EXECUTIVE
CHANGE-IN-CONTROL AGREEMENT
AGREEMENT
made as of this ___ day of December, 2008 by and between DOVER
CORPORATION, a Delaware corporation (the
“Corporation” ), and
(the “Executive” );
WHEREAS,
the Board of Directors of the Corporation (the
“Board” ) has determined that the Executive is a
key executive of the Corporation or of a direct or indirect
subsidiary of the Corporation (a “Subsidiary”
);
WHEREAS,
the Board considers the establishment and maintenance of a sound
and vital management to be essential to protecting and enhancing
the best interests of the Corporation and its
stockholders;
WHEREAS,
the possibility of an unsolicited tender offer or other takeover
bid for the Corporation and the consequent change in control, and
the uncertainty and questions which such possibility may raise
among management, may result in the departure or distraction of the
Executive to the detriment of the Corporation and its
stockholders;
WHEREAS,
the Corporation desires to provide the Executive with severance
benefits in the event that the Executive’s employment with
the Corporation or with a Subsidiary, as the case may be, is
terminated under certain circumstances following a change in
control in order to assure a continuing dedication by the Executive
to the performance of the Executive’s duties notwithstanding
the occurrence of a tender offer or other takeover bid for the
Corporation and, particularly, to ensure that the Executive will be
in a position to assess and advise the Board whether proposals from
third persons would be in the best interests of the Corporation and
its stockholders without being influenced by the uncertainties as
to the Executive’s own situation;
WHEREAS,
the Executive has agreed that in addition to his or her regular
duties the Executive will, in the best interests of the Corporation
and its stockholders and as requested by the Board, assist the
Corporation in the evaluation of any such takeover or tender offer
proposal or potential combination or acquisition and render such
other assistance in connection therewith as the Board may determine
to be appropriate, on the terms and conditions hereinafter set
forth;
NOW,
THEREFORE, the parties hereto agree as follows:
1.
Services During Certain Events .
In
the event any Person begins a tender or exchange offer, circulates
a proxy to stockholders, or takes other steps seeking to effect a
Change in Control (as hereinafter defined), the Executive will not
voluntarily terminate his or her employment with the Corporation or
a Subsidiary, as the case may be, and will continue to render
services to the Corporation or such Subsidiary until such Person
has abandoned or terminated efforts to effect a Change in Control
or until 180 days after a Change in
Control
has occurred; provided , however , that this
Section 1 shall not apply if an Executive experiences a
Termination (as defined in Section 3(a)).
(a)
“Affiliate” shall have the meaning set forth in
Rule 12b-2 under Section 12 of the Exchange
Act.
(b)
“Beneficial Owner” shall have the meaning set
forth in Rule 13d-3 under the Exchange Act, except that a
Person shall not be deemed to be the Beneficial Owner of any
securities which are properly reported on a Form 13-F.
(c) A
“ Change in Control” shall be deemed to have
taken place upon the occurrence of any of the following
events:
(i) any
Person is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Corporation (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Corporation or its Affiliates) representing 20% or more of
either the then outstanding shares of common stock of the
Corporation or the combined voting power of the Corporation’s
then outstanding securities, excluding any Person who becomes such
a Beneficial Owner in connection with a transaction described in
clause (A) of paragraph (iii) below; or
(ii) the
following individuals cease for any reason to constitute a majority
of the number of directors then serving: individuals who, on the
date hereof, constitute the Board and any new director (other than
a director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of
the Corporation) whose appointment or election by the Board or
nomination for election by the Corporation’s stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors on the
date hereof or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there
is consummated a merger or consolidation of the Corporation or any
direct or indirect subsidiary of the Corporation with any other
corporation, other than (A) a merger or consolidation which
would result in the voting securities of the Corporation
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or
any parent thereof) at least 50% of the combined voting power of
the voting securities of the Corporation or such surviving entity
or any parent thereof outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to
implement a recapitalization of the Corporation (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Corporation (not
including in the securities Beneficially Owned by such Person any
securities acquired directly from the Corporation or its
Affiliates) representing 20% or more of either the then outstanding
shares of common stock of the Corporation or the combined voting
power of the Corporation’s then outstanding securities;
or
(iv) the
stockholders of the Corporation approve a plan of complete
liquidation or dissolution of the Corporation or there is
consummated an agreement for the sale or disposition by
2
the
Corporation of all or substantially all of the Corporation’s
assets, other than a sale or disposition by the Corporation of all
or substantially all of the Corporation’s assets to an
entity, at least 50% of the combined voting power of the voting
securities of which are owned by stockholders of the Corporation in
substantially the same proportions as their ownership of the
Corporation immediately prior to such transaction or series of
transactions.
(d)
“Code” means the Internal Revenue Code of 1986,
as amended from time to time.
(e)
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended from time to time.
(f)
“Person” shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Corporation or any of its Affiliates,
(ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or any of its Affiliates,
(iii) an underwriter temporarily holding securities pursuant
to an offering of such securities or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of
the Corporation.
(g) A
“Potential Change in Control” shall be deemed to
have occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(i) the
Corporation enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(ii) the
Corporation or any Person publicly announces an intention to take
or to consider taking actions which, if consummated, would
constitute a Change in Control;
(iii) any
Person becomes the Beneficial Owner, directly or indirectly, of
securities of the Corporation representing 15% or more of either
the then outstanding shares of common stock of the Corporation or
the combined voting power of the Corporation’s then
outstanding securities (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Corporation or its Affiliates); or
(iv) the
Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
3.
Termination After Change in Control .
(a) No
benefits shall be payable under this Agreement except in the event
of a Termination. For purposes of this Agreement, a “
Termination” shall occur if any of the following
events occur within 18 months after a Change in
Control:
(i) The
termination by the Corporation or a Subsidiary, as the case may be,
of the Executive’s employment for any reason other than Cause
(as defined herein), death, or Disability (as defined
herein).
3
(ii) The
termination by the Executive of the Executive’s employment
for Good Reason. Before the Executive may terminate his or her
employment for Good Reason, the Executive must provide written
notice to the Corporation within 90 days after the occurrence
of the condition giving rise to such claim of Good Reason. If the
Corporation fails to correct the condition giving rise to the claim
of Good Reason within 30 days of receipt of such written
notice, the Executive may elect to terminate his employment for
Good Reason at any time within two years after the occurrence of
the condition giving rise to the claim of Good Reason. Good Reason
shall be deemed to exist upon the occurrence, without the
Executive’s express written consent, of any of the following
events:
(A) A
material reduction in the duties or responsibilities held by the
Executive prior to the Change in Control; or
(B) A
material diminution in the duties or responsibilities held by the
supervisor to whom the Executive is required to report from those
in effect immediately prior to the Change in Control or thereafter;
or
(C) A
material reduction of the Executive’s base salary from that
in effect immediately prior to the Change in Control or as the same
may be increased thereafter from time to time or a material change
in the geographic location from which the Executive was based
immediately prior to the Change in Control, except for required
travel on business to an extent substantially consistent with the
Executive’s business travel obligations immediately prior to
the Change in Control; or
(D) Any
other action or inaction that constitutes a material breach by the
Corporation or its affiliates or successors of this
Agreement.
(b) A
Termination also shall have occurred if the Executive’s
employment with the Corporation or a Subsidiary, as the case may
be, is involuntarily terminated for any reason other than Cause (as
defined herein), death or Disability (as defined herein) after a
Potential Change in Control has occurred, provided the
Termination is at the direction of the acquiring entity or other
third party otherwise involved in the event causing the Potential
Change in Control and the Termination occurs within the six month
period preceding the actual occurrence of a Change in
Control.
(c) The
termination of the Executive’s employment shall be deemed to
have been for “Cause” only if the termination
shall have been based on (i) the Executive having willfully
and continually failed to perform substantially his or her duties
with the Corporation (other than such failure resulting from
incapacity due to physical or mental illness, death or Disability)
after not less than 20 days have expired following a written
demand for substantial performance has been delivered to the
Executive by the Board or the President of the Corporation which
specifically identifies the manner in which the Executive is not
substantially performing his or her duties; or (ii) the
Executive having willfully engaged in conduct which is materially
and demonstrably injurious to the Corporation. For purposes of this
section, no act, or failure to act, on the part of the Executive
shall be considered “willful” unless done, or omitted
to be done, by the Executive in bad faith and without reasonable
belief that such action or omission was in, or not opposed to, the
best interests of the Corporation. Any act or failure to act
b
|
