects, and all mechanical and utility systems servicing such improvements are in good condition and proper working order, free of material defects.

 

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(x) Such Acquired Owned Real Property is assessed by local property assessors as a tax parcel or parcels separate from all other tax parcels.

(xi) Dover has provided to Buyer materially complete and accurate copies of all of the following materials relating to each parcel of Acquired Owned Real Property, to the extent in the possession or control of Dover or any of its Affiliates: title insurance policies and commitments; deeds; encumbrance and easement documents and other documents and agreements affecting title to or for operation of such Acquired Owned Real Property; surveys; as-built construction plans; construction contracts and warranties; appraisals; structural inspection, environmental assessment and similar reports.

(o) Material Contracts. Schedule 3.1(o) sets forth a list, as of the date hereof, (separately identifying applicable agreements by each subsection of this Section 3.1(o)) of each of the following types of Contracts to which any Acquired Company or Asset Seller is a party, or to which any of their respective assets, rights or properties are subject or bound; provided, that in the case of the Asset Sellers, solely to the extent related to the Acquired Businesses or Acquired Assets (each, a “Material Contract”):

(i) any Contract (or group of related contracts) for the purchase (by any Acquired Company or Asset Seller) of services, supplies, raw materials, components, equipment or other goods which, in the fiscal year ended December 31, 2012 involved, or in the fiscal year ending December 31, 2013 is reasonably expected to involve, the payment of more than $250,000;

(ii) any Contract (or group of related contracts) for the sale (by any Acquired Company or Asset Seller) of any services or products which, in the fiscal year ended December 31, 2012 involved, or in the fiscal year ending December 31, 2013 is reasonably expected to involve, the payment of more than $250,000;

(iii) any agency, distributor, sales representative, franchise or similar agreements;

(iv) any Contract (or group of related contracts) for capital expenditures involving payments of more than $50,000;

(v) any Contract under which any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $100,000 or under which it has imposed (or may impose) a Lien (other than Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions) on any of its material assets, rights or properties, tangible or intangible;

(vi) any Contract for the disposition of any material portion of the assets or business of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);

 

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(vii) any agreement which contains any provisions requiring any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller, to indemnify any other Person, which indemnification obligations arising under such agreement are reasonably expected to be material;

(viii) any employment Contract with a Current Employee involving Liability for payment of annual base wages or base salaries in excess of $100,000 after the date hereof, other than any offer letter used by any Acquired Business in the Ordinary Course of Business;

(ix) any Contract that (A) restricts the ability of any Acquired Company or, to the extent related to any Acquired Business, any Asset Seller or any of its respective Affiliates to enter into or engage in any market or line of business, (B) provides for “most favored nation” pricing terms or (C) establishes an exclusive sale or purchase obligation with respect to any Product or any geographic location;

(x) any partnership, joint venture or other similar Contract;

(xi) any personal property lease involving future Liability for rental payments in excess of $100,000;

(xii) any Contract material to any of the Acquired Companies or any Acquired Business pursuant to which any right or access has been assigned, transferred, licensed, distributed or otherwise granted to any Person, or any covenant not to assert any right has been granted to any Person, with respect to any (A) Acquired Companies Owned IP or (B) any Acquired Owned IP, excluding, in both of the foregoing clauses (A) and (B), off-the-shelf software that is available generally through retail stores or distribution networks or is otherwise subject to “shrink-wrap” or “click-through” license agreements, including any software pre-installed in the Ordinary Course of Business as a standard part of hardware purchased from third parties;

(xiii) any Contract material to any of the Acquired Companies or any Acquired Business pursuant to which Dover or any of its Affiliates Exploits (A) any Acquired Companies IP or (B) any Acquired IP, excluding, in the case of both of the foregoing clauses (A) and (B), off-the-shelf software that is available generally through retail stores or distribution networks or is otherwise subject to “shrink-wrap” or “click-through” license agreements, including any software pre-installed in the Ordinary Course of Business as a standard part of hardware purchased from third parties;

(xiv) any prime contract, subcontract, basic ordering agreement, letter contract, purchase order, delivery order, change order, arrangement or other commitment of any kind with any Governmental Entity, any prime contractor to a Governmental Entity or any subcontractor to any such Governmental Entity or prime contractor;

 

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(xv) any settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);

(xvi) any Contract that would (A) upon or following the Closing, grant any Person a license or other right to use any Intellectual Property of Buyer or any of its Affiliates (other than an Acquired Company), other than Acquired Owned IP, or (B) upon or following the Closing, or otherwise as a result of the execution or consummation of this Agreement, or any transaction contemplated by this Agreement, grant any Person (other than Buyer and the Designated Purchasers) a license or other right with respect to any Acquired Owned IP, Acquired Companies Owned IP or Acquired Exclusive IP, which license or other right had not been granted prior to the date hereof pursuant to such Contract ; and

(xvii) any other Contract that is otherwise material to either Acquired Business.

Dover has provided to Buyer a complete and accurate copy of each Material Contract (as amended to date). Except as set forth in Schedule 3.1(o), each Material Contract and each Lease is in full force and effect and constitutes a legal, valid and binding obligation of the Acquired Company or Asset Seller that is party thereto and, to Dover’s Knowledge, the other party or parties thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally, and by general equitable principles. Except as set forth in Schedule 3.1(o), each Acquired Company or Asset Seller and, to the Knowledge of Dover, each other party thereto is, and has been, in compliance in all material respects with each Material Contract and each Lease, in each case, to which it is a party, and there is no event or condition which, after notice or lapse of time or both, would result in any such noncompliance by any Acquired Company or Asset Seller or, to the Knowledge of Dover, any other party thereto.

(p) Employee Benefits.

(i) Schedule 3.1(p)(i) lists each Benefit Plan (other than employment agreements (which, for the avoidance doubt, are addressed in Section 3.1(o)(viii))), in each case, identifying the jurisdiction where such Benefit Plan is maintained. Dover has provided to Buyer a complete and accurate copy of the plan document and amendments thereto, any current written plan summary, and the most recent determination letter, if applicable. Schedule 3.1(p)(i) identifies each Benefit Plan that is an Assumed Benefit Plan.

(ii) Each Assumed Benefit Plan is, and has been, administered, in compliance in all material respects with all applicable Laws and Tax regulations and the provisions of such Assumed Benefit Plan.

(iii) No material Proceeding (excluding claims for benefits incurred in the Ordinary Course of Business) has been brought or is pending or, to the Knowledge of Dover, is threatened against or with respect to any Assumed Benefit Plan with respect to any Current Employee or individual contractor or former employee or individual contractor of any Acquired Business.

 

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(iv) All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to be made to or with respect to each Assumed Benefit Plan with respect to the service of Current Employees or former employees of the Business Asset Sellers or any Acquired Company as of the Closing Date and all contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made or have been properly accrued for in the books and records of the Acquired Companies.

(v) All Benefit Plans that are intended to be qualified under Section 401(a) of the Code have received determination letters from the IRS to the effect that such Benefit Plans are qualified and the plans and the trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, no such determination letter has been revoked and revocation has not been threatened, and no such Benefit Plan has been amended since the date of its most recent determination letter or application therefor in any respect, and no act or omission has occurred, that would reasonably be expected to adversely affect its qualification.

(vi) Each Seller Pension Plan has satisfied the requirements of Sections 412, 430 and 436 of the Code and Sections 302 and 303 of ERISA, and no such Seller Pension Plan is in “at-risk status” within the meaning of Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA or subject to the limitations of Section 436 of the Code. No Seller Pension Plan currently has an accumulated funding deficiency within the meaning of Section 302 of ERISA or Section 412 of the Code, nor has any waiver of the minimum funding standards of Section 302 of ERISA and Section 412 of the Code been requested from or granted by the IRS with respect to any Seller Pension Plan; no Lien in favor of any Seller Pension Plan has arisen under former Section 412(n) or current Section 430(k) of the Code or former Section 302(f) or current Section 303(k) of ERISA. Neither the Seller nor any ERISA Affiliate has been required to or chosen to provide security to any defined benefit pension plan pursuant to former Section 401(a)(29) or current Section 436(f) of the Code or Sections 306 or 307 of ERISA. With respect to the Seller and its ERISA Affiliates, there has not been and the transactions contemplated by this Agreement are not reasonably expected to cause (i) a withdrawal from a Benefit Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (ii) the filing of a notice of intent to terminate, the treatment of a Benefit Plan amendment as a termination under Section 4041 of ERISA, or the commencement of proceedings by the PBGC to terminate a Benefit Plan; (iii) an event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan; (iv) any failure to make timely premium payments under Section 4007 of ERISA; (v) the use of any amortization extensions or other funding relief under the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010; (v) any requirement to file a report with the PBGC under ERISA Section 4010; or (vi) a “Reportable Event” within the meaning of Section 4043 of ERISA and the regulations and interpretations thereunder that has not been fully and accurately reported in a timely fashion, as required, or which, whether or not reported, would constitute grounds for the PBGC to institute termination proceedings with respect to any Benefit Plan. No notice of a Reportable Event for which the 30 day reporting requirement has not been waived or extended (without regard to the waiver under PBGC Reg. Section 4043.66), has been required to be filed for any Seller Pension Plan since December 31, 2005 or will be required to be filed in connection with the transaction contemplated hereby.

 

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(vii) At no time has any Acquired Company, Business Asset Seller or any ERISA Affiliate of any Acquired Company or Business Asset Seller been obligated to contribute to any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) with respect to which Buyer or any of the Acquired Companies could incur any Liability or obligation.

(viii) There are no unfunded obligations under any Benefit Plan providing health or welfare benefits after termination of employment to any Current Employees or contractors or former employees or contractors of any Acquired Company, but excluding continuation of health coverage solely at the expense of the participant required to be continued under Section 4980B of the Code or other applicable Law, insurance conversion privileges under state Law and health coverage provided during any post-termination severance period of not more than three (3) years.

(ix) No act or omission has occurred with respect to any Benefit Plan that would reasonably be expected to subject Buyer to (A) any material fine, penalty, Tax or Liability of any kind imposed under ERISA or the Code or (B) any contractual indemnification or contribution obligation, in each case, other than contributions or benefits payable pursuant to the terms of such Benefit Plans.

(x) Schedule 3.1(p)(x) identifies each: (A) Assumed Benefit Plan covering any Current Employee (1) the benefits of which are contingent, or the terms of which are altered, upon the occurrence of the transactions contemplated by this Agreement, or (2) providing any tax gross-ups or tax indemnification; (B) agreement, plan or arrangement under which any Person will receive payments from any Acquired Company or Business Asset Seller that will be subject to the tax imposed by Section 4999 of the Code as a result of the transactions contemplated by this Agreement; and (C) Assumed Benefit Plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.

(xi) Each individual who has received compensation for the performance of services for any Acquired Business has been reasonably classified as an employee or independent contractor in accordance with applicable Law.

(xii) Each Assumed Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1)) has been operated since January 1, 2005 in a manner that would be reasonably expected to comply with Code Section 409A.

(q) Labor Matters.

(i) Dover has provided to Buyer a true and complete list of all Current Employees, and, for each such Current Employee, the names of their employer companies, their positions (including whether full-time or part-time, regular, temporary, casual, probationary or spare), locations, current annual rates of compensation (including, as applicable, their current hourly or base salary rates and any portion of such annual rates attributable to bonus,

 

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commission and/or other compensation) and the countries in which they are employed; provided, however, that such list shall have been redacted if, and only to the extent, required by applicable Law. The Current Employees constitute all of the employees that are employed exclusively or primarily in, or that provide services exclusively or primarily to or on behalf of, any Acquired Business. Each Current Employee and past employee of any Acquired Company and/or Business Asset Seller, whose employment with an Acquired Company and/or Business Asset Seller ended within the twenty-four (24) months prior to the date of this Agreement, has entered into a confidentiality and assignment of inventions agreement with the Acquired Company or Business Asset Seller by which he/she is or was employed, a complete and accurate copy or form of which has previously been provided to Buyer, and no such Current Employee or past employee has excluded works or inventions from his/her assignment of inventions pursuant to such agreement. Schedule 3.1(q)(i) contains a list of each Current Employee and past employee of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Business Asset Seller who is a party to a non-expired non-competition agreement with the Acquired Company or Business Asset Seller by which he/she is or was employed, a complete and accurate copy or form of which has previously been provided to Buyer. All of the agreements referenced in the two preceding sentences are assignable by the applicable Acquired Company or Business Asset Seller to Buyer, and will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing.

(ii) Except as set forth in Schedule 3.1(q)(ii), (A) no work stoppage, slowdown, labor strike or lockout against or by any Acquired Company or Business Asset Seller is pending or reasonably anticipated or, to Dover’s Knowledge, threatened with respect to the Current Employees, nor has any Acquired Company or Business Asset Seller engaged in a lockout or suffered any strike, picketing, slowdown or work stoppage by any group of Current Employees during the past twenty-four (24) months; (B) to Dover’s Knowledge, there are no activities, proceedings or attempts of any labor union to organize any Current Employees, nor has there been any such activity, proceeding or attempt during the past twenty-four (24) months; (C) there are no Proceedings pending, or, to the Knowledge of Dover, threatened or reasonably anticipated relating to any labor, safety, wage and hour, employee classification, workers’ compensation, immigration, discrimination or any other employment related matters involving any Current Employees, including charges of unfair labor practices, contract grievances under any collective bargaining agreement, other administrative charges, claims, grievances, or discrimination complaints, except those which, individually or in aggregate, would not reasonably be expected to result in a material Liability to any Acquired Business; (D) no Acquired Company or Business Asset Seller is a party to, or bound by, any collective bargaining or works council agreement with respect to Current Employees and no collective bargaining agreement or works council agreement is being negotiated by any Acquired Company or Business Asset Seller with respect to the Current Employees; and (E) each Acquired Company and, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Business Asset Seller is currently, and, since January 1, 2010, has been, in material compliance with all applicable Laws in any jurisdiction relating to the employment of labor, including those related to wages, hours, employment discrimination, employee classification, occupational safety and health, workers’ compensation, immigration, collective bargaining and the payment and withholding of Taxes and other sums as required by the appropriate Governmental Entity.

 

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(iii) No Business Asset Seller or Acquired Company has received any communication since January 1, 2010 with respect to the intent of any Governmental Entity responsible for the enforcement of labor or employment Laws to conduct an investigation of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Business Asset Seller and, to the Knowledge of Dover, no such investigation is threatened or in progress.

(iv) To the Knowledge of Dover, each Current Employee employed in the United States is a citizen or permanent resident of the United States, except as set forth on Schedule 3.1(q)(iv), which also indicates immigration status for each individual listed on such Schedule and the date that work authorization is scheduled to expire. To Dover’s Knowledge, each Current Employee working in a country other than the one of which such employee is a national has a valid work permit or visa enabling him/her to work lawfully in the country in which such individual is employed.

(v) Except as set forth in Schedule 3.1(q)(v), there are no amounts of compensation outstanding as of the date hereof (including bonuses and other accrued liabilities) to any Current Employee or former employee of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Business Asset Seller (other than accrued amounts representing salary, bonus entitlements due for the current pay period, accrued vacation pay or for the reimbursement of legitimate business expenses).

(r) Intellectual Property.

(i) Schedule 3.1(r)(i) sets forth a list, as of the date hereof, of:

(A) the following categories of (I) Acquired Owned IP, and (II) other Acquired IP (except, with respect to clause (II), for any such other Acquired IP (y) consisting of off-the-shelf software that is available generally through retail stores or distribution networks or is otherwise subject to “shrink-wrap” or “click-through” license agreements (including any software pre-installed in the Ordinary Course of Business as a standard part of hardware purchased from third parties), or (z) with respect to which the grant of a right or license to, or the making available of, such other Acquired IP is incidental to the subject matter of a Contract not primarily related to a grant of right or license to, or the making available of, such other Acquired IP and which other Acquired IP is not material to any of the Acquired Businesses): (1) all registered, applied for and material unregistered Trademarks; (2) all Patents; (3) all registered and applied for Copyrights; (4) all Internet domain names; and (5) all material Software; and

(B) the following categories of (I) Acquired Companies Owned IP, and (II) other Acquired Companies IP (except, with respect to clause (II), for any such other Acquired Companies IP (y) consisting of off-the-shelf software that is available generally through retail stores or distribution networks or is otherwise subject to “shrink-wrap” or “click-through” license agreements (including any software pre-installed in the Ordinary Course of Business as a standard part of hardware purchased from third parties), or (z) in respect to which the grant of a right or license to, or the making available of, any such other Acquired Companies IP is incidental to the subject matter of a Contract not primarily related to a grant of right or

 

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license to, or the making available of, such other Acquired Companies IP and which other Acquired Companies IP is not material to any of the Acquired Businesses): (1) all registered, applied for and material unregistered Trademarks; (2) all Patents; (3) all registered and applied for Copyrights; (4) all Internet domain names; and (5) all material Software.

With respect to each such item of the Acquired Owned IP and the Acquired Companies Owned IP, in each case which is issued, granted or registered by or with any domestic or foreign Governmental Entity or Internet domain name registrar or for which an application therefor has been filed with any such Governmental Entity or Internet domain name registrar, Schedule 3.1(r)(i) sets forth, on an item-by-item and jurisdiction-by-jurisdiction basis, (w) the title of such item, (x) the application, registration or renewal numbers, (y) the jurisdiction where such Intellectual Property is registered or where such applications have been filed, and (z) the name of the current registrant, applicant or owner of record.

(ii) Except as otherwise set forth in Schedule 3.1(r)(ii) or as would not, individually or in the aggregate, reasonably be expected to adversely affect any of the Acquired Businesses in any material respect, (A) the Registered IP Sellers are the sole owner of all right, title and interest in and to (free and clear of all Liens, except Permitted Liens) the Acquired Registered IP, (B) each Asset Seller (1) is the sole owner of all right, title and interest in and to (free and clear of all Liens, except Permitted Liens) the Acquired Owned IP and (2) has the valid right to use all other Acquired IP and each item of such other Acquired IP will be available for use by the Buyer or the relevant Designated Purchaser(s) immediately following the Closing on substantially identical terms and conditions as it was immediately prior to the Closing, and (C) each Acquired Company (1) is the sole owner of all right, title and interest in and to (free and clear of all Liens, except Permitted Liens) all Acquired Companies Owned IP, including the Acquired Companies Owned IP set forth next to such Acquired Company’s name in Schedule 3.1(r)(ii)(C) and (2) has the valid right to use any other Acquired Companies IP and each item of such other Acquired Companies IP will be available for use by the applicable Acquired Company immediately following the Closing on substantially identical terms and conditions as it was immediately prior to the Closing. Each Acquired Company’s rights in the Acquired Companies IP (other than the Acquired Companies Owned IP) is free and clear of all Liens (other than (x) Permitted Liens, (y) Liens imposed by the terms and conditions of any Contract under which such Acquired Companies IP (other than the Acquired Companies Owned IP) is in-licensed by such Acquired Company, and (z) the terms and conditions of any Contract (i) for off-the-shelf software that is available generally through retail stores or distribution networks or is otherwise subject to “shrink-wrap” or “click-through” license agreements (including any software pre-installed in the Ordinary Course of Business as a standard part of hardware purchased from third parties) under which such Acquired Companies IP (other than the Acquired Companies Owned IP) is in-licensed by such Acquired Company, and (ii) with respect to which the grant of a right or license to, or the making available of, any such Acquired Companies IP is incidental to the subject matter of a Contract not primarily related to a grant of right or license to, or the making available of, such Acquired Companies IP, and which Acquired Companies IP is not material to any of the Acquired Businesses).

(iii) Except as set forth on Schedule 3.1(r)(iii) or as would not, individually or in the aggregate, reasonably be expected to adversely affect any of the Acquired Businesses in any material respect, (A) since January 1, 2010, no Person has asserted in writing

 

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or threatened in writing to assert, any claims (1) contesting the right of any Asset Seller or Acquired Company to use, exercise, sell, license, transfer or dispose of Intellectual Property (x) owned by or exclusively licensed in any field to an Acquired Company or (y) owned by or exclusively licensed in any field to an Asset Seller and used in any of the Acquired Businesses, or (2) challenging the ownership, validity or enforceability of any such Intellectual Property, (B) no Acquired Owned IP or Acquired Companies Owned IP, or, to Dover’s Knowledge, any other Acquired IP or any other Acquired Companies IP which is material to the operation of any of the Acquired Businesses and in which an Acquired Company or an Asset Seller has (or purports to have) an exclusive license or similar exclusive right in any field, or, to Dover’s Knowledge (but without a duty of inquiry), any other Acquired IP or any other Acquired Companies IP which is material to the operation of any of the Acquired Businesses, is subject to any outstanding Order related to such Intellectual Property or restricting in any manner the licensing, assignment, transfer, use or conveyance of such Intellectual Property by any of the Acquired Companies or any of the Asset Sellers or, following the Closing, Buyer or any of its Affiliates, (C) to Dover’s Knowledge, no Person is infringing, violating or misappropriating any (1) Acquired Companies Owned IP, (2) any other Acquired Companies IP in which an Acquired Company has (or purports to have) an exclusive license or similar exclusive right in any field (the foregoing clauses (1) and (2) collectively, the “Acquired Companies Exclusive IP”), (3) Acquired Owned IP or (4) any other Acquired IP in which an Asset Seller has (or purports to have) an exclusive license or similar exclusive right in any field (the foregoing clauses (3) and (4) collectively, the “Acquired Exclusive IP”), and (D) Dover and its Affiliates have complied with their respective applicable legal duties of candor and disclosure to the United States Patent and Trademark Office and any relevant foreign patent office with respect to all Patent and Trademark applications filed by or on behalf of Dover or any of its Affiliates, which applications (or related continuations, continuations-in-part or divisionals) or patents issuing therefrom are included in the Acquired Owned IP, Acquired Companies Owned IP, Acquired Exclusive IP which Dover or any of its Affiliates has the right to prosecute, or Acquired Companies Exclusive IP which Dover or any of its Affiliates has the right to prosecute, and have made no material misrepresentation in such applications.

(iv) Except as set forth in Schedule 3.1(r)(iv) or as would not, individually or in the aggregate, reasonably be expected to adversely affect the Acquired Businesses in any material respect, (A) none of the Acquired Companies or the Asset Sellers (with respect to the Acquired Businesses) infringes, violates or misappropriates, and (B) the operation of any Acquired Business as conducted since January 1, 2010 has not infringed, violated or misappropriated, and does not infringe, violate or misappropriate, the Intellectual Property of any Person. Schedule 3.1(r)(iv) lists any written complaint, claim or notice, or threat of any of the foregoing (including any notification that a license under any Patent is or may be required), received by Dover or any of its Affiliates, and Dover has made available to Buyer complete and accurate copies of all such complaints or claims which are material to any of the Acquired Businesses. Except as set forth on Schedule 3.1(r)(iv), no Acquired Company is a member of or party to any patent pool, industry standards body, trade association or other organization pursuant to the rules of which it is obligated to license any existing or future Intellectual Property to any Person, and none of the Acquired Companies IP nor any Acquired IP is required to be licensed to any Person pursuant to the rules of any patent pool, industry standards body, trade association or other organization.

 

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(v) All assignments to an Asset Seller of Registered IP included in the Acquired Owned IP or to an Acquired Company of Registered IP included in the Acquired Companies Owned IP have been properly executed and recorded. To Dover’s Knowledge, all issued patents, registered Copyrights, registered Trademarks and Internet domain names included in the Acquired Owned IP, in the Acquired Companies Owned IP, in the Acquired Exclusive IP which Dover or any of its Affiliates has the right to prosecute or in the Acquired Companies Exclusive IP which Dover or any of its Affiliates has the right to prosecute, in each case, are valid and enforceable and all issuance, renewal, maintenance and other payments that are or have become due with respect thereto have been timely paid by or on behalf of the applicable Asset Seller or Acquired Company.

(vi) Each item of Acquired Companies Owned IP will be owned or available for use by the applicable Acquired Company immediately following the Closing on substantially identical terms and conditions as it was immediately prior to the Closing. Each item of Acquired Owned IP will be owned or available for use by Buyer or the Designated Purchaser immediately following the Closing on substantially identical terms and conditions as it was immediately prior to the Closing.

(vii) Dover and its Affiliates have taken reasonable measures to protect the proprietary nature of each Trade Secret included in the Acquired Companies IP or the Acquired Assets. Neither Dover nor any of its Affiliates has licensed, distributed or disclosed to any Person, and to Dover’s Knowledge no other Person (including Dover’s or its Affiliates’ employees and contractors) has distributed or disclosed to any other Person, the source code for any Software that is both (A) included in the Products, and (B) material to any of the Acquired Businesses, and no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, nor will the consummation of the transactions contemplated hereby, result in the disclosure or release of such source code of such Software by Dover, any of its Affiliates, any escrow agent or any other Person to any third party.

(viii) Schedule 3.1(r)(viii) lists all Open Source Materials that Dover or any of its Affiliates have incorporated into, combined with, or distributed with the Products and describes the manner in which such Open Source Materials have been incorporated into, combined with or distributed with the Products, including whether and how the Open Source Materials have been modified or distributed by Dover or any of its Affiliates.

(ix) Each employee of Dover or any of its Affiliates and each independent contractor of Dover or any of its Affiliates has executed a valid and binding written agreement (A) expressly assigning to the applicable Acquired Company or Asset Seller all right, title and interest in (1) any inventions and works of authorship, whether or not patentable, included in the Acquired Owned IP or the Acquired Companies Owned IP and invented, created, developed, authored, identified, conceived, reduced to practice or otherwise created during the term of such employee’s employment or such independent contractor’s work for Dover or any of its controlled Affiliates, and (2) all Intellectual Property rights in such inventions and works of authorship, and (B) to the extent legally permissible, waiving all moral rights in such works of authorship which are material to any of the Acquired Businesses.

 

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(x) Neither Dover nor any of its Affiliates has sought, applied for nor received any support, funding, resources or assistance from any Governmental Entity or quasi-governmental agency or funding source in connection with the Exploitation of any Product or any Intellectual Property included in the Acquired Assets or the Acquired Companies IP or the operation of any Acquired Business or any facilities or equipment used in connection therewith. No university or Governmental Entity has sponsored any research or development conducted by Dover or any of its Affiliates with respect to any Product, or any Intellectual Property included in the Acquired Assets, the Acquired Companies IP or any Acquired Business or, to Dover’s Knowledge, has any claim of right to or ownership of or other Lien on any Acquired Companies IP or any Intellectual Property included in the Acquired Assets.

(xi) No Software incorporated into, or combined with, the Products, and no employee or independent contractor of Dover or any of its Affiliates has incorporated into or combined with, a Product or any Software that, contains any disabling device, virus, worm, back door, Trojan horse or other disruptive or malicious code that may or are intended to impair their intended performance of, or otherwise permit unauthorized access to, hamper, delete information in or damage any such Product or any computer system or network with which any such Product interacts, directly or indirectly, other than any such system or network with which any third party purchaser of such Product is prohibited from allowing (or otherwise expressly instructed not to allow) such Product to interact, directly or indirectly, pursuant to the applicable Product’s specifications or the relevant written Contract pursuant to which Dover or its relevant Affiliate sells such Product.

(xii) Except as set forth in Schedule 3.1(r)(xii) or as would not, individually or in the aggregate, reasonably be expected to adversely affect the Acquired Businesses in any material respect, Dover and its Affiliates (A) have actively policed the quality of all goods and services sold, distributed or marketed under each of the Trademarks included in the Acquired Assets or Acquired Companies IP, which Trademarks are material to any of the Acquired Businesses, and (B) have enforced adequate quality control measures to prevent any such Trademarks that Dover or any of its Affiliates has licensed to others from being deemed abandoned in accordance with applicable Law.

(s) Product Warranty and Product Liability; Customer and Suppliers.

(i) Since January 1, 2010, none of the Acquired Companies or Business Asset Sellers have changed in any material respect the scope of its contractual obligations for warranties with respect to the return, repair or replacement of Products. A complete and accurate specimen copy of the form of each written warranty covering Products that has not yet expired has heretofore been made available to Buyer. Except as set forth on Schedule 3.1(s)(i)(A), since January 1, 2010, none of the Products has been the subject of any campaign for replacement, field fix, retrofit, modification or recall, except for service calls made by employees of the Acquired Businesses in the Ordinary Course of Business. No Acquired Company or Business Asset Seller has any material Liability to any customer in connection with any Product to provide the customer with any other Product on pre-negotiated terms, including for upgrades to other Products at prices below the Acquired Company’s or Business Asset Seller’s, as the case may be, published price for such services or products, except as contemplated by the express terms of the Material Contracts.

 

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(ii) Schedule 3.1(s)(ii) sets forth a list of (a) the top twenty (20) customers for each Acquired Business during the last full fiscal year and the interim period through the Most Recent Balance Sheet Date and the amount of revenues accounted for by such customer during each such period and (b) each supplier that is the sole supplier of any material product or service to any Acquired Business. No such customer or supplier that is party to a Contract with either Acquired Business has indicated in writing within the past year that it will terminate such Contract prior to the expiration thereof.

(t) Certain Relationships. Except as set forth in Schedule 3.1(t), neither Dover or any of its Affiliates nor any of their respective officers, directors or employees (other than the other Acquired Companies) (i) is a party to or the beneficiary of any Contract with any of the Acquired Companies or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Business Asset Seller (other than any employment or other similar Contract disclosed on Schedule 3.1(o)), (ii) has any claim or cause of action against any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Business Asset Seller, (iii) owes any money to, or is owed any money by (other than in the Ordinary Course of Business), any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Business Asset Seller, or (iv) has any interest in any asset, right or property used, held for use or useful in any of the Acquired Businesses.

(u) Insurance. Schedule 3.1(u) contains an accurate list of all policies of insurance held by or for the benefit of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Business Asset Seller, indicating as to each such policy the entity holding such policy and the entities covered by such policy. All such policies are valid and binding policies in full force and effect. All material claims eligible to be asserted by any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Business Asset Seller under any such policy have been asserted on a timely basis. There is no material claim pending under any such policy as to which coverage has been questioned, denied or disputed by the underwriter of such policy. All premiums due and payable under all such policies have been paid, no Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Business Asset Seller, may be liable for material retroactive premiums or similar payments, and each Acquired Company and, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, each Business Asset Seller is otherwise in compliance with the terms of such policies in all material respects. True and correct copies of insurance loss runs with respect to the Acquired Businesses for the past three (3) years have heretofore been provided to Buyer.

(v) Indebtedness. None of the Acquired Companies has any Indebtedness, other than Indebtedness owing to another Acquired Company.

(w) Foreign Corrupt Practices Act. Except as set forth on Schedule 3.1(w), none of the Acquired Companies or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Dover or any of its other Affiliates (including, in each case, any of their respective officers, directors, agents, employees or other Persons acting on their behalf) has materially violated the United States and Foreign Corrupt Practices Act of 1977 or any comparable Law or offered or given anything of value to: (i) any official of a Governmental

 

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Entity, any political party or official thereof, or any candidate for political office; or (ii) any other Person, in any such case while knowing or having reason to know that all or a portion of such money or thing of value may be offered, given or promised, directly or indirectly, to any official of a Governmental Entity or candidate for political office for the purpose of the following: (A) influencing any action or decision of such Person in such Person’s official capacity, including a decision to fail to perform such Person’s official function or (B) inducing such Person to use such Person’s influence with any government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality to assist any Acquired Company in obtaining or retaining business for, or with, or directing business to any Person.

(x) Books and Records; Powers of Attorney.

(i) Except where the failure to maintain complete and accurate books and records would not reasonably be expected to result in any material Liability to any Acquired Business the minute books and other similar records of each Acquired Company contain complete and accurate records of all actions taken at any meetings of such Acquired Company’s equityholders, Board of Directors (or comparable management body) or any committee thereof and of all written consents executed in lieu of the holding of any such meeting.

(ii) There are no outstanding powers of attorney executed on behalf of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, any Asset Seller.

(y) Bank Accounts. Schedule 3.1(y) contains a list of all bank accounts and safe deposit boxes of any Acquired Company and, to the extent related exclusively to any Acquired Business, Acquired Asset or Assumed Liability, any Business Asset Seller, and the names of persons having signature authority with respect thereto or access thereto.

(z) Fees. No Acquired Company has paid or become obligated to pay any fees or commissions to any broker or finder in connection with the transactions provided for herein or in connection with the negotiation of this Agreement.

(aa) Government Contracts.

(i) No Acquired Company or Asset Seller has been, with respect to any Acquired Business, suspended or debarred from bidding on Contracts or subcontracts with any Governmental Entity; no such suspension or debarment has been initiated or, to the Knowledge of Dover, threatened; and the consummation of the transactions contemplated by this Agreement will not result in any such suspension or debarment of an Acquired Company or Buyer (assuming that no such suspension or debarment will result solely from the identity of Buyer). No Acquired Company or Asset Seller has been or is now being, with respect to any Acquired Business, audited or, to the Knowledge of Dover, investigated by the United States Government Accountability Office, the United States Department of Defense or any of its agencies, the Defense Contract Audit Agency (not including routine audits required by contract or regulation), the contracting or auditing function of any Governmental Entity with which it is contracting, the United States Department of Justice, the Office of Inspector General of any Governmental Entity, or any prime contractor with a Governmental Entity; nor, to the

 

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Knowledge of Dover, has any such audit or investigation been threatened (not including routine audits required by contract or regulation). To the Knowledge of Dover, there is no valid basis for (A) the suspension or debarment of any Acquired Company or Buyer from bidding on Contracts or subcontracts with any Governmental Entity or (B) any claim (including any claim for return of funds to any Governmental Entity) pursuant to an audit or investigation by any of the entities named in the foregoing sentence. No Acquired Company or Asset Seller has, with respect to any Acquired Business, any Contracts or commitments which require it to obtain or maintain a security clearance with any Governmental Entity.

(ii) To the Knowledge of Dover, no basis exists for a Termination for Default (as provided in 48 C.F.R. Ch.1 §52.249-8, 52.249-9 or similar sections) with respect to any of its Contracts or subcontracts with any Governmental Entity. Dover has not received from any Governmental Entity any written notification with respect to a Termination for Convenience (as provided in 48 C.F.R. Ch.1 §52.241-1, 52.249-2 or similar sections) with respect to any of its Contracts or subcontracts with any Governmental Entity, and to the Knowledge of Dover no such Termination for Convenience has been threatened. For the avoidance of doubt, the Knowledge of Dover in this Section 3.1(aa) shall not require inquiry of any of Dover’s prime contractors.

Section 3.2. Representations and Warranties of Buyer. Buyer makes the following representations and warranties to Dover:

(a) Due Organization and Power. Buyer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. Buyer has all requisite corporate power and authority to enter into this Agreement and the other documents and instruments to be executed and delivered by Buyer pursuant hereto and to carry out the transactions contemplated hereby and thereby. Buyer is duly qualified or licensed to do business as a foreign corporation in, and (in jurisdictions where such concept is applicable) is in good standing under the laws of, each jurisdiction in which the ownership or leasing of Buyer’s assets and properties or the conduct of Buyer’s business requires such qualification, except where the failure to be so qualified, individually or in the aggregate, has not, and would not reasonably be expected to, adversely affect Buyer’s ability to perform its obligations under this Agreement in any material respect.

(b) Authority. The execution and delivery of this Agreement and the other documents and instruments to be executed and delivered by Buyer pursuant hereto and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action of Buyer. The execution and delivery of the documents and instruments to be executed and delivered by Buyer pursuant hereto and the consummation by Buyer of the transactions contemplated hereby and thereby will be duly authorized by Buyer, when delivered or consummated, as applicable. No other corporate act or proceeding on the part of Buyer or its shareholders is necessary to authorize this Agreement or the other documents and instruments to be executed and delivered by Buyer pursuant hereto or the consummation of the transactions contemplated hereby and thereby. Assuming the due execution and delivery by Dover, this Agreement constitutes, and when executed and delivered by each party thereto, the other documents and instruments to be executed and delivered by Buyer pursuant hereto will constitute, valid and binding agreements of Buyer, enforceable in

 

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accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar Laws affecting creditors’ rights generally, and by general equitable principles.

(c) No Violation. Neither the execution and delivery by Buyer of this Agreement or the other documents and instruments to be executed and delivered by Buyer pursuant hereto, nor the consummation by Buyer of the transactions contemplated hereby and thereby, (i) will violate any Law or Order applicable to Buyer in any material respect, (ii) will require any authorization, consent or approval by, filing with or notice to any Governmental Entity (including any authorization, consent or approval required by any Competition Law applicable to the transactions contemplated hereby, any authorizations, consents, approvals, filings or notice requirements applicable with respect to the transfer of the Acquired Shares and any authorizations, consents or approvals that become applicable solely as a result of the specific regulatory status of Buyer or any of its Affiliates), except for (A) those identified on Schedule 3.2(c) and (B) such authorizations, consents, approvals, filings or notices, the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Buyer’s ability to perform its obligations hereunder or prevent or materially delay the consummation of any of the transactions contemplated hereby or result in any material Liability to Buyer, or (iii) subject to obtaining the consents referred to in Schedule 3.2(c), will violate or conflict with, or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, will result in the loss of a benefit or the imposition of a Liability under, or will result in the termination of, or accelerate the performance required by, any term or provision of the corporate charter, bylaws or similar organizational documents of Buyer or any Contract to which Buyer is a party or by which Buyer or any of its assets or properties may be bound or affected, except, in each case, for such violations, conflicts, defaults, terminations or accelerations that would not, individually or in the aggregate, reasonably be expected to materially and adversely effect Buyer’s business or Buyer’s ability to perform its obligations hereunder.

(d) Proceedings. There are no outstanding Orders involving Buyer and there are no Proceedings pending or, to Buyer’s Knowledge, threatened, in any local, state, federal or foreign jurisdiction involving Buyer that, in the case of any such Order or Proceeding, individually or in the aggregate, would be reasonably expected to have the effect of preventing, delaying, making illegal or otherwise interfering in any material respect with any of the transactions contemplated hereby.

(e) Investment Intent. Buyer is acquiring the Acquired Shares for its own account and not with a view toward any resale or distribution of any of the Acquired Shares or any beneficial interest in the Acquired Shares. Buyer agrees that the Acquired Shares may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act of 1933 or an applicable exemption therefrom, and without compliance with all other applicable federal, foreign and state securities laws.

(f) Financing. Buyer will have sufficient funds available as and when needed to consummate the transactions contemplated hereby and to perform its obligations hereunder.

 

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(g) Fees. Except for amounts payable to Needham & Company, LLC, neither Buyer nor any of its Affiliates (including any Designated Purchaser) has paid or become obligated to pay any fees or commissions to any broker or finder in connection with the transactions provided for herein or in connection with the negotiation of this Agreement.

(h) Designated Purchasers. The representations and warranties contained in Sections 3.2(a) through 3.2(e) will be true and correct with respect to each Designated Purchaser to which Buyer hereafter assigns any of its rights or obligations under this Agreement in accordance with Section 1.3, such that the term “Buyer” in each of the representations and warranties contained in Section 3.2 shall be deemed to be replaced with the term “Designated Purchaser.”

Section 3.3. No Other Representations or Warranties.

(a) The Parties acknowledge and agree that except for the representations and warranties contained in Section 3.1, none of Dover, the Equity Sellers, the Asset Sellers or any Person acting on their behalf makes or has made any other express or implied representation or warranty to Buyer regarding the Acquired Companies, Acquired Businesses, Acquired Assets or any other matter.

(b) The Parties acknowledge and agree that except for the representations and warranties contained in Section 3.2, neither Buyer nor any Person acting on its behalf makes or has made any other express or implied representation or warranty to Dover regarding Buyer or any other matter.

(c) Notwithstanding the foregoing, nothing in this Section 3.3 shall, in any way, limit any Party’s rights pursuant to this Agreement or in any action with respect to a claim for fraud.

ARTICLE IV

COVENANTS PRIOR TO CLOSING

Section 4.1. Access to Information Concerning Properties and Records; Confidentiality. Dover shall, and shall cause each Equity Seller, Asset Seller and Acquired Company, and their respective officers, directors and employees, during the period commencing on the date of this Agreement and ending on the Closing Date, to, furnish or cause to be furnished to Buyer and its representatives, at reasonable times and upon reasonable advance notice, (a) such access, during normal business hours, to the offices and properties relating to the Acquired Businesses as Buyer may request and (b) such access to the Books and Records, Contracts, assets, personnel, operations and information of each Acquired Business as Buyer may request; provided, however, that Dover and its Affiliates shall not be required to violate any obligation of confidentiality existing as of the date that such access is to be provided hereunder (it being agreed that Dover shall use commercially reasonable efforts to provide such access rights to Buyer in all applicable confidentiality agreements executed from and after the date hereof and that the Buyer agrees to be bound by all confidentiality obligations of Dover’s representatives set forth therein), applicable Order or applicable Law to which any such Person is

 

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subject or to waive any privilege which any such Person may possess in discharging the obligations set forth in this Section 4.1 (provided, that, in such event, Dover and its Affiliates shall reasonably cooperate with Buyer to seek an appropriate remedy to permit the access contemplated hereby). Promptly following the preparation thereof in the Ordinary Course of Business by Dover (and in any event not later than ten (10) business days after the end of such month), Dover shall furnish to Buyer an unaudited income statement of the Acquired Businesses for such month and a balance sheet of the Acquired Businesses as of the end of such month, prepared on a basis consistent with the Financial Statements. Buyer shall treat all information obtained from Dover, its Affiliates or their respective representatives in accordance with this Section 4.1 as “Evaluation Material” and “Transaction Information,” respectively, under the Confidentiality Agreement, dated as of January 24, 2013, by and between the Parties (the “Confidentiality Agreement”), and Buyer shall continue to honor, and cause its representatives to honor, its obligations thereunder. From the date of this Agreement until the Closing Date, Buyer shall not contact or initiate or engage in discussions relating to the transactions contemplated by this Agreement with any customer, vender or lessor of Dover or any Acquired Business without the prior written consent of Dover; provided, however, that (i) such consent shall not be unreasonably withheld, conditioned or delayed and (ii) no such consent shall be required for contacts or discussions with existing customers or vendors of Buyer or its Affiliates or the engagement in non-substantive discussions with any customers, vendors or lessors of the Acquired Businesses who initiate contact with Buyer that do not pertain to the transactions contemplated by this Agreement beyond the information with respect thereto that is in the public domain or as to which Dover has previously consented. Buyer hereby acknowledges and agrees that any investigation pursuant to this Section 4.1 shall be conducted in such a manner as to not interfere unreasonably with the operations of Dover or any Acquired Business, and Buyer shall not be permitted to undertake any environmental sampling or invasive testing without Dover’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed and, for the avoidance of doubt, this provision shall not require Dover to take any action, or provide any information to Buyer, that would reasonably be deemed to transfer prematurely to Buyer operational control over either Acquired Business, or to constitute unlawful joint activity by Buyer and Dover, in violation of any applicable Competition Law.

Section 4.2. Conduct of Business Pending the Closing. Dover shall use its commercially reasonable efforts to, and to cause each Asset Seller, Equity Seller and Acquired Company to use its respective commercially reasonable efforts to, operate and carry on each Acquired Business in the Ordinary Course of Business and in compliance with all applicable Laws and, to the extent consistent therewith, use its commercially reasonable efforts to preserve intact the current business organization of each Acquired Business, keep the tangible Acquired Assets and tangible assets of each Acquired Company in good working condition (subject to normal wear and tear), keep available the services of the current officers and employees of each Acquired Business and preserve the relationships of each Acquired Business with customers, suppliers and others having business dealings therewith. Without limiting the generality of the foregoing, except as set forth on Schedule 4.2, as expressly required by this Agreement or with prior written consent from Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Dover shall not, and shall cause each Acquired Company and, to the extent related to any Acquired Business, Acquired Asset or Assumed Liability, each Asset Seller not to:

 

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(a) (i) incur or guarantee any Indebtedness, or grant or otherwise allow to exist any Lien (other than Permitted Liens or, in the case of Acquired Real Property, Permitted Real Property Exceptions) with respect to any Acquired Asset or any asset, right or property of any of the Acquired Companies, other than through intercompany borrowings from Dover or an Affiliate of Dover in the Ordinary Course of Business; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; or (iii) make any loans, advances or capital contributions to, or investments in, any other Person;

(b) issue or authorize the issuance of, sell or agree to issue or sell, any shares of the capital stock or other equity interests of any of the Acquired Companies, or grant or amend any of the terms of (including the vesting of) any options, warrants or restricted stock agreements, or repurchase or redeem any stock of, or other equity interests in, any Acquired Company;

(c) split, combine or reclassify any equity interests in any Acquired Company; or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any equity interest in any Acquired Company, other than cash dividends or distributions paid prior to the Closing; provided that such cash dividends or distributions do not result in any Taxes or other Liabilities that are not the sole responsibility of Dover or any of its Affiliates under this Agreement;

(d) sell, lease or otherwise transfer or dispose of any Acquired Assets or assets of any of the Acquired Companies, except for (i) the sale of inventory items in the Ordinary Course of Business, (ii) the sale of any such assets that are obsolete or which have not been used in the Acquired Businesses during the twelve (12) months preceding the date hereof and do not have a value in excess of $150,000 for all such items in the aggregate and (iii) sales, leases, transfers or dispositions between and among Acquired Companies in the Ordinary Course of Business;

(e) (i) purchase or otherwise acquire any assets that are material, individually or in the aggregate, to any of the Acquired Businesses, except for purchases or acquisitions of inventory items in the Ordinary Course of Business, or (ii) make any capital expenditures other than any capital expenditure items that do not exceed $50,000 individually or $150,000 in the aggregate;

(f) open or close any facility or office;

(g) permit any Acquired Company or Asset Seller to merge or consolidate with or into any other Person;

(h) sell, assign, transfer, license or sublicense any Acquired Companies Owned IP or any Acquired Owned IP, other than pursuant to licenses with customers entered into in the Ordinary Course of Business;

(i) engage in (i) any trade loading practices or any other promotional sales or discount activity with any customers with the effect of accelerating to pre-Closing periods sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in post-Closing periods, other than in the Ordinary Course of Business, (ii) any practice which

 

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would have the effect of accelerating to pre-Closing periods collections of receivables that would otherwise be expected (based on past practice) to be made in post-Closing periods, (iii) any practice which would have the effect of postponing to post-Closing periods payments by any Acquired Company or Asset Seller that would otherwise be expected (based on past practice) to be made in pre-Closing periods, or (iv) any other promotional sales, discount activity or deferred revenue activity, in each case in this clause (iv) in a manner outside the Ordinary Course of Business or contrary to generally accepted industry practices;

(j) change the nature or scope of its business being carried on as of the date of this Agreement or commence any new business not being ancillary or incidental to such business or take any action to materially alter its organizational or management structure;

(k) amend the certificate of incorporation, by-laws or other organizational documents of any Acquired Company;

(l) unless required to comply with GAAP or applicable Law, make any material change in accounting methods, principles, practices or policies used by the Acquired Companies;

(m) other than in the Ordinary Course of Business, terminate or modify in any material respect or amend in any material respect any Material Contract or Lease, or enter into any Contract that would be a Material Contract or a Lease if entered into as of the date hereof;

(n) (i) institute any Proceeding involving an amount in dispute in excess of $50,000 or (ii) settle any Proceeding, other than a settlement (A) involving an amount not in excess of $50,000 and (B) which does not contain any admission of fault or any other Liability;

(o) knowingly fail to take any action necessary to preserve the validity of any Acquired Companies Owned IP, any Acquired Owned IP or any Permit, in each case except as would not reasonably be expected to adversely affect the Acquired Businesses in any material respect;

(p) unless required to comply with applicable Law, establish, adopt, amend in any material respect or terminate any Assumed Benefit Plan;

(q) terminate any Current Employee other than for cause, or hire any new employees to work primarily on matters related to the Acquired Businesses, in each case with respect to such Current Employees (or prospective employees) with an annual base salary of more than $100,000;

(r) with respect to any Current Employee with an annual base salary of more than $100,000, (i) grant any increase in the compensation payable to or to become payable to or for the benefit of such employee, other than increases in base salaries and bonus opportunities in the Ordinary Course of Business, (ii) provide increased security or tenure of employment, or (iii) increase the amount payable upon termination of employment, except, in each case, as may be required pursuant to any Contract or sales compensation plans existing on the date of this Agreement and disclosed in Schedule 3.1(p)(i)(A), or as required to comply with applicable Law;

 

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(s) unless required by applicable Law, (i) make or change any material Tax elections; (ii) settle or compromise any claim or assessment with respect to Taxes; (iii) enter into a closing agreement with respect to Taxes; (iv) file any amended Tax Return; (v) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; or (vi) change any Tax accounting method or period, in each case with respect to the Acquired Companies; or

(t) agree or enter into any agreement (in writing or otherwise) to do any of the foregoing;

provided, however, that nothing herein shall prohibit or otherwise restrict, and no prior written consent from Buyer shall be required in connection with, any activities of Dover and its Affiliates related to the spin-off of Dover’s communication technologies businesses or any internal restructuring or similar transactions contemplated by Dover and its Affiliates in connection therewith (the “CTB Spin-off”); provided further, however, that no such activities shall negatively impact, alter or affect Buyer’s acquisition of the Acquired Assets or any Acquired Business pursuant to the terms of this Agreement.

Section 4.3. Further Actions. Subject to Section 4.4, the Parties shall use their reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, and to cooperate in good faith with each other with respect to, all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including using their reasonable best efforts to provide any required notifications, secure any required consents or seek the re-issuance of all licenses, permits (including Environmental Permits), consents, approvals, authorizations, qualifications and orders of Governmental Entities and other third parties, in each case that are necessary for the consummation of the transactions contemplated hereby by such Party or any of its Affiliates or, in the case of Dover’s obligations under this Section 4.3, the continued operations of the Acquired Businesses; provided, that, for the avoidance of doubt, nothing in this Agreement shall require either Party or any of their respective Affiliates to pay any money to, commence or participate in any litigation, offer or grant any accommodation or undertake any obligation or Liability (in each case financial or otherwise) to any Governmental Entity (other than filing fees as contemplated by the last sentence of Section 4.4(a) or any other comparable filing fees payable to a Governmental Entity) or other third party, or waive any condition set forth in Section 6.1 (in the case of Buyer) or Section 7.1 (in the case of Dover).

Section 4.4. Certain Filings.

(a) Filing. Each Party shall make or cause to be made, as promptly as practicable following the date hereof (and in any event within ten (10) business days with respect to any filing that may be required under the HSR Act and as soon as practicable with respect to all other filings), all filings with Governmental Entities that are necessary to obtain all authorizations, consents, orders and approvals for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including all filings required under applicable Competition Laws. Notwithstanding anything in this Agreement to the contrary, all filing fees incurred under Competition Laws in connection with the transactions contemplated hereby shall be borne one-half by Buyer and one-half by Dover.

 

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(b) Additional Actions. Each Party shall respond as promptly as practicable to any requests for additional information made by any Governmental Entities with respect to all filings required under applicable Competition Laws or otherwise and shall use its commercially reasonable efforts to obtain any required approvals of any Governmental Entities under applicable Competition Laws. Notwithstanding anything in this Agreement to the contrary, neither Party nor any of its Affiliates shall have any obligation to defend or initiate any Proceeding in connection with any Competition Law or propose, negotiate, commit to or effect by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets, rights, properties, businesses, product lines or otherwise take or commit to take any action that limits the freedom of action of such Party or any of its Affiliates with respect to, or its ability to retain, any business, product line, asset, right or property.

(c) Cooperation. With respect to any matters related to compliance with Competition Laws, each Party shall, except as may be restricted by applicable Law, (i) promptly inform the other Party of any substantive or otherwise material communication from any Governmental Entity regarding any of the transactions contemplated hereby, (ii) permit the other Party to review in advance any proposed substantive or otherwise material communication to any Governmental Entity, (iii) consult with the other Party prior to any meetings, by telephone or in person, with the staff of any Governmental Entity (including the United States Federal Trade Commission and Department of Justice) regarding the transactions contemplated hereby, and (iv) to the extent permitted by such Governmental Entity, such other Party shall have the right to attend and participate in any such meeting. The Parties agree to request early termination with respect to the waiting period prescribed by the HSR Act.

(d) Chinese Approval. Within ten (10) business days of the date hereof, Dover shall cause each of Everett Charles Technologies (Shenzhen) Limited and Test Solutions (Suzhou) Co., Ltd to make all appropriate filings with local commerce commissions of the localities where Everett Charles Technologies (Shenzhen) Limited and Test Solutions (Suzhou) Co., Ltd. are incorporated for approval of the sale of their entire equity interests held by Dover or its Affiliates (constituting 100% in the registered capital interest in each of Everett Charles Technologies (Shenzhen) Limited and Test Solutions (Suzhou) Co., Ltd.) to Buyer or any Designated Purchaser, followed by other filings with the applicable Governmental Entities in the People’s Republic of China (including filings to relevant local administrations for industry and commerce) as required under Law as soon as practicable. Dover shall obtain all authorizations, consents, approvals and registrations of Governmental Entities in China necessary for such sale to take effect as soon as practicable, including a new Certificate of Approval and a new Business License which record Buyer or its Designated Purchaser as the 100% owner of each of Everett Charles Technologies (Shenzhen) Limited and Test Solutions (Suzhou) Co., Ltd. Dover will use its reasonable best efforts to assist Buyer and any Designated Purchaser in completing relevant post-transfer registrations with the applicable Governmental Entities in China, including amendment of registrations with each local foreign exchange bureau, State and local tax bureaus, customs, statistics bureau and finance bureau, as applicable, in connection with the transfer.

Section 4.5. Notification. Prior to the Closing, Dover shall promptly notify Buyer (in writing after Dover has notice thereof), and Buyer shall promptly notify Dover (in writing after Buyer has notice thereof), and keep such other Party advised, as to (a) any Proceeding initiated against or by such Party or, to the Knowledge of Dover or the Knowledge of Buyer, as

 

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applicable, threatened against such Party that challenges the transactions contemplated hereby or (b) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement. Additionally, prior to the Closing, each Party shall promptly notify the other Party (in writing after such Party has notice thereof) as to (i) the occurrence or non-occurrence of any event the occurrence or non-occurrence of which would or would be reasonably likely to cause any representation or warranty of such Party contained herein to be untrue or inaccurate in any material respect at any time at or prior to the Closing, or which, in the case of Dover, would constitute or would reasonably be expected to result in a Material Adverse Effect and (ii) any event which, in the case of Dover, would reasonably be expected to cause any of the conditions in Article VI not to be fulfilled or, in the case of Buyer, would reasonably be expected to cause any of the conditions in Article VII not to be fulfilled. The delivery of any notice pursuant to this Section 4.5 shall in no circumstance be deemed to (x) modify the representations, warranties, covenants or agreements hereunder of the Party delivering such notice or any Schedule, (y) modify any condition set forth in Article VI, or (z) cure or prevent any misrepresentation, inaccuracy, untruth or breach of any representation, warranty, covenant or agreement set forth in this Agreement or any other document or instrument executed and delivered in connection herewith or failure to satisfy any condition set forth in Article VI.

Section 4.6. Intercompany Accounts. Except as otherwise provided in Section 5.12, on or prior to the Closing Date, Dover shall cause any intercompany accounts involving Dover, any Equity Seller or any Affiliate thereof (other than the Acquired Companies or the Asset Sellers), on the one hand, and any Acquired Company or Asset Seller, on the other hand, to be fully settled and discharged (through payment, dividend, capitalization or otherwise). On or prior to the Closing Date, Dover shall cause to be terminated and cancelled all indemnity obligations from any Acquired Company or Asset Seller, on the one hand, to Dover, any Equity Seller or any Affiliate thereof (other than the Acquired Companies or the Asset Sellers), on the other hand, and shall cause to be released any Liens on any assets of the Acquired Companies or on any Acquired Assets to the extent such Liens secure any Indebtedness of Dover or its Affiliates (other than the Acquired Companies and the Asset Sellers).

Section 4.7. Exclusivity.

(a) From the date hereof until the Closing, Dover shall not, and shall cause its Affiliates and any officers, directors, employees, representatives or agents of Dover or any of its Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiry, proposal, offer or discussion with any party (other than Buyer or its representatives) concerning any acquisition, equity or debt financing, joint venture, merger, reorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of stock, sale of material assets or similar business transaction involving any Acquired Business or Acquired Company, (ii) furnish any information concerning the business, properties or assets of the Acquired Businesses, any Acquired Company or the Acquired Shares to any party (other than Buyer or its representatives) in connection with any such transaction or (iii) engage in negotiations or enter into any agreement with any party (other than Buyer or its representatives) concerning any such transaction.

 

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(b) To the extent it has not done so prior to the date of this Agreement, Dover shall, as soon as reasonably practicable following the date hereof (and in any event, within two (2) business days), notify any party, if any, with which discussions or negotiations of the nature described in Section 4.7(a) were pending at any time during the six (6) month period ending as of the date hereof to return or destroy all confidential information with respect to the Acquired Businesses provided by Dover or its representatives to such party or such party’s representatives. If, after the date hereof but prior to the Closing Date, Dover or any of its Affiliates receives any inquiry, proposal or offer of the nature described in Section 4.7(a), Dover shall, as soon as reasonably practicable after such receipt (and in any event, within two (2) business days), notify Buyer of such inquiry, proposal or offer, but shall not be required to disclose the identity of the other party and the terms of such inquiry, proposal or offer.

Section 4.8. Title Insurance.

(a) Dover shall, at Buyer’s sole cost and expense, use its reasonable best efforts to procure (or cause to be procured), at the Closing, with respect to each item of Acquired Owned Real Property located in the United States, an ALTA Owner’s policy of Title Insurance Form 2006 issued by a title insurer reasonably satisfactory to Buyer (and, if requested by Buyer, reinsured in whole or in part by one or more insurance companies and pursuant to a direct access agreement reasonably acceptable to Buyer), in an amount equal to the fair market value of such real property (including all improvements located thereon), insuring title to such real property to be in Buyer, the applicable Designated Purchaser or the applicable Acquired Company as of the Closing (subject only to Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions).

(b) Each title insurance policy obtained under Section 4.8(a) shall: (i) insure title to the real property and all recorded easements benefiting such real property, (ii) contain an “extended coverage endorsement” insuring over the general exceptions contained customarily in such policies, (iii) contain an ALTA Zoning Endorsement 3.1 (or the equivalent thereof), (iv) contain an endorsement insuring that the real property described in the title insurance policy is the same real estate as shown on the survey delivered pursuant to Section 4.9 with respect to such property, (v) contain an endorsement insuring that each street adjacent to the real property is a public street and that there is direct and unencumbered pedestrian and vehicular access to such street from the real property, (vi) if the real property consists of more than one record parcel, contain a “contiguity” endorsement insuring that all of the record parcels are contiguous to one another, and (vii) contain a “non-imputation” endorsement to the effect that title defects known to the officers, directors, and stockholders of the owner prior to the Closing shall not be deemed “facts known to the insured” for purposes of the policy.

Section 4.9. Surveys. With respect to each parcel of Acquired Owned Real Property as to which a title insurance policy is to be procured pursuant to Section 4.8, Dover shall use its reasonable best efforts to procure (or cause to be procured), at Buyer’s sole cost and expense, prior to the Closing, a current survey of the real property certified to Buyer, prepared by a licensed surveyor and conforming to current ALTA Minimum Detail Requirements for Land Title Surveys, disclosing the location of all improvements, easements, party walls, sidewalks, roadways, utility lines, and other matters shown customarily on such surveys, and showing access affirmatively to public streets and roads.

 

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Section 4.10. Release of Dover Guarantees. Within 30 days of the Closing, Buyer agrees to provide sufficient cash deposits, collateral, letters of credit or other credit support to Deutsch Bank and the Royal Bank of Scotland to release Dover and its Affiliates from the guarantees identified on Schedule 3.1(o)(v). If after Closing, but prior to Dover and its Affiliates being released from these guarantees, Dover or its Affiliates makes a payment in respect to any such guarantee for any Liability that would constitute an Assumed Liability, Buyer will reimburse Dover and its Affiliates for any such payments within three (3) business days of receiving written notice from Dover or its Affiliates.

ARTICLE V

ADDITIONAL COVENANTS

Section 5.1. Tax Matters.

(a) Tax Indemnification.

(i) If the Closing occurs, Dover shall be liable for and shall indemnify and hold harmless the Buyer Indemnified Parties from and against all Losses attributable to (A) Taxes imposed on the Acquired Companies or for which the Acquired Companies are liable for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (B) Taxes imposed on any of the Acquired Companies pursuant to Treasury Regulation Section 1.1502-6 or similar provision of state or local Law solely as a result of such Acquired Company having been a member at any time on or before the Closing Date of a Consolidated Tax Group, (C) Taxes and all associated costs with respect to the matter listed on Schedule 5.1(a) (the “VAT Issue”) and (D) all Taxes that constitute Excluded Liabilities; provided, however, that Dover shall not be liable for or pay, and shall not indemnify the Buyer Indemnified Parties from and against, any Losses attributable to (x) any Taxes to the extent of the amount taken into account in the determination of Closing Date Working Capital, (y) any Taxes imposed on the Acquired Companies or any other Buyer Indemnified Parties, or for which any of them is otherwise liable, (exclusive of any Taxes for which the Acquired Companies are liable pursuant to clause (B)), that are either Section 338(h)(10) Taxes or any other Taxes that result from any actual or deemed election, or from Buyer, any Affiliate of Buyer, or any of the Acquired Companies engaging in any activity or transaction not contemplated by this Agreement, in either case that would cause the transactions contemplated by this Agreement to be treated for Tax purposes as a purchase or sale of assets of any of the Acquired Companies that are treated as corporations for applicable income Tax purposes and (z) any Taxes imposed on any of the Acquired Companies as a result of transactions occurring on the Closing Date not in the Ordinary Course of Business that are properly allocable to the portion of the Closing Date after the Closing (Taxes described in this proviso, the “Excluded Taxes”). Dover shall be entitled to any refund of (or credit for) Taxes for which it is liable under this Agreement or allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, except to the extent such refund or credit was taken into account as an asset in the determination of Closing Date Working Capital; provided, further, in no event shall Buyer carry back any tax item attributable to any taxable year or period that commences after the Closing Date (or any Straddle Period) to any taxable year or period that

 

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ends on or before the Closing Date without the prior written consent of Dover, which consent shall not be unreasonably withheld, and any refund attributable to any such carry back of any item attributable to a taxable year or period commencing after the Closing Date (and any refund attributable to any such carry back of any item attributable under Section 5.1(a)(iii) to the portion of a Straddle Period beginning after the Closing Date) shall be for the account of Buyer. Buyer shall, and shall cause its Affiliates to, reasonably cooperate with Dover to secure any refund or credit to which Dover is entitled, including through the filing of amended Tax Returns, provided that Dover shall promptly reimburse Buyer for all reasonable, out of pocket costs and expenses incurred by Buyer and its Affiliates in connection with such activities.

(ii) Buyer shall be liable for and shall indemnify and hold harmless the Dover Indemnified Parties from and against all Losses attributable to (A) Taxes imposed on any of the Acquired Companies or for which the Acquired Companies are liable for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date, (B) Excluded Taxes and (C) any Taxes imposed on the Dover Indemnified Parties (for the avoidance of doubt, excluding the Acquired Companies), or for which any of them is liable, that are either Section 338(h)(10) Taxes or any other Taxes as a result of any actual or deemed election, or from Buyer, any Affiliate of Buyer, or any of the Acquired Companies engaging in any activity or transaction not contemplated by this Agreement, in either case that would cause the transactions contemplated by this Agreement to be treated for Tax purposes as a purchase or sale of assets of any of the Acquired Companies that are treated as corporations for applicable income Tax purposes; provided, that the Taxes subject to indemnification pursuant to this clause (C) shall be reduced by the amount of Taxes that would have been incurred by the Dover Indemnified Parties (for the avoidance of doubt, excluding the Acquired Companies) had the acquisition of the relevant Acquired Company been treated instead as a purchase and sale of the equity interests in such Acquired Company for the relevant Tax purposes.

(iii) For purposes of Sections 5.1(a)(i), 5.1(a)(ii) and 5.1(b), whenever it is necessary to determine the Liability for Taxes of an Acquired Company (or any refund or credit) for the portion of a Straddle Period that ends on or before the Closing Date, and the portion of a Straddle Period that begins after the Closing Date, the determination shall be made by assuming that such Straddle Period consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the relevant Acquired Company were closed at the close of the Closing Date; provided, however, that (A) transactions occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing and that are not in the Ordinary Course of Business shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date, and (B) exemptions, allowances or deductions that are calculated on an annual basis, such as property Taxes, depreciation deductions, tax brackets and exemption amounts, shall be apportioned between such two (2) taxable years or periods on a daily basis. Any estimated Tax payments made on or before the Closing Date with respect to a Straddle Period in excess of the Liability for the related Taxes for the portion of the Straddle Period that ends at the close of the Closing Date and which are not taken into account as an asset in the determination of Closing Date Working Capital, shall be treated as a refund to which Dover is entitled pursuant to Section 5.1(a)(i).

 

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(iv) Notwithstanding anything to the contrary in this Agreement, Dover and Buyer agree that Dover makes no representation or warranty, and provides no other assurance or indemnification, with respect to the amount of any Tax Attributes of any of the Acquired Companies or the Acquired Assets, or with respect to the availability on and after the Closing Date of any Tax Attributes of any of the Acquired Companies or the Acquired Assets.

(b) Tax Returns; Payment of Taxes.

(i) Dover shall, at its expense, timely file or cause to be timely filed when due (taking into account all extensions properly obtained) (A) all Tax Returns that are required to be filed by or with respect to any of the Acquired Companies on a combined, consolidated or unitary basis with Dover or any Affiliate thereof (other than an Acquired Company), (B) all other income Tax Returns that are required to be filed by or with respect to any of the Acquired Companies for taxable years or periods ending on or before the Closing Date and (C) all other Tax Returns that are required to be filed by or with respect to the Acquired Companies (taking into account all extensions properly obtained) on or prior to the Closing Date. In each case, Dover shall remit or cause to be remitted any Taxes due in respect of such Tax Returns. Buyer shall timely file or cause to be timely filed when due (taking into account all extensions properly obtained) all other Tax Returns that are required to be filed by or with respect to any of the Acquired Companies after the Closing Date and Buyer shall remit or cause to be remitted any Taxes due in respect of such Tax Returns; provided, however, that, in all cases to the extent Dover or Buyer is liable pursuant to Section 5.1(a), for Taxes remitted by the other Party pursuant to this Section 5.1(b), Dover or the Buyer, as the case may be, shall promptly reimburse the other Party for any Taxes for which Dover or the Buyer, respectively, is liable pursuant to Section 5.1(a).

(ii) All Tax Returns that Buyer is required to file or cause to be filed in accordance with this Section 5.1(b) that relate to any taxable year or period ending on or before the Closing Date or any Straddle Period shall be prepared and filed in a manner consistent with past practice and, on such Tax Returns, no position shall be taken, election made or method adopted that is inconsistent with positions taken, elections made or methods used in preparing and filing similar Tax Returns in prior periods; provided, however, that in no event shall Buyer be obligated to take any such actions to the extent it is advised by a professional Tax advisor that to do so would more likely than not give rise to the imposition of penalties if the matter were contested by the applicable Tax authority. With respect to any such Tax Return to be filed by Buyer, not less than fifteen (15) days prior to the due date for such Tax Return, taking into account extensions (or, if such due date is within fifteen (15) days following the Closing Date, as promptly as practicable following the Closing Date), Buyer shall provide Dover with a draft copy of such Tax Return for Dover’s approval.

(iii) Without the prior written consent of Dover, which consent shall not be unreasonably withheld, conditioned or delayed, none of Buyer or any Affiliate of Buyer shall (or shall cause or permit any of the Acquired Companies to) make or change any Tax election, or amend, refile or otherwise modify (or grant an extension of any statute of limitations with respect to) any Tax Return, relating in whole or in part to any of the Acquired Companies with respect to any taxable year or period ending on or before the Closing Date or with respect to any Straddle Period.

 

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(iv) Buyer shall promptly prepare and provide to Dover, or cause the Acquired Companies to prepare and provide to Dover, a package of Tax information materials, including schedules and work papers required by Dover to enable Dover to prepare and file all Tax Returns required to be prepared and filed by it pursuant to this Section 5.1(b) (the “Tax Package”). The Tax Package shall be completed in accordance with past practice, including past practice as to providing such information and as to the method of computation of separate taxable income or other relevant measure of income of the Acquired Companies. Buyer shall cause the Tax Package to be delivered to Dover within 120 days after the Closing Date (but in any event no later than March 1, 2014).

(v) Each of Buyer and Dover shall be liable for and pay 50% of any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, recording, registration, documentary, filing or other similar non-income Taxes and administrative fees (including notary fees) arising in connection with the consummation of the transactions contemplated by this Agreement. All necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges shall be filed by the Persons who are required by applicable Law to file such Tax Returns or documentation.

(c) Contest Provisions.

(i) Buyer shall promptly notify Dover in writing upon receipt by Buyer or any of its Affiliates of notice in writing of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any taxable period ending on or before the Closing Date or any Straddle Period or relating to a Tax for which Dover may be liable pursuant to this Agreement.

(ii) Dover shall have the sole right to represent each Acquired Company’s interests in any Proceeding with any Governmental Entity relating to Taxes (“Tax Proceeding”) (x) relating to a taxable year or period ending on or before the Closing Date, (y) relating to the VAT Issue, or (z) relating to Taxes payable in connection with a Tax Return filed by any Consolidated Tax Group (other than one consisting solely of one or more Acquired Companies), and to employ counsel of Dover’s choice at Dover’s expense; provided, however, that, except to the extent related to the VAT Issue or any Taxes described in clause (z), (A) Dover shall inform Buyer of the status of any such Tax Proceeding, (B) Dover shall provide Buyer (at Buyer’s cost and expense) with complete and accurate copies of any pleadings, correspondence and other documents (in each case, as Buyer may reasonably request in writing) in respect of any such Tax Proceeding, (C) Buyer and its representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any such Tax Proceeding, (D) Dover shall consult with Buyer prior to any settlement of any such Tax Proceeding and (E) Dover shall, prior to any proposed settlement by Dover of any such Tax Proceeding that could reasonably be expected to materially adversely affect Buyer or the Acquired Companies in any taxable period (including portions of any Straddle Period) ending after the Closing Date or give rise to a Tax payment upon such settlement for which Buyer may be liable pursuant to Section 5.1(a)(ii), (I) notify Buyer in writing of the terms of such proposed settlement, stating that Dover is prepared

 

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to, and has received reasonable assurances from the applicable Governmental Entity that it is prepared to, settle the Tax Proceeding on the basis of such terms and (II) provide to Buyer such other information in Dover’s possession as may be reasonably necessary to allow Buyer to evaluate the consequences of such proposed settlement. Within thirty (30) days after receiving a notice described in clause (E) of the preceding sentence, Buyer shall notify Dover in writing either (1) that Buyer agrees to such settlement, in which case Dover shall be entitled to settle such Tax Proceeding in accordance with such terms, or (2) that Buyer does not agree to such settlement, and agrees in writing that Buyer (i) shall represent the relevant Acquired Company’s interests in any such Tax Proceeding, (ii) shall waive any right to indemnification relating to such Tax Proceeding in excess of the indemnification that would be payable upon settlement of such Tax Proceeding on such terms, and (iii) shall indemnify and hold harmless the Dover Indemnified Parties from and against all Losses attributable to such Tax Proceeding (other than Dover’s indemnification obligation based on the proposed settlement), in which case Buyer shall have the sole right to represent the Acquired Company’s interests in such Tax Proceeding (provided that Dover and its representatives shall be permitted, at Dover’s expense, to be present at, and participate in, any such Tax Proceeding); provided that any failure by Buyer to timely provide such notice shall be deemed to be notice as described in clause (1).

(iii) Buyer shall have the sole right to represent any Acquired Company’s interests in any other Tax Proceeding (including, for the avoidance of doubt, any such Tax Proceeding relating to a Straddle Period other than a Tax Proceeding relating to the VAT Issue or any Tax described in clause (z) of the first sentence of Section 5.1(c)(ii)); provided, however, that, with respect to any such Tax Proceeding relating to a Tax for which Dover may be liable pursuant to this Agreement, Buyer shall consult with Dover prior to any settlement of any such Tax Proceeding. In addition, except in the case of the VAT Issue or Taxes described in clause (z) of the first sentence of Section 5.1(c)(ii), Buyer shall have the sole right to represent any Acquired Company’s interests in any Tax Proceeding relating to any taxable period or Tax with respect to which Dover otherwise had the sole right to undertake such representation to the extent that Dover failed, after reasonable notice from Buyer, to undertake such representation in a timely manner and Buyer provides notice, and agrees in writing, in the manner set forth in clause (2) of the second sentence of Section 5.1(c)(ii) (with the amount payable upon failure to pursue such representation being treated as the settlement amount). With respect to any Tax Proceeding that Buyer controls in accordance with this Section 5.1(c)(iii) other than a Tax Proceeding relating to a Tax Return of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time after the Closing Date, includes any Acquired Company and any entity that is not an Acquired Company or a successor to an Acquired Company, or any other group of entities filing Tax Returns on a combined, consolidated or unitary basis that, at any time after the Closing Date, includes any Acquired Company and any entity that is not an Acquired Company or a successor to an Acquired Company, Buyer shall, prior to any proposed settlement by Buyer of any such Tax Proceeding that could reasonably be expected to materially adversely affect the Dover Indemnified Parties in any taxable period ending on or before the Closing Date (or the portion of any Straddle Period ending on the Closing Date) or give rise to a Tax upon such settlement for which Dover may be liable pursuant to this Agreement, (I) notify Dover in writing of the terms of such proposed settlement, stating that Buyer is prepared to, and has received reasonable assurances from the applicable Governmental Entity that it is prepared to, settle the Tax Proceeding on the basis of such terms and (II) provide to Dover such other information in

 

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Buyer’s possession as may be reasonably necessary to allow Dover to evaluate the consequences of such proposed settlement. Within thirty (30) days after receiving a notice described in clause (I) of the preceding sentence, Dover shall notify Buyer in writing either (1) that Dover agrees to such settlement, in which case Buyer shall be entitled to settle such Tax Proceeding in accordance with such terms, or (2) that Dover does not agree to such settlement, and agrees in writing that Dover (i) shall represent the relevant Acquired Company’s interests in any such Tax Proceeding, (ii) shall waive any right to indemnification relating to such Tax Proceeding in excess of the indemnification that would be payable upon settlement of such Tax Proceeding on such terms, and (iii) shall indemnify and hold harmless the Buyer Indemnified Parties from and against all Losses attributable to such Tax Proceeding (other than Buyer’s indemnification obligation based on the proposed settlement), in which case Dover shall have the sole right to represent the Acquired Company’s interests in such Tax Proceeding (provided that Buyer and its representatives shall be permitted, at Buyers expense, to be present at, and participate in, any such Tax Proceeding); provided that any failure by Dover to timely provide such notice shall be deemed to be notice as described in clause (1).

(d) German VAT.

(i) Dover and Buyer are cognizant of the VAT Issue and agree that the guiding principle shall be that the VAT Issue shall be neutral to Buyer (including the Acquired Companies and the Acquired MT Singapore Business) such that Dover will make Buyer whole for any detriment therefrom and conversely Buyer will turn over any benefits Buyer (including the Acquired Companies and the Acquired MT Singapore Business) receives therefrom to Dover. Therefore, in furtherance of this guiding principle Dover and Buyer agree that, notwithstanding anything in this Agreement to the contrary:

(A) Dover shall not, and shall cause its Affiliates not to, assert or invoke any claim, including any compensation or civil law claims, against any Acquired Company that it may have arising from or relating to the VAT group described on Schedule 5.1(a) or the VAT Issue irrespective if the compensation may relate to value-added tax (“VAT”) amounts, interest amounts, penalty payments or any costs of handling, filing or advising with respect thereto, whether internal or external, except to the extent arising out of the knowing and willful non-compliance by the Buyer, any Acquired Company or the Acquired MT Singapore Business with the provisions of clause (ii), (iii) or (iv) of this Section 5.1(d).

(B) Dover will indemnify and hold harmless Buyer, MTeS and each other Acquired Company from and against any losses, including any VAT, interest or penalty payment claims by the German tax authorities, including from secondary liability (Haftungstatbestände) or from any shortcoming of the VAT group described on Schedule 5.1(a), except to the extent arising out of the knowing and willful non-compliance by the Buyer, any Acquired Company or the Acquired MT Singapore Business with the provisions of clause (ii), (iii) or (iv) of this Section 5.1(d).

(C) Dover shall not, and shall cause its Affiliates not to, assert or invoke any claims arising from the fact that MTeS or any other Acquired Company destroyed invoice, shipping or other related documents, and Dover shall indemnify and hold harmless Buyer and each Acquired Company from and against any claims by German tax authorities (Finanzbehörden) arising out of or relating to such missing or insufficient documents.

 

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(D) Nothing in this Section 5.1(d)(i) shall restrict Dover’s rights to seek specific performance of the obligations set out in clauses (ii) and (iii) of this Section 5.1(d).

(ii) Notwithstanding anything to the contrary in this Agreement, Buyer agrees that it shall, and shall cause each of the Acquired Companies and the Acquired MT Singapore Business to, reasonably cooperate with Dover and its Affiliates with respect to the VAT Issue and provide reasonable assistance to Dover and its Affiliates to limit any Tax detriments to Dover and its Affiliates with respect to the VAT Issue; provided, however, that any such cooperation and assistance shall be at Dover’s expense and shall not reasonably be expected to have any adverse consequences to Buyer or any of its Affiliates.

(iii) Without limiting the generality of Section 5.1(d)(ii) Buyer shall, to the extent directed by Dover in writing and at the expense of Dover:

(A) cause Multitest elektronische Systeme GmbH (“MTeS”) to issue revised invoices to Everett Charles Technologies LLC (“ECT US”), Multitest US, Dover Global Trading PTE Ltd (“MT Singapore”) and, if applicable, the Designated Purchaser(s) that acquire(s) the assets of MT Singapore pursuant to this Agreement (the “Acquired MT Singapore Business”), and any other person or business that entered into sales transactions involved in the VAT Issue with MTeS for the current or any prior years, setting forth the proper amount of German VAT, in each case to the extent such steps can be reasonably taken based on the documentation in existence at each such entity, and provided or otherwise transferred to Buyer or its Affiliates, as of the Closing (or otherwise provided by Dover);

(B) cause ECT US, Multitest US and, if applicable, the Acquired MT Singapore Business, and any other Acquired Company or Acquired Business that entered into such sales transactions with MTeS, to accept such revised invoices and pay over to MTeS or, at Dover’s election, to Dover Germany any such German VAT set forth on such invoices (provided, in each case, that Dover advances to Buyer or its designee that amount of such German VAT prior thereto); or, at Dover’s election, in lieu of making any such payment, assign any input VAT credits received under Section 5.1(d)(iii)(D) below in settlement of such payment obligation. For the avoidance of doubt, ECT US, Multitest US or any other Acquired Company or Acquired Business are not held to pay any such German VAT amounts set forth on such invoices if and to the extent they did not receive such amounts from Dover in advance.

(C) cause MTeS to pay over to Dover Germany or, at Dover’s election, to the applicable Governmental Entities any such German VAT, provided that Dover advanced to Buyer or its designee that amount of such German VAT prior thereto; and

(D) provided that Dover shall have previously advanced all associated costs to Buyer, cause ECT US, Multitest US and, if applicable, the Acquired MT Singapore Business, and any other Acquired Company that entered into such sales transactions with MteS to register for VAT reporting and input VAT credit purposes with the applicable Governmental Entities, claim any input VAT credits or similar benefits with respect to such

 

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German VAT to which they may be entitled and, within five (5) business days after receipt, pay such amounts over to Dover or its designee; provided, no such amounts shall be so paid to the extent attributable to input VAT credits or similar benefits taken into account as an asset in the determination of Closing Date Working Capital, or provided further, such input VAT credits were used at Dover’s direction pursuant to Section 5.1(d)(iii)(B) above. Notwithstanding anything herein to the contrary, in all events, regardless of the manner of payment of VAT invoices, Buyer shall assign or cause to be assigned all of such input VAT credits to Dover Germany unless Dover has directed Buyer in writing otherwise.

For all filings on behalf of the Acquired Companies and Acquired Businesses following Closing that Dover prepares, Dover shall make such invoices, returns or communication available for review to Buyer and its advisors a reasonable time before filing; neither Buyer nor any of its Affiliates will be liable for any incomplete or missing records, documents or filing materials.

(iv) Without limiting the generality of Section 5.1(d)(ii) Buyer shall, with respect to the VAT Issue, cause each of Multitest GmbH (“MTG”), MTeS, ECT US, Multitest US, and the Acquired MT Singapore Business (collectively, the “Multitest Companies”) to:

(A) Promptly make available to Dover and Dover Germany without prior demand any substantive written communication (including e-mails) received from Governmental Entities or substantive communication made with Governmental Entities or in the case of verbal communication provide to Dover and Dover Germany a brief summary thereof in reasonable detail;

(B) include Dover, Dover Germany and their advisers in all substantive discussions with any Governmental Entities and, except where prohibited by Law or the representative of a Governmental Authority, grant Dover, Dover Germany and their advisers the sole right to represent the Multitest Companies’ interests in such discussions at Dover’s expense, it being agreed that Dover’s advisers shall promptly report to Buyer any steps taken, including meetings and oral discussions, and provide copies of any written document to the applicable Multitest Company;

(C) not settle any Taxes or admit to facts or legal analyses without prior written approval from Dover or Dover Germany, such approval not to be unreasonably withheld, conditioned or delayed;

(D) as requested by Dover, give Dover, Dover Germany and their advisers reasonable access to the advisers of the Multitest Companies;

(E) as requested by Dover, release any applicable Governmental Entities from confidentiality requirements for the benefit of Dover and Dover Germany; and

(F) as requested by Dover, use reasonable efforts to obtain helpful records and documentation from third-party service providers (for example, forwarding agents and freight companies) and third-party customers.

 

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(v) Without limitation and except where no delegation is permitted by Law, Buyer and its Affiliates may engage third parties to manage, assist in the satisfaction of, and satisfy all of Buyer’s obligations set out in clauses (ii) and (iii) of this Section 5.1(d), at Dover’s sole expense.

(vi) Dover will bear all costs, including internal costs, associated with the VAT Issue, including all costs associated with reporting, registration and VAT refund process and shall also bear, and promptly compensate Buyer for, all other cost incurred by Buyer and its Affiliates in connection with the activities described clauses (ii), (iii) and (iv) of this Section 5.1(d). Dover shall, within five (5) business days after receipt of an invoice from Buyer, advance to Buyer all costs in excess of $10,000 expected to be incurred by Buyer in connection therewith.

(vii) Dover will indemnify, hold harmless and reimburse Buyer and its Affiliates from any direct or indirect losses or claims arising out of or relating to the VAT issue, including the cooperation contemplated by this Section 5.1(d) and all costs incurred by Buyer or its Affiliates in connection with tax audits or information requests by German tax authorities.

(e) Assistance and Cooperation. After the Closing Date, each of Dover and Buyer shall (and shall cause their respective Affiliates to):

(i) timely sign and deliver such certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise reduce), or file Tax Returns or other reports with respect to, Taxes described in Section 5.1(b)(v) (relating to sales, transfer and similar Taxes);

(ii) assist the other Party in preparing any Tax Returns which such other Party is responsible for preparing and filing in accordance with Section 5.1(b), and in connection therewith, provide the other Party with any necessary powers of attorney or signatures;

(iii) cooperate in preparing for and defending any audits of, or disputes with taxing authorities regarding, any Tax Returns of any of the Acquired Companies;

(iv) make available to the other and to any taxing authority as reasonably requested all information, records and documents relating to Taxes of the Acquired Companies and the Asset Sellers; and

(v) furnish the other with complete and accurate copies of all correspondence received from any taxing authority in connection with any Tax audit or information request relating to Taxes for which the other may be liable.

(f) Election Pursuant to Code Section 338(h)(10).

(i) At the Closing, Dover shall deliver to Buyer with respect to Multitest Electronic Systems, Inc. (“Multitest US”) a completed and properly executed original copy of (i) IRS Form 8023 and required schedules thereto (if any) and (ii) to the extent required, a properly executed original of any similar forms with respect to state income Taxes. Prior to the

 

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Closing Date, Buyer will provide Dover with the information regarding Buyer or the applicable Designated Purchaser necessary to enable Dover to complete the forms described in this Section 5.1(f)(i). The IRS Forms 8023 and similar state forms that Dover delivers at the Closing will be complete in all respects. Neither Buyer nor Dover shall file or permit to be filed any such IRS Form 8023 or similar state form except as required pursuant to Section 5.1(f)(iii).

(ii) Within one hundred twenty (120) days following the Closing Date, Dover shall deliver to Buyer a notice setting forth in reasonable detail (x) Dover’s estimate of the amount, if any, by which (A) the aggregate federal income tax basis of the stock of Multitest US sold pursuant to this Agreement by Delaware Capital Formation, Inc. exceeds (B) the aggregate federal income tax basis of the assets of Multitest US (in each case as of the Closing Date) (such excess, the “Basis Excess Amount,” and such estimate, the “Estimated Basis Excess Amount”), (y) Dover’s estimate of the excess, if any, of (A) the sum of the aggregate federal, state, local and other Taxes that will be imposed on the Dover Indemnified Parties upon the sale of all the stock of Multitest US to Buyer pursuant to this Agreement if Parent and Buyer make a joint election under Section 338(h)(10) of the Code and any similar provisions of applicable state law with respect to such sale (the “Section 338(h)(10) Election”) over (B) the aggregate federal, state, local and other Taxes that will be imposed on the Dover Indemnified Parties upon such sale if the Section 338(h)(10) Election is not made (such excess, the “Section 338(h)(10) Tax Amount,” and such estimate, the “Estimated Section 338(h)(10) Tax Amount”), and (z) Dover’s estimate of the Gross-Up Amount (such estimate, the “Estimated Gross-Up Amount). All amounts to be determined pursuant to this Section 5.1(f)(ii) shall be determined in accordance with Section 5.1(f)(viii).

(iii) If Buyer determines in its sole discretion that it wishes to make the Section 338(h)(10) Election, (A) Buyer shall so notify Dover (such notification, the “Election Notice”), not later than thirty (30) days following the receipt by Buyer of the notice set forth in Section 5.1(f)(ii) and, (B) not later than ten (10) days following delivery of the Election Notice, Buyer shall pay to Dover or the Designated Seller (as directed by Dover), by wire transfer of immediately available funds to the bank account or accounts specified by Dover, a dollar amount equal to the sum of the Estimated Section 338(h)(10) Tax Amount and the Estimated Gross-Up Amount. If such wire transfer is made, Buyer shall file or cause to be filed the completed and executed IRS Form 8023 and similar state forms delivered to it pursuant to Section 5.1(f)(i) not later than the due date for timely filing such IRS Form 8023 or state form. Buyer shall promptly notify Dover of each such filing and shall provide Dover with copies of all such filed forms.

(iv) If Buyer timely provides Dover with the Election Notice, Buyer shall, concurrently with delivery of the Preliminary Allocation Schedule in accordance with Section 2.5(b)(i) (or, if later, concurrently with delivery of the Election Notice), deliver to Dover a Preliminary Asset Allocation Schedule allocating the ADSP (as such term is defined in Treasury Regulation Section 1.338-4) for the assets of Multitest US among the assets of Multitest US. Such Preliminary Asset Allocation Schedule shall be reasonable and shall be prepared in accordance with Section 338(h)(10) of the Code and the Treasury Regulations thereunder, based on the amount allocated to the stock of Multitest US on the Preliminary Allocation Schedule plus the Estimated Section 338(h)(10) Tax Amount and Estimated Gross-Up Amount. Such Preliminary Asset Allocation Schedule shall be subject to resolution in accordance with Section 2.5(b).

 

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(v) Within sixty (60) days following the filing of final U.S. federal income tax returns for the taxable year of Dover in which the Closing occurs, Dover shall deliver to Buyer a notice setting forth in reasonable detail its determination of the Basis Excess Amount, the Section 338(h)(10) Tax Amount and the Gross-Up Amount in accordance with the Section 5.1(f)(viii). If (i) the sum of the Section 338(h)(10) Tax Amount and the Gross-Up Amount exceeds (ii) the sum of the Estimated Section 338(h)(10) Tax Amount and the Estimated Gross-Up Amount, then Buyer shall pay or cause to be paid to Dover or the Designated Seller (as directed by Dover), by wire transfer of immediately available funds to the bank account or accounts specified by Dover, a dollar amount equal to such excess; provided, however, that no such payment shall be made to the extent attributable to the Basis Excess Amount being in excess of five percent (5%) greater than the Estimated Basis Excess Amount. If (i) the sum of the Estimated Section 338(h)(10) Tax Amount and the Estimated Gross-Up Amount exceeds (ii) the sum of the Section 338(h)(10) Tax Amount and the Gross-Up Amount, then Dover shall pay or cause to be paid to Buyer by wire transfer of immediately available funds to the bank account or accounts specified by Buyer, a dollar amount equal to such excess.

(vi) Any amount required to be paid pursuant to Section 5.1(f)(v) shall be paid within thirty (30) days following the receipt by Buyer of the notice from Dover set forth in Section 5.1(f)(v). Payment by Buyer of the Section 338(h)(10) Tax Amount and Gross-Up Amount shall be treated for Tax purposes as an increase in amount paid by Buyer (or the applicable Designated Purchaser) for the stock of Multitest US. Upon payment of any amount required to be paid pursuant to Section 5.1(f)(v), the parties shall make any necessary changes to the Final Asset Allocation Schedule (if any) with respect to the assets of Multitest US.

(vii) For purposes of this Section 5.1(f), the “Gross-Up Amount” shall be an amount equal to all increases in federal, state, local or other Taxes (including estimated Taxes) payable by Dover or any of its Affiliates as a result of the receipt of the Section 338(h)(10) Tax Amount and the amounts payable pursuant to this Section 5.1(f)(vii), such that the after-Tax proceeds to Dover and its Affiliates of such amounts is equal to the Section 338(h)(10) Tax Amount. All calculations shall be made at the time of the relevant determination using reasonable assumptions (as agreed to by the Parties).

(viii) For purposes of this Section 5.1(f), all determinations of Tax basis, estimated Taxes, Taxes and other amounts shall be made at the time of the relevant determination using reasonable assumptions (as agreed to by the Parties). Notwithstanding the foregoing, the Parties agree that such calculations shall be based upon representations to be provided by Dover (together with reasonable detail supporting such representations). Nothing in this Agreement shall entitle Buyer to review the Tax Returns of Dover or any of its Affiliates or to dispute the Tax return reporting position of any item by Dover or its Affiliates that is unrelated to the Section 338(h)(10) Election.

(ix) If, as a result of an examination, audit or similar Proceeding, the Section 338(h)(10) Tax Amount or the Gross-Up Amount is determined to exceed the amount previously taken into account pursuant to this Section 5.1(f), Buyer shall be liable for and shall indemnify and hold harmless the Dover Indemnified Parties from and against all Losses attributable to such excess (plus any Gross-Up Amount attributable to such excess) pursuant to Section 5.1(a)(ii); provided, however, Buyer shall not be liable for and shall not indemnify and

 

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hold harmless the Dover Indemnified Parties to the extent such excess (plus any Gross-Up Amount attributable to such excess) is attributable to the Basis Excess Amount being in excess of five percent (5%) greater than the Estimated Basis Excess Amount.

(g) Check-the-Box Elections. Dover and Buyer agree that without the written consent of Dover, Buyer shall not make nor cause or permit to be made any election under Treasury Regulation Section 301.7701-3(c) or under any applicable similar provision of state or foreign Law with respect to any Acquired Company that would be effective for any portion of any period on or before the Closing Date or could increase any Tax Liability of Dover or any of its Affiliates for any period.

(h) Termination of Tax Sharing Arrangements. All Tax Sharing Arrangements with respect to or involving the Acquired Companies shall be terminated prior to the Closing Date (except that, if required by Law, the German Profit and Loss Arrangement shall be terminated simultaneously with the Closing) and, from and after the Closing Date, Buyer and its Affiliates shall not be bound thereby or have any liability or rights thereunder for amounts due in respect of periods ending on or before the Closing Date.

(i) Scope of Section 5.1. Any claim by any Party relating to a breach by another Party of its obligations under this Section 5.1 shall be pursued in accordance with the procedures for indemnification claims, and shall otherwise be subject to the terms and conditions, set forth in Article IX. Notwithstanding the foregoing or any other term or condition of Article IX, (i) claims for a breach of an obligation under this Section 5.1 may be made by a Party at any time (A) in the case of a breach relating to Taxes in the United States or any state or territory thereof, prior to the 60th day after the expiration of the longest statute of limitations applicable to the Tax matter to which the claim relates and (B) in the case of a breach relating to Taxes outside of the United States or any state or territory thereof, prior to six (6) months following a final and binding assessment for any Taxes or expiration of statute of limitations, whichever is later and (ii) indemnification for claims under this Section 5.1 are not subject to the limitations of Section 9.1(b).

Section 5.2. Employee Matters.

(a) Transferred Employees.

(i) Not later than fifteen (15) days prior to the Closing Date, Buyer (or an Affiliate of Buyer) shall make offers of employment to each Current Employee who is employed by a Business Asset Seller as of the date hereof, including such individuals who are not actively at work on account of illness, disability or leave of absence (collectively, the “Asset Employees”). As between Buyer and its Affiliates, on one hand, and Dover and its Affiliates (including the Business Asset Sellers) on the other hand, Buyer and its Affiliates, as applicable, shall assume responsibility for short-term disability benefits for any individual receiving such benefits as of the Closing. Dover and its Affiliates shall retain responsibility for long-term disability benefits for any individual receiving such benefits under a Retained Benefit Plan as of the Closing and any other individual who becomes entitled to receive long-term disability benefits as a result of an illness or injury incurred prior to the Closing if said individual makes a claim for such benefits within ninety (90) days after the Closing Date. Such offers of

 

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employment shall be effective as of, and contingent upon, the Closing. Schedule 5.2(a)(i) lists all Asset Employees, including their name and the name of their employer. The offers of employment for each such Asset Employee will supersede any prior agreements regarding the terms and conditions of employment between such Asset Employee and the applicable Business Asset Seller as in effect prior to the Closing, and, without limiting any assignment of such provisions and agreements otherwise provided by this Agreement or any other document or instrument executed and delivered in connection herewith, the Business Asset Sellers hereby waive any and all non-competition provisions or agreements to the extent they would otherwise apply to the employment of any Transferred Employee by Buyer, effective as of the date of any such hiring; provided, that in no event shall any obligation of any Asset Employee under any prior agreement with any Business Asset Seller with respect to any Intellectual Property existing prior to the termination of such Asset Employee’s employment with the applicable Business Asset Seller be superseded, except that (y) all Asset Employees shall be permitted to disclose to Buyer all information in their possession or otherwise known by them which is exclusively or primarily (1) related to any of the Acquired Businesses, (2) information or other Intellectual Property included in any of the Acquired Assets or the Acquired Companies IP or (3) exclusively or primarily related to any of the Acquired Companies and (z) each Asset Employee shall be permitted to assign to Buyer or any of its Affiliates or designees any Intellectual Property invented, created, developed, authored, identified, conceived or otherwise created by such Asset Employee after the termination of such Asset Employee’s employment with the applicable Business Asset Seller, as well as any Intellectual Property protecting inventions reduced to practice after the termination of such Asset Employee’s employment with the applicable Business Asset Seller but conceived prior to termination of such employment if such inventions exclusively or primarily relate to any of the Acquired Businesses. Asset Employees who accept Buyer’s offer of employment, and all of the employees of the Acquired Companies as of the Closing, shall collectively be referred to as the “Transferred Employees”.

(ii) For a period commencing on the Closing Date and ending twelve (12) months after the Closing Date, Buyer (or an Affiliate of Buyer) shall provide each Transferred Employee (to the extent employed thereby) with base salary or base wages not less favorable than those in effect for such Transferred Employee immediately prior to the Closing and employee benefits substantially comparable in the aggregate, at Buyer’s election, to either those (A) provided by Dover to such employees or (B) in effect for similarly situated employees of Buyer. All benefit plans and programs established or maintained by Buyer shall recognize employment with the Business Asset Sellers or Acquired Companies (or their respective predecessors) for purposes of eligibility, vesting and benefit computation, other than for purposes of benefit accruals under a defined benefit pension plan maintained by Buyer or that would be duplicative of any benefit otherwise provided to such Transferred Employee, to the same extent as recognized by Dover and its Affiliates and the Benefit Plans.

(b) Employee Benefit Plans Generally. Except as otherwise expressly provided in this Section 5.2, as of the Closing Date, the Acquired Companies shall terminate their participation in each Benefit Plan that is not an Assumed Benefit Plan, and in no event shall any Transferred Employee be entitled to accrue any benefits under such Benefit Plans with respect to services rendered or compensation paid on or after the Closing Date. Buyer and the Acquired Companies shall retain or assume all rights and obligations under each Assumed Benefit Plan, whether arising prior to, on or after the Closing Date. Dover and its Affiliates (excluding the Acquired Companies) shall retain all rights and obligations under each Benefit Plan that is not an Assumed Benefit Plan.

 

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(c) Welfare Benefit Plans and Arrangements. To the extent a Transferred Employee or his or her dependents participates or has participated in a welfare benefit plan that is a Retained Benefit Plan, Dover (or any third party administrator or insurer of Dover or any Business Asset Seller) shall retain Liability for and process and pay, or shall cause to be processed and paid, all eligible claims for welfare benefits on behalf of such Transferred Employee or his or her dependents with a date of service prior to the Closing Date. To the extent that a Transferred Employee or his or her dependents participates in a welfare benefit plan of Buyer (including any welfare benefit plan that is an Assumed Benefit Plan), Buyer (or Buyer’s third party administrator or insurer) shall assume Liability for and process and pay all eligible claims for welfare benefits on behalf of Transferred Employees or their dependents that have a date of service (i) on or after the Closing Date or (ii) at any time under an Assumed Benefit Plan. Buyer shall use reasonable best efforts to cause any preexisting condition clause in any of the welfare plans (including medical, dental and disability coverage) included in Buyer’s benefit programs to be waived for the Transferred Employees. Buyer shall use commercially reasonable efforts to credit the Transferred Employees with any amounts paid under the Benefit Plans prior to the Closing Date toward satisfaction of the applicable deductible amounts and copayment obligations under the corresponding welfare plans of Buyer for the plan year in which the Transferred Employees become eligible to participate in the welfare plans of Buyer; provided the Benefit Plan provides to Buyer information concerning year-to-date deductible and copayment obligations in a commercially reasonable form within thirty (30) days of Closing.

(d) Severance Benefits. Buyer shall be responsible for, and shall pay or cause to be paid, any claim for separation costs, severance pay or other termination benefits in accordance with the terms and conditions of any applicable plans or policies, which claims arise out of or result from any termination of employment of any Transferred Employee that is initiated after the Closing.

(e) COBRA. Dover (or any third party administrator or insurer of Dover or any Business Asset Seller) shall retain Liability for continuation coverage under COBRA or any similar state Law with respect to employees and former employees who are not Transferred Employees. Buyer shall assume Liability for continuation coverage under COBRA or any similar state or local Law with respect to Transferred Employees whose employment is terminated after the Closing Date. With respect to individuals who are dependents of Transferred Employees, Dover (or any third party administrator or insurer of Dover or any Business Asset Seller) shall retain Liability for continuation coverage under COBRA or any similar state or local Law to the extent that the individual experienced a qualifying event on or prior to the Closing Date, and Buyer shall assume such Liability to the extent that the individual experiences a qualifying event after the Closing Date.

(f) Vacation Policy. With respect to any earned but unused vacation time to which any Transferred Employee is entitled pursuant to the vacation policy applicable to such Transferred Employee immediately prior to the Closing Date, Buyer shall allow such Transferred Employee to use such earned vacation to the extent that the vacation is fully accrued and reflected on the Closing Date Balance Sheet.

 

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(g) Payment of Severance; Change of Control Bonuses. At the Closing, to the extent any such Liability constitutes an Acquired Companies Specified Employee Liability that was taken into account for purposes of determining the Cash Purchase Price and to the extent Dover has provided Buyer payment instructions therefor, Buyer shall pay or cause to be paid any such Acquired Companies Specified Employee Liability to any Transferred Employee arising from or as a result of the consummation of the transactions contemplated by this Agreement.

(h) Workers’ Protection Claims. Dover shall, and hereby does, assume or retain the obligation and Liability for any workers’ compensation or similar workers’ protection claims of any Transferred Employee with respect to any injury incurred on or prior to the Closing Date, whether such claim is submitted prior to, on or within three (3) months after the Closing Date.

(i) WARN Act. Buyer shall not be responsible or liable for, and shall not indemnify Dover, its Affiliates, or the Business Asset Sellers for, any violations of the Worker Adjustment and Retraining Notification Act (“WARN”) (or any similar local, state or foreign Law in any jurisdiction regarding mass layoffs or plant closings) up to and including the Closing; provided, however, that Buyer and its Affiliates shall not terminate any Transferred Employee (other than for cause or in the event of a voluntary resignation) for ninety (90) days following the Closing.

(j) Limitation on Obligations. Subject to Section 5.2(i), nothing in this Agreement shall create any obligation on the part of Buyer or the Acquired Companies to continue the employment of any Transferred Employee for any definite period of time following the Closing Date.

(k) No Amendment; No Third-Party Beneficiaries. Regardless of anything else contained herein, the parties do not intend for this Agreement to amend any Benefit Plans or arrangements or create any rights or obligations except between the Parties. No Transferred Employee or other current or former employee of Dover or the Acquired Companies, including any beneficiary or dependent thereof, or any other Person not a party to this Agreement, shall be entitled to assert any claim hereunder.

Section 5.3. Post-Closing Access to Information. For a period of seven (7) years after the Closing Date, each Party shall provide, and shall cause its Affiliates to provide, when reasonably requested to do so by the other Party, access (during normal business hours) to all Books and Records and other information relating to the Acquired Companies, Acquired Businesses, Acquired Assets and Assumed Liabilities, including the right to make copies or extracts therefrom at its expense for any reasonable business purpose; provided, however, that (a) the foregoing shall not apply with respect to any adversarial Proceedings between the Parties and (b) neither Party shall be required to violate any obligation of confidentiality, Order or Law to which any such Party is subject or to waive any privilege which such Party may possess in discharging the obligations set forth in this Section 5.3 (provided that in such event, the Parties shall reasonably cooperate with each other to seek an appropriate remedy to permit the access contemplated hereby). During such period, no Party shall, nor shall it permit its Affiliates to, dispose of, alter or destroy any such Books and Records or other information without giving thirty (30) days’ prior written notice to the other Party and permitting the other Party, at its

 

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expense, to examine, duplicate or repossess such records, files, documents and correspondence. Subject to clause (b) of the first sentence of this Section 5.3, promptly upon request by Buyer made at any time following the Closing Date, Dover shall, and shall cause its Affiliates to, authorize the release to Buyer of all files pertaining to any Acquired Asset, Assumed Liability or Acquired Business held by any Governmental Entity or outside counsel.

Section 5.4. Trade Names.

(a) Dover.

(i) Ownership. Buyer acknowledges that, except as expressly provided in Section 5.4(a)(ii), nothing herein grants Buyer any rights in any registered or unregistered Trademarks incorporating the word “Dover” or any of the words, marks, corporate symbols, acronyms or logos listed in Schedule 5.4(a)(i) or any derivation thereof (collectively, the “Dover Marks”). Except to the extent contemplated by Section 5.4(a)(ii), Buyer shall not, and shall cause its Subsidiaries (including, for the avoidance of doubt, all Acquired Companies after the Closing) not to, use the Dover Marks or any Trademark confusingly similar thereto in connection with the operation of the Acquired Businesses.

(ii) Limited Use. Effective immediately as of the Closing, Dover and its Affiliates hereby grant to Buyer and its Affiliates a worldwide, non-exclusive, royalty-free license, during the Marks Transition Period, with the right to sublicense to manufacturers who are, immediately before the Closing, making Products solely for the benefit of Dover or any of its Affiliates and to distributors or other agents that are, immediately before the Closing, authorized by any of the Acquired Businesses to offer to sell and sell Products, to manufacturers that are authorized to make the Products solely for Buyer or Buyer’s Affiliates, distributors agents and other entities authorized to offer to sell or sell Products by Buyer or Buyer’s Affiliates, in each case to use the Dover Marks for manufacturing, distributing, marketing, selling and supporting the Products in the manner that any such activities were conducted immediately prior to the Closing by Dover and its Affiliates or any reasonable modifications thereto; provided that Buyer shall and shall cause its Affiliates to comply with all reasonable instructions relating to such use of the Dover Marks. Except as expressly stated in this Agreement, no other rights, ownership interest or licenses, express or implied, are granted by Dover in respect of the Dover Marks and all of Dover’s or any of its Affiliate’s rights in and to the Dover Marks not specifically granted under this Agreement are reserved by Dover. Buyer acknowledges that, as between the Parties, Dover owns all right, title, and interest in and to the Dover Marks and goodwill, including future goodwill, associated therewith. Promptly (and in any event within six (6) months) after the Closing Date (such six (6) month period, the “Marks Transition Period”), Buyer shall, and Buyer shall cause the Designated Purchasers, the Acquired Companies and their Subsidiaries to, make all filings with any office, agency or body and take all other actions necessary to effect the elimination of any use of the Dover Marks from the corporate names, registered names or registered fictitious names of the Acquired Companies and their Subsidiaries. By the end of the Marks Transition Period, Buyer shall, and Buyer shall cause the Designated Purchasers, the Acquired Companies and their Subsidiaries to, remove, obliterate or cover up the Dover Marks from their respective signs, purchase orders, invoices, sales orders, labels, letterheads, shipping documents, business cards, equipment, machinery, Products and other materials used in connection with the Acquired Businesses to the extent that the foregoing

 

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are Customer-Facing Materials (collectively, the “Trade Materials”). “Customer-Facing Materials” means materials on which the Dover Mark is reasonably visible to end consumers in the ordinary course of use. Notwithstanding the foregoing, Buyer shall be permitted to sell the entire supply of spare parts and inventory existing as of three (3) months after the Closing Date without the requirement to remove, obliterate or cover up the Dover Marks existing thereon. At all times after the Closing, Buyer and the Acquired Companies shall be permitted to communicate to third parties that Buyer and the Designated Purchasers have purchased the Acquired Businesses from Dover and its relevant Affiliates and reference such name(s) in such communications.

(b) Everett Charles Technologies and Multitest.

(i) Ownership. Dover acknowledges that, at the Closing, Buyer and/or its Affiliates will acquire the absolute and exclusive proprietary right to all names, trade names, trademarks, service names and service marks incorporating the words “Everett Charles Technologies”, “Multitest” and any derivation thereof and any corporate symbols or logos related thereto. Except to the extent contemplated by Section 5.4(b)(ii), Dover shall not, and shall cause its Affiliates (including, for the avoidance of doubt, the Asset Sellers) not to, use said words or any symbol or logo incorporating any such words in connection with the sale of any products or services or otherwise in the conduct of its or their businesses.

(ii) Limited Use. Promptly (and in any event within six (6) months) after the Closing Date, Dover shall, and Dover shall cause its Affiliates to, remove, obliterate or cover up the names “Everett Charles Technologies”, “Multitest” and any derivation thereof and any corporate symbols or logos related thereto from their respective signs, purchase orders, invoices, sales orders, labels, letterheads, shipping documents, business cards and other materials, and Dover shall not, and Dover shall cause its Affiliates not to, put into use after the Closing Date any such materials not in existence on the Closing Date that bear any such reference; provided, however, that Dover shall be permitted to communicate to third parties that Dover has sold the Acquired Businesses to Buyer and reference such names in such communications.

Section 5.5. Insurance.

(a) Responsibility to Maintain Insurance. Except as provided in Section 5.5(b), neither Buyer nor any Acquired Company shall have any right to make claims after the Closing Date under insurance policies issued by third parties that may have provided coverage to any Acquired Company as an Affiliate of Dover prior to the Closing Date, whether the incident giving rise to any such claim occurs prior to, on or after the Closing Date. Following the Closing, insurance requirements of Buyer and each Acquired Company will be the sole responsibility of Buyer and such Acquired Company.

(b) Pre-Closing Events. Notwithstanding the provisions of Section 5.5(a), to the extent any claims arise under (i) insurance policies issued by third-party insurers and owned by or covering any Acquired Company, Acquired Asset, Assumed Liability or Acquired

 

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Business or (ii) self-insurance plans, programs or arrangements sponsored or maintained by Dover or its Affiliates (other than the Acquired Companies), in either case with respect to occurrences arising prior to the Closing, the Acquired Company, Buyer and/or any Designated Purchaser may make claims after the Closing Date under such policies, plans, programs or arrangements without regard to any other provision hereof, but subject to such conditions contained therein, including all reporting and notice requirements thereof as to which Dover has provided Buyer with timely notice. Subject to Section 9.5, Dover shall, or shall cause its Affiliates to, assist any Acquired Company, Buyer and/or any Designated Purchaser with the filing and prosecution of claims under such insurance policies, plans, programs or arrangements as to matters which give rise to or are regarded as pre-Closing occurrences and shall pay the proceeds (if any) of such claims to such Acquired Company, Buyer or any Designated Purchaser, as the case may be; provided, however, that Buyer shall be responsible for and shall pay to Dover all reasonable out of pocket expenses (including reasonable fees and expenses of third parties attributable to the handling of such claims) relating to services for claims administration, investigation, appraisals and claim review incurred on or after the Closing Date with respect to any such claims under such insurance policies, plans, programs or arrangements. Dover shall not, and shall cause its Affiliates not to, take any action to limit, terminate or otherwise adversely affect the coverage provided to beneficiaries of any such insurance policies, plans, programs or arrangements as to matters which give rise to or are regarded as pre-Closing occurrences in a manner that is not generally applicable to other businesses of Dover and its Affiliates.

(c) No Representations, Warranties or Covenants. Dover makes no representations, warranties or covenants regarding the scope, availability or amount of coverage under any insurance policies contemplated by this Section 5.5, and shall not have any responsibility, and shall not be held liable, for the actions of the insurers under such insurance policies regarding claims submitted by Dover or its Affiliates on behalf of Buyer or any Acquired Company.

 

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Section 5.6. Further Assurances.

(a) From time to time after the Closing Date and without further consideration, (i) upon the request of either Party, the other Party shall execute and deliver to the requesting Party such documents and take such actions as the requesting Party reasonably requests to consummate more effectively the intent and purposes of the Parties under this Agreement and the transactions contemplated hereby; and (ii) upon the request of Buyer, Dover shall, and shall cause the Equity Sellers and the Asset Sellers to, execute and deliver all instruments of transfer, conveyance, assignment, substitution and confirmation and take such action as Buyer may reasonably deem necessary or desirable in order to more effectively transfer, convey and assign to Buyer or any Designated Purchaser and confirm Buyer’s or any Designated Purchaser’s good and valid title to the Acquired Shares (free and clear of all Liens other than restrictions on transfer imposed by applicable securities Law) and the Acquired Assets (free and clear of all Liens other than Permitted Liens and in the case of Acquired Real Property, Permitted Real Property Exceptions), to put Buyer or a Designated Purchaser in actual possession and operating control thereof, to permit Buyer or a Designated Purchaser to exercise all rights with respect thereto (including all rights with respect to Nonassignable Assets) and to complete the transactions contemplated hereby.

(b) Dover shall, and shall cause its Affiliates to, promptly pay to Buyer all monies received by Dover or any of its Affiliates following the Closing with respect to any Acquired Business or any Acquired Asset, including any accounts receivable or any claim, right or benefit arising thereunder included in the Acquired Assets.

Section 5.7. Non-Competition; Non-Solicitation.

(a) Subject to Section 5.7(b), in order for Buyer to protect and preserve the going concern value and goodwill of each Acquired Business, and as a material inducement to Buyer to enter into this Agreement, Dover shall not, and shall cause each of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with, or as a member, owner, investor, partner, joint venturer, consultant or agent of, any other Person):

(i) for a period of five (5) years following the Closing Date, undertake, participate or carry on or be engaged in, or in any other manner advise or assist any other Person in connection with the operation of or engagement in, any Competing Business Activities anywhere in the world;

(ii) for a period of five (5) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any customer of any of the Acquired Businesses as of the Closing Date and any Person who has been a customer of any of the Acquired Businesses at any time during the twenty-four (24) month period prior to the Closing Date to reduce, terminate or alter in a manner adverse to Buyer, any Acquired Company or any Acquired Business its business relationship with Buyer, any Acquired Company or any Acquired Business; and

 

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(iii) for a period of eighteen (18) months following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Restricted Person to resign or otherwise leave the employ of Buyer or any Acquired Company or otherwise hire, employ, engage or contract with any Restricted Person to perform services other than for the benefit of Buyer or any Acquired Company;

provided, however, that with respect to each of the periods set forth in clauses (i) – (iii) of this Section 5.7(a), if Dover or any of its Affiliates is in breach of such clause, the running of the applicable period specified in such clause shall be suspended during the pendency thereof.

(b) Notwithstanding Section 5.7(a), Dover and its Affiliates shall not be prohibited from or restricted in any way with respect to: (i) advertising job openings by use of newspapers, magazines, the Internet and other media not directed at individual Restricted Persons or hiring Restricted Persons as a result thereof, (ii) hiring or soliciting any Restricted Person who has terminated employment with Buyer, any Acquired Company or any Affiliate thereof, so long as there was no solicitation by Dover or its Affiliates prior thereto; provided, that no such hiring or solicitation shall occur within the three-month period following such termination, (iii) holding not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activities, or (iv) acquiring, and following such acquisition, actively engaging in any business that has a subsidiary, division, group, franchise or segment that is engaged in any Competing Business Activity, so long as for the most recent fiscal year ending prior to the date of such acquisition, the revenues derived from the Competing Business Activities were equal to or less than fifteen percent (15%) of the total consolidated revenues of such business; provided, however, that if such revenues derived from the Competing Business Activities were more than fifteen percent (15%) of the total consolidated revenues of such business, Dover or the applicable acquiring Affiliate (the “Competing Business Seller”) shall sell or otherwise divest such Competing Business Activities within two (2) years following such acquisition; provided, further, however, that prior to consummating a sale or other divestiture of a Competing Business Activity pursuant to this Section 5.7(b), Buyer shall be given the right to exercise a right of first offer with respect thereto, in accordance with the following procedures:

(i) Prior to the consummation of a sale or other divestiture of a Competing Business Activity, the Competing Business Seller shall deliver a notice (the “Sale Notice”) to Buyer. The Sale Notice shall contain a detailed description of the Competing Business Activity to be sold or otherwise divested. Upon receipt of the Sale Notice, Buyer shall have the exclusive right, for a period of 90 days from receipt of the applicable Sale Notice, to make an offer to purchase the Competing Business Activity specified in the Sale Notice, by delivering written notice of such election to the Competing Business Seller at any time within ninety (90) days following the delivery of the Sale Notice. During such ninety (90)-day period, Dover shall (A) cooperate with Buyer, and make such personnel and information available to Buyer as Buyer shall reasonably request, to allow Buyer to undertake its due diligence investigation of the Competing Business Activity to be sold or otherwise divested and (B) negotiate with Buyer in good faith the terms of any such offer.

(ii) If Buyer does not deliver a written notice within such ninety (90)-day period, Buyer’s right of first offer shall terminate with respect to such Competing Business Activity to be sold or otherwise divested and the Competing Business Seller may sell the applicable Competing Business Activity to any other party.

 

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(c) Each Party agrees that the duration and geographic scope of the non-competition and non-solicitation provisions set forth in this Section 5.7 are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are unreasonable and that such provision is to that extent unenforceable, each of the Parties agrees that the provision shall remain in full force and effect for the greatest time period and in the greatest area that would not render it unenforceable. Each Party intends that these non-competition and non-solicitation provisions shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of America and each comparable jurisdiction or subdivision thereof anywhere else in the world. Each Party agrees that damages are an inadequate remedy for any breach of this provision and that Buyer shall, whether or not it is pursuing any potential remedies at law, be entitled to seek equitable relief in the form of preliminary and permanent injunctions without bond or other security upon any actual or threatened breach of this non-competition provision.

(d) Dover acknowledges that the ownership by its Affiliates of Acquired Shares and Acquired Assets represents a substantial interest in the Acquired Businesses and Dover intends to cause its Affiliates to transfer to Buyer the goodwill reflected in the Acquired Shares owned by such Affiliate. Dover further acknowledges that Buyer would not enter into this Agreement but for the restrictions in this Section 5.7.

Section 5.8. Proprietary Information. From and after the Closing, Dover shall not, and shall cause its Affiliates not to, disclose to any third party which is not an Affiliate or representative thereof, or make use of, any information relating to any Acquired Company, Acquired Asset, Assumed Liability or Acquired Business that provides Buyer, any Acquired Company or any Acquired Business with a competitive advantage (or that could be used to the disadvantage of Buyer, any Acquired Company or any Acquired Business), which is not generally known by, nor easily learned or determined by, Persons outside the Acquired Businesses (collectively referred to herein as “Proprietary Information”) including: (i) specifications, manuals, software in various stages of development, and other technical data; (ii) customer and prospect lists, details of agreements and communications with customers and prospects, and other customer information; (iii) sales plans and projections, product pricing information, protocols, acquisition, expansion, marketing, financial and other business information and existing and future products and business plans and strategies of Buyer, any Acquired Company or any Acquired Business; (iv) sales proposals, demonstrations systems, sales material; (v) research and development; (vi) software systems, computer programs and source codes; (vii) sources of supply; (viii) identity of specialized consultants and contractors and Proprietary Information developed by them for Buyer, any Acquired Company or any Acquired Business; (ix) purchasing, operating and other cost data; (x) special customer needs, cost and pricing data; and (xi) employee information (including personnel, payroll, compensation and benefit data and plans), including all such information recorded in manuals, memoranda, projections, reports, minutes, plans, drawings, sketches, designs, data, specifications, software programs and records, whether or not legended or otherwise identified by Buyer, any Acquired Company or any Acquired Business as Proprietary Information. Proprietary Information shall not include such information that Dover can demonstrate (A) is generally available to the public (other than as a result of a disclosure by Dover or any of its Affiliates), (B) was disclosed to

 

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Dover or any of its Affiliates by a third party not known by Dover or any of its Affiliates to be under any obligation to keep such information confidential, or (C) was independently developed by Dover or any of its Affiliates without reference to Proprietary Information. Notwithstanding the foregoing, neither Dover nor any of its Affiliates shall have any obligation hereunder to keep confidential any of the Proprietary Information to the extent such Person is required by Law or required by a Governmental Entity of competent jurisdiction to disclose such information; provided, that, prior to making any such disclosure, such Person shall give prior written notice thereof to Buyer, to the extent permitted by applicable Law, and provide Buyer with the opportunity to contest such disclosure, and shall reasonably cooperate (at Buyer’s sole expense) with efforts to prevent such disclosure.

Section 5.9. Cooperation in Litigation. From and after the Closing Date, each Party shall provide reasonable cooperation with the other in the defense or prosecution of any Proceeding already instituted or which may be instituted hereafter against or by such other Party relating to or arising out of any Acquired Asset, Assumed Liability, Excluded Asset, Excluded Liability or the conduct of any Acquired Business prior to or after the Closing Date (other than litigation among the Parties and/or their Affiliates arising out the transactions contemplated by this Agreement). Subject to Article IX, the Party requesting such cooperation shall pay the reasonable out-of-pocket expenses incurred in providing such cooperation (including legal fees and disbursements) by the Party providing such cooperation and by its officers, directors, employees and agents, but shall not be responsible for reimbursing such Party or its officers, directors, employees and agents for their time spent in such cooperation.

Section 5.10. Transaction Confidentiality Agreements. Dover shall, and shall cause its Affiliates to, at Buyer’s sole cost and expense, enforce the rights of Dover and its Affiliates under any confidentiality agreement with another former potential purchaser of all or any part of any Acquired Business or any Acquired Asset for the benefit of Buyer and its Affiliates as Buyer directs.

Section 5.11. Relocation Payment Adjustments.

The principal amount of the Promissory Note shall be adjusted in accordance with the terms thereof and as follows: (i) in the event that Dover receives a written notice from Buyer prior to January 1, 2015 indicating that Buyer has entered into a lease with respect to replacement space for the property located at 700 East Harrison Avenue, Pomona, California, the principal amount of the Promissory Note shall be reduced by $1,000,000; (ii) in the event that Dover receives a written notice from Buyer prior to January 1, 2015 indicating that Buyer has entered into a lease with respect to replacement space for the property located at No. 2, 1F, building in Tingwei Industrial Park, 6 Liufang Road Bao Cheng Baoan District, Shenzhen PRC, the principal amount of the Promissory Note shall be reduced by $1,000,000; and (iii) in the event that Dover receives a written notice from Buyer prior to January 1, 2015 indicating that Buyer has either developed a plan to undertake the refurbishment of the premises in connection with the highway relocation occurring adjacent to the building located at Auessere Oberaustrasse 4 (MT1 to 4), 83026 Rosenheim, Germany (the “Rosenheim Property”) or has commenced the relocation from such location, the principal amount of the Promissory Note shall be reduced by $1,750,000; provided, however, in the event that the Promissory Note is prepaid, in full, prior to January 1, 2015 in accordance with its terms, (x) if either of the trigger events specified in the foregoing clauses (i)

 

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and (ii) has not occurred at such time, then, upon the occurrence of each such trigger event (to the extent each such event occurs prior to January 1, 2015), Dover shall pay by wire transfer of immediately available funds to Buyer or its designee $1,000,000 as soon as reasonably practicable (and in any event within three (3) business days) after the occurrence of each such trigger event, and (y) in the event that the trigger event specified in clause (iii) has not occurred at such time, the principal amount of the Promissory Note shall be reduced by an amount equal to $1,750,000 concurrent with such prepayment.

Section 5.12. Termination of German Profit and Loss Arrangement. The German Profit and Loss Arrangement will be terminated in accordance with the following procedures:

(a) On the Closing Date, atg L&M shall wire to Dover Germany in accordance with wire instructions provided by Dover not less than five (5) business days prior to the Closing Date, all Cash and Cash Equivalents held by atg L&M as of the close of business on the business day immediately prior to the Closing Date as partial consideration for atg L&M’s obligations to Dover Germany under the German Profit and Loss Arrangement.

 

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(b) During the period prior to the delivery of the Preliminary Closing Date Balance Sheet, Buyer and Dover shall use commercially reasonable efforts to estimate the final profit distribution amount to be paid by atg L&M to Dover Germany under the German Profit and Loss Arrangement. The amount of such obligation (less the amount of Cash and Cash Equivalents wired to Dover Germany in accordance with Section 5.12(a)) shall be included as a current liability for purposes of the calculation of the Working Capital.

(c) If after the audit of the profits of atg L&M, it is determined that the final profit distribution amount is (i) greater than the amount of the estimate set forth in Section 5.12(b), such difference shall be paid by Dover to Buyer not less than five (5) business days prior to the next payment required to be made by atg L&M pursuant to Section 5.12(d) or (ii) less than the amount of the estimate set forth in Section 5.12(b), such difference shall be paid by Buyer to Dover within five (5) business days after the date of such determination.

(d) On the 30th day of January, April, July, October (and in any event, on or before the first anniversary of the Closing Date), Buyer shall cause atg L&M to pay to Dover Germany the amounts of excess cash held by atg L&M as of the end of the prior calendar quarter until such time as atg L&M has paid in full the final outstanding balance of atg L&M’s obligation to Dover Germany under the German Profit and Loss Arrangement.

ARTICLE VI

CONDITIONS PRECEDENT TO BUYER’S OBLIGATIONS

Section 6.1. Conditions Precedent to Buyer’s Obligations. Each and every obligation of Buyer to be performed on or after the Closing Date under this Agreement (to the extent contemplated to be performed at or following the Closing) is subject to the satisfaction (or written waiver by Buyer, to the extent permissible under applicable Law), prior to or at the Closing, of each of the following conditions:

(a) Representations and Warranties. The representations and warranties of Dover made in this Agreement (i) other than those representations and warranties set forth in Sections 3.1(a) (Due Organization and Power), (b) (Authority), (c) (Ownership), (d) (Title to Acquired Shares) and (m) (Title to Acquired Assets; Sufficiency of Assets), when read without any exception or qualification for materiality or Material Adverse Effect (except for Section 3.1(h)(i)), shall be true and correct as of the date hereof and on the Closing Date as though made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date), except for failures of such representations and warranties to be true and correct which, individually or in the aggregate, have not resulted in a Material Adverse Effect, and (ii) set forth in Sections 3.1(a) (Due Organization and Power), (b) (Authority), (c) (Ownership), (d) (Title to Acquired Shares) and (m) (Title to Acquired Assets; Sufficiency of Assets), when read without any exception or qualification for materiality or Material Adverse Effect, shall be true and correct in all material respects as of the date hereof and on the Closing Date as though made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date).

 

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(b) Performance of Obligations. Dover shall have performed or complied in all material respects with its obligations and covenants required by this Agreement to be performed or complied with by Dover at or prior to the time of the Closing.

(c) No Injunction, Etc. No preliminary or permanent injunction or Order issued by any Governmental Entity or Law shall be in effect, and no Proceeding shall have been instituted or threatened, that does or would reasonably be expected to (i) restrain, enjoin or otherwise prohibit (or challenge the legality of) any of the transactions contemplated hereby or (ii) cause any of the transactions contemplated hereby to be rescinded following consummation.

(d) Delivery of Documents. Dover shall have delivered, or caused to have been delivered, to Buyer the documents described in Section 8.2.

(e) Compliance with HSR Act and Other Competition Laws. All relevant waiting periods (and any extension thereof) under the HSR Act or any other Material Competition Laws shall have expired or been terminated.

(f) China Approvals. The sale of each of Everett Charles Technologies (Shenzhen) Limited and Test Solutions (Suzhou) Co., Ltd. shall have been approved by all applicable Governmental Entities of the People’s Republic of China.

(g) Termination of Profit and Loss Agreement. The German Profit and Loss Arrangement shall have been terminated in accordance with applicable Law.

(h) No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Material Adverse Effect.

Section 6.2. Frustration of Conditions Precedent. Buyer may not rely on the failure of any condition set forth in Section 6.1 to be satisfied if such failure was caused by Buyer’s failure to use its reasonable best efforts to cause the Closing to occur to the extent required by Section 4.3.

ARTICLE VII

CONDITIONS PRECEDENT TO DOVER’S OBLIGATIONS

Section 7.1. Conditions Precedent to Dover’s Obligations. Each and every obligation of Dover to be performed on or after the Closing Date under this Agreement (to the extent contemplated to be performed at or following the Closing) is subject to the satisfaction (or written waiver by Dover, to the extent permissible under applicable Law), prior to or at the Closing, of each of the following conditions:

(a) Representations and Warranties. The representations and warranties of Buyer made in this Agreement (i) other than those representations and warranties set forth in Sections 3.2(a) (Due Organization and Power) and (b) (Authority), when read without any exception or qualification for materiality, shall be true and correct as of the date hereof and on the Closing Date as though made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date), except for failures of

 

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such representations and warranties to be true and correct which, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on Buyer’s ability to perform its obligations under this Agreement, and (ii) set forth in Sections 3.2(a) (Due Organization and Power) and (b) (Authority), when read without any exception or qualification for materiality, shall be true and correct in all material respects as of the date hereof and on the Closing Date as though made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date).

(b) Performance of Obligations. Buyer shall have performed or complied in all material respects with its obligations and covenants required by this Agreement to be performed or complied with by Buyer at or prior to the time of the Closing.

(c) No Injunction, Etc. No preliminary or permanent injunction or Order issued by any Governmental Entity or Law that restrains, enjoins or otherwise prohibits the transactions contemplated hereby shall be in effect, and no Proceeding initiated by a Governmental Entity shall have been instituted or threatened to restrain, enjoin or otherwise prohibit (or challenge the legality of) the transactions contemplated hereby.

(d) Delivery of Documents. Buyer shall have delivered, or caused to have been delivered, to Dover the documents described in Section 8.3.

(e) Compliance with HSR Act and Other Competition Laws. All relevant waiting periods (and any extension thereof) under the HSR Act or any other Material Competition Laws shall have expired or been terminated.

Section 7.2. Frustration of Conditions Precedent. Dover may not rely on the failure of any condition set forth in Section 7.1 to be satisfied if such failure was caused by Dover’s failure to use its reasonable best efforts to cause the Closing to occur to the extent required by Section 4.3.

ARTICLE VIII

CLOSING

Section 8.1. Closing Date. Unless this Agreement shall have been terminated and the transactions contemplated hereby shall have been abandoned pursuant to Section 10.1, and provided that the conditions to the Closing set forth in Section 6.1 and Section 7.1 are satisfied or waived, the closing with respect to the transactions contemplated hereby (the “Closing”) shall take place at 10:00 a.m., Central Time, remotely via the exchange of documents and signatures, on the fourth (4th) business day immediately following the satisfaction or waiver of such conditions to the Closing (other than those such conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or at such other time as the Parties shall agree upon. The actual date of the Closing is referred to in this Agreement as the “Closing Date.” Notwithstanding the foregoing, all acts and transactions to be taken or effected at the Closing shall be deemed to be effective as of the close of business on the Closing Date in the respective jurisdiction in which any of the Acquired Businesses is operated.

 

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Section 8.2. Items to be Delivered by Dover. At the Closing, Dover shall deliver to Buyer the following documents, in each case duly executed and otherwise in proper form:

(a) Compliance Certificate. A certificate, in form and substance reasonably acceptable to Buyer, dated the Closing Date, signed on behalf of Dover by a duly authorized officer thereof, confirming the satisfaction of the conditions set forth in Sections 6.1(a), 6.1(b) and 6.1(f).

(b) Instruments of Conveyance and Transfer. Such stock transfer instruments, Local Agreements, deeds, bills of sale, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment, in form and substance reasonably acceptable to Buyer, as shall be effective to vest in Buyer all good and valid title to the Acquired Shares free and clear of Liens (other than restrictions on transfer imposed by applicable securities Laws) and the Acquired Assets free and clear of all Liens (other than Permitted Liens and, in the case of Acquired Real Property, Permitted Real Property Exceptions), in each case as provided for pursuant to this Agreement or as otherwise agreed in writing by the Parties.

(c) Stock Certificates. The certificates representing the Acquired Shares, duly endorsed to Buyer (or the applicable Designated Purchaser) or accompanied by duly executed stock powers (or equivalent documents) assigning the Acquired Shares to Buyer (or the applicable Designated Purchaser), in form and substance reasonably acceptable to Buyer, and any other documents necessary to transfer to Buyer (or the applicable Designated Purchaser) good and valid title to the Acquired Shares free and clear of all Liens (other than restrictions on transfer imposed by applicable securities Laws).

(d) Resignations. The resignations of the individuals then serving as officers and/or directors of the Acquired Companies, effective as of the Closing Date (other than any such resignations which Buyer designates, by written notice to Dover, as unnecessary).

(e) Transition Services Agreement. The Transition Services Agreement, duly executed by Dover.

(f) ProWorks License Agreement. The ProWorks License Agreement, duly executed by Dover.

(g) FIRPTA Certificate. A properly executed statement by Dover, in form and substance reasonably acceptable to Buyer, for purposes of satisfying Buyer’s obligations under Treasury Regulation Section 1.1445-2(c)(3).

(h) IP Termination Agreement and Subordination Agreement. The IP Termination Agreement, duly executed by the parties thereto, and the Subordination Agreement, duly executed by Dover.

(i) Consents and Notices. Evidence reasonably acceptable to Buyer that all of the waivers, permits, consents, approvals, authorizations, registrations, filings and notices identified on Schedule 8.2(i) shall have been obtained or made, as applicable.

 

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(j) Lien Terminations. Duly executed written instruments (A) releasing (1) any Liens (other than Permitted Liens and Permitted Real Property Exceptions) on any Acquired Asset or any asset, right or property of any Acquired Company and (2) any Lien (other than restrictions on transfer imposed by applicable securities Laws) on any Acquired Shares or any other equity interest in any Acquired Company, and (B) authorizing the filing of UCC-3 termination statements (or other comparable documents) for any UCC-1 financing statements (or other comparable documents) filed in connection with any such Lien.

(k) Termination of Related Party Agreements. Evidence reasonably acceptable to Buyer that any Contracts and other arrangements listed on Schedule 8.2(k) have been terminated on terms reasonably satisfactory to Buyer.

(l) Supply Agreement. The Supply Agreement, duly executed by DEK.

(m) Form 8023. IRS Form 8023 and similar state forms required to be delivered pursuant to Section 5.1(f)(i).

(n) Other Documents. Certificates of good standing (in jurisdictions where such concept is applicable) of Dover, the Equity Sellers, the Asset Sellers and the Acquired Companies in their respective jurisdictions of organization and, in the case of the Acquired Companies, in the various foreign jurisdictions in which they are qualified, certified charter documents of Dover, the Equity Sellers, the Asset Sellers and the Acquired Companies and certificates as to the incumbency of officers and the adoption of authorizing resolutions of Dover, the Equity Sellers, the Asset Sellers and the Acquired Companies.

Section 8.3. Items to be Delivered by Buyer. At the Closing, Buyer shall deliver to Dover the following documents, in each case duly executed and otherwise in proper form:

(a) Compliance Certificate. A certificate, in form and substance reasonably acceptable to Dover, dated the Closing Date, signed on behalf of Buyer by a duly authorized officer thereof, confirming the satisfaction of the conditions set forth in Sections 7.1(a) and 7.1(b).

(b) Instruments of Assumption and Transfer. Such assumption instruments, Local Agreements, endorsements, consents, and other good and sufficient instruments of assumption as shall be effective to vest in Buyer all good and valid title to the Acquired Shares free and clear of Liens (other than restrictions on transfer imposed by applicable securities Laws) and the Acquired Assets free and clear of all Liens (other than Permitted Liens and, in the case of the Acquired Real Property, Permitted Real Property Exceptions), in each case as provided for pursuant to this Agreement or as otherwise agreed by the Parties.

(c) Transition Services Agreement. The Transition Services Agreement, duly executed by Buyer.

(d) ProWorks License Agreement. The ProWorks License Agreement, duly executed by Buyer or an Affiliate thereof.

(e) Promissory Note. The Promissory Note, duly executed by Buyer, along with a security agreement, duly executed by Buyer, in substantially the form as that duly executed by Buyer with Silicon Valley Bank.

 

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(f) Other Documents. Certificates of good standing (in jurisdictions where such concept is applicable) of Buyer and each Designated Purchaser in their respective jurisdictions of organization, certified charter documents of Buyer and each Designated Purchaser and certificates as to the incumbency of officers and the adoption of authorizing resolutions of Buyer and each Designated Purchaser.

ARTICLE IX

INDEMNIFICATION

Section 9.1. Indemnification by Dover.

(a) General. If the Closing occurs, and subject to the terms and conditions of this Article IX, Dover shall indemnify and hold harmless Buyer and its Affiliates (including the Acquired Companies) and their respective directors, officers, employees, assigns and successors (each, a “Buyer Indemnified Party”), from and against all Losses arising from, relating to or constituting (i) any inaccuracy in or breach of any representation or warranty made by Dover in this Agreement on the Closing Date as though made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date) or by Dover or any of its Affiliates in any other document or instrument executed and delivered pursuant hereto, (ii) any breach of any covenant or agreement made by Dover contained in this Agreement or made by Dover or any of its Affiliates contained in any other document or instrument executed and delivered pursuant hereto, (iii) any Excluded Liabilities, (iv) the CTB Spin-off (including any Taxes payable with respect thereto), (v) any failure of Buyer, Dover or any of their respective Affiliates, in connection with the sale of the Acquired Assets pursuant to this Agreement, to comply with, and obtain for Buyer the benefits afforded by compliance with, any applicable bulk transfers Laws, (vi) any claim brought against Everett Charles Technologies LLC to the extent (and only to the extent) arising out of or to the extent (and only to the extent) resulting from its capacity as a former equityholder of any of the Excluded Entities, (vii) any claim for fraud arising in connection with the transactions contemplated by this Agreement, (viii) any claims relating to the matters described on Schedule 9.1(a) or (ix) any Taxes payable as a result of Buyer’s failure to withhold and deduct from the consideration otherwise payable pursuant to this Agreement to any Asset Seller or Equity Seller such amounts as Buyer is required to withhold and deduct with respect to the making of such payment under the Code or any other applicable state, local or foreign tax law; provided, however, that Dover shall not be responsible for any interest, penalties or other similar amounts payable with respect to any Taxes so required to be withheld unless Buyer provided notice to Dover of the withholding requirement relating to such Tax (with reasonable supporting detail) not less than five (5) business days prior to the Closing Date and Dover did not consent to such withholding by Buyer prior to the Closing.

 

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(b) Limitations. Dover’s obligations under Section 9.1(a)(i) shall be subject to the following limitations:

(i) Dover shall not have any liability for Losses under Section 9.1(a)(i) unless and until (A) each individual unrelated claims for Losses exceeds $20,000 or (B) the aggregate of all such unrelated claim for Losses exceeds $250,000 (at which time Dover shall, subject to the other limitations of this Section 9.1(b), have liability for the total amount of such Losses);

(ii) Dover shall not have any liability for Losses under Section 9.1(a)(i) unless and until the aggregate of all Losses relating thereto for which Dover would otherwise be liable exceeds $800,000 (it being understood that such amount shall be a deductible for which Dover shall bear no indemnification responsibility) (the “Threshold”); and

(iii) Dover shall not have any liability for Losses under Section 9.1(a)(i) to the extent the aggregate amount of Losses for which Dover would otherwise be liable thereunder exceeds $14,250,000 (the “Lower Cap”);

provided, however, that the limitations set forth in this Section 9.1(b) shall not apply to (x) any inaccuracy in or breach of any representation or warranty set forth in Sections 3.1(a) (Due Organization and Power), 3.1(b) (Authority), 3.1(c) (Ownership), 3.1(d) (Title to Acquired Shares), 3.1(g) (Tax Matters), 3.1(m) (Title to Acquired Assets; Sufficiency of Assets), 3.1(p) (Employee Benefits), but only to extent any representation or warranty in Section 3.1(p) relates to Taxes, 3.1(v) (Indebtedness) and 3.1(z) (Fees) (collectively, the “Fundamental Matters”), or (y) any claim based on fraud.

(c) Survival. Except for claims based on fraud, (i) the indemnification provided for in Section 9.1(a)(i) shall terminate upon the eighteen (18) month anniversary of the Closing Date, except with respect to (A) the Fundamental Matters (other than Section 3.1(g)), in which case such indemnification shall survive indefinitely, (B) any representation or warranty set forth in Section 3.1(g), in which case such indemnification shall terminate, (I) in the case of a claim for Taxes in the United States or any state territory thereof, sixty (60) days after the expiration of the longest applicable statute of limitations and (II) in the case of a claim for Taxes outside of the United States or any state territory thereof, six (6) months following a final and binding assessment for any Taxes, (C) any representation or warranty set forth in Section 3.1(l) (Environmental Matters) or 3.1(r) (Intellectual Property), in which case such indemnification shall terminate on the three (3) year anniversary of the Closing Date and (D) any representation or warranty set forth in Section 3.1(f)(ii) (Financial Statements, Undisclosed Liabilities; Accounts Receivable; Inventory) shall survive until the later to occur of (I) the eighteen (18) month anniversary of the Closing Date and (II) the date thirty (30) days after Buyer has completed its second (2nd) audit of the Acquired Businesses, and (ii) the indemnification provided for in Section 9.1(a)(ii) shall terminate in accordance with the expiration of the terms of the covenants and agreements covered thereby or, if no term is expressly stated therein, upon the expiration of the statute of limitations period applicable to the matters covered thereby; provided, however, that, in each case under clause (i) or clause (ii) of this Section 9.1(c), such indemnification shall continue thereafter as to any Losses with respect to which a Buyer Indemnified Party has given Dover an Indemnification Notice in accordance with Section 9.3 on or prior to the date such indemnification would have otherwise terminated in accordance with this Section 9.1(c), as to which such indemnification shall continue solely with respect to the specific matters identified in such Indemnification Notice until the resolution and satisfaction thereof in accordance with this Agreement.

 

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(d) Qualifications. For purposes of determining (i) whether there has been a breach requiring indemnification as provided in Section 9.1 and (ii) the Losses with respect thereto, each representation, warranty, covenant and agreement made by Dover or any of its Affiliates, whether made herein or in any other document or instrument executed and delivered pursuant to this Agreement, shall be deemed to have been made without any qualifications or limitations as to materiality (including any qualifications or limitations made by reference to a Material Adverse Effect); provided, that, any such limitation or qualification contained in the first sentence of Section 3.1(h) shall be given effect solely for purposes of determining whether there has been a breach requiring indemnification as provided in Section 9.1.

(e) Maximum Liability. Notwithstanding anything contained herein to the contrary, from and after the Closing, except for claims based on fraud, the maximum aggregate Liability of Dover pursuant to Section 9.1(a)(i) shall not exceed $93,500,000 (the “Higher Cap”).

Section 9.2. Indemnification by Buyer.

(a) General. If the Closing occurs, and subject to the terms and conditions of this Article IX, Buyer shall indemnify and hold harmless Dover and its Affiliates and their respective directors, officers, employees, assigns and successors (each, a “Dover Indemnified Party”), from and against all Losses arising from, relating to or constituting (i) any inaccuracy in or breach of any representation or warranty made by Buyer in this Agreement on the Closing Date as though made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date) or by Buyer or any of its Affiliates in any other document or instrument executed and delivered pursuant hereto, (ii) any breach of any covenant or agreement made by Buyer in this Agreement or made by Buyer or any of its Affiliates in any other document or instrument executed and delivered pursuant hereto, (iii) the Assumed Liabilities or (iv) any claim for fraud arising in connection with the transactions contemplated by this Agreement (except, with respect to each of the foregoing clause (i), (ii), (iii) or (iv), to the extent any Buyer Indemnified Party is entitled to indemnification for such Losses under Section 9.1).

(b) Limitations. Buyer’s obligations under Section 9.2(a)(i) shall be subject to the following limitations:

(i) Buyer shall not have any liability for Losses under Section 9.2(a)(i) unless and until (A) each individual unrelated claim for Losses exceeds $20,000 or (B) the aggregate of all such unrelated claim for Losses exceeds $250,000 (at which time Dover shall, subject to the other limitations of this Section 9.2(b), have liability for the total amount of such Losses);

(ii) Buyer shall not have any liability for Losses under Section 9.2(a)(i) unless and until the aggregate of all Losses relating thereto for which Buyer would otherwise be liable exceeds the Threshold (it being understood that such amount shall be a deductible for which Buyer shall bear no indemnification responsibility); and

(iii) Buyer shall not have any liability for Losses under Section 9.2(a)(i) to the extent the aggregate amount of Losses for which Buyer would otherwise be liable thereunder exceeds the Lower Cap;

 

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provided, however, that the limitations set forth in this Section 9.2(b) shall not apply to any inaccuracy in or breach of any representation or warranty set forth in Sections 3.2(a) (Due Organization and Power) or 3.2(b) (Authority) or any claim based on fraud.

(c) Survival. Except for claims based on fraud, (i) the indemnification provided for in Section 9.2(a)(i) shall terminate upon the eighteen (18) month anniversary of the Closing Date and (ii) the indemnification provided for in Section 9.2(a)(ii) shall terminate in accordance with the expiration of the terms of the covenants and agreements covered thereby or, if no term is expressly stated therein, upon the expiration of the statute of limitations period applicable to the matters covered thereby; provided, however, that, in each case under clause (i) or clause (ii) of this Section 9.2(c), such indemnification shall continue thereafter as to any Losses with respect to which a Dover Indemnified Party has validly given Buyer an Indemnification Notice in accordance with Section 9.3 on or prior to the date such indemnification would have otherwise terminated in accordance with this Section 9.2(b), as to which such indemnification shall continue solely with respect to the specific matters identified in such Indemnification Notice until the resolution and satisfaction thereof in accordance with this Agreement.

(d) Maximum Liability. Notwithstanding anything contained herein to the contrary, from and after the Closing, except for claims based on fraud, the maximum aggregate Liability of Buyer pursuant to Section 9.2(b)(i) shall not exceed the Higher Cap.

Section 9.3. Procedures Relating to Indemnification. Following the discovery by a Person of any facts or conditions that would reasonably be expected to give rise to a Loss or Losses for which indemnification under this Article IX can be obtained, the Party seeking indemnification under this Article IX with respect thereto (the “Indemnified Party”) shall, within thirty (30) days thereafter, provide written notice to the Party from whom indemnification is sought (the “Indemnifying Party”), setting forth the facts and circumstances in reasonable detail (to the extent known) relating to such Loss or Losses, the amount of Loss or Losses (or a non-binding, reasonable estimate thereof if the actual amount is not known or liquidated) and the specific Section(s) of this Agreement (to the extent then determinable) upon which the Indemnified Party is relying in seeking such indemnification (an “Indemnification Notice”); provided, however, that any failure of an Indemnified Party to timely deliver such notice shall not limit the obligations of the Indemnifying Party hereunder except to the extent that (and only to the extent that) such failure to timely deliver such notice actually prejudices the Indemnifying Party. Within sixty (60) days after delivery of an Indemnification Notice, the Indemnifying Party shall deliver to the Indemnified Party a Response, in which the Indemnifying Party shall: (i) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case the Response shall be accompanied by payment by the Indemnifying Party in cash equal to the Claimed Amount by wire transfer of immediately available funds), (ii) agree that the Indemnified Party is entitled to receive the Agreed Amount (in which case the Response shall be accompanied by payment by the Indemnifying Party in cash equal to the Agreed Amount by wire transfer of immediately available funds) or (iii) dispute that the Indemnified Party is entitled to receive any of the Claimed Amount (a “Dispute”). If no Response is delivered by the

 

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Indemnifying Party within sixty (60) days following the Indemnified Party’s receipt of written confirmation of receipt of such Indemnification Notice by the General Counsel of the Indemnifying Party, the Indemnifying Party shall be deemed, to the extent such Indemnification Notice so states, to have agreed that all of the Claimed Amount is owed to the Indemnified Party. For purposes of the foregoing sentence, “written confirmation” shall include receipt confirming the delivery of facsimile, receipt of registered or certified mail, receipt of an internationally recognized overnight mail courier service and receipt of e-mail delivery. Acceptance by the Indemnified Party of partial payment of any Claimed Amount shall be without prejudice to the Indemnified Party’s right to claim the balance of any such Claimed Amount. During the sixty (60) day period following the delivery of a Response that reflects a Dispute, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve the Dispute. If the Indemnified Party and the Indemnifying Party shall not so resolve such claim during such period, the Indemnified Party shall be entitled to initiate such proceedings and seek such remedies as may be permitted under the terms of this Agreement and applicable Law.

Section 9.4. Procedures Relating to Indemnification for Third Party Claims.

(a) Notice. In order for an Indemnified Party to be entitled to any indemnification provided for under this Article IX arising out of or involving a claim or demand made by any third party, including any Governmental Entity (a “Third Party Claim”), the Indemnified Party must provide an Indemnification Notice to the Indemnifying Party relating to the Third Party Claim as soon as practicable after the Indemnified Party’s receipt of notice of the Third Party Claim, but in no event later than thirty (30) days thereafter; provided, however, that any failure of an Indemnified Party to timely deliver such notice shall not limit the obligations of the Indemnifying Party hereunder except to the extent that (and only to the extent that) such failure to timely deliver such notice adversely affects the Indemnifying Party’s ability to defend such Third Party Claim. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, complete and accurate copies of all notices and documents, including all court papers, received by the Indemnified Party from the third party asserting, or any court or tribunal adjudicating, such Third Party Claim relating to such Third Party Claim.

(b) Defense.

(i) Within thirty (30) days after delivery of an Indemnification Notice with respect to a Third Party Claim, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal

 

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Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. The Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect its interests.

(ii) If the Indemnifying Party so elects to assume the defense of a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, in each case such that it is in appropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(iii), the Non-controlling Party may participate in the defense of any Third Party Claim at its own expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall have the right to defend, compromise or settle such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim at the expense of the Indemnifying Party; provided, however, the Indemnified Party shall not compromise or settle such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.

Section 9.5. Determination of Indemnification Amounts.

(a) Without limiting the effect of any other limitation contained in this Article IX, for purposes of computing the amount of any and all Losses recoverable under this Article IX, there shall be deducted an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received (net of

 

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costs of enforcement, deductibles and retro-premium adjustments) by the Indemnified Party or any of its Affiliates in connection with such Losses or any of the circumstances giving rise thereto (it being understood that the Indemnified Party and any of its Affiliates shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements).

(b) For purposes of computing the amount of any and all Losses recoverable under this Article IX, there shall be deducted all reductions in federal, state, local and other Taxes (including estimated Taxes) realized or reasonably expected to be realized by the Acquired Companies, Buyer or any of their other Affiliates as a result of the event giving rise to such Loss (the “Indemnified Event”) prior to the close of the calendar year following the calendar year in which the Indemnified Event occurs. All calculations shall be made at the time of the relevant indemnification payment using reasonable assumptions (as agreed to by the Parties). Notwithstanding the foregoing, the Parties agree that such calculations shall be based upon representations to be provided by the Buyer (together with reasonable detail supporting such representations) regarding its Tax history, Tax Attributes and projected financial performance. Nothing in this Agreement shall entitle Dover to review the Tax Returns of Buyer or any of its Affiliates or to dispute the Tax return reporting position of any item by Buyer or its Affiliates that is unrelated to the Indemnified Event.

(c) In any case where an Indemnified Party recovers from third Persons any amount in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this Article IX, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter; provided, that, for the avoidance of doubt, subject to Section 9.5(a) neither the Indemnified Party nor any of its Affiliates shall have any obligation to pursue any such recovery from any third Person.

(d) Neither Dover nor any of its Affiliates shall have any right of contribution against any Acquired Company with respect to any breach of any of representations, warranties, covenants or agreements set forth in this Agreement or any other document or instrument executed and delivered pursuant hereto.

(e) Each of the Parties agrees to take such steps, if any, as such Party believes, in its good faith judgment, constitute commercially reasonable steps to mitigate its respective Losses, upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable hereunder; provided, that no Party (i) shall be required to cease the sale of any product or service and (ii) shall be required to incur any material expense with respect thereto.

(f) Dover shall not be required to indemnify and hold harmless any Buyer Indemnified Party pursuant to Section 9.1 to the extent the matter in question was actually included in the computation of the Closing Payment (as finally adjusted pursuant to Section 2.4) pursuant to Article II.

 

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(g) The condition set forth in Section 6.1(c) shall be deemed to have been satisfied if, prior to the Closing, Dover irrevocably agrees in writing to indemnify and hold harmless Buyer from all Losses arising from or relating to any Proceeding instituted, or threatened, by a Person that is not a Governmental Entity that does, or would reasonably be expected to, (i) restrain, enjoin or otherwise prohibit (or challenge the legality of) any of the transactions contemplated hereby or (ii) cause any of the transactions contemplated hereby to be rescinded following consummation.

Section 9.6. Subrogation Rights. Upon making any payment to an Indemnified Party in respect of any Losses, the Indemnifying Party shall, to the extent of such payment and to the extent permitted by applicable Law, be subrogated to all rights of the Indemnified Party against any third party (including with respect to any amounts already recovered or potentially recoverable by the Indemnified Party from any other third party) in respect of the Losses to which such payment relates. The Indemnified Party and Indemnifying Party shall each execute, upon request by the other party, all instruments reasonably necessary to evidence and perfect such subrogation rights. Notwithstanding the foregoing, in no event shall the Indemnifying Party be permitted to bring any such subrogation claim against any Person that has been a customer of any of the Acquired Businesses within the year prior to such claim without Buyer’s prior written consent. In no event shall Buyer or any Acquired Company be required to commence any action or be the named plaintiff in any such subrogation claim.

Section 9.7. Exclusive Remedy. Following the Closing, except for rights expressly provided in Section 5.1, a claim for specific performance or other equitable relief (including pursuant to Section 11.16), and except that each Party shall retain the right to bring claims based on fraud, the indemnification provisions of this Article IX shall be the sole and exclusive remedy with respect to the consummation of the transactions contemplated by this Agreement, including, for the avoidance of doubt, any and all claims arising out of or relating to Buyer’s investigation of the Acquired Companies, the Acquired Businesses and the Acquired Assets, the negotiation and execution of this Agreement, the inaccuracy in or breach of any representation, warranty, covenant or agreement, regardless of whether such claims arise in contract, tort, breach of warranty or any other legal or equitable theory. Without limiting the generality of the foregoing, the Parties hereby irrevocably waive any right of rescission they may otherwise have or to which they may become entitled.

Section 9.8. Purchase Price Adjustment. All indemnification payments made under this Agreement shall be treated for Tax purposes only as an adjustment to the Closing Payment.

Section 9.9. Set-Off Against Promissory Note Payments. In the event that Dover is finally determined to owe an indemnification payment to any Buyer Indemnified Party hereunder (which, for the avoidance of doubt, shall not include any claim relating to any payment owed by Dover to Buyer pursuant to Section 2.4(b) hereof), Dover shall be entitled, upon written notice to Buyer, to satisfy its obligation for making such payment through the set-off of an amount equal to such payment against the remaining outstanding principal balance (or interest payments otherwise required to be made to Dover or its designee(s) with respect thereto) of the Promissory Note, to the extent of such remaining balance or interest payments.

 

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ARTICLE X

TERMINATION

Section 10.1. General. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to the Closing, only as follows:

(a) by the written agreement of the Parties;

(b) by either Party, upon written notice provided to the other Party, if the Closing shall not have occurred on or prior to December 13, 2013 (the “Termination Date”) or such other date as the Parties agree in writing; provided, however, that the right to terminate this Agreement under this Section 10.1(b) shall not be available to any Party whose failure to fulfill any of its obligations under this Agreement has been the cause of or resulted in the failure of the Closing to occur on or before such date;

(c) by either Party, upon written notice provided to the other Party, if a Law shall be in effect, or a Governmental Entity with competent jurisdiction has issued an Order or taken other final and non-appealable action, permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; provided, however, that the right to terminate this Agreement under this Section 10.1(c) shall not be available to any Party whose failure to fulfill any of its obligations under this Agreement has been the cause of or resulted in such Law, Order or other action;

(d) by Buyer, upon written notice provided to Dover, if (i) the condition set forth in Section 6.1(e) shall have become incapable of fulfillment (without regard to the Termination Date) or (ii) Dover has breached, or caused the breach of, any of its respective representations, warranties, covenants, agreements or other obligations hereunder (or any of its representations or warranties has become inaccurate) in a manner that would reasonably be expected to cause the conditions set forth in Section 6.1(a) or Section 6.1(b) not to be satisfied and such breach or inaccuracy has not been cured within thirty (30) days following written notification thereof to Dover by Buyer; or

(e) by Dover, upon written notice provided to Buyer, if (i) the condition set forth in Section 7.1(e) shall have become incapable of fulfillment (without regard to the Termination Date) or (ii) Buyer has breached, or caused the breach of, any of its representations, warranties, covenants, agreements or other obligations hereunder (or any of its representations or warranties has become inaccurate) in a manner that would reasonably be expected to cause the conditions set forth in Section 7.1(a) or Section 7.1(b) not to be satisfied and such breach or inaccuracy has not been cured within thirty (30) days following written notification thereof to Buyer by Dover.

Section 10.2. Procedure for Termination. To terminate this Agreement as provided in Section 10.1, the terminating Party shall provide the other Party with written notice of its election to terminate this Agreement, and upon delivery of such written notice in accordance with Section 11.7 the transactions contemplated hereby shall be terminated, without further action by either Party.

 

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Section 10.3. Survival; Liabilities in Event of Termination. If this Agreement is terminated as provided in Section 10.1, then this Agreement shall become wholly void and of no further force and effect, and there shall be no liability under this Agreement on the part of Dover or Buyer, except that the respective obligations of Dover or Buyer, as the case may be, under the final sentence of Section 4.4(a), Section 10.2, this Section 10.3 and Article XI shall remain in full force and effect, and except that such termination shall not relieve either Party of any Liability for any willful and intentional breach of this Agreement or fraud prior to such termination.

ARTICLE XI

MISCELLANEOUS

Section 11.1. Publicity. The Parties agree that no public release or announcement concerning the transactions contemplated hereby shall be issued or made by or on behalf of any Party without the prior written consent of the other Party (which consent shall not be unreasonably withheld, delayed or conditioned), except (a) for any such release or announcement that may, in the reasonable judgment of the releasing Party, be required by Law or any United States securities exchange on which securities of the releasing Party (or any of its Affiliates) are listed, and (b) that Dover and Buyer may make such announcements to their respective employees; provided, that, a Party may issue or make any such public release or announcement that is entirely consistent with any announcement or public release to which the other Party has previously consented in accordance with this Section 11.1. The Parties agree to issue, promptly following the execution and delivery of this Agreement, a joint press release in a form reasonably acceptable to each Party announcing the execution of this Agreement.

Section 11.2. Assignment. Except to the extent otherwise expressly set forth in this Agreement, including Section 1.3, neither Party shall assign, transfer or encumber this Agreement, or its rights or obligations hereunder, in whole or in part, voluntarily or by operation of Law, without the prior written consent of the other Party, and any attempted assignment, transfer or encumbrance without such consent shall be void and without effect; provided, however, that Buyer and any Designated Purchaser, on the one hand, and Dover, on the other hand, may, without the prior written consent of Dover or Buyer, respectively, assign any or all of its rights or interests under this Agreement to any of its Affiliates (in which case such assignor shall remain liable for all of its Liabilities hereunder) or make a collateral assignment of any or all of its rights or interests under this Agreement to any lender.

Section 11.3. Parties in Interest; No Third-Party Beneficiaries.

(a) This Agreement shall be binding upon, inure to the benefit of, and be enforceable only by the Parties and their respective permitted successors and permitted assigns, and shall not confer any rights or remedies upon any other Person (including, for the avoidance of doubt, any Transferred Employee); provided, that, any Buyer Indemnified Party or Dover Indemnified Parties shall be entitled to enforce the rights contemplated to be afforded to such Person under Article IX.

 

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(b) Parent shall cause Dover and each Equity Seller, each Asset Seller and each of its other Affiliates to take all action contemplated to be taken by such Person pursuant to this Agreement, and not to take any action that, with respect to such Person, is expressly prohibited hereby. Subject to the terms and conditions of this Agreement, the obligations of the Parent hereunder shall be absolute and unconditional.

Section 11.4. Governing Law; Consent to Jurisdiction; WAIVER OF JURY TRIAL. This Agreement and all matters arising out of or relating to this Agreement and the transactions contemplated hereby (including this Agreement’s interpretation, construction, performance and enforcement) shall be construed and interpreted according to the Laws of the State of Delaware, excluding any choice of law rules that may direct the application of the Laws of another jurisdiction. This Agreement shall be construed and interpreted in accordance with the English language only, which language shall be controlling in all respects. No translation, if any, of this Agreement shall have any force or effect in the interpretation hereof or in the determination of the intent of the Parties hereunder. Each Party and Parent stipulates that any dispute shall be commenced and prosecuted in its entirety in, and consents to the exclusive jurisdiction and proper venue of, the Court of Chancery of the State of Delaware, New Castle County, or, if that court does not have jurisdiction, a federal court sitting in Wilmington, Delaware, and each Party and Parent consents to personal and subject matter jurisdiction and venue in any such court and waives and relinquishes all right to attack the suitability or convenience of any such venue or forum by reason of their present or future domiciles, or by any other reason. The Parties and Parent acknowledge that all Orders issued by any such court will be binding and enforceable in all jurisdictions and countries. Without limiting any other means of service, each Party and Parent agrees that service of any process, summons, notice or document with respect to any Proceeding may be served on it in accordance with the notice provisions set forth in Section 11.7. EACH OF THE PARTIES AND PARENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 11.5. Amendment. No modifications, amendments or supplements to this Agreement shall be valid and binding unless set forth in a written agreement executed and delivered by both Parties.

Section 11.6. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed and delivered by the Party so waiving. Except as provided in the preceding sentence, no action taken or omitted shall be deemed to constitute a waiver by the Party taking or omitting such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement or any other document or instrument executed and delivered pursuant hereto. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

Section 11.7. Notice. All notices, requests, demands and other communications under this Agreement shall be given in writing and shall be deemed given or made when personally delivered, when sent by telecopier transmission to the number below (with confirmation of

 

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receipt), four (4) business days after being sent when sent to the Parties at their respective addresses indicated below by registered or certified mail (return receipt requested and postage prepaid), one business day after being sent if sent for next business day delivery when sent for delivery by an internationally recognized overnight mail courier service or when sent by email (with confirmation of receipt) addressed as follows:

(a) If to Buyer, to:

LTX-Credence Corporation

825 University Avenue

Norwood, MA 02062

E-mail: As set forth on Schedule 11.7

Attention:        General Counsel

with a copy, which shall not constitute notice, to:

Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, MA 02109

E-mail: As set forth on Schedule 11.7

Attention:        Hal J. Leibowitz, Esq.

(b) If to Dover, to:

Dover Printing & Identification, Inc.

3005 Highland Parkway

Downers Grove, IL 60515

E-mail: As set forth on Schedule 11.7

Attention:        John Hartner

with copies, which shall not (except in the case of Section 9.3) constitute notice, to:

Dover Corporation

3005 Highland Parkway

Downers Grove, IL 60515

E-mail: As set forth on Schedule 11.7

Attention:        General Counsel

and

Sidley Austin LLP

One South Dearborn Street

Chicago, IL 60603

E-mail: As set forth on Schedule 11.7

Attention:        Paul L. Choi

 

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or to such other Person or address as either Party shall have specified by notice in writing to the other Party pursuant to this Section 11.7.

Section 11.8. Expenses. Regardless of whether or not the transactions contemplated hereby are consummated and except to the extent otherwise expressly set forth in this Agreement, all expenses incurred by the Parties shall be borne solely and entirely by the Party that has incurred such expenses.

Section 11.9. Schedules. Any fact or item disclosed on any Schedule to this Agreement shall be deemed disclosed on any other Schedule to this Agreement only where the applicability of such fact or item is reasonably apparent solely from a reading of the text of such disclosure. The fact that any item is disclosed in any Schedule to this Agreement shall not by reason only of such inclusion be deemed to establish the standard for disclosure, or the standard of materiality, as applied to any other item not disclosed.

Section 11.10. Interpretive Provisions. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” (b) the word “or” is not exclusive, (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole and (d) words importing the singular include the plural and vice versa, and words importing gender include all genders. Unless the context otherwise requires, references herein (i) to Articles, Sections, Exhibits and Schedules mean the Articles and Sections of, and the Exhibits and Schedules attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement, as applicable; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any rules or regulations promulgated thereunder. Subject to Section 11.9, the Schedules and Exhibits referred to herein and attached hereto shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein. All references to days shall be to calendar days unless business days are specified. All references to “dollars” or “$” shall mean United States Dollars. Unless otherwise expressly provided, wherever the consent of any Person is required or permitted, such consent may be withheld in such Person’s sole and absolute discretion. When reference is made to information that has been “made available” or “provided” to Buyer, that shall mean that such information was included in the Data Site Information. When referenced in any representation or warranty made prior to the Closing or any covenant or agreement operative prior to the Closing, any reference to any “Acquired Asset” or “Assumed Liability” shall mean, as applicable, any asset, right or property that would be an Acquired Asset, or any Liability that would be an Assumed Liability, if the Closing occurred at the time such representation or warranty is made or the time such covenant or agreement is operative, as the case may be.

Section 11.11. Section Headings; Table of Contents. The Section headings contained in this Agreement and the Table of Contents to this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

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Section 11.12. No Strict Construction. Notwithstanding the fact that this Agreement has been drafted or prepared by one of the Parties, each Party confirms that both it and its counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the Parties. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.

Section 11.13. Entire Agreement. This Agreement (including the Schedules and Exhibits to this Agreement) and the Confidentiality Agreement constitute the entire agreement between the Parties, and supersede all prior agreements and understandings, oral and written, between the Parties, with respect to the subject matter hereof; there are no conditions to this Agreement that are not expressly stated in this Agreement. If the Closing occurs, the Confidentiality Agreement shall terminate effective as of the Closing.

Section 11.14. Counterparts. This Agreement may be executed by facsimile signatures (including PDF, TIFF, JPEG, and BMP files) and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 11.15. Partial Invalidity. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable Law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.

Section 11.16. Specific Performance. Each of the Parties agrees that irreparable damage would occur in the event that any of the provisions of this Agreement to be performed by Buyer, Dover or Parent were not performed in accordance with their specific terms or were otherwise breached. Accordingly, prior to any termination of this Agreement pursuant to Section 10.1, each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions and any other equitable relief to prevent breaches of this Agreement by the other Party or Parent, and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware, New Castle County, or, if that court does not have jurisdiction, a federal court sitting in Wilmington, Delaware, this being in addition to any other remedy to which such party is entitled at law or in equity. Buyer, Dover and Parent hereby waive (a) any defense in any action for an injunction, specific performance and other equitable relief that a remedy at law would be adequate and (b) any requirements of applicable Law to post security as a prerequisite to obtaining equitable relief. Nothing in this Section 11.16 is intended to limit the provisions of Section 5.7(c).

Section 11.17. Definitions. For purposes of this Agreement, the term:

Acceptance Notice” shall have the meaning set forth in Section 2.3(b).

 

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Accounting Principles” shall mean GAAP applied consistently; provided, however, that with respect to any matter as to which there is more than one generally accepted accounting principle, “Accounting Principle” means the generally accepted accounting principles applied in the preparation of the audited consolidated balance sheet of the Acquired Businesses dated as of December 31, 2012; provided further, however, in all cases, as modified by the accounting principles set forth on Exhibit K hereto.

Acquired Assets” shall have the meaning set forth in Section 1.2(a).

Acquired Businesses” shall have the meaning set forth in the recitals of this Agreement.

Acquired Companies” shall have the meaning set forth in the recitals of this Agreement.

Acquired Companies Exclusive IP” has the meaning set forth in Section 3.1(r)(iii).

Acquired Companies Indebtedness” shall mean the aggregate amount of Indebtedness owed by the Acquired Companies and not paid prior to the Closing.

Acquired Companies IP” shall mean all Intellectual Property in which an Acquired Company has (or purports to have) an ownership interest or a license in any field.

Acquired Companies Owned IP” shall mean all Intellectual Property in which an Acquired Company has (or purports to have) an ownership interest.

Acquired Companies Specified Employee Liabilities” shall mean the aggregate amount of Specified Employee Liabilities owed by the Acquired Companies and not paid prior to the Closing; provided, that, for the avoidance of doubt, Acquired Companies Specified Employee Liabilities shall not include (i) any severance payments or benefits that are not Specified Employee Liabilities or (ii) any payments or benefits required to be paid after the Closing by Buyer or its Affiliates (including, after the Closing, the Acquired Companies) to any Transferred Employee because of any arrangements implemented by Buyer or such Affiliates after the Closing.

Acquired Companies Transaction Costs Liabilities” shall mean the aggregate amount of Transaction Costs owed by the Acquired Companies and not paid prior to the Closing; provided, that, for the avoidance of doubt, Acquired Companies Transaction Costs Liabilities shall not include any third-party cost, fee or expense incurred by, on behalf of or for the account of Buyer and its Affiliates (including, after the Closing, the Acquired Companies).

Acquired Exclusive IP” has the meaning set forth in Section 3.1(r)(iii).

Acquired IP” shall mean all Intellectual Property included in the Acquired Assets (including the Acquired Registered IP) in which an Asset Seller has (or purports to have) an ownership interest or a license in any field.

Acquired Leased Real Property” shall have the meaning set forth in Section 3.1(n)(i).

“Acquired MT Singapore Business” shall have the meaning set forth in Section 5.1(d)(ii)(A).

 

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Acquired Owned IP” shall mean all Intellectual Property included in the Acquired Assets (including the Acquired Registered IP) in which an Asset Seller has (or purports to have) an ownership interest.

Acquired Owned Real Property” shall have the meaning set forth in Section 3.1(n)(i).

Acquired Real Property” shall have the meaning set forth in Section 3.1(n)(i).

Acquired Registered IP” shall mean all of the Registered IP used, held for use or useful exclusively or primarily in connection with the Acquired Businesses, including the Registered IP set forth on Exhibit E hereto.

Acquired Shares” shall have the meaning set forth in Section 1.1.

Affiliate” shall mean, with respect to any specified Person, any other Person that owns or controls, is owned or controlled by or is under common ownership or control with such specified Person. For purposes of this definition, “control” means the ability to direct the operation or management of a Person, whether by Contract, ownership of securities, status as director, officer or other position therein, or otherwise. For the avoidance of doubt, the Acquired Companies shall be considered Affiliates of Dover prior to the Closing, and shall be considered Affiliates of Buyer following the Closing.

Agreed Amount” shall mean part, but not all, of the Claimed Amount, as specified by the Indemnifying Party in its Response.

Agreement” shall have the meaning set forth in the preamble of this Agreement.

Allocation Acceptance Notice” shall have the meaning set forth in Section 2.5(b)(ii).

Allocation Dispute Notice” shall have the meaning set forth in Section 2.5(b)(ii).

Annual Financial Statements” shall have the meaning set forth in Section 3.1(f)(i).

Asset Allocation Acceptance Notice” shall have the meaning set forth in Section 2.5(b)(iv).

Asset Allocation Dispute Notice” shall have the meaning set forth in Section 2.5(b)(iv).

Asset Employees” shall have the meaning set forth in Section 5.2(a)(i).

Asset Sellers” shall have the meaning set forth in the recitals of this Agreement.

Assumed Liabilities” shall have the meaning set forth in Section 1.2(b).

Assumed Benefit Plan” shall mean each Benefit Plan that is transferred to and/or assumed by Buyer at the Closing or that is sponsored by an Acquired Company.

atg L&M” shall mean atg Luther & Maelzer GmbH.

 

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Base Cash Purchase Price” shall have the meaning set forth in Section 2.1(a)(i)(A).

Basis Excess Amount” shall have the meaning set forth in Section 5.1(f)(ii).

Benefit Plans” shall mean each “employee pension benefit plan” (as defined in Section 3(2) of ERISA), each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), and each other material written or oral employee benefit plan, program, agreement or arrangement, including any stock option, stock appreciation right, phantom stock, restricted stock, or other equity compensation arrangement, any severance, termination, stay, retention or change in control or similar arrangement providing benefits upon a change in the ownership of any Acquired Asset, Acquired Business or Acquired Company, each executive or incentive or bonus compensation program, sick leave, vacation pay, patent award program, salary continuation for disability, insurance program, or fringe benefit program, in each case for the benefit of any Current Employee or individual contractor or former employee of the ECT Business or the MT Business, but excluding any employee benefit arrangements mandated by applicable law.

Books and Records” shall mean all business, accounting, operating, and personnel records of the Equity Sellers and Asset Sellers relating to the Acquired Businesses, including such records of each Acquired Company.

Business Asset Sellers” shall have the meaning set forth in the recitals of this Agreement.

Buyer” shall have the meaning set forth in the preamble of this Agreement.

Buyer Indemnified Party” shall have the meaning set forth in Section 9.1(a).

Cash and Cash Equivalents” shall mean the aggregate amount of the Acquired Companies’ cash and cash equivalents (including marketable securities and short term investments) on hand or in bank accounts, as determined in accordance with GAAP.

Cash Purchase Price” shall have the meaning set forth in Section 2.1(a).

Claimed Amount” shall mean the amount of any Losses incurred or reasonably expected to be incurred by an Indemnified Party in connection with a claim for indemnification pursuant to Article IX.

Closing” shall have the meaning set forth in Section 8.1.

Closing Date” shall have the meaning set forth in Section 8.1.

Closing Date Acquired Companies Indebtedness” shall have the meaning set forth in Section 2.3(b).

Closing Date Acquired Companies Specified Employee Liabilities” shall have the meaning set forth in Section 2.3(b).

 

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Closing Date Acquired Companies Transaction Costs Liabilities” shall have the meaning set forth in Section 2.3(b).

Closing Date Balance Sheet” shall have the meaning set forth in Section 2.3(b).

Closing Date Cash” shall have the meaning set forth in Section 2.3(b).

Closing Date Working Capital” shall have the meaning set forth in Section 2.3(b).

Closing Payment” shall have the meaning set forth in Section 2.2(a).

Code” shall mean the U.S. Internal Revenue Code of 1986.

Competing Business Activities” shall mean the manufacture, marketing or sale of any product of the type manufactured for sale or sold (or any product of the type that could reasonably be used as a substitute therefor), or the provision of services of the type provided (or any services of the type that could reasonably be used as a substitute therefor), by the Acquired Businesses as of and at any time during the twenty-four (24) months prior to the Closing Date.

Competing Business Seller” shall have the meaning set forth in Section 5.7(b).

Competition Law” shall mean any Law or Order that is designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition, including the HSR Act.

Confidentiality Agreement” shall have the meaning set forth in Section 4.1.

Consolidated Tax Group” shall mean any “affiliated group” (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time on or before the Closing Date, includes or has included any Acquired Company or any direct or indirect predecessor of any Acquired Company, or any other group of corporations filing Tax Returns on a combined, consolidated or unitary basis that, at any time on or before the Closing Date, includes or has included any Acquired Company or any direct or indirect predecessor of any Acquired Company.

Contract” shall mean any oral or written indenture, note, bond, mortgage, deed of trust, lease, license or sublicense, contract, instrument, commitment, undertaking, arrangement or other agreement.

Controlling Party” shall mean the Party controlling the defense of any Third Party Claim.

Copyrights” shall mean U.S. and foreign registered and unregistered copyrights, data and database rights, moral rights of authors and rights in semiconductor topologies, and the underlying works of authorship (including those in Software, web content and databases) and mask works, and all registrations and applications to register the same.

CTB Spin-off” shall have the meaning set forth in Section 4.2.

 

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Current Employee” shall mean each employee of the Acquired Companies and, to the extent working exclusively or primarily on matters with respect to the Acquired Businesses, and/or the Business Asset Sellers, in each case at any time from and after the execution and delivery of this Agreement through the Closing.

Customer-Facing Materials” shall have the meaning set forth in Section 5.4(a)(ii).

Data Site Information” shall mean the documents and information contained in the online data site hosted by Merrill DataSite known as “Project California VDR” and continuously available for review by Buyer and its representatives during the period from 11:59 p.m., Central Time, on September 4, 2013 until the execution and delivery of this Agreement.

DEK” shall mean DEK International GmbH.

Designated Purchaser” shall have the meaning set forth in Section 1.3.

Designated Seller” shall have the meaning set forth in Section 2.2(b).

Disregarded Acquired Company” shall have the meaning set forth in Section 2.5(b)(i).

Dispute” shall have the meaning set forth in Section 9.3.

Dispute Notice” shall have the meaning set forth in Section 2.3(b).

Dover” shall have the meaning set forth in the preamble of this Agreement.

Dover Germany” shall have the meaning set forth in Section 5.1(d)(iii)(B).

Dover Indemnified Party” shall have the meaning set forth in Section 9.2(a).

Dover Marks” shall have the meaning set forth in Section 5.4(a)(i).

ECT Acquired Companies” shall have the meaning set forth in the recitals of this Agreement.

ECT Asset Sellers” shall have the meaning set forth in the recitals of this Agreement.

ECT Assets” shall mean all of the assets, rights and properties of, including licenses granted to, the ECT Asset Sellers of every kind and description, wherever located, whether real, personal, mixed, tangible or intangible, used, held for use or useful exclusively or primarily in connection with the ECT Business.

ECT Business” shall have the meaning set forth in the recitals of this Agreement.

ECT Equity Sellers” shall have the meaning set forth in the recitals of this Agreement.

 

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ECT Liabilities” shall mean all of the Liabilities of the ECT Asset Sellers of every kind and description to the extent relating primarily or exclusively to the operation of the ECT Business or the ECT Assets, in each case as the same shall exist on the Closing Date, including:

(a) the Liabilities of the ECT Asset Sellers arising under any Contract included in the ECT Assets;

(b) the accounts payable of the ECT Asset Sellers to the extent related exclusively or primarily to the operation of the ECT Business; and

(c) the accrued expenses of the ECT Asset Sellers to the extent related exclusively or primarily to the operation of the ECT Business.

ECT US” shall have the meaning set forth in Section 5.1(d)(iii)(A).

Election Notice” shall have the meaning set forth in Section 5.1(f)(iii).

Environmental Laws” shall mean all Laws regarding protection of the environment or occupational health and safety, including those protecting the quality of the ambient air, soil, surface water or groundwater, and the use, handling, transportation, treatment, storage, recycling, disposal, release or discharge of or, with respect to occupational health and safety, exposure to Hazardous Substances.

Environmental Permits” shall have the meaning set forth in Section 3.1(l).

Equity Sellers” shall have the meaning set forth in the recitals of this Agreement.

ERISA” shall mean the Employee Retirement Income Security Act of 1974.

ERISA Affiliate” shall mean any entity which is, or at any applicable time was, a member of (a) a controlled group of corporations (as defined in Section 414(b) of the Code), (b) a group of trades or businesses under common control (as defined in Section 414(c) of the Code), or (c) an affiliated service group (as defined under Section 414(m) of the Code or the regulations under Section 414(o) of the Code), any of which includes or included any Acquired Company or Business Asset Seller.

Estimated Basis Excess Amount” shall have the meaning set forth in Section 5.1(f)(ii).

Estimated Closing Date Acquired Companies Indebtedness” shall have the meaning set forth in Section 2.1(b).

Estimated Closing Date Acquired Companies Specified Employee Liabilities” shall have the meaning set forth in Section 2.1(b).

Estimated Closing Date Acquired Companies Transaction Costs Liabilities” shall have the meaning set forth in Section 2.1(b).

Estimated Closing Date Cash” shall have the meaning set forth in Section 2.1(b).

Estimated Gross-Up Amount” shall have the meaning set forth in Section 5.1(f)(ii).

 

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Estimated Section 338(h)(10) Tax Amount” shall have the meaning set forth in Section 5.1(f)(ii).

Excess Cash” shall mean the amount (if any) of Cash and Cash Equivalents held by any non-U.S. Acquired Company as of the close of business on the business day immediately prior to the Closing Date that is in excess of the amount set forth on Schedule 2.1 under the heading “Base Operating Cash”, in each case, in respect of such non-U.S. Acquired Company.

Excluded Assets” shall mean the following assets, rights and properties of the Asset Sellers, which, for the avoidance of doubt, shall not be Acquired Assets:

(a) any rights in or to any Asset Seller’s franchise to be a corporation and its charter, corporate seal, minute books, stock books and other corporate records to the extent relating to its corporate existence and capitalization;

(b) except for any equity interest in any Acquired Company, any equity interest in any Asset Seller or in any other Person in which any Asset Seller owns any equity interest;

(c) the consideration to be delivered by Buyer to any Asset Seller pursuant to this Agreement and all other rights of any Asset Seller under this Agreement and the other documents and instruments to be executed and delivered pursuant hereto;

(d) any cash and cash equivalents of any Asset Seller;

(e) any intercompany receivables of any Asset Seller payable by an Affiliate of such Asset Seller, other than amounts due and owing for goods sold and services provided by the Acquired Businesses;

(f) any Asset Seller’s assets that are consumed, sold or disposed of in the Ordinary Course of Business prior to the Closing Date without breach of this Agreement;

(g) any refunds or credits with respect to any Taxes paid or incurred by any Asset Seller, together with any related interest received or due from the relevant taxing authority, any prepaid Taxes of any Asset Seller and any other rights to Taxes of any Asset Seller;

(h) subject to the Transition Services Agreement and Section 5.4 hereof, any rights of any Asset Seller in or to the Dover Marks or any derivation thereof and any corporate symbols or logos related thereto, including, for the avoidance of doubt, the www.dovercorporation.com domain name;

(i) any prepaid items, claims for contribution, indemnity rights and similar claims and causes of action and other intangible rights to the extent any of the foregoing relate exclusively or primarily to any Excluded Asset or to any Excluded Liability, and all privileges to the extent related thereto;

(j) any Asset Seller’s rights in, to and under insurance policies (except as otherwise provided in Section 5.5);

 

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(k) any Retained Benefit Plans;

(l) any books, records, files or other embodiments of information relating exclusively or primarily to any other Excluded Asset or any Excluded Liability;

(m) any Asset Seller’s rights, claims or causes of action against third parties relating exclusively or primarily to any Excluded Asset or any Excluded Liability and any Asset Seller’s rights in, to and under insurance policies (except as otherwise provided in Section 5.5); and

(n) in the case of the Registered IP Sellers, any assets other than the Acquired Registered IP.

Excluded Entity” shall mean each of Contact Products Japan, Ltd., Everett/Charles Japan, Ltd. and Contact Products Japan, Ltd.

Excluded Liabilities” shall mean any Liability of any Asset Seller that is not an Assumed Liability, including the following Liabilities of the Asset Sellers, which, for the avoidance of doubt, shall not be Assumed Liabilities:

(a) any Liabilities owed by an Asset Seller to an Affiliate of such Asset Seller, except for those such Liabilities arising from an Asset Seller’s purchase or sale of products or services in the Ordinary Course of Business;

(b) any Liabilities related to any Retained Benefit Plan;

(c) any Liabilities arising from or related to any Indebtedness, Transaction Cost or Specified Employee Liability of an Asset Seller;

(d) any Liabilities of an Asset Seller relating to any of the Excluded Assets;

(e) any Liabilities for Taxes of any Asset Seller;

(f) any Liabilities of Dover or any Asset Seller under this Agreement and the other documents and instruments to be executed and delivered pursuant hereto;

(g) any Liabilities of an Asset Seller arising from any breach or default under any Contract at or prior to the Closing (or events or circumstances at or prior to the Closing which, after notice or lapse of time or both, would constitute any such breach or default);

(h) any Liabilities under any Contract if the rights and benefits under such Contract (A) are not assigned to Buyer because of a failure to obtain the consent of another Person or otherwise and (B) are not effectively provided to Buyer via another means without additional cost to Buyer in accordance with Section 1.2(c); and

(i) any Liabilities to indemnify any Person by reason of the fact that such Person was, prior to the Closing, a director, officer, employee, or agent of any Asset Seller or was serving at the request of any Asset Seller as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for Losses or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise).

 

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Excluded Taxes” shall have the meaning set forth in Section 5.1(a)(i).

Exploit” shall mean research, develop, design, test, modify, make, assemble, produce, use, sell, have made, have used, have sold, import, reproduce, market, offer for sale, distribute, commercialize, support, maintain, repair, correct, publicly perform, display, execute and create derivative works of.

Final Allocation Schedule” shall have the meaning set forth in Section 2.5(b)(ii).

Final Asset Allocation Schedule” shall have the meaning set forth in Section 2.5(b)(iv).

Financial Statements” shall have the meaning set forth in Section 3.1(f).

FIRPTA” shall mean the Foreign Investment in Real Property Tax Act of 1980.

Fundamental Matters” shall have the meaning set forth in Section 9.1(b).

GAAP” shall mean United States generally accepted accounting principles.

German Profit and Loss Arrangement” shall mean the Domination Profit and Loss Absorption Agreement dated October 23, 2007 by and between atg L&M and Dover Germany.

Governmental Entity” shall mean any foreign, federal, state, local or other governmental authority or regulatory body, including any court, commission, board, bureau, agency or instrumentality thereof.

Gross-Up Amount” shall have the meaning set forth in Section 5.1(f)(vii).

Hazardous Substance” shall mean all substances or wastes defined as pollutants, contaminants, toxic substance, hazardous substance or material of environmental concern, including petroleum or petroleum-based substances or wastes, friable asbestos, polychlorinated biphenyls or any other substances defined as such under or subject to regulation under any Environmental Law.

Higher Cap” shall have the meaning set forth in Section 9.1(e).

HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

Indebtedness” shall mean, with respect to any Person, (a) indebtedness for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the Ordinary Course of Business), including (i) any indebtedness evidenced by a note, bond, debenture or similar instrument, (ii) accrued interest and any prepayment premiums, penalties, breakage costs or other similar obligations in respect thereof and (iii) any guarantees or other contingent obligations in respect thereof, (b) the face amount of outstanding letters of credit, acceptances and similar obligations created for the account of such Person, (c)

 

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liabilities and reimbursement obligations under interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements and other hedging agreements or arrangements, (d) obligations (whether or not such Person has assumed or become liable for the payment of such obligation) secured by Liens, (e) capitalized lease obligations, (f) bankers acceptances and overdrafts, (g) obligations to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities or property and (h) guaranties or arrangements having the economic effect of a guaranty by such Person of any indebtedness of any other Person.

Indemnification Notice” shall have the meaning set forth in Section 9.3.

Indemnified Event” shall have the meaning set forth in Section 9.5.

Indemnified Party” shall have the meaning set forth in Section 9.3.

Indemnifying Party” shall have the meaning set forth in Section 9.3.

Independent Auditor” shall have the meaning set forth in Section 2.3(d).

Intellectual Property” shall mean, collectively, all of the rights, title or interest in any of the following, arising under the Laws of the U.S., any state, any other country, or international treaty regime, whether or not filed, perfected, registered or recorded, including all renewals and extensions thereof: (a) Trademarks; (b) Patents and inventions, invention disclosures, and improvements, whether or not patentable; (c) Copyrights, rights of publicity (and other rights to use the names and likenesses of individuals); (d) Trade Secrets and rights to limit the use or disclosure thereof by any Person; (e) Internet domain names; (f) design rights; (g) Software; and (h) claims, causes of action and defenses relating to the enforcement or protection of any of the foregoing, including remedies against infringement or misappropriation thereof, whether such infringement or misappropriation occurs before or after the Closing.

Inventory” shall mean inventories of raw materials, work-in-process and finished products, and all spare, service and repair parts, supplies and components held for sale, together with related packaging materials.

IP Termination Agreement” shall mean the intellectual property termination agreement by and between Delaware Capital Formation, Inc., and Everett Charles Technologies LLC, substantially in the form of Exhibit G hereto.

IRS” shall mean the U.S. Internal Revenue Service.

Knowledge of Buyer” or “Buyer’s Knowledge” shall mean, as to a particular matter, the knowledge of the following individuals, in each case after reasonable due inquiry: Colin Savoy, David Tacelli and Mark Gallenberger.

Knowledge of Dover” or “Dover’s Knowledge” shall mean, as to a particular matter, the knowledge of the following individuals, in each case after reasonable due inquiry: Peter Marshall, Edwin Lou, Martin Senger, Dr. Reinhart Richter and Chan Pin Chong.

 

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Law” shall mean any common law or any federal, foreign, state, local or other constitution, statute, law, code, ordinance, rule, regulation or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity or any Order.

Leases” shall have the meaning set forth in Section 3.1(n)(i).

Liability” shall mean any direct or indirect liability, obligation, indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation or responsibility that a Person owes to or at the behest of any other Person, fixed or unfixed, known or unknown, liquidated or unliquidated or secured or unsecured, in each case whether called a liability, obligation, indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense or responsibility or otherwise.

Lien” shall mean any mortgage, lien, pledge, charge, claim, security interest or encumbrance of any kind, or any defect in title, in each case whether arising by contract, by operation of Law or otherwise.

Local Agreements” shall have the meaning set forth in Section 1.4(a).

Losses” shall mean any and all losses, costs, settlement payments, awards, judgments, fines, penalties, Taxes, damages, expenses, incidental damages, deficiencies, charges, or Liabilities (including interest, court costs, reasonable costs of investigators, reasonable fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation, arbitration or other dispute resolution procedures); provided, however, that Losses shall not include punitive, exemplary or consequential damages of any kind (in each case, other than those payable to an unaffiliated Person resulting from a Third Party Claim).

Lower Cap” shall have the meaning set forth in Section 9.1(b)(iii).

Marks Transition Period” shall have the meaning set forth in Section 5.4(a)(ii).

Material Adverse Effect” shall mean any event, circumstance, change, effect or occurrence that, individually or in the aggregate with all other events, circumstances, changes, effects or occurrences, is, or would reasonably expected to be, materially adverse to (a) the ability of Dover to consummate (or to cause its Affiliates to consummate) the transactions contemplated hereby or to perform its obligations hereunder or (b) the business, assets, liabilities, capitalization, financial condition or results of operations of the Acquired Businesses, taken as a whole, but shall, solely with respect to the foregoing clause (b), exclude any event, circumstance, change, effect or occurrence arising after the date of this Agreement to the extent resulting or arising from (i) any change in any Law or GAAP (or any interpretation thereof), (ii) any change in interest rates or general economic conditions in the industries or markets in which the Acquired Businesses operate or affecting the United States of America or foreign economies in general; (iii) any change that is generally applicable to the industries or markets in which the Acquired Businesses operate; (iv) any national or international political or social conditions, including the engagement by the United States of America or any other jurisdiction in which the Acquired Businesses operate in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United

 

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States of America or any such jurisdiction or any of their respective territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States of America or any such jurisdiction; (v) any acts of God, including any earthquakes, hurricanes, tornados, floods, tsunamis or other natural disasters, (vi) the announcement of this Agreement; (vii) any action taken upon the written request of Buyer or any of its Affiliates; or (viii) any effect that is cured by Dover or any Acquired Company prior to the Closing; provided, however, that in the case of each of clauses (i) through (v) of the foregoing, any such event, circumstance, change, effect or occurrence shall not be excluded to the extent that it impacts the Acquired Businesses in a disproportionate manner relative to other businesses similar to the Acquired Businesses operating in the industries or markets in which the Acquired Businesses operate.

Material Competition Law” shall mean each Competition Law set forth on Schedule 11.17(a).

Material Contract” shall have the meaning set forth in Section 3.1(o).

Most Recent Balance Sheet” shall have the meaning set forth in Section 3.1(f)(i).

Most Recent Balance Sheet Date” shall have the meaning set forth in Section 3.1(f)(i).

Most Recent Financial Statements” shall have the meaning set forth in Section 3.1(f)(i).

MT Acquired Companies” shall have the meaning set forth in the recitals of this Agreement.

MT Asset Sellers” shall have the meaning set forth in the recitals of this Agreement.

MT Assets” shall mean all of the assets, rights and properties of, including licenses granted to, the MT Asset Sellers of every kind and description, wherever located, whether real, personal, mixed, tangible or intangible, used, held for use or useful exclusively or primarily in connection with the MT Business.

MT Business” shall have the meaning set forth in the recitals of this Agreement.

MT Equity Sellers” shall have the meaning set forth in the recitals of this Agreement.

MT Liabilities” shall mean all of the Liabilities of the MT Asset Sellers of every kind and description to the extent relating primarily or exclusively to the operation of the MT Business or the MT Assets, in each case as the same shall exist on the Closing Date, including:

(a) the Liabilities of the MT Asset Sellers arising under any Contract included in the MT Assets;

(b) the accounts payable of the MT Asset Sellers to the extent related exclusively or primarily to the operation of the MT Business; and

(c) the accrued expenses of the MT Asset Sellers to the extent related exclusively or primarily to the operation of the MT Business.

 

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MT Singapore” shall have the meaning set forth in Section 5.1(d)(iii)(A).

MTeS” shall have the meaning set forth in Section 5.1(d)(iii)(A).

MTG” shall have the meaning set forth in Section 5.1(d)(iv).

Multitest Companies” shall have the meaning set forth in Section 5.1(d)(iv).

Multitest US” shall have the meaning set forth in Section 5.1(f)(i).

Nonassignable Asset” shall have the meaning set forth in Section 1.2(c).

Non-controlling Party” shall mean the party not controlling the defense of any Third Party Claim.

Open Source Material” shall mean any Software, documentation or other material that (a) is distributed as “free software”, “open source software” or under a similar licensing or distribution model, including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), or any other license described by the Open Source Initiative as set forth on www.opensource.org, or (b) grants, or purports to grant, to any third party, any rights or immunities under Intellectual Property, including any Software, documentation or other material that requires, as a condition of the modification, distribution or other use of such Software, documentation or other material, that any Software, documentation or other material incorporated into, derived from or distributed with such Software, documentation or other material be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, (iii) redistributable at no charge or minimal charge or (iv) licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind.

Orders” shall mean any order, writ, injunction, judgment, ruling or decree of any Governmental Entity or arbitration panel.

Ordinary Course of Business” shall mean the ordinary course of business consistent with past custom and practice (including with respect to frequency and amount).

Parent” shall have the meaning set forth in the preamble of this Agreement.

Party” or “Parties” shall mean Dover and/or Buyer, as the case may be.

Patents” shall mean issued U.S. and foreign patents and pending patent applications (including provisional patent applications), patent disclosures, utility models, design registrations, certificates of invention and similar statutory rights, and other governmental grants for the protection of inventions or industrial designs, and any and all divisionals, continuations, continuations-in-part, reissues, reexaminations, and extensions thereof, including in each case all inventions and improvements described therein.

 

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Permit” shall mean any license, permit, approval, authorization or consent of any Governmental Entity.

Permitted Liens” shall mean (a) Liens for Taxes not yet due and payable or being contested in good faith by appropriate Proceedings, (b) Liens of landlords or mechanic’s, material men’s, repairman’s or similar Liens arising in the Ordinary Course of Business with respect to obligations that are not more than one hundred twenty (120) days past due or that are being contested in good faith by appropriate proceedings, and (c) pledges or deposits to secure obligations under workers’ compensation, unemployment insurance or other types of social security or similar requirements of Law.

Permitted Real Property Exceptions” shall mean, collectively, (a) Liens for Taxes and other governmental charges and assessments (including special assessments) that are not yet due and payable or being contested in good faith by appropriate Proceedings for which appropriate reserves have been made; (b) all matters and exceptions set forth in any title insurance policies or commitments, if any, made available to Buyer or otherwise reflected in title records relating to real property that do not materially impair the use or value of the real property to which they relate; (c) Liens or other charges, encumbrances or title exceptions or imperfections with respect to the Acquired Owned Real Property created by or resulting from the acts or omissions of Buyer or any of its Affiliates’ employees, officers, directors, agents, representatives, contractors, invitees or licensees, in each case in their capacity as such; (d) Liens imposed by applicable Law, including building and zoning laws, ordinances and regulations now or hereafter in effect relating to the Acquired Real Property; (e) any Permitted Liens to the extent applicable to the Acquired Real Property; (f) easements, rights of way, restrictions, covenants or other similar matters that, individually or in the aggregate, are not material in amount and do not materially detract from the value or materially impair the existing use of the Acquired Real Property affected by such easement, right of way, restriction, covenant or other matter; and (g) in the case of Acquired Leased Real Property, Liens not created by the Acquired Companies or Business Assets Sellers that affect the underlying fee interest of the Acquired Leased Real Property.

Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or Governmental Entity.

Preliminary Acquired Companies Indebtedness Determination” shall have the meaning set forth in Section 2.3(a).

Preliminary Acquired Companies Specified Employee Liabilities Determination” shall have the meaning set forth in Section 2.3(a).

Preliminary Acquired Companies Transaction Costs Liabilities Determination” shall have the meaning set forth in Section 2.3(a).

Preliminary Allocation Schedule” shall have the meaning set forth in Section 2.5(b)(i).

Preliminary Asset Allocation Schedule” shall have the meaning set forth in Section 2.5(b)(i).

 

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Preliminary Cash Determination” shall have the meaning set forth in Section 2.3(a).

Preliminary Closing Date Balance Sheet” shall have the meaning set forth in Section 2.3(a).

Preliminary Closing Statement” shall have the meaning set forth in Section 2.3(a).

Preliminary Working Capital Determination” shall have the meaning set forth in Section 2.3(a).

Proceeding” shall mean any claim, demand, charge, complaint, action, suit, proceeding, hearing, audit or investigation, whether judicial or administrative, of any Person, including an arbitrator or Governmental Entity.

Products” shall mean all products or services currently manufactured, sold, leased, distributed, provided or otherwise disposed of by any of the Acquired Businesses, or manufactured, sold, leased, distributed, provided or otherwise disposed of by any of the Acquired Business during the twelve month period ending on the date hereof, and all products or service offerings in development by any of the Acquired Businesses. With respect to products or services in development, this definition shall apply only to the current design of any such products or services and shall not be applicable to the extent of any material alterations to the design of such products or services after the Closing.

Promissory Note” shall mean a Promissory Note, dated as of the Closing Date, in the form attached as Exhibit H hereto issued by Buyer to Dover, with an original principal amount equal to $20,000,000,.

Proprietary Information” shall have the meaning set forth in Section 5.8.

ProWorks License Agreement” shall mean that certain license agreement, dated as of the Closing Date, by and between Dover and Buyer, substantially in the form attached hereto as Exhibit M.

Registered IP” shall mean all Intellectual Property that is registered, filed or issued under the authority of, with or by any Governmental Entity or Internet domain name registrar, including all registered Patents, registered Copyrights, registered Trademarks, Internet domain names and all filed applications for any of the foregoing.

Registered IP Sellers” shall have the meaning set forth in the recitals of this Agreement.

Response” shall mean a written response provided by the Indemnifying Party to the Indemnified Party containing the information provided for in Section 9.3.

Restricted Person” shall mean any Current Employee and any Person who, at any time from and after the execution of this Agreement until the Closing, serves as a contractor, subcontractor, consultant, sales representative or vendor of any Acquired Company or, to the extent related to any Acquired Asset, Assumed Liability or Acquired Business, Asset Seller; provided, that, “Restricted Person” shall not include any service provider that is concurrently providing services to Dover or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand.

 

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Retained Benefit Plan” shall mean each Benefit Plan that is to be retained by Dover or any of its Affiliates at the Closing (i.e., not transferred to Buyer or any Designated Purchaser), including all Benefit Plans (other than Benefit Plans sponsored by an Acquired Company) to the extent covering individuals who are not current employees or contractors of an Acquired Business.

Rosenheim Property” shall have the meaning set forth in Section 5.11.

Sale Notice” shall have the meaning set forth in Section 5.7(b)(i).

Schedules” shall mean the disclosure schedules delivered by Dover to Buyer simultaneously with the execution and delivery of this Agreement.

Section 338(h)(10) Election” shall have the meaning set forth in Section 5.1(f)(ii).

Section 338(h)(10) Tax Amount” shall have the meaning set forth in Section 5.1(f)(ii).

Section 338(h)(10) Taxes” means any Taxes imposed as a result of the Section 338(h)(10) Election or any elections under state, local or other Tax Law that are required to be made or deemed to have been made as a result of the Section 338(h)(10) Election.

Seller Pension Plan” means any Benefit Plan covered by Section 412 of the Code and/or Section 302 of ERISA that is currently or in the past six years was sponsored, maintained, or contributed to by any Acquired Company, Business Asset Seller or any ERISA Affiliate of any Acquired Company or Business Asset Seller.

Software” shall mean all computer software and web sites, including data files, source code, object code, application programming interfaces and other software related specifications and documentation.

Specified Employee Liability” shall mean, with respect to any Person, any amount payable to an employee of such Person pursuant to any change in control or transaction bonus or retention plan or similar arrangement involving such Person, in each case payable solely as a result of the transactions contemplated by this Agreement.

Straddle Period” shall mean any taxable year or period beginning on or before but ending after the Closing Date.

Subordination Agreement” shall mean the subordination agreement by and between Parent and Silicon Valley Bank, dated as of the Closing Date, in the form also attached as Exhibit H hereto.

Subsidiary” of any Person shall mean another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting

 

104


interests, 50% or more of the equity interests of which) or is entitled to receive 50% or more of the net assets of such Person available for distributions to the holders of ownership interests therein upon a liquidation or dissolution of such Person is owned directly or indirectly by such first Person or by another Subsidiary of such first Person.

Supply Agreement” shall mean the supply agreement between DEK, Everett Charles Technologies LLC and Dover Asia Trading Pte. Ltd. (solely for purposes of Section 2 thereof), attached as Exhibit I hereto.

Tax Attributes” shall mean, with respect to any Tax, any tax basis, net operating loss carryovers, net capital loss carryovers, credits and similar Tax items of any Person.

Tax Package” shall have the meaning set forth in Section 5.1(b)(iv).

Tax Proceeding” shall have the meaning set forth in Section 5.1(c)(ii).

Tax Return” shall mean any return, declaration, form, report, estimate, claim for refund, or information return or statement relating to, or required to be filed in connection with, any Taxes, including any schedule or attachment thereto and any amendment thereof filed with or submitted to (or required to be filed with or submitted to) any Governmental Entity.

Tax Sharing Arrangement” shall mean any written or unwritten agreement or arrangement providing for the allocation or payment of Tax liabilities or payment for Tax benefits between or among members of any group of corporations filing Tax Returns that files, will file or has filed Tax Returns on a combined, consolidated or unitary basis.

Taxes” shall mean any and all taxes, charges, fees, duties, contributions, levies or similar assessments or liabilities, including income, corporation, premium, value-added, capital gains, documentary, recapture, alternative or add-on minimum, disability, registration, recording, license, lease, service, service use, transfer, business license, business organization, environmental, severance, occupation, franchises, windfall or other profits, gross receipts, real and tangible property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, net worth, stamp, customs excise, withholding, ad valorem, value added and estimated taxes or charges imposed by the United States of America or any state, local or foreign government, or any agency or political subdivision thereof, and any interest, fines, penalties, assessments or additions to tax imposed with respect to such items or any contest or dispute thereof.

Termination Date” shall have the meaning set forth in Section 10.1(b).

Third Party Claim” shall have the meaning set forth in Section 9.4(a).

Threshold” shall have the meaning set forth in Section 9.1(b)(ii).

“Total Consideration” shall have the meaning set forth in Section 2.5(b).

Trademarks” shall mean U.S. and foreign registered and unregistered trademarks, trade dress, service marks, trade names, logos and all registrations and applications to register the same, and the goodwill associated with any of the foregoing.

 

105


Trade Materials” shall have the meaning set forth in Section 5.4(a)(ii).

Trade Secrets” shall mean trade secrets, and to the extent not generally known to the public, know-how, business, marketing and technical information, databases, procedures, research records, market surveys, product specifications, product designs, plans, compositions, proprietary processes, methods, techniques, customer lists and data, supplier lists and data, and any other non-public or confidential information.

Transaction Cost” shall mean, with respect to any Person, any third-party cost, fee or expense (including, for the avoidance of doubt, any such cost, fee or expense payable as a result of the consummation of the transactions contemplated by this Agreement) incurred by such Person in connection with the transactions contemplated by this Agreement; provided, that, for the avoidance of doubt, Transaction Costs shall not include Specified Employee Liabilities.

Transferred Employees” shall have the meaning set forth in Section 5.2(a)(i).

Transition Services Agreement” shall mean a master transition services agreement between Dover and Buyer, substantially in the form of Exhibit J hereto, which may, to the extent required by Law or to the extent more convenient for administrative purposes, have appended thereto separate agreements for particular jurisdictions, in each case as mutually agreed upon by the Parties.

VAT” shall have the meaning set forth in Section 5.1(d)(i)(A).

VAT Issue” shall have the meaning set forth in Section 5.1(a)(i).

WARN” shall have the meaning set forth in Section 5.2(h).

Working Capital” shall mean (a) the consolidated current assets of the Acquired Companies and those Acquired Assets that constitute current assets (excluding, in each case, Cash and Cash Equivalents, any prepaid insurance premium in respect of Parent’s insurance policies with Liberty Mutual, intercompany receivables (other than intercompany receivables in respect of hosting Current Employees (by and among Dover and its Affiliates), including any payroll, facility costs and IT infrastructure charges associated therewith), income tax assets and the amount of any accrued value added Tax refund) minus (b) the consolidated current liabilities of the Acquired Companies and those Assumed Liabilities that constitute current liabilities (excluding, in each case, income tax liabilities, intercompany payables (other than intercompany payables in respect of hosting Current Employees (by and among Dover and its Affiliates), including any payroll, facility costs and IT infrastructure charges associated therewith), Indebtedness, Transaction Costs and Specified Employee Liabilities and including the liability of atg L&M to Dover Germany under the German Profit and Loss Arrangement in accordance with the provisions of Section 5.12), in each case calculated in accordance with the line items specified on Exhibit F and the Accounting Principles.

Working Capital Target” shall mean $62,400,000.

 

106


Where any group or category of items or matters is defined collectively in the plural number, any item or matter within such definition may be referred to using such defined term in the singular number, and vice versa.

[Signature pages follow.]

 

107


IN WITNESS WHEREOF, the Parties have caused their duly authorized officers to execute and deliver this Master Sale and Purchase Agreement as of the day and year first written above.

 

DOVER PRINTING & IDENTIFICATION, INC.

(“Dover”)

By:  

/s/ Peter J. Marshall

Name:   Peter J. Marshall
Title:   Authorized Person

DOVER CORPORATION, solely for purposes of Sections 11.3(b), 11.4 and 11.16

(“Parent”)

By:  

/s/ Peter J. Marshall

Name:   Peter J. Marshall
Title:   Authorized Person

LTX-CREDENCE CORPORATION

(“Buyer”)

By:  

/s/ David G. Tacelli

Name:   David G. Tacelli
Title:   President and Chief Executive Officer

[Master Sale and Purchase Agreement]


Execution Version

Exhibit A

ECT Equity Sellers and ECT Acquired Companies

 

Seller

 

Company*

Dover Corporation   1.    Everett Charles Technologies Board Test Manufacturing Limited Company (50%)
Dover Communication Technologies, Inc.   1.    Everett Charles Technologies LLC
Dover Asia Trading Private Limited   1.   

Everett Charles Technologies (Shenzhen) Limited

  2.    Test Solutions (Suzhou) Co., Ltd.
Dover Global Holdings, Inc.   1.    Everett Charles Technologies Board Test Manufacturing Limited Company (50%)
Dover Germany GmbH   1.    atg Luther & Maelzer GmbH
    

a.

  

atg Luther & Maelzer Asia Ltd.

     b.    ETZ Elektrisches Testzentrum fuer Leiterplatten GmbH (15.38%)

 

* Note that the Subsidiaries and other subsidiaries of each company (if any) are set forth below its name. All ownership interests are 100% unless otherwise indicated.


Execution Version

Exhibit B

ECT Asset Sellers

 

   

Seller

   
 

Dover India Pvt., Ltd.

 
 

Icon Technology Company Ltd.

 
 

DEK Northern Europe Limited

 
 

Dover Southeast Asia (Thailand) Ltd.

 
 

Dover Asia Trading Private Limited

 
 

Delaware Capital Formation, Inc.

 
 

DTG International GmbH

 


Execution Version

Exhibit C

MT Equity Sellers and MT Acquired Companies

 

Seller

 

Company*

Delaware Capital Formation, Inc.   1.    Multitest Electronic Systems Inc.

Dover Germany GmbH

  1.    Multitest GmbH
    

a.

  

Multitest elektronische Systeme GmbH

     b.    FTZ Fraes-und Technologiezentrum GmbH Frasdorf (39%)
Dover Netherlands Services B.V.   1.    Multitest Electronic Systems (Penang) Sdn. Bhd.
Dover Asia Trading Private Limited   1.    Multitest Electronic Systems (Philippines) Corporation

 

* Note that the Subsidiaries and other subsidiaries of each company (if any) are set forth below its name. All ownership interests are 100% unless otherwise indicated.


Execution Version

Exhibit D

MT Asset Sellers

 

   

Seller

   
  Dover Corporation Regional Headquarters  
  Dover India Pvt., Ltd.  
  Dover Southeast Asia (Thailand) Ltd.  
  DEK Printing Machines Limited  
  Dover Global Trading Pte. Ltd.  
  Dover Netherlands Services B.V.  


Execution Version

Exhibit E

Acquired Registered IP

Trademarks

 

OWNER

  

COUNTRY

  

APPLICATION
NUMBER

  

FILING

DATE

  

REGISTRATION
NUMBER

  

REGISTRATION
DATE

  

MARK

Delaware Capital Formation, Inc.    United States    75-711658    21-May-99    2571852    21-May-02    BANTAM
Delaware Capital Formation, Inc.    United Kingdom    2214278    15-Nov-99    2214278    07-Jul-00    BANTAM
Delaware Capital Formation, Inc.    Taiwan    88057311    18-Nov-99    930664    16-Feb-01    Bantam
Delaware Capital Formation, Inc.    Japan    2002-042399    23-May-02    4831504    07-Jan-05    BANTAM
Delaware Capital Formation, Inc.    European    1382779    12-Nov-99    1382779    20-Dec-00    BANTAM
Delaware Capital Formation, Inc.    United States    75-711660    21-May-99    2553252    26-Mar-02    BANTAM PAK
Delaware Capital Formation, Inc.    United Kingdom    2214276    15-Nov-99    2214276    30-Jun-00    BANTAM PAK
Delaware Capital Formation, Inc.    Taiwan    88057310    18-Nov-99    936054    16-Feb-01    Bantam Pak
Delaware Capital Formation, Inc.    European    1383116    12-Nov-99    1383116    11-Dec-00    BANTAM PAK
Delaware Capital Formation, Inc.    Germany    P 32837 9WZ    21-Jun-85    1090880    28-Apr-86    BIASING BALL
Delaware Capital Formation, Inc.    France    747531    14-Jun-85    1312722    14-Jun-85    BIASING BALL
Delaware Capital Formation, Inc.    United States    73-518861    23-Jan-85    1351509    30-Jul-85    BIASING-BALL
Delaware Capital Formation, Inc.    Canada    0544107    20-Jun-85    TMA320636    14-Nov-86    BIASING-BALL
Delaware Capital Formation, Inc.    United States    76-401873    30-Apr-02    2738808    15-Jul-03    DURAPAK
Delaware Capital Formation, Inc.    Taiwan    17226    02-May-02    1043345    16-May-03    DURAPAK
Delaware Capital Formation, Inc.    Japan    2002-037770    09-May-02    4651696    07-Mar-03    DURAPAK
Delaware Capital Formation, Inc.    China    3208411    12-Jun-02    3208411    14-Oct-03    DuraPak
Delaware Capital Formation, Inc.    Canada    1139359    30-Apr-02    TMA651714    27-Oct-05    DURAPAK
Delaware Capital Formation, Inc.    Taiwan    94014990    01-Apr-05    01197346    16-Feb-06    ECT
Delaware Capital Formation, Inc.    Singapore    T05/04594E    29-Mar-05    T05/04594E    18-Oct-05    ECT
Delaware Capital Formation, Inc.    Singapore    T05/04592I    29-Mar-05    T05/04592I    26-Jul-05    ECT
Delaware Capital Formation, Inc.    Hong Kong    Not yet filed    Not yet filed          ECT
Delaware Capital Formation, Inc.    China    4634094    29-Apr-05    4634094    21-Dec-08    ECT
Delaware Capital Formation, Inc.    China    4634096    29-Apr-05    4634096    28-Oct-09    ECT
Delaware Capital Formation, Inc.    United States    78-593816    23-Mar-05    3167563    07-Nov-06    ECT and Design
Delaware Capital Formation, Inc.    European    4363073    30-Mar-05    4363073    18-Apr-06    ECT and design
Delaware Capital Formation, Inc.    China    4634093    29-Apr-05    4634093    28-Oct-09    ECT and design


Delaware Capital Formation, Inc.    United States    78-593835    23-Mar-05    3167564    07-Nov-06    ECT Block Letters
Delaware Capital Formation, Inc.    Taiwan    94014991    01-Apr-05    01197347    16-Feb-06    ECT stylized and design
Delaware Capital Formation, Inc.    Singapore    T05/04591J    29-Mar-05    T05/04591J    01-Feb-06    ECT stylized and design
Delaware Capital Formation, Inc.    Singapore    T05/04590B    29-Mar-05    T05/04590B    16-Jan-06    ECT stylized and design
Delaware Capital Formation, Inc.    Hong Kong    300393246    29-Mar-05    300393246    24-Aug-05    ECT stylized and design
Delaware Capital Formation, Inc.    China    4634095    29-Apr-05    4634095    21-Dec-08    ECT stylized and design
Delaware Capital Formation, Inc.    United States    78-213082    10-Feb-03    3068926    14-Mar-06    ELIMINATOR
Delaware Capital Formation, Inc.    China    2001032801    09-Mar-01    2018115    14-Oct-04    ELIMINATOR
Delaware Capital Formation, Inc.    United States    76-679657    19-Jul-07    3456134    01-Jul-08    ESH Block Letters
Delaware Capital Formation, Inc.    United States    74-243815    06-Feb-92    1838309    31-May-94    EVERETT CHARLES TECHNOLOGIES
Delaware Capital Formation, Inc.    Taiwan    94014483    30-Mar-05    1208763    01-May-06    Everett Charles Technologies
Delaware Capital Formation, Inc.    Singapore    T05/04125G    28-Mar-05    T05/04125G    28-Dec-05    Everett Charles Technologies
Delaware Capital Formation, Inc.    Singapore    T05/04124I    28-Mar-05    T05/04124I    20-Sep-05    Everett Charles Technologies
Delaware Capital Formation, Inc.    Mexico    709888    01-Apr-05    884973    31-May-05    Everett Charles Technologies
Delaware Capital Formation, Inc.    Mexico    714727    28-Apr-05    888348    24-Jun-05    Everett Charles Technologies
Delaware Capital Formation, Inc.    Japan    H10-099459    20-Nov-98    4746192    06-Feb-04    EVERETT CHARLES TECHNOLOGIES
Delaware Capital Formation, Inc.    Hong Kong    300393237    29-Mar-05    300393237    04-Aug-05    Everett Charles Technologies
Delaware Capital Formation, Inc.    European    4362927    30-Mar-05    004362927    18-Apr-06    Everett Charles Technologies
Delaware Capital Formation, Inc.    China    4541448    15-Mar-05    4541448    07-Oct-08    Everett Charles Technologies
Delaware Capital Formation, Inc.    China    4551526    21-Mar-05    4551526    21-Jan-08    Everett Charles Technologies
Delaware Capital Formation, Inc.    Brazil    827313985    07-Apr-05    827313985    06-Nov-07    Everett Charles Technologies
Delaware Capital Formation, Inc.    Brazil    827313977    07-Apr-05    827313977    20-Nov-07    Everett Charles Technologies
Delaware Capital Formation, Inc.    United States    73-642017    28-Jan-87    1467094    01-Dec-87    FASTITE
Delaware Capital Formation, Inc.    United States    85/925778    07-May-13          Laserwire
Delaware Capital Formation, Inc.    Korea, South    4020040044233    30-Sep-04    4006365650000    27-Oct-05    MINI MITE
Delaware Capital Formation, Inc.    United States    76-401874    30-Apr-02    2680883    28-Jan-03    MINI-MITE
Delaware Capital Formation, Inc.    Taiwan    17228    02-May-02    1043346    16-May-03    MINI-MITE
Delaware Capital Formation, Inc.    Canada    1139360    30-Apr-02    TMA648760    22-Sep-05    MINI-MITE
Delaware Capital Formation, Inc.    United States    72-346959    22-Dec-69    916181    13-Jul-71    POGO
Delaware Capital Formation, Inc.    United Kingdom    1193106    29-Mar-83    1193106    02-Jan-85    POGO

 

2


Delaware Capital Formation, Inc.    Taiwan    87050094    14-Oct-98    922362    01-Jan-01    Pogo
Delaware Capital Formation, Inc.    Japan    H07-96393    21-Sep-95    4090608-2    12-Dec-97    Pogo
Delaware Capital Formation, Inc.    Japan    1998-087300    13-Oct-98    4537490    18-Jan-02    POGO
Delaware Capital Formation, Inc.    Italy    33655C/83    21-Apr-83    1055588    03-Nov-86    POGO
Delaware Capital Formation, Inc.    Germany    P 30191 9WZ    07-Apr-83    1056822    05-Dec-83    POGO
Delaware Capital Formation, Inc.    France    660649    07-Apr-83    1232477    05-Apr-93    POGO
Delaware Capital Formation, Inc.    Canada    501198    31-Mar-83    288699    09-Mar-84    POGO
Delaware Capital Formation, Inc.    United Kingdom    B1336919    29-Feb-88    B1336919    08-Feb-91    ROBOPROBE
Delaware Capital Formation, Inc.    United States    73-576583    06-Jan-86    1608864    07-Aug-90    TTI TESTRON and Design
Delaware Capital Formation, Inc.    Taiwan    97022414    13-May-08    01353722    16-Mar-09    Valitron
Delaware Capital Formation, Inc.    Singapore    T08/05897E    06-May-08    T0805897E    06-May-08    Valitron
Delaware Capital Formation, Inc.    Malaysia    08008772    06-May-08    08008772    15-Apr-10    Valitron
Delaware Capital Formation, Inc.    Korea, South    40-2008-0022203    08-May-08    4007771060000    23-Jan-09    Valitron
Delaware Capital Formation, Inc.    Japan    2008-035515    08-May-08    5176251    24-Oct-08    Valitron
Delaware Capital Formation, Inc.    India    1686564    13-May-08    1686564    07-Feb-11    Valitron
Delaware Capital Formation, Inc.    Hong Kong    301109718    06-May-08    301109718    16-Dec-08    Valitron
Delaware Capital Formation, Inc.    European    006854848    14-Apr-08    006854848    29-Jan-09    Valitron
Delaware Capital Formation, Inc.    China    6715806    12-May-08    6715806    07-Jun-10    Valitron
Delaware Capital Formation, Inc.    United States    77-406694    26-Feb-08    3538480    25-Nov-08    VALITRON Block Letters
Delaware Capital Formation, Inc.    WIPO    1032674    04-Mar-10    1032674    04-Mar-10    ZIP
Delaware Capital Formation, Inc.    Vietnam    1032674    04-Mar-10    1032674    04-Mar-10    Zip
Delaware Capital Formation, Inc.    Singapore    1032674    04-Mar-10    1032674    04-Mar-10    Zip
Delaware Capital Formation, Inc.    Korea, South    1032674    04-Mar-10    1032674    04-Mar-10    Zip
Delaware Capital Formation, Inc.    Japan    1032674    04-Mar-10    1032674    04-Mar-10    Zip
Delaware Capital Formation, Inc.    Hong Kong    301558422    09-Mar-10    301558422    11-Aug-10    Zip
Delaware Capital Formation, Inc.    European    1032674    04-Mar-10    1032674    04-Mar-10    Zip
Delaware Capital Formation, Inc.    China    1032674    04-Mar-10    1032674    04-Mar-10    Zip
Delaware Capital Formation, Inc.    Canada    1472045    05-Mar-10    TMA835542    01-Nov-12    Zip
Delaware Capital Formation, Inc.    United States    77-884604    02-Dec-09    3807010    22-Jun-10    ZIP Block Letters
Delaware Capital Formation, Inc.    Taiwan    99010063    08-Mar-10    01432224    01-Oct-10    ZIP Block Letters
Delaware Capital Formation, Inc.    Philippines    4-2010-002712    10-Mar-10    42010002712    03-Mar-11    ZIP Block Letters
Delaware Capital Formation, Inc.    Malaysia    2010004046    09-Mar-10    2010004046    05-Nov-12    ZIP Block Letters
Delaware Capital Formation, Inc.    India    1937409    17-Mar-10          ZIP Block Letters

 

3


Delaware Capital Formation, Inc.    Brazil    830553894    29-Mar-10          ZIP Block Letters
Delaware Capital Formation, Inc.    United States    75-747911    12-Jul-99    2513864    4-Dec-01    Harbor Electronics
Delaware Capital Formation, Inc.    United States    78-416268    10-May-04    3534112    18-Nov-08    Harbor Electronics block letters
Delaware Capital Formation, Inc.    United States    78-119699    4-Apr-02    2856747    22-Jun-04    Harbor Electronics, Inc (and Design)
atg Luther & Maelzer GmbH    European Union    11274081    10/17/2012          SmartStep
atg Luther & Maelzer GmbH    International Registration    011274081_01    3/1/2013          SmartStep
DTG International GmbH    Taiwan, R.O.C.    101065778    11/20/2012          SmartStep
atg Luther & Maelzer GmbH    European Union    11274032    10/17/2012          FlexStep
atg Luther & Maelzer GmbH    International Registration    011274032_01    3/1/2013          Flexstep
DTG International GmbH    Taiwan, R.O.C.    101065777    11/20/2012          FlexStep
atg Luther & Maelzer GmbH    Germany    395 20 443.7    05/15/1995    395 20 443       atg
atg test systems GmbH & Co. KG    Japan    H08-129286    11/15/1996    4178459       atg
atg test systems GmbH & Co. KG    Korea    4.01996E+12    07/18/1996    4.00387E+12       atg
atg test systems GmbH & Co. KG    Korea    4.11996E+12    07/18/1996    4.10048E+11       atg
atg Luther & Maelzer GmbH    Germany    398 44 048.4/09    4/8/1998    398 44 048       EXALINE
atg test systems GmbH & Co. KG    European Union    16790    1/4/1996          atg (Dreieck)
atg test systems GmbH & Co. KG    European Union    2083400    01/18/2001    2083400       atg
atg Luther & Maelzer GmbH    China    2001083235    05/21/2001    1993476       atg (int class 9)
atg test systems GmbH & Co. KG    China    2001083236    05/21/2001    2011640       atg (int class 42)
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    90021454    05/29/2001    998399       „atg“ (int. Class 9)
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    90021455    05/29/2001    173108       „atg“ (int. Class 42)
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    91026808    05/29/2001          „atg“ (int. Class 37)
atg test systems GmbH    China    5084494    12/26/2005    5084494       LaTest
atg Luther & Maelzer GmbH    Germany    307 10 983.6 / 09    02/21/2007    307 10 983.6       LaTest (Wortmarke)
atg test systems GmbH    International Registration    936 346    02/21/2007    936 346       LaTest (Wortmarke)
atg test systems GmbH    Japan    2005-120558    12/22/2005    4,999,861       LaTest, class 09
atg test systems GmbH    Korea    40-2005-0060502    12/23/2005    40-0698104       LaTest (class 9)
atg test systems GmbH    Taiwan, R.O.C.    94061913    12/22/2005    1225621       LaTest (word mark) in class 9
atg test systems GmbH    U.S.A.    77/254,473    08/14/2007    3,470,797       LaTest (Wortmarke)
atg test systems GmbH    European Union    5013297    11/4/2006          A6 (3D-Marke), Beschwerdesache R0421/2007-1
atg test systems GmbH    China    6271019    11/9/2007          EXAMAT, class 9
atg test systems GmbH    European Union    5991336    12/6/2007    5991336       EXAMAT

 

4


atg test systems GmbH    Taiwan, R.O.C.    96040475    08/23/2007    1312440       EXAMAT, class 9
atg Luther & Maelzer GmbH    Germany    307 40 540.0 / 09    06/21/2007    307 40 540       MicroShort Detection (Wortmarke)
atg Luther & Maelzer GmbH    Austria    AM 7901/2007    11/15/2007          MicroShort Detection (Wortmarke)
atg Luther & Maelzer GmbH    China    6405163    11/28/2007          MicroShort Detection
atg Luther & Maelzer GmbH    Italy    MI2007C011880    11/19/2007          MicroShort Detection (Wortmarke)
atg Luther & Maelzer GmbH    Korea    2008-0046559    12/12/2007    40-0790096       MicroShort Detection
Luther & Maelzer GmbH & Co. KG    China    3995320    5/4/2004    3995320       LM, Bildmarke, Klasse 9
atg Luther & Maelzer GmbH    European Union    7014491    06/25/2008          „LM“, Bildmarke
Luther & Maelzer GmbH & Co. KG    Hong Kong    300127692    12/16/2003          LM, Wortmarke, Klasse 9
Luther & Maelzer GmbH & Co. KG    Japan    2004-041147    04/30/2004    4829224       LM, Bildmarke, Klasse 9
Luther & Maelzer GmbH & Co. KG    Korea    40-2004-0051990    11/17/2004    636624       LM, Bildmarke, Klasse 9
Luther & Maelzer GmbH & Co. KG    Taiwan, R.O.C.    92071707    12/12/2003    11422225       LM, Klasse 9
Luther & Maelzer GmbH & Co. KG    Korea    40-2004-0051987    11/17/2004    636621       LM40
Luther & Maelzer GmbH & Co. KG    Korea    40-2004-0051989    11/17/2004    636623       LM400
Luther & Maelzer GmbH & Co. KG    China    785175    07/15/2002    G785175       LUTHER & MAELZER, Klasse 7
Luther & Maelzer GmbH & Co. KG    Germany    302 25 895.7 / 07    05/24/2002    302 25 895       Luther & Maelzer (Wortmarke)
Luther & Maelzer GmbH & Co. KG    European Union    2711190    05/24/2002    2711190       Luther & Maelzer (Wortmarke)
Luther & Maelzer GmbH & Co. KG    International Registration    785 175    07/15/2002    785 175       Luther & Maelzer (Wortmarke)
Luther & Maelzer GmbH & Co. KG    China    4356358    10/11/2004    4356358       Luther & Maelzer in chinesischen Schriftzeichen, Klasse 9
Luther & Maelzer GmbH & Co. KG    Hong Kong    300257698    07/28/2004    300257698       Luther & Maelzer in chinesischen Schriftzeichen, Klasse 09
Luther & Maelzer GmbH & Co. KG    Taiwan, R.O.C.    93035238    07/29/2004    1163618       Luther & Maelzer in chinesischen Schriftzeichen, Klasse 9
Luther & Maelzer GmbH & Co. KG    U.S.A.    76-447,025    5/9/2002    2,785.821       Luther & Maelzer (Wortmarke)
Luther & Maelzer GmbH & Co. KG    China    4033553    04/23/2004    ZC4033553ZC       Picomat (Wortmarke)
Luther & Maelzer GmbH & Co. KG    Germany    1116411    05/22/1987    1116411       QUICKTEST (Wort-/Bildmarke)
Luther & Maelzer GmbH & Co. KG    Japan    2004-015420    02/20/2004    4794712       Picomat (Wortmarke)
Luther & Maelzer GmbH & Co. KG    Korea    2004-0007279    02/19/2004    608268       Picomat (Wortmarke)
Luther & Maelzer GmbH & Co. KG    Korea    2002-0028027    06/18/2002    561639       Luther & Maelzer (Wortmarke)
Multitest    Germany          304 42 975    11/24/2004    InStrip
Multitest    China          4485398, 4485397, 4485396 and 4485395    07.11.2007 and 28.08.2008    InStrip

 

5


Multitest    Malaysia          4019393, 4019394, 4019395, 4019396    10.12.2004    InStrip
Multitest    Philippines          4-2004-11874    12/31/2005    InStrip
Multitest    Taiwan          01228195, 01191834, 01193077, 01193229    16.01.2006 and 16.09.2006    InStrip
Multitest    WIPO          858127    3/10/2005    InStrip
Multitest    USA          3095898    5/23/2006    InStrip
Multitest    Singapore          T05/16753F, T05/16752H, T05/16754D    10.03.2005    InStrip
Multitest    Germany          304 42 976    11/24/2004    InSite
Multitest    China          4485393    8/28/2008    InSite
Multitest    Malaysia          4019398    10.12.2004    InSite
Multitest    Taiwan          1175336, 1187692, 1187836    12/16/2005    InSite
Multitest    WIPO          867517    3/10/2005    InSite
Multitest    Singapore          T05/23979J, T05/23977D, T05/23978B    10.03.2005    InSite
Multitest    Germany          304 42 977    11/24/2004    QuickDock
Multitest    China          4485391, 4485390, 4485389    07.07.2007, 28.08.2008, 21.11.2008    QuickDock
Multitest    Malaysia          4019400, 40194001, 40194002    10.12.2004    QuickDock
Multitest    Philippines          11876    2007 Declaration of Actual Use was not filed    QuickDock
Multitest    Taiwan          1228262, 1193078, 1180288    16.01.2006, 01.11.2005, 16.09.2006    QuickDock
Multitest    WIPO          867518    3/10/2005    QuickDock
Multitest    USA          3133336    22.08.2006 Declaration of Actual Use was not filed    QuickDock
Multitest    Singapore          T05/23980D, T05/23981B, T05/23982J    10.03.2005    QuickDock
Multitest    Germany          304 42 978    10/26/2004    Dura
Multitest    China          4485380, 4485381, 4485379    8/28/2008    Dura
Multitest    Malaysia          4019403, 4019404, 4019405    10.12.2004    Dura
Multitest    Philippines          4-2004-11875    13.11.2006 Declaration of Actual Use was not filed    Dura
Multitest    Taiwan          1185878, 1187664, 1137838    12/16/2005    Dura

 

6


Multitest    WIPO          867619    3/10/2005    Dura
Multitest    USA          3133337    8/22/2006    Dura
Multitest    Singapore          T05/24014D, T05/24015B, T05/24016J    10.03.2005    Dura
Multitest    Germany          304 42 979    1/13/2005    Multicare
Multitest    China          4485366    12/7/2008    Multicare
Multitest    Malaysia          4019407, 4019409    12/10/2004    Multicare
Multitest    Philippines          11878    Declaration of Actual Use was not filed    Multicare
Multitest    Taiwan          1180115, 1180251, 1193228    01.11.2005, 16.01.2006    Multicare
Multitest    WIPO          873286    3/10/2005    Multicare
Multitest    Singapore          T06/01690F, T06/01691D, T06/01692B    3/10/2005    Multicare
Multitest    EU          4604021    Withdrawn    Multitest
Multitest    EU          5582457    1/18/2008    Multitest
Multitest    EU          8280927    11/22/2009    nanoKelvin
Multitest    USA          3878511    11/23/2010    nanoKelvin
Multitest    EU          8308009    11/24/2009    FORTA
Multitest    USA          3855475    10/5/2010    FORTA
Multitest    EU          8280968    Withdrawn    ECON
Multitest    USA          77729245 (serial number)    Discontinued    ECON
Multitest    EU          8990178    9/29/2010    plug & yield
Multitest    USA          3950145    4/26/2011    plug & yield
Multitest    Singapore          T1005411F    29.04.2010    plug & yield
Multitest    EU          8480493    1/27/2010    inCarrier
Multitest    Malaysia          Anmeldenr. 2010001615 2010001616 2010001614       inCarrier
Multitest    Taiwan          1463510    7/1/2011    inCarrier
Multitest    WIPO          1027637    9/23/2009    inCarrier
Multitest    USA          3916208    2/8/2011    inCarrier
Multitest    Singapore          T1002039D    9/23/2009    inCarrier
Multitest    EU          10971571    10/24/2012    Triton

 

7


Patents

 

OWNER/

ASSIGNEE

  

COUNTRY

  

APPLICATION
NUMBER

  

APPLICATION
DATE

  

REGISTRATION/

PUBLICATION
NUMBER

  

REGISTRATION/

PUBLICATION
DATE

  

TITLE

  

STATUS

Delaware Capital Formation, Inc.    United States    08/126179    9/23/1993    5447442    9/5/1995    Compliant electrical connectors   
Delaware Capital Formation, Inc.    United States    08/224006    4/5/1994    5422575    6/6/1995    Test fixture with adjustable bearings and optical alignment system   
Delaware Capital Formation, Inc.    United States    08/462229    6/5/1995    5557211    9/17/1996    Vacuum test fixture for printed circuit boards   
Delaware Capital Formation, Inc.    United Kingdom    9401551.8    1/27/1994    2274920    11/27/1996    Marker probe   
Delaware Capital Formation, Inc.    Germany    4404115.2    2/9/1994    4404115    7/29/1999    Prufvorrichtung zum Prufen von gedruckten Schaltungskarten (German)   
Delaware Capital Formation, Inc.    United States    08/292054    8/16/1994    5493230    2/20/1996    Retention of test probes in translator fixtures   
Delaware Capital Formation, Inc.    United States    08/558687    11/16/1995    5641315    6/24/1997    Telescoping spring probe   
Delaware Capital Formation, Inc.    United States    08/561395    11/21/1995    5667410    9/16/1997    One-piece compliant probe   
Delaware Capital Formation, Inc.    United States    08/531720    9/21/1995    5729146    3/17/1998    Quick stacking translator fixture   
Delaware Capital Formation, Inc.    United States    08/783467    1/16/1997    5801544    9/1/1998    Spring probe and method for biasing   
Delaware Capital Formation, Inc.    United Kingdom    199800596.0    1/14/1998    2323222    4/18/2001    Spring probe and method for biasing   
Delaware Capital Formation, Inc.    Taiwan    86109649    7/9/1997    105627    7/1/1999    Spring Probe and Method for Biasing   

 

8


Delaware Capital Formation, Inc.    Germany    19801269.1    1/15/1998    19801269    7/1/1999    Electrical circuit testing probe   
Delaware Capital Formation, Inc.    France    1998370    1/15/1998    2758395    6/23/2000    SONDE A RESSORT POUR TESTS ELECTRIQUES (French)   
Delaware Capital Formation, Inc.    United States    08/688189    7/29/1996    5818248    10/6/1998    Loaded board test fixture with integral translator fixture for testing closely spaced test sites   
Delaware Capital Formation, Inc.    European    1997935151    7/29/1997    855037    12/7/2005    LOADED BOARD DROP PIN FIXTURE   
Delaware Capital Formation, Inc.    United States    08/536131    9/29/1995    5865641    2/2/1999    Solid spring electrical contacts for electrical connectors and probes   
Delaware Capital Formation, Inc.    United Kingdom    199514007.5    7/10/1995    2291544    10/2/1996    Electrical connectors   
Delaware Capital Formation, Inc.    Japan    1995176316    7/12/1995    2718425    11/14/1997    Solid Spring Electrical Contacts for Electrical Connectors and Probes   
Delaware Capital Formation, Inc.    Germany    19525390.6    7/12/1995    19525390    10/2/2003    Elektrische Verbindungsvorrichtung (German)   
Delaware Capital Formation, Inc.    France    9508309    7/10/1995    9508309    6/12/1998    CONTACTS ELECTRIQUES A RESSORT PLEIN POUR DES CONNECTEURS ET DES SONDES ELECTRIQUES (French)   

 

9


Delaware Capital Formation, Inc.    United States    29/093915    9/22/1998    D422230    4/4/2000    Coaxial Test Probe   
Delaware Capital Formation, Inc.    United Kingdom    2082174    3/22/1999    2082174    6/2/1999    Coaxial Test Probe   
Delaware Capital Formation, Inc.    Germany    49902980.1    3/19/1999    49902980.1    10/9/1999    Coaxial Test Probe   
Delaware Capital Formation, Inc.    France    991814    3/18/1999    991814    9/3/1999    COAXIAL TEST PROBE   
Delaware Capital Formation, Inc.    Finland    M19990247    3/18/1999    20659    10/29/1999    Coaxial Test Probe   
Delaware Capital Formation, Inc.    United States    08/606593    2/26/1996    5898314    4/27/1999    Translator fixture with force applying blind pins   
Delaware Capital Formation, Inc.    Italy    TO97A000158    2/25/1997    1291147    12/29/1998    ATTREZZATURA PER LA TRASLAZIONE DI SEGNALI CON SPINE CIECHE PER L’APPLICAZIONE DI FORZA (Italian)   
Delaware Capital Formation, Inc.    Germany    19707485.5    2/25/1997    19707485    1/24/2008    Haltevorrichtung und Haltebaugruppe fur ein Leiterplatten-Prufgerat (German)   
Delaware Capital Formation, Inc.    Taiwan    87118577    11/17/1998    112013    2/1/2000    Scan test machine for densely spaced test sites   
Delaware Capital Formation, Inc.    Italy    2001250038.5    2/2/2001    1122546    7/9/2008    Scan Test Machine for Densely Spaced Test Sites   

 

10


Delaware Capital Formation, Inc.    European    2001250038.5    2/2/2001    1122546    7/9/2008    Scan test machine for densely spaced test sites   
Delaware Capital Formation, Inc.    United States    09/207740    12/8/1998    6194908    2/27/2001    Test fixture for testing backplanes or populated circuit boards   
Delaware Capital Formation, Inc.    United States    08-662671    6/14/1996    5883520    3/16/1999    Retention of test probes in translator fixtures   
Delaware Capital Formation, Inc.    United States    09/207741    12/8/1998    6366107    4/2/2002    Loading mechanism for automated verification and repair station   
Delaware Capital Formation, Inc.    WIPO    1997US8900    5/23/1997    1998040752    9/17/1998    PERIPHERALLY LEADED PACKAGE TEST CONTACTOR   
Delaware Capital Formation, Inc.    WIPO    1997US8901    5/23/1997    1998013695    4/2/1998    GRID ARRAY PACKAGE TEST CONTACTOR   
Delaware Capital Formation, Inc.    WIPO    2001US21531    7/5/2001    2002004961    5/23/2002    SELF-RETAINED SPRING PROBE   
Delaware Capital Formation, Inc.    United States    09/614422    7/12/2000    6462567    10/8/2002    Self-retained spring probe   
Delaware Capital Formation, Inc.    United States    09/253320    2/18/1999    6396293    5/28/2002    SELF-CLOSING SPRING PROBE   
Delaware Capital Formation, Inc.    United Kingdom    200021622.6    3/16/1999    2351398    7/25/2001    SPRING PROBE   
Delaware Capital Formation, Inc.    United Kingdom    200021621.8    3/16/1999    2356744    3/13/2002    SPRING PROBE   
Delaware Capital Formation, Inc.    United Kingdom    200021623.4    3/16/1999    2351399    7/25/2001    SPRING PROBE ASSEMBLIES   
Delaware Capital Formation, Inc.    United Kingdom    9905858.8    3/16/1999    2347023    7/25/2001    SPRING PROBE   

 

11


Delaware Capital Formation, Inc.    Taiwan    88105387    4/3/1999    177029    12/27/2003    Spring probe   
Delaware Capital Formation, Inc.    Taiwan    90116956    8/22/2001    169399    4/29/2003    Self-retained spring probe   
Delaware Capital Formation, Inc.    Japan    1999159442    6/7/1999    3210645    7/13/2001    Spring Probe   
Delaware Capital Formation, Inc.    Italy    04078167.6    11/18/2004    1510827    8/15/2007    Self-Closing Spring Probe   
Delaware Capital Formation, Inc.    Italy    99302847.1    4/13/1999    1037055    4/5/2006    Spring Probe   
Delaware Capital Formation, Inc.    Ireland    04078167.6    11/18/2004    1510827    8/15/2007    Self-Closing Spring Probe   
Delaware Capital Formation, Inc.    Hong Kong    2011105237.1    7/27/2001    1035030    11/15/2002    SPRING PROBE   
Delaware Capital Formation, Inc.    Hong Kong    03107255.2    10/9/2003    HK1054984    4/29/2011    Self-Retained Spring Probe (Amended)   
Delaware Capital Formation, Inc.    Hong Kong    1104426.5    6/27/2001    1033977    5/10/2002    SPRING PROBE ASSEMBLIES   
Delaware Capital Formation, Inc.    Hong Kong    1104425.6    6/27/2001    1033976    3/22/2002    SPRING PROBE   
Delaware Capital Formation, Inc.    Hong Kong    1101340.4    2/23/2001    1030455    3/22/2002    SPRING PROBE   
Delaware Capital Formation, Inc.    Germany    69930717.1    4/13/1999    69930717.1    1/25/2007    Spring Probe   
Delaware Capital Formation, Inc.    Germany    04078167.6    4/13/1999    1510827    8/15/2007    SPRING PROBE   
Delaware Capital Formation, Inc.    France    99302847.1    4/13/1999    1037055    4/5/2006    Spring Probe   
Delaware Capital Formation, Inc.    France    04078167.6    4/13/1999    1510827    8/15/2007    Spring Probe   
Delaware Capital Formation, Inc.    European    1999302847    4/13/1999    1037055    4/5/2006    Spring probe   

 

12


Delaware Capital Formation, Inc.    European    2004078167    4/13/1999    1510827    8/15/2007    Spring probe   
Delaware Capital Formation, Inc.    European    2001950967    7/5/2001    1299735    1/12/2011    SELF-RETAINED SPRING PROBE   
Delaware Capital Formation, Inc.    WIPO    2001US31500    10/10/2001    2003031995    4/17/2003    COAXIAL TILT PIN FIXTURE FOR TESTING HIGH FREQUENCY CIRCUIT BOARDS   
Delaware Capital Formation, Inc.    United States    09/991199    11/16/2001    6788078    9/7/2004    Apparatus for scan testing printed circuit boards   
Delaware Capital Formation, Inc.    Korea, South    2002-0071079    11/15/2002    0560089    3/6/2006    Apparatus for Scan Testing Printed Circuit Boards   
Delaware Capital Formation, Inc.    Ireland    02025085    11/12/2002    1312930    5/21/2003    Apparatus for Scan Testing Printed Circuit Boards   
Delaware Capital Formation, Inc.    European    2002025085.8    11/12/2002    1312930    1/17/2007    Apparatus for scan testing printed circuit boards   
Delaware Capital Formation, Inc.    United States    10/454930    6/5/2003    7059046    6/13/2006    Method for producing a captive wired test fixture and fixture therefor   
Delaware Capital Formation, Inc.    United States    11/373595    3/9/2006    7424775    9/16/2008    Captive wired test fixture   
Delaware Capital Formation, Inc.    European    2003253864.7    6/18/2003    1376141    5/25/2011    Method for producing a captive wired test fixture and fixture therefor   
Delaware Capital Formation, Inc.    United States    10/897182    7/22/2004    7071716    7/4/2006    Apparatus for scan testing printed circuit boards   

 

13


Delaware Capital Formation, Inc.    WIPO    2006US22311    6/8/2006    2006135680    12/21/2006    Electrical Contact Probe with Compliant Internal Interconnect   
Delaware Capital Formation, Inc.    United States    11/450231    6/8/2006    7256593    8/14/2007    Electrical contact probe with compliant internal interconnect   
Delaware Capital Formation, Inc.    Singapore    200718278.5    6/8/2006    138004    12/31/2009    Electrical Contact Probe with Compliant Internal Interconnect   
Delaware Capital Formation, Inc.    Philippines    2007502628    6/8/2006    12007502628    4/18/2011    Electrical Contact Probe with Compliant Internal Interconnect   
Delaware Capital Formation, Inc.    Malaysia    PI20071950    11/9/2007    144789    11/15/2011    Electrical Contact Probe with Compliant Internal Interconnect   
Delaware Capital Formation, Inc.    Korea, South    20087000738    6/8/2006    101012712    1/27/2011    Compliant Electrical Interconnect and Electrical Contact Probe   
Delaware Capital Formation, Inc.    Japan    2008515918    6/8/2006    4585024    9/10/2010    Electrical Contact Probe with Compliant Internal Interconnect   
Delaware Capital Formation, Inc.    China    200680020653    6/8/2006    101501509    8/5/2009    Electrical contact probe with compliant internal interconnect   
Delaware Capital Formation, Inc.    Taiwan    88115508    9/8/1999    173745    2/21/2003    Scan test apparatus for continuity testing of bare printed circuit boards   

 

14


Delaware Capital Formation, Inc.    WIPO    2008US76720    9/17/2008    2009039205    3/26/2009    SPRING CONTACT ASSEMBY   
Delaware Capital Formation, Inc.    United States    12/206659    9/8/2008    7862391    1/4/2011    Spring contact assembly   
Delaware Capital Formation, Inc.    Taiwan    97135610    9/17/2008    I375362    10/21/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    Singapore    201001575-8    9/17/2008    159827    7/31/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    Philippines    12010500312    9/17/2008          Spring Contact Assembly   
Delaware Capital Formation, Inc.    Malaysia    PI2010001071    9/17/2008          Spring Contact Assembly   
Delaware Capital Formation, Inc.    Korea, South    1020107004086    2/24/2010    10-1145283    5/4/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    Japan    2010525927    9/17/2008    4988927    5/11/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    European    2008831781.3    9/17/2008    2191544    6/2/2010    Spring Contact Assembly   
Delaware Capital Formation, Inc.    China    200880102509    9/17/2008    200880102509    12/12/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    China    2012102396875    7/11/2012    102738627    10/17/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    WIPO    2008US076706    9/17/2008    2009039194    3/26/2009    SEMICONDUCTOR ELECTROMECHANICAL CONTACT   
Delaware Capital Formation, Inc.    United States    12/204741    9/4/2008    7695286    4/13/2010    Semiconductor electromechanical contact   
Delaware Capital Formation, Inc.    Taiwan    97135607    9/17/2008    200922053    5/16/2009    Semiconductor Electromechanical Contact   

 

15


Delaware Capital Formation, Inc.    Malaysia    PI2010001070    9/17/2008          Semiconductor Electromechanical Contact   
Delaware Capital Formation, Inc.    European    2008831540.3    9/17/2008    2206196    7/14/2010    Semiconductor Electromechanical Contact   
Delaware Capital Formation, Inc.    China    200880107681    9/17/2008    101803116    8/11/2010    Semiconductor electromechanical contact   
Delaware Capital Formation, Inc.    WIPO    2010US21252    1/15/2010    2010088077    8/5/2010    Flat Plunger Round Barrel Probe   
Delaware Capital Formation, Inc.    United States    12/683346    1/6/2010    8105119    1/31/2012    Flat Plunger Round Barrel Test Probe   
Delaware Capital Formation, Inc.    Taiwan    99102240    1/27/2010    201037319    10/16/2010    Flat plunger round barrel test probe (English)   
Delaware Capital Formation, Inc.    Mexico    10/2011/007730    1/15/2010    310151    6/3/2013    Flat Plunger Round Barrel Test Probe   
Delaware Capital Formation, Inc.    Korea, South    20117019121    1/15/2010    2011-0105401    9/26/2011    Flat Plunger Round Barrel Test Probe   
Delaware Capital Formation, Inc.    European    2010736210.5    1/15/2010    2384443    11/9/2011    Flat Plunger Round Barrel Test Probe   
Delaware Capital Formation, Inc.    China    201080005905.8    1/15/2010          Flat Plunger Round Barrel Test Probe   
Delaware Capital Formation, Inc.    WIPO    2010US28727    3/25/2010    2010111532    9/30/2010    Scrub Inducing Compliant Electrical Contact   
Delaware Capital Formation, Inc.    United States    12/629790    12/2/2009    8324919    12/4/2012    Scrub inducing compliant electrical contact (English)   
Delaware Capital Formation, Inc.    Taiwan    99108338    3/22/2010    201043967    12/16/2010    Scrub inducing compliant electrical contact (English)   

 

16


Delaware Capital Formation, Inc.    Korea, South    20117023661    10/7/2011    2011-0124367    11/16/2011    Scrub Inducing Compliant Electrical Contact   
Delaware Capital Formation, Inc.    European    2010756871.9    3/25/2010    2411820    2/1/2012    Scrub Inducing Compliant Electrical Contact   
Delaware Capital Formation, Inc.    China    201080019928.4    3/25/2010    102422170    4/18/2012    Scrub Inducing Compliant Electrical Contact   
Delaware Capital Formation, Inc.    WIPO    2010US60868    12/16/2010    2011075599    6/23/2011    Wiring Board for Testing Loaded Printed Circuit Boards   
Delaware Capital Formation, Inc.    United States    12/959765    12/3/2010    20110148451    6/23/2011    Wiring Board for Testing Loaded Printed Circuit Boards   
Delaware Capital Formation, Inc.    Thailand    1201002875    12/16/2010          Wiring Board for Testing Loaded Printed Circuit Boards   
Delaware Capital Formation, Inc.    Taiwan    99143251    12/10/2010    201135249    10/16/2011    Wiring board for testing loaded printed circuit board (English)   
Delaware Capital Formation, Inc.    Malaysia    PI2012002698    12/16/2010          Wiring Board for Testing Loaded Printed Circuit Boards   
Delaware Capital Formation, Inc.    European    2010838264.9    12/16/2010    2517031    10/31/2012    WIRING BOARD FOR TESTING LOADED PRINTED CIRCUIT BOARD (English)   
Delaware Capital Formation, Inc.    China    201080057353.5    12/16/2010    102656468    9/5/2012    Wiring Board for Testing Loaded Printed Circuit Boards   

 

17


Delaware Capital Formation, Inc.    United States    12/968023    12/14/2010    20110175636    7/21/2011    Terminal for Flat Test Probe   
Delaware Capital Formation, Inc.    Taiwan    99145850    12/24/2010    201140069    11/16/2011    Terminal for flat test probe (English)   
Delaware Capital Formation, Inc.    WIPO    2010US61376    12/20/2010    2011087764    7/21/2011    Loaded Printed Circuit Board Test Fixture and Method for Manufacturing the Same   
Delaware Capital Formation, Inc.    United States    12/963322    12/8/2010          Loaded Printed Circuit Board Test Fixture and Method for Manufacturing the Same   
Delaware Capital Formation, Inc.    Thailand    1201002876    12/20/2010          Loaded Printed Circuit Board Test Fixture and Method for Manufacturing the Same   
Delaware Capital Formation, Inc.    Taiwan    99144733    12/20/2010    201135241    10/16/2011    Loaded printed circuit board test fixture and method for manufacturing the same (English)   
Delaware Capital Formation, Inc.    Malaysia    PI2012002701    12/20/2010          Loaded Printed Circuit Board Test Fixture and Method for Manufacturing the Same   

 

18


Delaware Capital Formation, Inc.    European    2010843524.9    12/20/2010    2517030    10/31/2012    Loaded Printed Circuit Board Test Fixture and Method for Manufacturing the Same   
Delaware Capital Formation, Inc.    China    201080058667.7    12/20/2010    102725646    10/10/2012    Loaded Printed Circuit Board Test Fixture and Method for Manufacturing the Same   
Delaware Capital Formation, Inc.    United States    12/912683    10/26/2010    8231416    7/31/2012    Spring contact assembly (English)   
Delaware Capital Formation, Inc.    United States    13/618871    9/14/2012    2013-0069685-A1    3/21/2013    Integrated Circuit Test Socket having Test Probe Inserts   
Delaware Capital Formation, Inc.    United States    13/546980    7/11/2012    2012-0282821-A1    11/8/2012    Spring Contact Assembly   
Delaware Capital Formation, Inc.    United States/WIPO    PCT/US2013/031240    3/14/2013       to be published 10/13/2013    TEST PROBE ASSEMBLY AND RELATED METHODS   
atg Luther & Maelzer GmbH    Germany    195 41 307.5-09    6/11/1995          Verfahren und Vorrichtung zum Prüfen einer elektrischen Leiteranordnung    granted
atg Luther & Maelzer GmbH    Germany    596 10 371.9-08    4/11/1996    0 772 054       METHOD AND APPARATUS FOR TESTING AN ELECTRICAL CONDUCTOR ASSEMBLY    national phase (EP)

 

19


atg test systems GmbH & Co. KG    Europe    96 117 642.7    4/11/1996    0 772 054       METHOD AND APPARATUS FOR TESTING AN ELECTRICAL CONDUCTOR ASSEMBLY    granted
atg test systems GmbH & Co. KG    France    96 117 642.7    4/11/1996    0 772 054       METHOD AND APPARATUS FOR TESTING AN ELECTRICAL CONDUCTOR ASSEMBLY    national phase (EP)
atg test systems GmbH & Co. KG    Great Britain    772054    4/11/1996          Electric Conductor Arrangement    national phase (EP)
atg test systems GmbH & Co. KG    Italy    96 117 642.7    4/11/1996    0 772 054       METHOD AND APPARATUS FOR TESTING AN ELECTRICAL CONDUCTOR ASSEMBLY    national phase (EP)
atg test systems GmbH & Co. KG    Japan    293833/1996    6/11/1996    183195       Method and Apparatus for Testing an Electrical Conductor Assembly    granted
DTG International GmbH    Germany    10 2010 023 187.8-35    9/6/2010          Vorrichtung und Verfahren zum Untersuchen von Leiterplatten    examination request filed
DTG International GmbH    Taiwan, R.O.C.    100119996    8/6/2011          Apparatus and method for the testing of circuit boards    filed

 

20


DTG International GmbH    Germany    DE 10 2011 051 607.7    6/7/2011          Adapter for a test device, and test device for the testing of crcuit boards    published
DTG International GmbH    Taiwan, R.O.C.    101122398    06/22/2012          Adapter for a test device, and test device for the testing of crcuit boards    filed
DTG International GmbH    WIPO/PCT    PCT/EP2012/063109    5/7/2012          Adapter for a test device, and test device for the testing of crcuit boards    published
DTG International GmbH    Germany    20 2012 103 517.0    09/14/2012             presently being searched
atg Luther & Maelzer GmbH    Germany    199 43 388.7 - 09    10/9/1999    199 43 388       Vorrichtung zum Prüfen von Leiterplatten    granted
atg test systems GmbH & Co. KG    Japan    2000-272879    8/9/2000    4 031 185       Vorrichtung zum Prüfen von Leiterplatten    granted
atg test systems GmbH    Taiwan, R.O.C.    89118547    8/9/2000    156593       Printed Circuit Board Tester    granted
atg test systems GmbH & Co. KG    U.S.A.    09/656,088    6/9/2000    US 6,445,173 B1       Printed Circuit Board Tester    granted
DTG International GmbH    Europe    00 118 531.3 - 1236 (1 083 434)    08/25/2000          Vorrichtung zum Prüfen von Leiterplatten    examination
atg test systems GmbH & Co. KG    Austria    aufgrund EP 01 974 129.7    7/8/2001    EP 1 315 975       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    national phase (EP)
atg test systems GmbH & Co. KG    China    01814789.5    7/8/2001    ZL018147895       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    granted

 

21


atg Luther & Maelzer GmbH    Germany    501 09 393.1-08    7/8/2001    EP 1 315 975       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    national phase (EP)
atg test systems GmbH & Co. KG    Europe    01 974 129.7 - 2216    7/8/2001    1 315 975       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    granted
atg test systems GmbH & Co. KG    Great Britain    aufgrund EP 01 974 129.7    7/8/2001    EP 1 315 975       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    national phase (EP)
atg test systems GmbH & Co. KG    Hong Kong    03108483.4    7/8/2001    HK1056219       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    granted
atg test systems GmbH & Co. KG    Italy    027613BE/2006 aufgrund 1 315 975 (EP 01 974 129.7)    7/8/2001    EP 1 315 975       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    national phase (EP)
atg test systems GmbH & Co. KG    Japan    2002-526164    7/8/2001    3,928,129       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    granted
atg test systems GmbH    Korea    10-2003-7003291    5/3/2003    509340       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    granted

 

22


atg test systems GmbH & Co. KG    Singapore    200301056-8    7/8/2001    95297       Method and Device for Testing Printed Circuit Boards with a Parallel Tester    granted
atg test systems GmbH & Co. KG    China    18160336    09/28/2001    ZL 01816033.6       Module for a Testing Device for Testing Printed Circuit Boards    granted
atg Luther & Maelzer GmbH    Germany    501 06 269.6-08    09/28/2001    1 322 967 B1       Modul für eine Prüfvorrichtung zum Testen von Leiterplatten    national phase (EP)
atg test systems GmbH & Co. KG    Europe    01 983 514.9 - 1216    09/28/2001    1 322 967       Modul für eine Prüfvorrichtung zum Testen von Leiterplatten    granted
atg test systems GmbH & Co. KG    Great Britain    01 983 514.9-2216    09/28/2001    1 322 967       Modul für eine Prüfvorrichtung zum Testen von Leiterplatten    national phase (EP)
atg test systems GmbH & Co. KG    Hong Kong    03109204.0    09/28/2001    HK1059646       Module for a Testing Device for Testing Printed Circuit Boards    granted
atg test systems GmbH & Co. KG    Italy    28767BE/2005 aufgrund 01 983 514.9-2216    09/28/2001          Modul für eine Prüfvorrichtung zum Testen von Leiterplatten    national phase (EP)
atg test systems GmbH & Co. KG    Japan    2002-534850    09/28/2001    3,924,724       Module for a Testing Device for Testing Printed Circuit Boards    granted

 

23


atg test systems GmbH    Korea    10-2003-7004645    09/28/2001    523300       Module for a Testing Device for Testing Printed Circuit Boards    granted
atg test systems GmbH & Co. KG    Singapore    200301797-7 aus PCT/EP01/11265    09/28/2001    95918       Module for a Testing Device for Testing Printed Circuit Boards    granted
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    90124449    3/10/2001    I263059       Modul for a testing device for testing printed circuit boards    granted
atg Luther & Maelzer GmbH    Germany    101 60 119.0-35    7/12/2001          Prüfsonde für einen Fingertester    published
atg test systems GmbH & Co. KG    Austria    E 305 613 aufgrund EP 02 792 764.9 - 2216    11/14/2002    1 451 594       Prüfsonde für einen Fingertester und Fingertester    national phase (EP)
atg test systems GmbH & Co. KG    China    02822468. X aus PCT/EP02/12770    11/14/2002    ZL 02822468.X       Test Probe for a Finger Tester and Finger Tester    granted
atg Luther & Maelzer GmbH    Germany    502 04 420.9 -08    11/14/2002    1 451 594       Prüfsonde für einen Fingertester und Fingertester    national phase (EP)
atg test systems GmbH & Co. KG    Europe    02 792 764.9-2216 (PCT/EP02/12770)    11/14/2002    1 451 594       Prüfsonde für einen Fingertester    granted
atg test systems GmbH & Co. KG    France    02 792 764.9 - 2216    11/14/2002    1 451 594       Test probe for a finger tester and corresponding finger tester    national phase (EP)
atg test systems GmbH & Co. KG    Finland    FI/EP 1 451 594    11/14/2002    1 451 594       Test Probe for a Finger Tester and corresponding Finger Tester    national phase (EP)

 

24


atg test systems GmbH & Co. KG    Great Britain    02 792 764.9 - 2216    11/14/2002    1 451 594       Test probe for a finger tester and corresponding finger tester    national phase (EP)
atg test systems GmbH & Co. KG    Italy    034711BE/2005 aufgrund 02 792 764.9 - 2216    11/14/2002    1 451 594       Test probe for a finger tester and corresponding finger tester    national phase (EP)
atg test systems GmbH & Co. KG    Japan    2003-549931    11/14/2002    4073024       Test Probe for a Finger Tester and corresponding Finger Tester    granted
atg test systems GmbH & Co. KG    Korea    10-2004-7007869    11/14/2002    10-670115       Test Probe for a Finger Tester and Corresponding Finger Tester    granted
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    91133428    11/14/2002    I275802       Test Probe for a Finger Tester and Finger Tester    granted
atg Luther & Maelzer GmbH    U.S.A.    12/248,166    3/7/2004    RE 43,739       Test Probe for a Finger Tester and Corresponding Finger Tester (Re-Issue)    examination
atg Luther & Maelzer GmbH    Germany    502 09 202.5-08    11/14/2002          Finger tester    national phase (EP)
atg test systems GmbH    Europe    1 542 023 (05 002 153.4 - 2213)    11/14/2002    1 542 023       Finger tester    granted
atg test systems GmbH    Finland    EP 1 542 023 (05 002 153.4)    11/14/2002          Finger tester    national phase (EP)
atg test systems GmbH    France    EP 1 542 023 (05 002 153.4)    11/14/2002          Finger tester    national phase (EP)

 

25


atg test systems GmbH    Great Britain    EP 1 542 023 (05 002 153.4)    11/14/2002          Finger tester    national phase (EP)
atg test systems GmbH    Italy    19068DE/2005 aufgrund EP 1 542 023 (05 002 153.4)    11/14/2002          Finger tester    national phase (EP)
atg test systems GmbH & Co. KG    Japan    2007-303001    11/14/2002    4780677       Test Probe for a Finger Tester and corresponding Finger Tester    granted
atg test systems GmbH & Co. KG    U.S.A.    11/121,802    4/5/2005    7,190,182       Test Probe for Finger Tester and Corresponding Finger Tester    granted
atg test systems GmbH & Co. KG    U.S.A.    11/466,663    08/23/2006    7,355,424       Test Probe for Finger Tester and Corresponding Finger Tester    granted
atg Luther & Maelzer GmbH    Germany    102 20 343.1-09    7/5/2002    102 20 343       Vorrichtung und Verfahren zum Prüfen von Leiterplatten, und Prüfsonde für diese Vorrichtung und dieses Verfahren    granted
atg test systems GmbH & Co. KG    China    03810114.9 aufgrund PCT/EP2003/04468    04/29/2003    ZL 03 8 10114.9       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    granted
atg Luther & Maelzer GmbH    Germany    503 05 905.6-08    04/29/2003    1 502 123       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    national phase (EP)

 

26


atg test systems GmbH    Europe    03 725 115.4 (1 502 123)    04/29/2003    1 502 123       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    granted
atg test systems GmbH    Finland    aufgrund EP 03 725 115.4 (1 502 123)    04/29/2003    1 502 123       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    national phase (EP)
atg test systems GmbH    France    aufgrund EP 03 725 115.4 (1 502 123)    04/29/2003    1 502 123       Device and Method for the Testing of Circuit Boards, and Test Probe for said Device and Method    national phase (EP)
atg test systems GmbH    Great Britain    aufgrund EP 03 725 115.4 (1 502 123)    04/29/2003    1 502 123       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    national phase (EP)
atg test systems GmbH    Italy    aufgrund EP 03 725 115.4 (1 502 123)    04/29/2003    1 502 123       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    national phase (EP)

 

27


atg test systems GmbH & Co. KG    Japan    2004-503977    04/29/2003    4245166       Device and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    granted
atg test systems GmbH & Co. KG    Korea    10-2004-7017748 - PCT/EP 03/04468    04/29/2003    747107       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    granted
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    92112245    5/5/2003    I239405       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    granted
atg test systems GmbH & Co. KG    U.S.A.    10/981,079 aufgrund PCT/EP03/04468    04/29/2003    7,015,711       Apparatus and Method for the Testing of Circuit Boards, and Test Probe for this Apparatus and this Method    granted
atg test systems GmbH & Co. KG    China    200480007025.9 aus PCT/EP2004/002420    9/3/2004    ZL 2004 8 0007025.9       Method of testing empty printed circuit boards    granted
DTG International GmbH    Germany    50 2004 011 042.8-08    9/3/2004          Method for testing empty printed circuit boards    national phase (EP)
DTG International GmbH    Europe    04 739 062.0-2216 aufgrund PCT/EP2004/002420    9/3/2004    1 623 242       Method for testing empty printed circuit boards    granted

 

28


atg Luther & Maelzer GmbH    France    1 623 242 (04 739 062.0-2216)    9/3/2004          Method for testing empty printed circuit boards    national phase (EP)
DTG International GmbH    Great Britain    1 623 242 (04 739 062.0-2216)    9/3/2004          Method for testing empty printed circuit boards    national phase (EP)
DTG International GmbH    Italy    1 623 242 (04 739 062.0-2216)    9/3/2004    127037       Method for testing bare printed circuit boards    national phase (EP)
atg test systems GmbH & Co. KG    Japan    4,985,940    9/3/2004    4,985,940       Method of testing non-componented circuit boards    granted
atg test systems GmbH    Korea    10-2005-7021194 aufgrund PCT/EP2004/002420    9/3/2004    782109       Method of testing non-componented circuit boards    granted
atg test systems GmbH & Co. KG    Taiwan, R.O.C.    93107836    03/23/2004    I245908       METHOD OF TESTING NON-COMPONENTED CIRCUIT BOARDS    granted
atg test systems GmbH & Co. KG    U.S.A.    11/225,334 aufgrund PCT/EP2004/002420    9/3/2004    7,250,782       Method for Testing Non-Componented Circuit Boards    granted
atg Luther & Maelzer GmbH    Germany    10 2005 028 191.5-09    06/17/2005    10 2005 028 191       Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    granted
DTG International GmbH    Austria    504846    05/31/2006          Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    national phase (EP)

 

29


DTG International GmbH    Switzerland    1 920 263 (06 754 013.8-2216)    05/31/2006          Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    national phase (EP)
atg Luther & Maelzer GmbH    China    200680021697.4    05/31/2006          Method of Testing Non-Componented Large Printed Circuit Boards Using a Finger Tester    examination
DTG International GmbH    Germany    50 2006 009 268.9-08    05/31/2006          Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    national phase (EP)
DTG International GmbH    Europe    06 754 013.8-2216    05/31/2006    1 920 263       Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    granted
DTG International GmbH    Great Britain    06 754 013.8-2216    05/31/2006    1 920 263       Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    national phase (EP)

 

30


DTG International GmbH    Italy    25607BE/2011    05/31/2006          Verfahren zum Testen von unbestückten, großflächigen Leiterplatten mit einem Fingertester    national phase (EP)
atg Luther & Maelzer GmbH    Japan    2008-516165    05/31/2006    4987862       Method of testing non-componented large printed circuit boards using a finger tester    granted
atg Luther & Maelzer GmbH    Korea