SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 11, 2008
DOVER CORPORATION
(Exact Name of Registrant as Specified in Charter)
| STATE OF DELAWARE | 53-0257888 | |||||||||
(State or Other Jurisdiction |
1-4018 | (I.R.S. Employer | ||||||||
of Incorporation) |
(Commission File Number) | Identification No.) | ||||||||
| 280 Park Avenue, New York,
NY (Address of Principal Executive Offices) |
10017 (Zip Code) |
(212) 922-1640
(Registrant’s telephone number, including area code)
(Former Name or Former address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
o Soliciting
material pursuant to Rule 14a-12(b) under the Exchange Act (17
CFR 240.14a-12(b))
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 8.01 Other Events
On March 14, 2008, Dover Corporation (the “Company”) expects to issue $350 million aggregate principal amount of 5.45% notes due 2018 (the “2018 Notes”) and $250 million aggregate principal amount of 6.60% notes due 2038 (the “2038 Notes” and, collectively with the 2018 Notes, the “Notes”). The Notes will be issued under an indenture dated as of February 8, 2001 entered into between the Company and The Bank of New York, as Trustee (as successor to Bank One Trust Company, N.A. and J.P. Morgan Trust Company National Association) (the “Trustee”), as amended and supplemented by a first supplemental indenture dated as of October 13, 2005 between the Company and the Trustee, and a second supplemental indenture dated as of March 14, 2008 (the “Second Supplemental Indenture”) between the Company and the Trustee.
In connection with the issuances of the Notes, on March 11, 2008, the Company entered into a pricing agreement (the “Pricing Agreement”) with J.P. Morgan Securities Inc., Banc of America Securities LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Greenwich Capital Markets, Inc. as representatives of the several underwriters named in Schedule I thereto (the “Underwriters”). The provisions of the underwriting agreement dated March 11, 2008 between the Company and the representatives (the “Underwriting Agreement”) are incorporated by reference into the Pricing Agreement.
The Notes are being offered pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-149629) and a related preliminary prospectus supplement dated March 11, 2008, prospectus supplement dated March 11, 2008 (the “Prospectus Supplement”) and the Company’s prospectus dated March 11, 2008 (together with the Prospectus Supplement, the “Prospectus”). The material terms of the Notes are described in the Prospectus.
Interest on the Notes is payable semi-annually on March 15 and September 15, commencing September 15, 2008, to holders of record on the preceding March 1 or September 1, as the case may be. Interest on the Notes will accrue from March 14, 2008. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.
The 2018 Notes will mature on March 15, 2018 and the 2038 Notes will mature on March 15, 2038.
The Notes will be the Company’s senior unsecured debt obligations and will rank on parity with all of its other senior unsecured indebtedness.
In connection with the offering, Joseph W. Schmidt, Esq., the Company’s Vice President, General Counsel and Secretary, has provided the Company with the opinion regarding legality of the Notes attached to this report as Exhibit 5.1.
For a complete description of the terms and conditions of the Underwriting Agreement, the Pricing Agreement and the Notes, please refer to such agreements, the Second Supplemental Indenture, the form of 2018 Note and the form of 2038 Note, each of which is incorporated herein by reference and attached to this report as Exhibits 1.1, 1.2, 4.1, 4.2 and 4.3.
Item 9.01 Financial Statements and Exhibits
(a) Not applicable
(b) Not applicable
(c) Not applicable
(d) The following exhibits are filed as part of this report:
Exhibit 1.1 Underwriting Agreement, dated March 11, 2008, between
Dover Corporation and, as to the issuance and sale of the
Notes,
the Underwriters
| Exhibit 1.2 | Pricing Agreement, dated March 11, 2008, between Dover Corporation and the Underwriters |
| Exhibit 4.1 | Second Supplemental Indenture, dated March 14, 2008, between Dover Corporation and the Trustee |
| Exhibit 4.2 | Form of Global Note representing the 5.45% Notes due 2018 ($350,000,000 aggregate principal amount) |
| Exhibit 4.3 | Form of Global Note representing the 6.60% Notes due 2038 ($250,000,000 aggregate principal amount) |
| Exhibit 5.1 | Opinion of Joseph W. Schmidt, Esq., Vice President, General Counsel and Secretary of Dover Corporation, with respect to legality of the Notes |
| Exhibit 23.1 | Consent of Joseph W. Schmidt, Esq., Vice President, General Counsel and Secretary of Dover Corporation (set forth in Exhibit 5.1) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment to Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: March 14, 2008 | DOVER CORPORATION (Registrant) |
|||
| By: /s/ Joseph W. Schmidt Joseph W. Schmidt, Vice President, General Counsel & Secretary |
||||
EXHIBIT INDEX
Number |
Exhibit | |||
1.1 |
Underwriting Agreement, dated March 11, 2008, between Dover Corporation and, as to the | |||
| issuance and sale of the Notes, the Underwriters | ||||
1.2 |
Pricing Agreement, dated March 11, 2008, between Dover Corporation and the Underwriters | |||
4.1 |
Second Supplemental Indenture, dated as of March 14, 2008, between Dover Corporation | |||
| and the Trustee | ||||
4.2 |
Form of Global Note representing the 5.45% Notes due 2018 ($350,000,000 aggregate | |||
| principal amount) | ||||
4.3 |
Form of Global Note representing the 6.60% Notes due 2038 ($250,000,000 aggregate | |||
| principal amount) | ||||
5.1 |
Opinion of Joseph W. Schmidt, Esq., Vice President, General Counsel and Secretary of | |||
| Dover Corporation, with respect to legality of the Notes | ||||
23.1 |
Consent of Joseph W. Schmidt, Esq., Vice President, General Counsel and Secretary of | |||
| Dover Corporation (set forth in Exhibit 5.1) | ||||
Exhibit 1.1
EXECUTION COPY
DOVER CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
March 11, 2008
To the Representatives of the
several Underwriters named in the
Pricing Agreement referred to below
Pricing Agreement referred to below
Ladies and Gentlemen:
Dover Corporation, a Delaware corporation (the “Company”), proposes to enter into a Pricing
Agreement (the “Pricing Agreement”) in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and conditions stated
herein and therein, to issue and sell to the firms named in Schedule I to the Pricing Agreement
(such firms constituting the “Underwriters” with respect to the Pricing Agreement and the
securities specified therein) certain of its debt securities (the “Securities”) specified in
Schedule II to the Pricing Agreement (with respect to the Pricing Agreement, the “Designated
Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as specified
in the Pricing Agreement and in or pursuant to the indenture (the “Indenture”) identified in the
Pricing Agreement.
1. (a) Particular sales of Designated Securities may be made to the Underwriters of the
Designated Securities, for whom the firms designated as representatives of the Underwriters of the
Designated Securities in the Pricing Agreement will act as representatives (the “Representatives”).
The term “Representatives” also refers to a single firm acting as sole representative of the
Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its
or their representatives. This Underwriting Agreement shall not be construed as an obligation of
the Company to sell any of the Securities or as an obligation of any of the Underwriters to
purchase any of the Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement. The Pricing Agreement shall specify the aggregate principal
amount of the Designated Securities, the initial public offering price of the Designated
Securities, the purchase price to the Underwriters of the Designated Securities, the names of the
Underwriters of the Designated Securities, the names of the Representatives of such Underwriters
and the principal amount of the Designated Securities to be purchased by each Underwriter and shall
set forth the date, time and manner of delivery of the Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of the Designated Securities.
The Pricing Agreement shall be in the form of an executed writing (which may be in counterparts),
and may be evidenced by an exchange of
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telegraphic communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the Underwriters under this
Agreement and the Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Securities Act”)) on Form S-3 (File No. 333-149629)
in respect of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no stop
order suspending the effectiveness of such registration statement or any part thereof has
been issued, no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is hereinafter called the “Base
Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Designated Securities filed with the Commission pursuant to Rule 424(b)
under the Securities Act is hereinafter called a “Preliminary Prospectus”; the various parts
of such registration statement, including all exhibits thereto (but excluding the Statement
of Eligibility and Qualifications on Form T-1) and including any prospectus supplement
relating to the Securities that is filed with the Commission and deemed by virtue of Rule
430B under the Securities Act to be part of such registration statement, each as amended at
the time such part of the registration statement became effective, are hereinafter
collectively called the “Registration Statement”; the Base Prospectus, as amended and
supplemented immediately prior to the Applicable Time (being the time listed on Schedule II
of the Pricing Agreement), including, without limitation, any Preliminary Prospectus
relating to the Designated Securities, is hereinafter called the “Pricing Prospectus”; the
form of the final prospectus supplement relating to the Securities, together with the Base
Prospectus, filed with the Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference
herein to the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such
prospectus; any reference to any amendment or supplement to the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, or the Prospectus shall be deemed to refer
to and include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Securities Act and any documents filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and incorporated therein, in each case after the date of
the Base Prospectus, such Preliminary Prospectus, the Pricing Prospectus, or the Prospectus,
as the case may be; any reference to any amendment to the Registration
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Statement shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement; and
any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act)
relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b) The Pricing Prospectus as supplemented by the final term sheet prepared and filed
pursuant to Section 5(a) hereof and other Issuer Free Writing Prospectuses, if any, listed
on Schedule II to the Pricing Agreement and specified as comprising part thereof, taken
together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule II to the Pricing Agreement does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representatives expressly for use
therein (it being understood and agreed that the only such information so furnished is that
described as such in Section 9(f) hereof);
(c) The Registration Statement, the Pricing Prospectus and the Pricing Disclosure
Package conform, and the Prospectus and any further post-effective amendments to the
Registration Statement and the Prospectus will conform, as of the date on which they become
effective or are filed with the Commission, as the case may be, in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and do
not and will not, as of the applicable effective dates as to the Registration Statement and
any post-effective amendments thereto, as of the applicable filing date as to the Pricing
Prospectus, as of the Applicable Time as to the Pricing Disclosure Package and as of the
applicable filing date and as of the Time of Delivery (as defined in Section 4 hereof) as to
the Prospectus and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission (in the case of
documents that have been amended, as of the date of filing of such amendment), as the case
may be, conformed in all material respects to the requirements of the Securities Act
4
or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
(e) The financial statements and the related notes thereto included or incorporated by
reference in the Registration Statement, the Pricing Prospectus and the Prospectus comply in
all material respects with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the results of their operations
and the changes in their cash flows for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods covered thereby, and the supporting schedules
included or incorporated by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus present fairly the information required to be stated therein; and the
other financial information included or incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus has been derived from the accounting
records of the Company and its subsidiaries and presents fairly the information shown
thereby;
(f) No order suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission and no proceeding for that purpose has
been initiated or threatened by the Commission;
(g) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the Pricing
Disclosure Package and the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, which loss or
interference is material to the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus; and,
since the respective dates as of which information is given in the Pricing Disclosure
Package and the Prospectus, there has not been any change in the capital stock or
consolidated long-term debt of the Company, except for changes in capital stock in the
ordinary course of business pursuant to Company benefit plans and arrangements, and except
for changes in consolidated long-term debt of the Company as a result of acquisitions since
the respective dates as of which information is given in the Pricing Disclosure Package and
the Prospectus or as a result of reclassification of long-term debt as short-term debt, or
any material adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, properties and assets, financial
position, stockholders’ equity or results of operations of
5
the Company and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Pricing Disclosure Package and the Prospectus;
(h) The Company and its subsidiaries have good and marketable title to each item of
property the gross book value of which exceeds 1% of Consolidated Net Tangible Assets (as
defined in the Pricing Disclosure Package and the Prospectus under the caption “Description
of Debt Securities”) owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Pricing Disclosure Package and the
Prospectus or such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the Company and its
subsidiaries which if owned by the Company would constitute a Principal Property (as defined
in the Pricing Disclosure Package and the Prospectus under the caption “Description of Debt
Securities”) are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(i) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the Pricing Disclosure Package and the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and each Significant
Subsidiary of the Company (as defined in Section 2(t) hereof) has been duly incorporated or
formed and is validly existing as a corporation or limited liability company, as the case
may be, in good standing under the laws of its jurisdiction of incorporation or formation;
(j) The Company has an authorized capitalization as set forth in the Pricing Disclosure
Package and the Prospectus, and all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued and outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and, except as indicated in the Pricing Disclosure Package and the
Prospectus, and except for directors’ qualifying shares and certain arrangements with other
stockholders of certain subsidiaries that are not Significant Subsidiaries, all of such
shares of capital stock that are owned directly or indirectly by the Company are owned free
and clear of any material liens, encumbrances, equities or claims;
(k) The Securities have been duly authorized, and, when Designated Securities are
issued and delivered pursuant to this Agreement and the Pricing Agreement, the Designated
Securities will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company enforceable against the
Company, subject, as to enforcement, to bankruptcy, insolvency,
6
reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, and entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, at the Time of Delivery for the Designated Securities, the
Indenture will constitute a valid and legally binding instrument enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors’ rights and to
general equity principles; and the Indenture conforms, and the Designated Securities will
conform, to the descriptions thereof contained in the Pricing Disclosure Package and the
Prospectus with respect to the Designated Securities;
(l) This Agreement has been duly authorized, executed and delivered, and the Pricing
Agreement will be duly authorized, executed and delivered on the date thereof, by the
Company;
(m) The issue and sale of the Designated Securities and the compliance by the Company
with all of the provisions of this Agreement, the Pricing Agreement, the Designated
Securities and the Indenture, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the Company’s Certificate
of Incorporation or By-laws or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties; and no consent, approval, authorization, order, registration or
qualification of or filing with any such court or governmental agency or body is required
for the issue and sale of the Designated Securities or the consummation by the Company of
the transactions contemplated by this Agreement, the Pricing Agreement or the Indenture,
except such as have been, or will have been prior to the Time of Delivery, obtained under
the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations, qualifications or filings as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Securities by the
Underwriters;
(n) Neither the Company nor any of its subsidiaries is in violation of its Certificate
of Incorporation or By-laws or in default in the performance or observance of any material
obligation, covenant or condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(o) The statements set forth in the Pricing Disclosure Package and the Prospectus under
the captions “Description of Debt Securities” and “Description of the Notes,” insofar as
they purport to constitute a summary of the terms of the Indenture and the Designated
Securities, under the caption “Certain Federal Income Tax Considerations”,
7
insofar as they purport to describe matters of U.S. federal income tax law and
regulation and legal conclusions referred to therein, and under the captions “Plan of
Distribution” and “Underwriting,” insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate and fair;
(p) Other than as set forth in the Pricing Disclosure Package and the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have a material adverse effect on the
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(q) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of proceeds thereof, will not be an “investment company” or
an entity “controlled” by an “investment company”, as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(r) The Company has been, since the initial filing of the Registration Statement, and
continues to be a “well-known seasoned issuer” and has not been, since such filing of the
Registration Statement, and continues not to be an “ineligible issuer” (as such terms are
defined in Rule 405 under the Securities Act); and the Company is not the subject of a
pending proceeding under Section 8A of the Securities Act;
(s) PricewaterhouseCoopers LLP, who has certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, is an independent registered public
accounting firm as required by the Securities Act and the rules and regulations of the
Commission thereunder and the rules and regulations of the Public Company Accounting
Oversight Board; and
(t) Each of the subsidiaries of the Company listed in Annex II hereto is referred to
herein as a “Significant Subsidiary”. Other than the Significant Subsidiaries, there is no
subsidiary of the Company which together with its subsidiaries accounted for more than 5% of
either (i) the consolidated assets of the Company as reported in the consolidated financial
statements of the Company included or incorporated by reference in the Pricing Disclosure
Package and the Prospectus at the end of either the most recent fiscal year or the most
recent fiscal quarter or (ii) the operating profit of the Company as reported in the
consolidated financial statements of the Company included or incorporated by reference in
the Pricing Disclosure Package and the Prospectus for either the most recent fiscal year or
the period subsequent to the most recent fiscal year;
(u) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide
8
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles; the Company’s management has evaluated the effectiveness of
the Company’s internal control over financial reporting as of the end of the period covered
by the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, and have
concluded that except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there were, as of the end of the period covered by such reports,
no material weaknesses in the Company’s internal controls;
(v) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that are designed to ensure that information
required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the Commission’s rules and forms. The Company’s management (with the
participation of its principal executive officer and principal financial officer) have
evaluated the effectiveness of the Company’s disclosure controls and procedures as of the
end of the period covered by the Company’s Annual Report on Form 10-K for the year ended
December 31, 2007, and have concluded that such disclosure controls and procedures were
effective as of the end of the period covered by such report to provide reasonable
assurance that information required to be disclosed by the Company in reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the rules and forms of the Commission; and
(w) The Company is in compliance with the applicable provisions of the Sarbanes-Oxley
Act of 2002 and the rules and regulations of the Commission adopted pursuant thereto as such
rules and regulations currently apply to the Company, except for where the failure to be in
compliance would not, individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as a whole.
For purposes of this Section 2 as well as for Section 8 hereof, references to “the Pricing
Disclosure Package and the Prospectus” are to each of them as a separate or stand-alone document
(and not the two of them taken together), so that representations, warranties, agreements,
conditions and legal opinions will be made, given or measured independently in respect of each of
the Pricing Disclosure Package and the Prospectus.
3. Upon the execution of the Pricing Agreement and authorization by the Representatives of the
release of the Designated Securities, the several Underwriters propose to offer the Designated
Securities for sale upon the terms and conditions set forth in the Prospectus.
4. The Designated Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement, in the form specified in the Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least twenty-four hours’ prior
notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for
the account of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of federal (same-day) funds to the account specified by
the Company to the Representatives at least twenty-four hours in advance or at such other place and
time and date as the Representatives and the Company may
9
agree upon in writing, such time and date being herein called the “Time of Delivery” for the
Designated Securities.
5. The Company agrees with each of the Underwriters of the Designated Securities:
(a) To prepare the Prospectus in relation to the Designated Securities in a form
approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission’s close of business on the second business
day following the date of the Pricing Agreement or, if applicable, such earlier time as may
be required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement, the Base Prospectus, the Pricing Prospectus or the Prospectus after
the date of the Pricing Agreement and prior to the Time of Delivery for the Designated
Securities which shall be disapproved by the Representatives for the Designated Securities
promptly after reasonable notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to prepare a final term sheet, containing solely a description of the
applicable Designated Securities, in a form approved by the Representatives and attached as
Appendix A to Schedule II to the Pricing Agreement (the “Final Term Sheet”) and to file the
Final Term Sheet pursuant to Rule 433(d) under the Securities Act as soon as practicable
after the pricing of the offering of the Designated Securities and, in any event, within the
time required by such Rule; to file promptly all other information or material required to
be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities
Act; to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) of the Securities Act) is required in
connection with the offering or sale of the Designated Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Designated Securities, of the suspension of the
qualification of the Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or the Prospectus
or for additional information; and, in the event of the issuance of any such stop order or
of any such order preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its reasonable best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify the Designated Securities for offering and sale under the
securities laws of such U.S. jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the
10
Designated Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with written and electronic copies of the Prospectus in
New York City as amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) is required at any time in connection
with the offering or sale of the Designated Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act) is delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon as practicable, but in
any event not later than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement and continuing
to and including the later of (i) the termination of trading restrictions for the Designated
Securities, as notified to the Company by the Representatives and (ii) the Time of Delivery
for the Designated Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to the Designated Securities, without the prior
written consent of the Representatives;
(f) To pay the required Commission filing fees relating to the Designated Securities
within the time required by Rule 456(b)(1) under the Securities Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the
Securities Act; and
(g) If at any time when any of the Designated Securities remains unsold by the
Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or
otherwise ceases to be eligible to use the automatic shelf registration statement form, to
(i) promptly notify the Representatives, (ii) promptly file a new
11
registration statement or post-effective amendment on the proper form relating to the
Designated Securities, in a form satisfactory to the Representatives, (iii) use its best
efforts to cause such registration statement or post-effective amendment to be declared
effective and (iv) promptly notify the Representatives of such effectiveness. The Company
will take all other action necessary or appropriate to permit the public offering and sale
of the Designated Securities to continue as contemplated in the registration statement that
was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the “Registration Statement” shall be deemed to include
such new registration statement or post-effective amendment, as the case may be.
6.
(a) (i) The Company represents and agrees that, other than the Final Term Sheet
prepared and filed pursuant to Section 5(a) hereof, without the prior consent of the
Representatives, it has not made, and will not make, any offer relating to the Designated
Securities that would constitute a “free writing prospectus” (as defined in Rule 405 under
the Securities Act);
(b) each Underwriter represents and agrees that, without the prior consent of the
Company and the Representatives, other than one or more term sheets relating to the
Designated Securities containing customary information not inconsistent with the Final Term
Sheet and conveyed to purchasers of Designated Securities, it has not made and will not make
any offer relating to the Designated Securities that would constitute an Issuer Free Writing
Prospectus or a free writing prospectus required to be filed with the Commission pursuant to
Rule 433 under the Securities Act;
(c) any such free writing prospectus the use of which has been consented to by the
Company and the Representatives (including the Final Term Sheet) is listed on Schedule II to
the Pricing Agreement;
(d) The Company has complied and will comply with the requirements of Rule 433 under
the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing
with the Commission or retention where required and legending; and
(e) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing
Prospectus would conflict with the information in the Registration Statement, the Pricing
Disclosure Package or the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives, will prepare
and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other
document that will correct such conflict, statement or omission; provided, however, that
this representation and warranty shall not apply to any statements or omissions in an Issuer
Free Writing Prospectus made in reliance upon and
12
in conformity with information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and independent public registered accounting firm in connection with the registration of the
Securities under the Securities Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the Base Prospectus, the Pricing Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement,
the Pricing Agreement, the Indenture, any Blue Sky and Legal Investment Memoranda or Surveys,
closing documents (including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with
the qualification of the Securities for offering and sale under state securities laws as provided
in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky and Legal
Investment Memoranda or Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of any Trustee,
and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; and (vii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this Section 7, and
Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters of the Designated Securities under the Pricing
Agreement shall be subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement are, at and as of the Time of Delivery for the Designated Securities, true
and correct, the condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Any Preliminary Prospectus, the Pricing Prospectus and the Prospectus in relation
to the Designated Securities shall have been filed, to the extent required, with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act and in accordance with Section
5(a) hereof; the Final Term Sheet prepared and filed pursuant to Section 5(a) hereof, and
any other information or material required to be filed by the Company pursuant to Rule
433(d) under the Securities Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have been issued,
no proceeding for that purpose shall have been initiated or threatened by the Commission and
no notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule
13
401(g)(2) under the Securities Act shall have been received; no stop order suspending
or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the Representatives’
reasonable satisfaction;
(b) Simpson Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished
to the Representatives such written opinion or opinions, dated the Time of Delivery for the
Designated Securities, with respect to the existence of the Company, this Agreement, the
validity of the Indenture and the Designated Securities, the Registration Statement, the
Pricing Disclosure Package, the Prospectus and such other related matters as the
Representatives may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such matters;
(c) The General Counsel of the Company or such other counsel satisfactory to the
Representatives shall have furnished to the Representatives their written opinion, dated the
Time of Delivery for the Designated Securities, in form and substance satisfactory to the
Representatives, to the effect set forth on Annex III hereto.
(d) Baker & McKenzie LLP, counsel to the Company, shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for the Designated
Securities, in form and substance satisfactory to the Representatives, to the effect that
the statements set forth in the Pricing Disclosure Package and the Prospectus under the
caption “Certain United States Federal Income Tax Considerations”, insofar as they purport
to summarize certain matters relating to U.S. federal laws, constitute fair summaries of
such matters in all material respects.
(e) On the date of this Agreement, on the effective date of any post-effective
amendment to the Registration Statement filed subsequent to the date of this Agreement and
also at the Time of Delivery for the Designated Securities, PricewaterhouseCoopers LLP shall
have furnished to the Representatives, at the request of the Company, a letter, dated such
date and addressed to the Underwriters, in form and substance satisfactory to the
Representatives, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus;
(f) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Disclosure Package and the Prospectus, (i) neither the Company
nor any of its subsidiaries shall have sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, which loss or
interference is material to the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, and
(ii) there shall not have been any change in the capital stock or consolidated long-term
debt of the Company, except for changes in capital stock in the
14
ordinary course of business pursuant to Company benefit plans and arrangements, and
except for changes in consolidated long-term debt of the Company as a result of acquisitions
since the respective dates as of which information is given in the Pricing Disclosure
Package and the Prospectus or as a result of reclassification of long-term debt as
short-term debt, or any change, or any development involving a prospective change, in or
affecting the general affairs, management, properties and assets, financial position,
stockholders’ equity or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the
Prospectus, the effect of which, in any such case described in clause (i) or (ii) is, in the
judgment of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Pricing Disclosure Package and the
Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities or preferred stock by any “nationally
recognized statistical rating organization” (as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act), and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company’s debt securities or preferred stock;
(h) On or after the Applicable Time, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities generally on the
New York Stock Exchange or the over the counter market; (ii) a suspension or material
limitation in trading in securities issued or guaranteed by the Company on any exchange or
in any over the counter market; (iii) a general moratorium on commercial banking activities
declared by either federal or New York state authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States; or
(iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, any change in financial
markets or any calamity or crisis, either within or outside the United States, if, in the
judgment of the Representatives, any such event specified in this clause (iv) is material
and adverse and makes it impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms and in the manner contemplated in the
Pricing Disclosure Package, the Prospectus and this Agreement;
(i) The Company shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses; and
(j) The Company shall have furnished or caused to be furnished to the Representatives
at the Time of Delivery for the Designated Securities a certificate or certificates of
officers of the Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its agreements and obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in Sections 8(a)
and 8(e) and as to such other matters as the Representatives may reasonably request.
15
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to
any thereof, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Securities Act, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
expressly for use therein (it being understood and agreed that the only such information so
furnished is that described as such in Section 9(f) hereof).
(b) Each Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under Sections 9(a) or 9(b) above of
notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case
16
any such action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under Sections 9(a) or 9(b) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required under Section 9(c) above,
then each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the Underwriters of
the Designated Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company on the one
hand or such Underwriters on the other and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contribution pursuant
to this Section 9(d) were
17
determined by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 9(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities
in this Section 9(d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of the Securities Act.
(f) The Company hereby acknowledges and agrees that the only information that the
Underwriters have furnished to the Company expressly for use in the Registration Statement,
the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any
issuer information filed or required to be filed pursuant to Rule 433(d) under the
Securities Act, or any road show, consists of the statements set forth in the fifth, seventh
(third and fourth sentences only), eighth and ninth (as to underwriters only) paragraphs
under the caption “Underwriting” in the Pricing Prospectus and the Prospectus.
10. (a) If any Underwriter shall default in its obligation to purchase the Designated
Securities which it has agreed to purchase under the Pricing Agreement, the Representatives may in
their discretion arrange for themselves or another party or other parties to purchase the
Designated Securities on the terms contained herein. If within thirty-six hours after such default
by any Underwriter the Representatives do not arrange for the purchase of the Designated
Securities, then the Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to purchase the
Designated Securities on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the purchase of the
Designated Securities, or the Company notifies the Representatives that it has so
18
arranged for the purchase of the Designated Securities, the Representatives or the Company
shall have the right to postpone the Time of Delivery for the Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section 10 with like effect as if such person had originally been a party to
the Pricing Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Designated
Securities of a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in Section 10(a) above, the aggregate principal amount of the Designated
Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated Securities which
such Underwriter agreed to purchase under the Pricing Agreement and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under the Pricing
Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Designated
Securities of a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in Section 10(a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of the Designated Securities, as referred to in Section 10(b) above, or if the Company shall
not exercise the right described in Section 10(b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If the Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to any Underwriter with respect to the
19
Designated Securities covered by the Pricing Agreement except as provided in Sections 7 and 9
hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities except as provided
in Sections 7 and 9 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of Designated
Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
14. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriters shall be delivered or sent by mail or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail or facsimile transmission to the address of the Company set forth in the Registration
Statement: Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) hereof shall be delivered or sent by mail or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
15. The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
the Designated Securities contemplated hereby (including in connection with determining the terms
of the offering of the Designated Securities) and not as a financial advisor or a fiduciary to, or
agent of, the Company or any other person. Additionally, the Underwriters are not advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall
be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
16. This Agreement and the Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof,
the officers and directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of
20
this Agreement or the Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
17. Time shall be of the essence of the Pricing Agreement. As used herein, “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
18. THIS AGREEMENT AND THE PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
19. THE COMPANY AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE PRICING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.
20. This Agreement and the Pricing Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same instrument.
[Signatures on following pages]
IN WITNESS WHEREOF, the undersigned has executed this agreement as of the date first above
written.
| DOVER CORPORATION |
||||
| By: | /s/ Robert G. Kuhbach | |||
| Name: | Robert G. Kuhbach | |||
| Title: | Vice President, Finance and Chief Financial Officer |
|||
Accepted as of the date hereof (with respect to, but subject to the terms of, Pricing Agreement to
which the undersigned is or is deemed to be a signatory):
| J.P. MORGAN SECURITIES INC. | ||||||
| By: | /s/ Robert Bottamedi | |||||
| Name: | Robert Bottamedi | |||||
| Title: | Vice President | |||||
| BANC OF AMERICA SECURITIES LLC | ||||||
| By: | /s/ Peter J. Carbone | |||||
| Name: | Peter J. Carbone | |||||
| Title: | Vice President | |||||
| DEUTSCHE BANK SECURITIES INC. | ||||||
| By: | /s/ Ritu Ketkar | |||||
| Name: | Ritu Ketkar | |||||
| Title: | Director | |||||
| By: | /s/ Scott Flieger | |||||
| Name: | Scott Flieger | |||||
| Title: | Managing Director | |||||
| GOLDMAN, SACHS & CO. | ||||||
| /s/ Goldman, Sachs & Co. | ||||||
| (Goldman, Sachs & Co.) | ||||||
| GREENWICH CAPITAL MARKETS, INC. | ||||||
| By: | /s/ Moshe Tomkiewicz | |||||
| Name: | Moshe Tomkiewicz | |||||
| Title: | Managing Director | |||||
On behalf of the several Underwriters
ANNEX I
PRICING AGREEMENT
Names of Representatives,
of the several Underwriters
named in Schedule I hereto,
named in Schedule I hereto,
[addresses]
March __, 2008
Ladies and Gentlemen:
Dover Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated March 11, 2008 (the “Underwriting
Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”)
the Securities specified in Schedule II hereto (the “Designated Securities”). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Pricing Prospectus, the Pricing Disclosure Package
and the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in relation to the Pricing
Prospectus, the Pricing Disclosure Package and the Prospectus, and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Pricing Prospectus, the
Pricing Disclosure Package and the Prospectus relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. The Representatives designated to act on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 13 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 13 are set forth at the end of Schedule II hereto.
Each of the Underwriters agrees that it will not offer or sell any of the Designated
Securities in any jurisdiction outside the United States except in circumstances that will result
in compliance in all material respects with the applicable laws thereof.
The Prospectus relating to the Designated Securities, in the form heretofore delivered to you,
is now proposed to be filed with the Commission.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth opposite the name
of such Underwriter in Schedule I hereto.
I-1
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof for the Company and each of the Representatives plus one counterpart for each
counsel, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein
by reference, shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters
is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the
form of which shall be submitted to the Company for examination upon request, but without
representation or warranty on the part of the Representatives as to the authority of the signers
thereof.
| Very truly yours, DOVER CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted as of the date hereof: | ||||
| [Names of Representatives] | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
On behalf of the several Underwriters
I-2
SCHEDULE I
| Principal Amount of | Principal Amount of | |||||||
| [title of Designated | [title of Designated | |||||||
| Securities] to be | Securities] to be | |||||||
| Underwriters | Purchased | Purchased | ||||||
[Name of Representatives] |
$ | $ | ||||||
[Names of other Underwriters] |
$ | $ | ||||||
Total |
$ | $ | ||||||
I-I-1
SCHEDULE II
Title of Designated Securities:
due ___(the “Designated Securities”).
Aggregate principal amount:
of the Designated Securities.
Price to Public:
% of the principal amount of the Designated Securities, plus accrued interest[, if any,]
from to
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued interest[, if any,]
from to
Form of Designated Securities:
Book-entry only form represented by one or more global securities deposited with The
Depository Trust Company (“DTC”) or its designated custodian, to be made available for
checking by the Representatives at least twenty-four hours prior to the Time of Delivery at
the office of DTC.
Time of Delivery:
a.m. (New York City time), , 20
Indenture:
Indenture dated February 8, 2001, between the Company and Bank One Trust Company, N.A. (as
predecessor to The Bank of New York), as Trustee, as supplemented by the
Supplemental Indenture, to be dated , 20 , between the Company and The Bank of New
York (as successor to Bank One Trust Company, N.A.) as Trustee, relating to the Designated
Securities
Maturity:
Interest Rate:
[ %]
[Floating rate provisions]
Interest Payment Dates:
I-II-1
[months and dates, commencing ___, 20___]
Redemption Provisions:
[Optional redemption provisions]
[No provisions for redemption]
Change of Control Offer Provisions:
[If a change of control triggering event occurs, the Company will be required, subject to
certain conditions, to make an offer to repurchase the Designated Securities at a price
equal to 101% of the principal amount of the Designated Securities, plus accrued and unpaid
interest to the date of repurchase (all as described in the Company’s preliminary prospectus
supplement dated ___, 20___ relating to the Designated Securities).]
[No change of control offer provisions]
Sinking Fund Provisions:
[No sinking fund provisions]
[Sinking fund provisions]
Defeasance Provisions:
[As set forth in the Indenture]
Closing Location for Delivery of Designated Securities:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
425 Lexington Avenue
New York, New York 10017
Additional Closing Conditions:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Applicable Time:
___:___[ a.m.][p.m.] (New York City time), on , 20
List of Free Writing Prospectuses
I-II-2
Final Term Sheet, dated , 20 , substantially in the form of Appendix A attached
hereto.
[Additional Free Writing Prospectuses, if any]
[Other Terms]*:
| * | A description of particular tax, accounting or other unusual features (such as the addition of event risk provisions) of the Designated Securities should be set forth, or referenced to an attached and accompanying description, if necessary, to ensure agreement as to the terms of the Designated Securities to be purchased and sold. Such a description might appropriately be in the form in which such features will be described in the Prospectus Supplement for the offering. |
I-II-3
APPENDIX A
FORM OF FINAL TERM SHEET
Issuer: Dover Corporation
Title of Securities:
Aggregate Principal Amount:
Issue Price (Price to Public): % of principal amount
Maturity:
Coupon (Interest Rate):
[Benchmark Treasury: ]
[Spread to Benchmark Treasury: basis points ( %)]
[Benchmark Treasury Price and Yield: %]
Yield to Maturity: %
Make-Whole Provision: T+ basis points
Interest Payment Dates: and
of each year, commencing on
Redemption Provisions:
Change of Control Offer:
Legal Format: SEC-registered
Settlement Date: T+[3] days;
Joint Booking-Running Manager[s]:
Co-Managers:
CUSIP:
A-1
ISIN:
Ratings: /
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The offer and sale of the Securities to which this final term sheet relates have been registered by
Dover Corporation by means of a registration statement on Form S-3 (SEC File No. 333-149629).
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in this offering will arrange to send you the prospectus if you request it by calling
toll-free 1-8[xx-xxx-xxxx].
A-2
ANNEX II
SIGNIFICANT SUBSIDIARIES
| Subsidiary | Jurisdiction of Incorporation or Formation | |
Revod Corporation
|
Delaware | |
Delaware Capital Formation, Inc.
|
Delaware | |
Delaware Capital Holdings, Inc.
|
Delaware | |
DFH Corporation
|
Delaware | |
Dover Global Holdings, Inc.
|
Delaware | |
Northern Lights Partners LLC
|
Delaware | |
Northern Lights (Nevada) Inc.
|
Nevada | |
Dover Fluid Management, Inc.
(formerly Dover Resources,
Inc.)
|
Delaware | |
Vectron International, Inc.
(formerly Dover Electronics,
Inc.)
|
Delaware | |
Dover Electronic Technologies,
Inc. (formerly Dover
Technologies International,
Inc.)
|
Delaware |
II-1
ANNEX III
FORM OF OPINION OF GENERAL COUNSEL
(i) The Company is a corporation incorporated and in good standing and has a legal
corporate existence under the laws of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the Pricing Disclosure Package and
the Prospectus;
(ii) The Company has the authorized capital stock as set forth in the Pricing
Disclosure Package and the Prospectus;
(iii) The Company is duly qualified or licensed by and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in this clause (iii) upon opinions
of local counsel and in respect of matters of fact upon certificates of officers of the
Company, provided that such counsel shall state that he believes that both he and you are
justified in relying upon such opinions and certificates);
(iv) Each Significant Subsidiary of the Company (other than any subsidiary
incorporated or formed in a jurisdiction outside the United States of America) is a
corporation or limited liability company duly incorporated or formed, as the case may be,
and in good standing and has a legal corporate existence under the laws of its jurisdiction
of incorporation or formation; and all of the issued and outstanding shares of capital stock
of each such Significant Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and (except for directors’ qualifying shares and as otherwise
disclosed in the Pricing Disclosure Package and the Prospectus) all of the issued and
outstanding shares of capital stock of each Significant Subsidiary are owned directly or
indirectly by the Company, free and clear of all material liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion in this clause (iv)
upon opinions of local counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel shall state that he
believes that both he and you are justified in relying upon such opinions and certificates);
(v) To such counsel’s knowledge and other than as set forth in the Pricing Disclosure
Package and the Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party, which are required to be described in the
Pricing Disclosure Package and the Prospectus that are not so described;
(vi) This Agreement and the Pricing Agreement have been duly authorized, executed and
delivered by the Company;
III-1
(vii) The Designated Securities have been duly authorized, executed, authenticated,
issued and delivered and constitute valid and legally binding obligations of the Company
enforceable against the Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles, and entitled to the benefits provided by the
Indenture;
(viii) The Indenture has been duly authorized, executed and delivered by the Company
and constitutes a valid and legally binding instrument enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(ix) The issue and sale of the Designated Securities and the compliance by the Company
with all of the provisions of this Agreement, the Pricing Agreement, the Indenture and the
Designated Securities, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the Company’s
Certificate of Incorporation or the By-laws or any statute or, to such counsel’s knowledge,
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration or qualification of or
filing with any such court or governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Pricing Agreement or the Indenture, except such as have
been obtained under the Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations, qualifications or filings as may be
required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(xi) The statements set forth in the Pricing Disclosure Package and the Prospectus
under the captions “Description of Debt Securities” and “Description of the Notes,” insofar
as they purport to constitute a summary of the terms of the Indenture and the Designated
Securities, and under the captions “Plan of Distribution” and “Underwriting,” insofar as
they purport to describe the provisions of the laws and documents referred to therein, are
accurate and fair;
(xii) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
III-2
company” or an entity “controlled” by an “investment company” (as such terms are
defined in the Investment Company Act);
(xiii) The documents incorporated by reference in the Pricing Disclosure Package and
the Prospectus (other than the financial statements and other financial data therein, as to
which such counsel need express no opinion), when they became effective or were filed with
the Commission (in the case of documents that have been amended, as of the date of filing of
such amendment), as the case may be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and
(xiv) The Registration Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and other financial data therein, as to
which such counsel need express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations thereunder; although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus, except for those referred to in
the opinion in Section 8(c)(xi), such counsel has no reason to believe that (i) the
Registration Statement or any further amendment thereto made by the Company prior to the
Time of Delivery (other than the financial statements and other financial data therein, as
to which such counsel need express no opinion or belief), when such part or amendment became
effective, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; (ii) the Pricing Disclosure Package, as of the Applicable Time (other than the
financial statements and other financial data therein, as to which such counsel need express
no opinion or belief), contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (iii) as of its date and as of the Time of
Delivery, the Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and other financial data
therein, as to which such counsel need express no opinion or belief) contained or contains
an untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Pricing Disclosure Package or the Prospectus or required
to be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus which are not filed or incorporated by reference or described as required.
III-3
Exhibit 1.2
EXECUTION COPY
PRICING AGREEMENT
March 11, 2008
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Greenwich Capital Markets, Inc.
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Greenwich Capital Markets, Inc.
As Representatives of the
several Underwriters named
in Schedule I hereto
several Underwriters named
in Schedule I hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
270 Park Avenue
New York, New York 10017
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
9 West 57th Street
New York, New York 10019
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
60 Wall Street
New York, New York 10005
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
85 Broad Street
New York, New York 10004
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
600 Steamboat Road
Greenwich, Connecticut 06830
Ladies and Gentlemen:
Dover Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated March 11, 2008 (the “Underwriting
Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”)
the Securities specified in Schedule II hereto (the “Designated Securities”).
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the Pricing
Prospectus, the Pricing Disclosure Package and the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus,
and also a representation and warranty as of the date of this Pricing Agreement in relation to the
Pricing Prospectus, the Pricing Disclosure Package and the Prospectus relating to the Designated
Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to you. The Representatives
designated to act on behalf of each of the Underwriters of the Designated Securities pursuant to
Section 13 of the Underwriting Agreement and the address of the Representatives referred to in such
Section 13 are set forth at the end of Schedule II hereto.
Each of the Underwriters agrees that it will not offer or sell any of the Designated
Securities in any jurisdiction outside the United States except in circumstances that will result
in compliance in all material respects with the applicable laws thereof.
The Prospectus relating to the Designated Securities, in the form heretofore delivered to you,
is now proposed to be filed with the Commission.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
2
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof for the Company and each of the Representatives plus one counterpart for each
counsel, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein
by reference, shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters
is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the
form of which shall be submitted to the Company for examination upon request, but without
representation or warranty on the part of the Representatives as to the authority of the signers
thereof.
| Very truly yours, DOVER CORPORATION |
||||
| By: | /s/ Robert G. Kuhbach | |||
| Name: | Robert G. Kuhbach | |||
| Title: | Vice President, Finance and Chief Financial Officer |
|||
3
| Accepted as of the date hereof: | ||||||
| J.P. MORGAN SECURITIES INC. | ||||||
| By: | /s/ Robert Bottamedi | |||||
| Name: | Robert Bottamedi | |||||
| Title: | Vice President | |||||
| BANC OF AMERICA SECURITIES LLC | ||||||
| By: | /s/ Peter J. Carbone | |||||
| Name: | Peter J. Carbone | |||||
| Title: | Vice President | |||||
| DEUTSCHE BANK SECURITIES INC. | ||||||
| By: | /s/ Ritu Ketkar | |||||
| Name: | Ritu Ketkar | |||||
| Title: | Director | |||||
| By: | /s/ Scott Flieger | |||||
| Name: | Scott Flieger | |||||
| Title: | Managing Director | |||||
| GOLDMAN, SACHS & CO. | ||||||
| /s/ Goldman, Sach & Co. | ||||||
| (Goldman, Sachs & Co.) | ||||||
| GREENWICH CAPITAL MARKETS, INC. | ||||||
| By: | /s/ Moshe Tomkiewicz | |||||
| Name: | Moshe Tomkiewicz | |||||
| Title: | Managing Director | |||||
On behalf of the several Underwriters
4
SCHEDULE I
| Principal | Principal | |||||||
| Amount of | Amount of | |||||||
| 5.45% Notes | 6.60% Notes | |||||||
| due 2018 to | due 2038 to | |||||||
| Underwriters | be Purchased | be Purchased | ||||||
J.P. Morgan Securities Inc. |
$ | 87,500,000 | $ | 62,500,000 | ||||
Banc of America Securities LLC |
87,500,000 | 12,500,000 | ||||||
Deutsche Bank Securities Inc. |
87,500,000 | 12,500,000 | ||||||
Goldman, Sachs & Co. |
17,500,000 | 62,500,000 | ||||||
Greenwich Capital Markets, Inc. |
17,500,000 | 62,500,000 | ||||||
Citigroup Global Markets Inc. |
17,500,000 | 12,500,000 | ||||||
Morgan Stanley & Co. Incorporated |
17,500,000 | 12,500,000 | ||||||
Wachovia Capital Markets, LLC |
17,500,000 | 12,500,000 | ||||||
Total |
$ | 350,000,000 | $ | 250,000,000 | ||||
SCHEDULE II
Title of Designated Securities:
5.45% Notes due 2018 (the “2018 Notes”); and
6.60% Notes due 2038 (the “2038 Notes” and, together with the 2018 Notes, the “Designated
Securities”).
Aggregate principal amount:
In the case of the 2018 Notes, $350,000,000; and
in the case of the 2038 Notes, $250,000,000.
Price to Public:
In the case of the 2018 Notes, 99.725% of the principal amount of the 2018 Notes; and
in the case of the 2038 Notes, 99.818% of the principal amount of the 2038 Notes.
Purchase Price to Underwriters:
In the case of the 2018 Notes, 99.075% of the principal amount of the 2018 Notes; and
in the case of the 2038 Notes, 98.943% of the principal amount of the 2038 Notes.
In the case of the 2018 Notes, the selling concession shall be 0.40% and the reallowance
concession shall be 0.25%, in each case of the principal amount of the 2018 Notes; and
in the case of the 2038 Notes, the selling concession shall be 0.50% and the reallowance
concession shall be 0.25%, in each case of the principal amount of the 2038 Notes.
Form of Designated Securities:
Book-entry only form represented by one or more global securities deposited with The
Depository Trust Company (“DTC”) or its designated custodian, to be made available for
checking by the Representatives at least twenty-four hours prior to the Time of Delivery at
the office of DTC.
Time of Delivery:
9:00 a.m. (New York City time), or as soon as possible thereafter, on March 14, 2008
Indenture:
Indenture dated February 8, 2001, between the Company and Bank One Trust Company, N.A. (as
predecessor to The Bank of New York and JPMorgan Chase Bank, N.A.), as Trustee, as
supplemented by the Second Supplemental Indenture, to be dated March 14,
II-1
2008, between the Company and The Bank of New York (as successor to Bank One Trust Company,
N.A. and JPMorgan Chase Bank, N.A.) as Trustee, relating to the Designated Securities.
Maturity:
In the case of the 2018 Notes, March 15, 2018; and
in the case of the 2038 Notes, March 15, 2038.
Interest Rate:
In the case of the 2018 Notes, 5.45%; and
in the case of the 2038 Notes, 6.60%.
Interest Payment Dates:
March 15 and September 15 of each year, beginning on September 15, 2008, in the case of all
of the Designated Securities.
Redemption Provisions:
No mandatory redemption provisions.
The Company may, at its option, redeem the Designated Securities in whole at any time or in
part from time to time at a redemption price as described under the caption “Description of
the Notes—Optional Redemption” in the Company’s preliminary prospectus supplement dated
March 11, 2008 relating to the Designated Securities (the “Preliminary Prospectus
Supplement”).
Change of Control Offer Provisions:
If a change of control triggering event occurs, the Company will be required, subject to
certain conditions, to make an offer to repurchase the Designated Securities at a price
equal to 101% of the principal amount of the Designated Securities, plus accrued and unpaid
interest to the date of repurchase (all as described under the caption “Description of the
Notes—Change of Control” in the Preliminary Prospectus Supplement).
Sinking Fund Provisions:
No sinking fund provisions.
Defeasance Provisions:
As set forth in the Indenture.
II-2
Closing Location for Delivery of Designated Securities:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
425 Lexington Avenue
New York, New York 10017
Additional Closing Conditions:
No additional closing conditions.
Names and addresses of Representatives:
Designated Representatives:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
270 Park Avenue
New York, New York 10017
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
9 West 57th Street
New York, New York 10019
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
60 Wall Street
New York, New York 10005
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
85 Broad Street
New York, New York 10004
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
600 Steamboat Road
Greenwich, Connecticut 06830
Address for Notices, etc.:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Investment Grade Syndicate Desk
Fax: (212) 834-6081
270 Park Avenue
New York, New York 10017
Attention: Investment Grade Syndicate Desk
Fax: (212) 834-6081
Banc of America Securities LLC
40 West 57th Street
NY1-040-27-03
New York, New York 10019
40 West 57th Street
NY1-040-27-03
New York, New York 10019
II-3
Attention: High Grade Transaction Management/Legal
Fax: (646) 313-4823
Fax: (646) 313-4823
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets – Syndicate Desk
Fax: (212) 797-2202
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets – Syndicate Desk
Fax: (212) 797-2202
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Registration Department
Fax: (212) 902-3000
85 Broad Street
New York, New York 10004
Attention: Registration Department
Fax: (212) 902-3000
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Attention: Debt Capital Markets Syndicate
Fax: (203) 422-4534
600 Steamboat Road
Greenwich, Connecticut 06830
Attention: Debt Capital Markets Syndicate
Fax: (203) 422-4534
Applicable Time:
5:00 p.m. (New York City time), on March 11, 2008, in the case of all the Designated
Securities
List of Free Writing Prospectuses
Final Term Sheet, dated March 11, 2008 substantially in the form of Appendix A attached
hereto.
Other Terms:
None.
II-4
APPENDIX A
FINAL TERM SHEET
Dated March 11, 2008
Dated March 11, 2008
DOVER CORPORATION
$350,000,000 5.45% Notes Due 2018
$250,000,000 6.60% Notes Due 2038
$350,000,000 5.45% Notes Due 2018
$250,000,000 6.60% Notes Due 2038
Issuer:
|
Dover Corporation | |
Title of Securities:
|
5.45% Notes Due 2018 (“2018 Notes”) | |
| 6.60% Notes Due 2038 (“2038 Notes”) | ||
Aggregate Principal Amount:
|
$350,000,000 (2018 Notes) | |
| $250,000,000 (2038 Notes) | ||
Issue Price (Price to Public):
|
99.725% of principal amount (2018 Notes) | |
| 99.818% of principal amount (2038 Notes) | ||
Maturity:
|
March 15, 2018 (2018 Notes) | |
| March 15, 2038 (2038 Notes) | ||
Coupon (Interest Rate):
|
5.45% (2018 Notes) | |
| 6.60% (2038 Notes) | ||
Benchmark Treasury:
|
3.500% February 15, 2018 (2018 Notes) | |
| 5.000% May 15, 2037 (2038 Notes) | ||
Spread to Benchmark Treasury:
|
190 basis points (1.900%) (2018 Notes) | |
| 210 basis points (2.100%) (2038 Notes) | ||
Benchmark Treasury Price
and Yield:
|
99-09; 3.586% (2018 Notes) | |
| 107-26+; 4.514% (2038 Notes) | ||
Yield to Maturity:
|
5.486% (2018 Notes) | |
| 6.614% (2038 Notes) | ||
Make-Whole Provision:
|
T+30bps (2018 Notes) | |
| T+35bps (2038 Notes) | ||
Interest Payment Dates:
|
March 15 and September 15 of each year, commencing on September 15, 2008 |
A-1
Redemption Provisions:
|
No mandatory redemption provisions | |
| Dover Corporation may, at its option, redeem the Notes as described in the preliminary prospectus supplement, dated March 11, 2008 | ||
Change of Control Offer:
|
As described in the preliminary prospectus supplement, dated March 11, 2008 | |
Legal Format:
|
SEC-registered | |
Settlement Date:
|
T+3; March 14, 2008 | |
Joint Booking-Running Managers:
|
J.P. Morgan Securities Inc. | |
| Banc of America Securities LLC | ||
| Deutsche Bank Securities Inc. | ||
| Goldman, Sachs & Co. | ||
| Greenwich Capital Markets, Inc. | ||
Co-Managers:
|
Citigroup Global Markets Inc. | |
| Morgan Stanley & Co. Incorporated | ||
| Wachovia Capital Markets, LLC | ||
CUSIP:
|
260003AH1 (2018 Notes) | |
| 260003AG3 (2038 Notes) | ||
ISIN:
|
US260003AH16 (2018 Notes) | |
| US260003AG33 (2038 Notes) | ||
Ratings:
|
A2 (Moody’s); A (S&P); A (Fitch) |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The offer and sale of the Notes to which this final term sheet relates have been registered by
Dover Corporation by means of a registration statement on Form S-3 (SEC File No. 333-149629).
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any
A-2
underwriter or any dealer participating in this offering will arrange to send you the prospectus if
you request it by calling J.P. Morgan Securities Inc. collect at 1-212-834-4533, Banc of America
Securities LLC toll free at 1-800-294-1322, Deutsche Bank Securities Inc. toll free at
1-800-503-4611, Goldman, Sachs & Co. toll free at 1-866-471-2526 and Greenwich Capital Markets Inc.
toll-free at 1-866-844-2071.
A-3
Exhibit 4.1
DOVER CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of March 14, 2008
5.45% Notes due 2018
6.60% Notes due 2038
SECOND SUPPLEMENTAL INDENTURE (as hereinafter defined, the “Second Supplemental Indenture”),
dated as of March 14, 2008, between DOVER CORPORATION, a Delaware corporation (the “Company”), and
THE BANK OF NEW YORK, a New York banking corporation, as Trustee (as hereinafter defined, the
“Trustee”).
WITNESSETH:
WHEREAS, the Company and Bank One Trust Company, N.A. (as predecessor to JP Morgan Trust
Company National Association and The Bank of New York, the “Original Trustee”) executed and
delivered an Indenture, dated as of February 8, 2001 (the “Indenture”), to provide for the issuance
by the Company from time to time of unsecured notes, debentures or other evidences of indebtedness,
to be issued in one or more series as provided in the Indenture;
WHEREAS, on February 12, 2001, pursuant to a Board Resolution, the Company issued a series of
its debt securities under the Indenture designated as the “6.50% Notes due February 15, 2011” in
the aggregate principal amount of $400,000,000;
WHEREAS, on October 13, 2005, pursuant to a Board Resolution, the Company issued two series of
its debt securities under the Indenture, designated as the “4.875% Notes due October 15, 2015” in
the aggregate principal amount of $300,000,000 and as the “5.375% Debentures due October 15, 2035”
in the aggregate principal amount of $300,000,000 (together the “2005 Securities”);
WHEREAS, the Company, JP Morgan Trust Company National Association (formerly known as Bank One
Trust Company, N.A.) and The Bank of New York (as trustee with respect to the 2005 Securities)
executed and delivered a First Supplemental Indenture, dated as of October 13, 2005 (the “First
Supplemental Indenture”), to, among other things, establish the forms and terms of the 2005
Securities;
WHEREAS, subsequent to the date of the First Supplemental Indenture, The Bank of New York
acquired the trustee business of the Original Trustee and succeeded the Original Trustee as the
Trustee under the Indenture;
WHEREAS, pursuant to a Board Resolution, the Company has authorized the creation and issuance
of two additional and separate series of its debt securities under the Indenture, designated as the
“5.45% Notes due 2018” in the initial aggregate principal amount of $350,000,000 (the “Notes due
2018”) and as the “6.60% Notes due 2038” in the initial aggregate principal amount of $250,000,000
(the “Notes due 2038” and, together with the Notes due 2018, the “2008 Securities”);
WHEREAS, pursuant to a Board Resolution authorizing the creation and issuance of the 2008
Securities, the Trustee has been designated as the trustee in respect of the 2008 Securities;
WHEREAS, Section 901 of the Indenture provides that, without the consent of the Holders, the
Company, when authorized by a Board Resolution, may enter into a supplemental indenture with the
Trustee: (i) to establish the forms or terms of any series as permitted by Sections 201 and 301 of
the Indenture; or (ii) to make any other provisions with respect to matters or questions arising
under the Indenture, provided that such action shall not adversely affect the interests of the
Holders of Securities of any series;
WHEREAS, the Company desires to establish the forms and terms of the Notes due 2018 and the
Notes due 2038 in accordance with Sections 201 and 301 of the Indenture;
WHEREAS, the Company has determined that this Second Supplemental Indenture is authorized or
permitted by Sections 901 and 611 of the Indenture and has delivered to the Trustee an Opinion of
Counsel to that effect and an Opinion of Counsel and an Officers’ Certificate pursuant to Section
102 of the Indenture to the effect that all conditions precedent provided for in the Indenture to
the Trustee’s execution and delivery of this Second Supplemental Indenture have been complied with;
WHEREAS, the entering into this Second Supplemental Indenture by the parties hereto is in all
respects authorized by the provisions of the Indenture, as supplemented by the First Supplemental
Indenture;
WHEREAS, the Original Indenture, as supplemented by the First Supplemental Indenture and this
Second Supplemental Indenture, is subject to the provisions of the Trust Indenture Act of 1939, as
amended, that are required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid indenture and
agreement according to its terms have been done.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definition of Terms. For all purposes of this Second Supplemental Indenture,
except as otherwise expressly provided or unless the context requires otherwise:
(a) a term defined in the Indenture and not otherwise defined herein has the same meaning when
used in this Second Supplemental Indenture; and
(b) the following terms have the meanings given to them in this Section 1.1(b) and shall have
the meaning set forth below for purposes of this Second Supplemental Indenture and the Indenture as
it relates to the Notes due 2018 and the Notes due 2038 created hereby:
“2018 Notes Maturity Date” shall have the meaning set forth in Section 2.2.
“2038 Notes Maturity Date” shall have the meaning set forth in Section 2.2.
“Additional 2018 Notes” shall have the meaning set forth in Section 4.1.
“Additional 2038 Notes” shall have the meaning set forth in Section 4.1.
“Business Day” means, unless otherwise specified, any calendar day that is not a Saturday,
Sunday or legal holiday in New York, New York and on which commercial banks are open for business
in New York, New York.
“Change of Control” means the occurrence of any of the following: (i) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any “person” as the term is defined in Section 13(d)(3) of the Exchange Act) (other than the
Company or one
2
of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of more than 50% of the Company’s Voting Stock or other
Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or
changed, measured by voting power rather than number of shares; (ii) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or
more series of related transactions, of all or substantially all of the Company’s assets and the
assets of its subsidiaries, taken as a whole, to one or more Persons (other than the Company or one
of its subsidiaries); or (iii) the first day on which a majority of the members of the Board of
Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction will not be
deemed to involve a Change of Control if (1) the Company becomes a direct or indirect wholly-owned
subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of
such holding company immediately following that transaction are substantially the same as the
holders of the Company’s Voting Stock immediately prior to that transaction or (B) immediately
following that transaction no Person (other than a holding company satisfying the requirements of
this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting
Stock of such holding company.
“Change of Control Offer” shall have the meaning set forth in Section 3.2.
“Change of Control Payment” shall have the meaning set forth in Section 3.2.
“Change of Control Payment Date” shall have the meaning set forth in Section 3.2.
“Change of Control Triggering Event” means, with respect to the Notes due 2018 or the Notes
due 2038, the occurrence of both a Change of Control and a Rating Event with respect to that
series.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Notes due 2018 or the Notes due 2038 to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of such Notes due 2018 or Notes due
2038.
“Comparable Treasury Price” means, with respect to any Redemption Date: (i) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations; (ii) if the Company obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations; or (iii) if only one such Reference Treasury Dealer Quotation is received, such
Reference Treasury Dealer Quotation.
“Continuing Directors” means, as of any date of determination, any member of the Company’s
Board of Directors who: (i) was a member of such Board of Directors on the date the Notes due 2018
or the Notes due 2038, as applicable, were issued; or (ii) was nominated for election, elected or
appointed to such Board of Directors with the approval of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such nomination, election or appointment
(either by a specific vote or by approval of the Company’s proxy statement in which such member was
named as a nominee for election as a director, without objection to such nomination).
“Interest Payment Date” shall have the meaning set forth in Section 2.3(a).
“Interest Period” shall have the meaning set forth in Section 2.3(b).
3
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from
any additional rating agency or rating agencies selected by the Company.
“Moody’s” means Moody’s Investors Service Inc.
“Optional Redemption Price” shall have the meaning set forth in Section 3.1.
“Person” shall have the meaning set forth in the Indenture and includes a “person” or “group”
as these terms are used in Section 13(d)(3) of the Exchange Act.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Rating Agencies” means (i) each of Moody’s and S&P; and (ii) if either of Moody’s or S&P
ceases to rate the Notes due 2018 or the Notes due 2038 or fails to make a rating of the Notes due
2018 or the Notes due 2038 publicly available for reasons outside of the Company’s control, with
respect to the effected series, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as
the case may be.
“Rating Event” means with respect to the Notes due 2018 or the Notes due 2038, the rating is
lowered by each of the Rating Agencies and the Notes of that series are rated below an Investment
Grade Rating by each of the Rating Agencies on any day within the 60-day period (which 60-day
period will be extended so long as the rating of the Notes of that series is under publicly
announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier
of: (i) the occurrence of a Change of Control; and (ii) public notice of the occurrence of a Change
of Control or the Company’s intention to effect a Change of Control; provided, however, that a
Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to
have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating
Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies
making the reduction in rating to which this definition would otherwise apply do not announce or
publicly confirm or inform the Trustee in writing at the Company’s or the Trustee’s request that
the reduction was the result, in whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the applicable Change of Control (whether or not the
applicable Change of Control has occurred at the time of the Rating Event).
“Regular Record Date” means, with respect to any Interest Payment Date for the 2008
Securities, the first calendar day, whether or not a Business Day, of the month in which the
Interest Payment Date falls.
“Redemption Date” means, with respect to any redemption of Notes due 2018 and Notes due 2038,
the date fixed for such redemption pursuant to the Indenture and such Notes due 2018 and Notes due
2038.
“Reference Treasury Dealer” means (i) J.P. Morgan Securities Inc., Banc of America Securities
LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Greenwich Capital Markets, Inc. (or
their respective affiliates that are Primary Treasury Dealers) and their respective successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in the United States of America (a “Primary Treasury Dealer”), the Company will
substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer
selected by the Company.
4
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by the Reference Treasury Dealer at 3:30 p.m., (New York City
time), on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date.
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such person.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE 2008 SECURITIES
Section 2.1 Designation and Principal Amount. The 2008 Securities may be issued from time to
time upon written order of the Company for the authentication and delivery of the 2008 Securities
pursuant to Sections 301 and 302 of the Indenture. There is hereby authorized a series of
Securities designated as the “5.45% Notes due 2018”, initially limited in aggregate principal
amount to $350,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of,
other Notes due 2018 pursuant to Sections 303, 304, 305, 306, 906 or 1107 of the Indenture). There
is hereby authorized a series of Securities designated as the “6.60% Notes due 2038”, initially
limited in aggregate principal amount to $250,000,000 (except upon registration transfer of, or in
exchange for, or in lieu of, other Notes due 2038 pursuant to Sections 303, 304, 305, 306, 906,
1107 of the Indenture).
Section 2.2 Stated Maturity. The date upon which the Notes due 2018 shall become due and
payable at final maturity, together with any accrued and unpaid interest, is March 15, 2018 (the
“2018 Notes Maturity Date”). The date upon which the Notes due 2038 become due and payable at
final maturity, together with any accrued and unpaid interest, is March 15, 2038 (the “2038 Notes
Maturity Date”).
Section 2.3 Interest.
(a) The Notes due 2018 will bear interest at the rate of 5.45% per annum. The Notes due 2038
will bear interest at the rate of 6.60% per annum. The date from which interest will accrue on the
2008 Securities will be March 14, 2008. Interest on the 2008 Securities shall be payable
semi-annually in arrears on March 15 and September 15 of each year (each, an “Interest Payment
Date”), commencing September 15, 2008 to the Persons in whose name the relevant 2008 Securities are
registered at the close of business on the Regular Record Date for such Interest Payment Date,
except as provided in Section 2.3(d).
(b) Interest payable on any Interest Payment Date, the 2018 Notes Maturity Date, the 2038
Notes Maturity Date or, if applicable, the Redemption Date with respect to the 2008 Securities
shall be the amount of interest accrued from, and including, the immediately preceding Interest
Payment Date in
5
respect of which interest has been paid or duly provided for (or from and including the
original issue date of March 14, 2008, if no interest has been paid or duly provided for with
respect to the 2008 Securities) to, but excluding, such Interest Payment Date, the 2018 Notes
Maturity Date, the 2038 Notes Maturity Date or, if applicable, the Redemption Date, as the case may
be (each, an “Interest Period”).
(c) The amount of interest payable for any full semi-annual Interest Period will be computed
on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable
for any period shorter than a full semi-annual Interest Period for which interest is computed will
be computed on the basis of a 30-day month and, for any period less than a month, on the basis of
the actual number of days elapsed per 30-day month. In the event that any scheduled Interest
Payment Date for the 2008 Securities falls on a day that is not a Business Day, then payment of
interest payable on such Interest Payment Date will be postponed to the next succeeding day which
is a Business Day (and no interest on such payment will accrue for the period from and after such
scheduled Interest Payment Date).
(d) In the event that the 2018 Notes Maturity Date, the 2038 Notes Maturity Date or the
Redemption Date falls on a day that is not a Business Day, then the related payments of principal,
premium, if any, and interest may be made on the next succeeding day that is a Business Day (and no
additional interest will accumulate on the amount payable for the period from and after the 2018
Notes Maturity Date, 2038 Notes Maturity Date or Redemption Date). Interest due on the 2018 Notes
Maturity Date, 2038 Notes Maturity Date or Redemption Date (in each case, whether or not an
Interest Payment Date) on any of the 2008 Securities will be paid to the Person to whom principal
of the 2008 Securities is payable.
Section 2.4 Place of Payment and Appointment. Principal of and interest on the 2008
Securities will be payable, the transfer of the 2008 Securities will be registrable, and the 2008
Securities will be exchangeable for 2008 Securities of a like aggregate principal amount, at the
office or agency of the Company maintained for such purpose in New York, New York, which shall
initially be the principal office of the Trustee; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Person entitled thereto at such address
as shall appear in the security register or by wire transfer to an account appropriately designated
by the Person entitled to payment; and provided that the Company will pay principal of, premium, if
any, and interest on, the 2008 Securities in global form registered in the name of or held by The
Depository Trust Company or such other Depositary as any officer of the Company may from time to
time designate, or its respective nominee, by wire in immediately available funds to such
Depositary or its nominee, as the case may be, as the registered holder of such 2008 Securities in
global form.
The Security Registrar and Paying Agent for the 2008 Securities shall initially be the
Trustee.
Section 2.5 Defeasance. The Company may elect, at its option at any time, pursuant to Section
1301 of the Indenture, to have Section 1302 or Section 1303 in the Indenture, or both, apply to the
Notes due 2018 or the Notes due 2038, or both, or any principal amount thereof.
Section 2.6 Denominations. The Notes due 2018 shall be issuable in denominations of $2,000
and integral multiples of $1,000 in excess thereof. The Notes due 2038 shall be issuable in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.7 Global Securities. Each separate series of the 2008 Securities shall be issued
initially in the form of a permanent Global Security in registered form deposited with The
Depository Trust Company or such other Depositary as any officer of the Company may from time to
time designate. Unless and until each such Global Security is exchanged for the relevant 2008
Securities in certificated form, each Global Security may be transferred, in whole but not in part,
and any payments on the 2008
6
Securities shall be made only to the Depositary or a nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such successor
Depositary.
Section 2.8 Form of the 2008 Securities. The form of the Notes due 2018 and the Trustee’s
Certificate of Authentication to be endorsed thereon shall be substantially in the form attached as
Exhibit A hereto, and the form of the Notes due 2038 and the Trustee’ Certificate of Authentication
to be endorsed thereon shall be substantially in the form attached as Exhibit B hereto, in each
case with such changes therein as the officers of the Company executing the Notes due 2018 or the
Notes due 2038 (by manual or facsimile signature) may approve, such approval to be conclusively
evidenced by their execution thereof.
Section 2.9 No Sinking Fund. The 2008 Securities shall not be entitled to the benefit of any
sinking fund.
ARTICLE 3
REDEMPTION OF THE 2008 SECURITIES
Section 3.1 Optional Redemption by Company. (a) Except as otherwise may be specified in this
Second Supplemental Indenture, the Notes due 2018 and/or the Notes due 2038 may be redeemed in
whole at any time or in part from time to time, at the option of the Company, at a redemption price
(the “Optional Redemption Price”) equal to the greater of:
(i) 100% of the principal amount of the relevant 2008 Securities then outstanding to be
redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest accrued as of the
Redemption Date), discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury Rate, plus (x) 30 basis points in
the case of the Notes due 2018 and (y) 35 basis points in the case of the Notes due 2038, plus, in
each case, accrued interest on the principal amount being redeemed to, but excluding, the
Redemption Date. Notwithstanding the foregoing, installments of interest on the Securities of the
series being redeemed, as applicable, that are due and payable on Interest Payment Dates falling on
or prior to a Redemption Date will be payable on the Interest Payment Date to the Holders as of the
close of business on the relevant Regular Record Date.
(b) In the event of redemption of either Notes due 2018 or Notes due 2038 in part only, a new
Security or Securities of such series and of like tenor of the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation thereof.
Section 3.2 Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs with respect to a series of the 2008
Securities, unless the Company has exercised its option to redeem the such series as described
above, the Company will be required to make an offer (the “Change of Control Offer”) to each Holder
of the then outstanding Securities of that series of 2008 Securities, to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Securities
on the terms set forth in the Notes due 2018 or Notes due 2038, as applicable. In the Change of
Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate
principal amount of Securities
repurchased, plus accrued and unpaid interest, if any, on the Securities repurchased to the
date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of
Control
7
Triggering Event or, at the Company’s option, prior to any Change of Control, but after
public announcement of the transaction that constitutes or may constitute the Change of Control, a
notice will be mailed to Holders of that series of 2008 Securities, describing the transaction that
constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the
Securities on the date specified in the notice, which date will be no earlier than 30 days and no
later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”).
The notice will, if mailed prior to the date of consummation of the Change of Control, state
that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or
prior to the Change of Control Payment Date.
(b) On the Change of Control Payment Date for a series of 2008 Securities, the Company will,
to the extent lawful:
| (i) | accept for payment all Securities of that series of 2008 Securities or portions of Securities of such series properly tendered pursuant to the Change of Control Offer; | ||
| (ii) | deposit with the paying agent an amount equal to the Change of Control Payment in respect of all 2008 Securities of that series or portions of 2008 Securities of such series properly tendered; and | ||
| (iii) | deliver or cause to be delivered to the Trustee the Notes due 2018 or Notes due 2038 properly accepted together with an Officers’ Certificate stating the aggregate principal amount of 2008 Securities of that series or portions of 2008 Securities of that series being repurchased. |
(c) The Company will not be required to make a Change of Control Offer upon the occurrence of
a Change of Control Triggering Event if a third party makes such an offer in the manner, at the
times and otherwise in compliance with the requirements for an offer made by the Company and the
third party repurchases all Notes due 2018 or Notes due 2038, as applicable, properly tendered and
not withdrawn under its offer. In addition, the Company shall not repurchase any Notes due 2018 or
Notes due 2038, as applicable, if there has occurred and is continuing on the Change of Control
Payment Date an event of default under the Indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
(d) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Securities of any series of 2008 Securities as
a result of a Change of Control Triggering Event applicable to such series. To the extent that the
provisions of any such securities laws or regulations conflict with the Change of Control Offer
provisions of the series of 2008 Securities, the Company shall comply with those securities laws
and regulations and shall not be deemed to have breached its obligations under the Change of
Control Offer provisions of the series of 2008 Securities by virtue of any such conflict.
ARTICLE 4
ORIGINAL ISSUE OF THE 2008 SECURITIES
Section 4.1 Additional Securities. Subject to the terms and conditions contained herein, the
Company may from time to time, without the consent of the existing Holders of Notes due 2018,
create
8
and issue additional notes (the “Additional 2018 Notes”) having the same terms and
conditions as the Notes due 2018 in all respects, except for issue date, issue price and the first
payment of interest thereon. Any Additional 2018 Notes, at the Company’s determination and in
accordance with provisions of the Indenture, will be consolidated with and form a single series
with the previously outstanding Notes due 2018 for all purposes of the Indenture, including,
without limitation, amendments, waivers and redemptions. The aggregate principal amount of any
Additional 2018 Notes shall be unlimited.
Subject to the terms and conditions contained herein, the Company may from time to time,
without the consent of the existing Holders of Notes due 2038, create and issue additional notes
(the “Additional 2038 Notes”) having the same terms and conditions as the Notes due 2038 in all
respects, except for issue date, issue price and the first payment of interest thereon. Any
Additional 2038 Notes, at the Company’s determination and in accordance with provisions of the
Indenture, will be consolidated with and form a single series with the previously outstanding Notes
due 2038 for all purposes of the Indenture, including, without limitation, amendments, waivers and
redemptions. The aggregate principal amount of any Additional 2038 Notes shall be unlimited.
ARTICLE 5
SUPPLEMENTAL INDENTURES
Section 5.1 Supplemental Indentures with Consent of Holders. As set forth in Section 902 of
the Indenture, with the consent of the Holders of a majority in the aggregate principal amount of
Securities of each series affected by such supplemental indenture at the time outstanding, the
Company and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture, the First Supplemental Indenture or this
Second Supplemental Indenture or of modifying in any manner the rights of the Holders of the
Securities.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Confirmation of Indenture. The Indenture, as supplemented by this Second
Supplemental Indenture, is in all respects ratified and confirmed, and this Second Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein
provided.
Section 6.2 Responsibility of Recitals, Etc. The recitals herein and in the 2008 Securities
(except in the Trustee’s certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes
no representations as to the validity or the sufficiency of this Second Supplemental Indenture or
of the 2008 Securities. The Trustee shall not be accountable for the use or application by the
Company of the 2008 Securities or the proceeds thereof.
Section 6.3 Concerning the Trustee. The Trustee does not assume any duties, responsibility or
liabilities by reason of this Second Supplemental Indenture other than as set forth in the
Indenture and,
in carrying out its responsibilities hereunder, the Trustee shall have all of the rights,
powers, privileges, protections and immunities which it possesses under the Indenture.
Section 6.4 Governing Law. This Second Supplemental Indenture and the Notes due 2018 and the
Notes due 2038 shall be governed by, and construed and enforced in accordance with, the laws of the
State of New York.
9
Section 6.5 Severability. In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the 2008 Securities shall for any reason be held to be invalid,
illegal or unenforceable in any respect, then, to the extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Second Supplemental
Indenture, or of the relevant 2008 Securities, but this Second Supplemental Indenture and the
relevant 2008 Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 6.6 Counterparts. This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section 6.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part
of and govern this Second Supplemental Indenture, the latter provision shall control. If any
provision of this Second Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply
to this Second Supplemental Indenture, as so modified or excluded, as the case may be.
Section 6.8 Effect of Headings. The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
10
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, as of the day and year first written above.
| DOVER CORPORATION |
||||||
| By: | /s/ Robert G. Kuhbach | |||||
| Name: Robert G. Kuhbach | ||||||
| Title: Vice President, Finance and Chief Financial Officer | ||||||
| Attest: /s/ Joseph W. Schmidt | ||||||
| THE BANK OF NEW YORK, as Trustee |
||||||
| By: | /s/ Franca Ferrera | |||||
| Name: Franca M. Ferrera | ||||||
| Title: Assistant Vice President | ||||||
11
Exhibit A
Form of Notes due 2018
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged
in whole or in part for a Security registered, and no transfer of this Security in whole or in part
may be registered, in the name of any Person other than such Depositary or a nominee thereof,
except in the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
DOVER CORPORATION
5.45% Note due 2018
| CUSIP: | ||
| ISIN: | ||
No.
|
U.S. |
Dover Corporation, a corporation duly organized and existing under the laws of Delaware (herein
called the “Company”, which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or registered assigns,
the principal sum of $ on March 15, 2018 and to pay interest thereon from March 14,
2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year, commencing on September 15, 2008, at
the rate of 5.45% per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; and provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register; and provided, further, the Company will pay
principal of (and premium, if any) and interest on this Security in global form registered in the
name of or held by DTC or such other Depositary as any officer of the Company may from time to time
designate, or its respective nominee, by wire in immediately available funds to such Depositary or
its nominee, as the case may be, as the registered holder of this Security in global form.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated: March ___, 2008
| DOVER CORPORATION |
||||
| By: | ||||
| Name: | Robert G. Kuhbach | |||
| Title: | Vice President, Finance and Chief Financial Officer | |||
Attest:
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
Dated:
| THE BANK OF NEW YORK, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an Indenture, dated as of
February 8, 2001 (herein called the “Base Indenture”, between the Company and The Bank of New York,
as Trustee (the “Trustee”, which term includes any successor trustee under the Base Indenture), as
amended and supplemented by the First Supplemental Indenture, dated as of October 13, 2005, between
the Company and the Trustee (the “First Supplemental Indenture”) and as further amended and
supplemented by the Second Supplemental Indenture, dated as of March 14, 2008, between the Company
and the Trustee (the “Second Supplemental Indenture”, together with the Base Indenture and the
First Supplemental Indenture, the “Indenture”). Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be authenticated and delivered. This Security is one of a series designated on the
face hereof initially limited in aggregate principal amount to $350,000,000.
The Securities of this series are subject to redemption upon not less than 30 days’ and not more
than 60 days’ notice by mail, at any time, as a whole or in part, at the election of the Company,
at a redemption price equal to the greater of (i) 100% of the principal amount of such Securities
then outstanding to be redeemed, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (not including any portion of
such payments of interest accrued to the date of redemption) discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 30 basis points, plus, in each case, accrued and unpaid interest on
the principal amount being redeemed to the redemption date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
For purposes of the redemption provisions, the following terms are applicable:
“Comparable Treasury Issue” shall mean the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Securities to be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
“Comparable Treasury Price” shall mean, with respect to any Redemption Date: (i) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations; (ii) if the Company obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations;
or (iii) if only one such Reference Treasury Dealer Quotation is received, such Reference Treasury
Dealer Quotation.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means: (i) J.P. Morgan Securities Inc., Banc of America Securities LLC,
Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Greenwich Capital Markets, Inc. (or their
respective affiliates that are Primary Treasury Dealers) and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer
in the United States of America (a “Primary Treasury Dealer”), the Company will substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Company by the Reference Treasury Dealer at 3:30 p.m. (New York City time) on the
third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Securities as described above, the Company will be required to make an offer (the
“Change of Control Offer”) to each Holder of the Securities to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Securities on the
terms set forth herein. In the Change of Control Offer, the Company will be required to offer
payment in cash equal to 101% of the aggregate principal amount of Securities repurchased, plus
accrued and unpaid interest, if any, on the Securities repurchased to the date of repurchase (the
“Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or,
at the Company’s option, prior to the date of the consummation of any Change of Control, but after
public announcement of the transaction that constitutes or may constitute the Change of Control,
the Company will be required to mail a notice to Holders of Securities, with a copy to the Trustee,
describing the transaction or transactions that constitute or may constitute the Change of Control
Triggering Event and offering to repurchase the Securities on the date specified in the notice,
which date shall be no earlier than 30 days and no later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”) pursuant to the procedures described in such notice
and in conformity with the Indenture.
The notice will, if mailed prior to the date of the consummation of the Change of Control, state
that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or
prior to the payment date specified in the notice.
On the Change of Control Payment Date, the Company will be required, to the extent lawful: (a) to
accept for payment all Securities or portions of Securities properly tendered pursuant to the
Change of Control Offer; (b) to deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities properly tendered; and (c)
to deliver or cause to be delivered to the Trustee the Securities properly accepted together with
an Officers’ Certificate stating the aggregate principal amount of Securities or portions of
Securities being repurchased.
The Company will not be required to make the Change of Control Offer upon a Change of Control
Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in
compliance with the requirements for an offer made by the Company and such third party purchases
all Securities properly tendered and not withdrawn under its offer. In addition, the Company shall
not repurchase any Securities if there has occurred and is continuing on the Change of Control
Payment Date an Event of Default under the Indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that the provisions
of any securities laws or regulations conflict with the Change of Control Triggering Event
provisions of the Securities, the Company shall comply with those securities laws and regulations
and shall not be deemed to have breached its obligations under the Indenture or the Change of
Control Offer provisions of the Securities by virtue of any such conflicts.
For purposes of the Change of Control Offer provisions, the following terms are applicable:
“Change of Control” means the occurrence of any of the following: (i) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any “person” as the term is defined in Section 13(d)(3) of the Exchange Act) (other than the
Company or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s Voting
Stock or other Voting Stock into which the Company’s Voting Stock is reclassified,
consolidated, exchanged or changed, measured by voting power rather than number of shares; (ii) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
Company’s assets and the assets of its subsidiaries, taken as a whole, to one or more Persons
(other than the Company or one of its subsidiaries); or (iii) the first day on which a majority of
the members of the Board of Directors are not Continuing Directors. Notwithstanding the foregoing,
a transaction shall not be deemed to involve a Change of Control if (1) the Company becomes a
direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect
holders of the Voting Stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s Voting Stock immediately prior to that
transaction or (B) immediately following that transaction no Person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of
more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating
Event with respect to the Securities.
“Continuing Directors” means, as of any date of determination, any member of the Company’s Board of
Directors who: (i) was a member of such Board of Directors on the date the Securities were issued;
or (ii) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from
any additional rating agency or rating agencies selected by the Company.
“Moody’s” means Moody’s Investors Service Inc.
“Person” has the meaning set forth in the Indenture and includes a “person” or “group” as these
terms are used in Section 13(d)(3) of the Exchange Act.
“Rating Agencies” means (i) each of Moody’s and S&P; and (ii) if either of Moody’s or S&P ceases to
rate the Securities or fails to make a rating of the Securities publicly available for reasons
outside of the Company’s control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as
the case may be.
“Rating Event” means the rating on the Securities is lowered by each of the Rating Agencies and the
Securities are rated below an Investment Grade Rating by each of the Rating Agencies on any day
within the 60-day period (which 60-day period shall be extended so long as the rating of the
Securities is under publicly announced consideration for a possible downgrade by any of the Rating
Agencies) after the earlier of: (i) the occurrence of a Change of Control; and (ii) public notice
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control;
provided, however, that a Rating Event otherwise arising by virtue of a particular reduction in
rating will not be deemed to have occurred in respect of a particular Change of Control (and thus
shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering
Event) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the
Company’s or the Trustee’s request that the reduction was the result, in whole or in part, of any
event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control (whether or not the applicable Change of Control has occurred at the time of the
Rating Event).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors
of such person.
The Securities of this series are not entitled to the benefit of any sinking fund.
The Indenture contains provisions for defeasance and discharge at any time of (i) the entire
indebtedness of this Security or (ii) certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations
of U.S.$2,000 or an integral multiple of U.S.$1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
Exhibit B
Form of Notes due 2038
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged
in whole or in part for a Security registered, and no transfer of this Security in whole or in part
may be registered, in the name of any Person other than such Depositary or a nominee thereof,
except in the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
DOVER CORPORATION
6.60% Note due 2038
| CUSIP: | ||
| ISIN: | ||
No.
|
U.S. |
Dover Corporation, a corporation duly organized and existing under the laws of Delaware (herein
called the “Company”, which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to or registered assigns,
the principal sum of $ on March 15, 2038 and to pay interest thereon from March 14,
2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year, commencing on September 15, 2008, at
the rate of 6.60% per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor Securities
) is registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; and provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register; and provided, further, the Company will pay
principal of (and premium, if any) and interest on this Security in global form registered in the
name of or held by DTC or such other Depositary as any officer of the Company may from time to time
designate, or its respective nominee, by wire in immediately available funds to such Depositary or
its nominee, as the case may be, as the registered holder of this Security in global form.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate
seal.
Dated: March_____, 2008
| DOVER CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Attest:
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
Dated:
| THE BANK OF NEW YORK, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an Indenture, dated as of
February 8, 2001 (herein called the “Base Indenture”, between the Company and The Bank of New York,
as Trustee (the “Trustee”, which term includes any successor trustee under the Base Indenture), as
amended and supplemented by the First Supplemental Indenture, dated as of October 13, 2005, between
the Company and the Trustee (the “First Supplemental Indenture”) and as further amended and
supplemented by the Second Supplemental Indenture, dated as of March 14, 2008, between the Company
and the Trustee (the “Second Supplemental Indenture”, together with the Base Indenture and the
First Supplemental Indenture, the “Indenture”). Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be authenticated and delivered. This Security is one of a series designated on the
face hereof initially limited in aggregate principal amount to $250,000,000.
The Securities of this series are subject to redemption upon not less than 30 days’ and not more
than 60 days’ notice by mail, at any time, as a whole or in part, at the election of the Company,
at a redemption price equal to the greater of (i) 100% of the principal amount of such Securities
then outstanding to be redeemed, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (not including any portion of
such payments of interest accrued to the date of redemption) discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 35 basis points, plus, in each case, accrued and unpaid interest on
the principal amount being redeemed to the redemption date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
For purposes of the redemption provisions, the following terms are applicable:
“Comparable Treasury Issue” shall mean the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Securities to be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
“Comparable Treasury Price” shall mean, with respect to any Redemption Date: (i) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations; (ii) if the Company obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations;
or (iii) if only one such Reference Treasury Dealer Quotation is received, such Reference Treasury
Dealer Quotation.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means: (i) J.P. Morgan Securities Inc., Banc of America Securities LLC,
Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Greenwich Capital Markets, Inc. (or their
respective affiliates that are Primary Treasury Dealers) and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer
in the United States of America (a “Primary Treasury Dealer”), the Company will substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Company by the Reference Treasury Dealer at 3:30 p.m. (New York City time) on the
third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Securities as described above, the Company will be required to make an offer (the
“Change of Control Offer”) to each Holder of the Securities to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Securities on the
terms set forth herein. In the Change of Control Offer, the Company will be required to offer
payment in cash equal to 101% of the aggregate principal amount of Securities repurchased, plus
accrued and unpaid interest, if any, on the Securities repurchased to the date of repurchase (the
“Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or,
at the Company’s option, prior to the date of the consummation of any Change of Control, but after
public announcement of the transaction that constitutes or may constitute the Change of Control,
the Company shall be required to mail a notice to Holders of Securities, with a copy to the
Trustee, describing the transaction or transactions that constitute or may constitute the Change of
Control Triggering Event and offering to repurchase the Securities on the date specified in the
notice, which date shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the “Change of Control Payment Date”) pursuant to the procedures described in
such notice and in conformity with the Indenture.
The notice will, if mailed prior to the date of the consummation of the Change of Control, state
that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or
prior to the payment date specified in the notice.
On the Change of Control Payment Date, the Company will be required, to the extent lawful: (a) to
accept for payment all Securities or portions of Securities properly tendered pursuant to the
Change of Control Offer; (b) to deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities properly tendered; and (c)
to deliver or cause to be delivered to the Trustee the Securities properly accepted together with
an Officers’ Certificate stating the aggregate principal amount of Securities or portions of
Securities being repurchased.
The Company will not be required to make the Change of Control Offer upon a Change of Control
Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in
compliance with the requirements for an offer made by the Company and such third party purchases
all Securities properly tendered and not withdrawn under its offer. In addition, the Company shall
not repurchase any Securities if there has occurred and is continuing on the Change of Control
Payment Date an Event of Default under the Indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that the provisions
of any securities laws or regulations conflict with the Change of Control Triggering Event
provisions of the Securities, the Company shall comply with those securities laws and regulations
and shall not be deemed to have breached its obligations under the Indenture or the Change of
Control Offer provisions of the Securities by virtue of any such conflicts.
For purposes of the Change of Control Offer provisions, the following terms are applicable:
“Change of Control” means the occurrence of any of the following: (i) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any “person” as the term is defined in Section 13(d)(3) of the Exchange Act) (other than the
Company or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s Voting
Stock or other Voting Stock into which the Company’s Voting Stock is reclassified,
consolidated, exchanged or changed, measured by voting power rather than number of shares; (ii) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
Company’s assets and the assets of its subsidiaries, taken as a whole, to one or more Persons
(other than the Company or one of its subsidiaries); or (iii) the first day on which a majority of
the members of the Board of Directors are not Continuing Directors. Notwithstanding the foregoing,
a transaction shall not be deemed to involve a Change of Control if (1) the Company becomes a
direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect
holders of the Voting Stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s Voting Stock immediately prior to that
transaction or (B) immediately following that transaction no Person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of
more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating
Event with respect to the Securities.
“Continuing Directors” means, as of any date of determination, any member of the Company’s Board of
Directors who: (i) was a member of such Board of Directors on the date the Securities were issued;
or (ii) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from
any additional rating agency or rating agencies selected by the Company.
“Moody’s” means Moody’s Investors Service Inc.
“Person” has the meaning set forth in the Indenture and includes a “person” or “group” as these
terms are used in Section 13(d)(3) of the Exchange Act.
“Rating Agencies” means (i) each of Moody’s and S&P; and (ii) if either of Moody’s or S&P ceases to
rate the Securities or fails to make a rating of the Securities publicly available for reasons
outside of the Company’s control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as
the case may be.
“Rating Event” means the rating on the Securities is lowered by each of the Rating Agencies and the
Securities are rated below an Investment Grade Rating by each of the Rating Agencies on any day
within the 60-day period (which 60-day period shall be extended so long as the rating of the
Securities is under publicly announced consideration for a possible downgrade by any of the Rating
Agencies) after the earlier of: (i) the occurrence of a Change of Control; and (ii) public notice
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control;
provided, however, that a Rating Event otherwise arising by virtue of a particular reduction in
rating will not be deemed to have occurred in respect of a particular Change of Control (and thus
shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering
Event) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the
Company’s or the Trustee’s request that the reduction was the result, in whole or in part, of any
event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control (whether or not the applicable Change of Control has occurred at the time of the
Rating Event).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors
of such person.
The Securities of this series are not entitled to the benefit of any sinking fund.
The Indenture contains provisions for defeasance and discharge at any time of (i) the entire
indebtedness of this Security or (ii) certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations
of U.S.$2,000 or an integral multiple of U.S.$1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
Exhibit
4.2
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged
in whole or in part for a Security registered, and no transfer of this Security in whole or in part
may be registered, in the name of any Person other than such Depositary or a nominee thereof,
except in the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
DOVER CORPORATION
5.45% Note due 2018
| CUSIP: | ||
| ISIN: | ||
No.
|
U.S. |
Dover Corporation, a corporation duly organized and existing under the laws of Delaware (herein
called the “Company”, which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or registered assigns,
the principal sum of $ on March 15, 2018 and to pay interest thereon from March 14,
2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year, commencing on September 15, 2008, at
the rate of 5.45% per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; and provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register; and provided, further, the Company will pay
principal of (and premium, if any) and interest on this Security in global form registered in the
name of or held by DTC or such other Depositary as any officer of the Company may from time to time
designate, or its respective nominee, by wire in immediately available funds to such Depositary or
its nominee, as the case may be, as the registered holder of this Security in global form.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate
seal.
Dated:
March ____, 2008
| DOVER CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Attest: | ||||
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
Dated:
| THE BANK OF NEW YORK, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
2
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an Indenture, dated as of
February 8, 2001 (herein called the “Base Indenture”, between the Company and The Bank of New York,
as Trustee (the “Trustee”, which term includes any successor trustee under the Base Indenture), as
amended and supplemented by the First Supplemental Indenture, dated as of October 13, 2005, between
the Company and the Trustee (the “First Supplemental Indenture”) and as further amended and
supplemented by the Second Supplemental Indenture, dated as of March 14, 2008, between the Company
and the Trustee (the “Second Supplemental Indenture”, together with the Base Indenture and the
First Supplemental Indenture, the “Indenture”). Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be authenticated and delivered. This Security is one of a series designated on the
face hereof initially limited in aggregate principal amount to $350,000,000.
The Securities of this series are subject to redemption upon not less than 30 days’ and not more
than 60 days’ notice by mail, at any time, as a whole or in part, at the election of the Company,
at a redemption price equal to the greater of (i) 100% of the principal amount of such Securities
then outstanding to be redeemed, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (not including any portion of
such payments of interest accrued to the date of redemption) discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 30 basis points, plus, in each case, accrued and unpaid interest on
the principal amount being redeemed to the redemption date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
For purposes of the redemption provisions, the following terms are applicable:
“Comparable Treasury Issue” shall mean the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Securities to be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
“Comparable Treasury Price” shall mean, with respect to any Redemption Date: (i) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations; (ii) if the Company obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations;
or (iii) if only one such Reference Treasury Dealer Quotation is received, such Reference Treasury
Dealer Quotation.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means: (i) J.P. Morgan Securities Inc., Banc of America Securities LLC,
Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Greenwich Capital Markets, Inc. (or their
respective affiliates that are Primary Treasury Dealers) and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer
in the United States of America (a “Primary Treasury Dealer”), the Company will substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Company by the Reference Treasury Dealer at 3:30 p.m. (New York City time) on the
third Business Day preceding such Redemption Date.
3
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Securities as described above, the Company will be required to make an offer (the
“Change of Control Offer”) to each Holder of the Securities to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Securities on the
terms set forth herein. In the Change of Control Offer, the Company will be required to offer
payment in cash equal to 101% of the aggregate principal amount of Securities repurchased, plus
accrued and unpaid interest, if any, on the Securities repurchased to the date of repurchase (the
“Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or,
at the Company’s option, prior to the date of the consummation of any Change of Control, but after
public announcement of the transaction that constitutes or may constitute the Change of Control,
the Company will be required to mail a notice to Holders of Securities, with a copy to the Trustee,
describing the transaction or transactions that constitute or may constitute the Change of Control
Triggering Event and offering to repurchase the Securities on the date specified in the notice,
which date shall be no earlier than 30 days and no later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”) pursuant to the procedures described in such notice
and in conformity with the Indenture.
The notice will, if mailed prior to the date of the consummation of the Change of Control, state
that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or
prior to the payment date specified in the notice.
On the Change of Control Payment Date, the Company will be required, to the extent lawful: (a) to
accept for payment all Securities or portions of Securities properly tendered pursuant to the
Change of Control Offer; (b) to deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities properly tendered; and (c)
to deliver or cause to be delivered to the Trustee the Securities properly accepted together with
an Officers’ Certificate stating the aggregate principal amount of Securities or portions of
Securities being repurchased.
The Company will not be required to make the Change of Control Offer upon a Change of Control
Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in
compliance with the requirements for an offer made by the Company and such third party purchases
all Securities properly tendered and not withdrawn under its offer. In addition, the Company shall
not repurchase any Securities if there has occurred and is continuing on the Change of Control
Payment Date an Event of Default under the Indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that the provisions
of any securities laws or regulations conflict with the Change of Control Triggering Event
provisions of the Securities, the Company shall comply with those securities laws and regulations
and shall not be deemed to have breached its obligations under the Indenture or the Change of
Control Offer provisions of the Securities by virtue of any such conflicts.
For purposes of the Change of Control Offer provisions, the following terms are applicable:
“Change of Control” means the occurrence of any of the following: (i) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any “person” as the term is defined in Section 13(d)(3) of the Exchange Act) (other than the
Company or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s Voting
Stock or other Voting Stock into which the Company’s Voting Stock is reclassified,
4
consolidated, exchanged or changed, measured by voting power rather than number of shares; (ii) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
Company’s assets and the assets of its subsidiaries, taken as a whole, to one or more Persons
(other than the Company or one of its subsidiaries); or (iii) the first day on which a majority of
the members of the Board of Directors are not Continuing Directors. Notwithstanding the foregoing,
a transaction shall not be deemed to involve a Change of Control if (1) the Company becomes a
direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect
holders of the Voting Stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s Voting Stock immediately prior to that
transaction or (B) immediately following that transaction no Person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of
more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating
Event with respect to the Securities.
“Continuing Directors” means, as of any date of determination, any member of the Company’s Board of
Directors who: (i) was a member of such Board of Directors on the date the Securities were issued;
or (ii) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from
any additional rating agency or rating agencies selected by the Company.
“Moody’s” means Moody’s Investors Service Inc.
“Person” has the meaning set forth in the Indenture and includes a “person” or “group” as these
terms are used in Section 13(d)(3) of the Exchange Act.
“Rating Agencies” means (i) each of Moody’s and S&P; and (ii) if either of Moody’s or S&P ceases to
rate the Securities or fails to make a rating of the Securities publicly available for reasons
outside of the Company’s control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as
the case may be.
“Rating Event” means the rating on the Securities is lowered by each of the Rating Agencies and the
Securities are rated below an Investment Grade Rating by each of the Rating Agencies on any day
within the 60-day period (which 60-day period shall be extended so long as the rating of the
Securities is under publicly announced consideration for a possible downgrade by any of the Rating
Agencies) after the earlier of: (i) the occurrence of a Change of Control; and (ii) public notice
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control;
provided, however, that a Rating Event otherwise arising by virtue of a particular reduction in
rating will not be deemed to have occurred in respect of a particular Change of Control (and thus
shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering
Event) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the
Company’s or the Trustee’s request that the reduction was the result, in whole or in part, of any
event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control (whether or not the applicable Change of Control has occurred at the time of the
Rating Event).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors
of such person.
5
The Securities of this series are not entitled to the benefit of any sinking fund.
The Indenture contains provisions for defeasance and discharge at any time of (i) the entire
indebtedness of this Security or (ii) certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations
of U.S.$2,000 or an integral multiple of U.S.$1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all
6
purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
7
Exhibit
4.3
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged
in whole or in part for a Security registered, and no transfer of this Security in whole or in part
may be registered, in the name of any Person other than such Depositary or a nominee thereof,
except in the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
DOVER CORPORATION
6.60% Note due 2038
| CUSIP: | ||
| ISIN: | ||
No. __________
|
U.S. |
Dover Corporation, a corporation duly organized and existing under the laws of Delaware (herein
called the “Company”, which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________ or registered assigns,
the principal sum of $____________ on March 15, 2038 and to pay interest thereon from March 14,
2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year, commencing on September 15, 2008, at
the rate of 6.60% per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor Securities
) is registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; and provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register; and provided, further, the Company will pay
principal of (and premium, if any) and interest on this Security in global form registered in the
name of or held by DTC or such other Depositary as any officer of the Company may from time to time
designate, or its respective nominee, by wire in immediately available funds to such Depositary or
its nominee, as the case may be, as the registered holder of this Security in global form.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate
seal.
Dated: March___, 2008
| DOVER CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Attest: ______________________________
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
Dated: ____________
| THE BANK OF NEW YORK, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
2
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an Indenture, dated as of
February 8, 2001 (herein called the “Base Indenture”, between the Company and The Bank of New York,
as Trustee (the “Trustee”, which term includes any successor trustee under the Base Indenture), as
amended and supplemented by the First Supplemental Indenture, dated as of October 13, 2005, between
the Company and the Trustee (the “First Supplemental Indenture”) and as further amended and
supplemented by the Second Supplemental Indenture, dated as of March 14, 2008, between the Company
and the Trustee (the “Second Supplemental Indenture”, together with the Base Indenture and the
First Supplemental Indenture, the “Indenture”). Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be authenticated and delivered. This Security is one of a series designated on the
face hereof initially limited in aggregate principal amount to $250,000,000.
The Securities of this series are subject to redemption upon not less than 30 days’ and not more
than 60 days’ notice by mail, at any time, as a whole or in part, at the election of the Company,
at a redemption price equal to the greater of (i) 100% of the principal amount of such Securities
then outstanding to be redeemed, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (not including any portion of
such payments of interest accrued to the date of redemption) discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 35 basis points, plus, in each case, accrued and unpaid interest on
the principal amount being redeemed to the redemption date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
For purposes of the redemption provisions, the following terms are applicable:
“Comparable Treasury Issue” shall mean the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Securities to be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
“Comparable Treasury Price” shall mean, with respect to any Redemption Date: (i) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations; (ii) if the Company obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations;
or (iii) if only one such Reference Treasury Dealer Quotation is received, such Reference Treasury
Dealer Quotation.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means: (i) J.P. Morgan Securities Inc., Banc of America Securities LLC,
Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Greenwich Capital Markets, Inc. (or their
respective affiliates that are Primary Treasury Dealers) and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer
in the United States of America (a “Primary Treasury Dealer”), the Company will substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Company by the Reference Treasury Dealer at 3:30 p.m. (New York City time) on the
third Business Day preceding such Redemption Date.
3
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Securities as described above, the Company will be required to make an offer (the
“Change of Control Offer”) to each Holder of the Securities to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Securities on the
terms set forth herein. In the Change of Control Offer, the Company will be required to offer
payment in cash equal to 101% of the aggregate principal amount of Securities repurchased, plus
accrued and unpaid interest, if any, on the Securities repurchased to the date of repurchase (the
“Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or,
at the Company’s option, prior to the date of the consummation of any Change of Control, but after
public announcement of the transaction that constitutes or may constitute the Change of Control,
the Company shall be required to mail a notice to Holders of Securities, with a copy to the
Trustee, describing the transaction or transactions that constitute or may constitute the Change of
Control Triggering Event and offering to repurchase the Securities on the date specified in the
notice, which date shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the “Change of Control Payment Date”) pursuant to the procedures described in
such notice and in conformity with the Indenture.
The notice will, if mailed prior to the date of the consummation of the Change of Control, state
that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or
prior to the payment date specified in the notice.
On the Change of Control Payment Date, the Company will be required, to the extent lawful: (a) to
accept for payment all Securities or portions of Securities properly tendered pursuant to the
Change of Control Offer; (b) to deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities properly tendered; and (c)
to deliver or cause to be delivered to the Trustee the Securities properly accepted together with
an Officers’ Certificate stating the aggregate principal amount of Securities or portions of
Securities being repurchased.
The Company will not be required to make the Change of Control Offer upon a Change of Control
Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in
compliance with the requirements for an offer made by the Company and such third party purchases
all Securities properly tendered and not withdrawn under its offer. In addition, the Company shall
not repurchase any Securities if there has occurred and is continuing on the Change of Control
Payment Date an Event of Default under the Indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that the provisions
of any securities laws or regulations conflict with the Change of Control Triggering Event
provisions of the Securities, the Company shall comply with those securities laws and regulations
and shall not be deemed to have breached its obligations under the Indenture or the Change of
Control Offer provisions of the Securities by virtue of any such conflicts.
For purposes of the Change of Control Offer provisions, the following terms are applicable:
“Change of Control” means the occurrence of any of the following: (i) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any “person” as the term is defined in Section 13(d)(3) of the Exchange Act) (other than the
Company or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s Voting
Stock or other Voting Stock into which the Company’s Voting Stock is reclassified,
4
consolidated, exchanged or changed, measured by voting power rather than number of shares; (ii) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
Company’s assets and the assets of its subsidiaries, taken as a whole, to one or more Persons
(other than the Company or one of its subsidiaries); or (iii) the first day on which a majority of
the members of the Board of Directors are not Continuing Directors. Notwithstanding the foregoing,
a transaction shall not be deemed to involve a Change of Control if (1) the Company becomes a
direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect
holders of the Voting Stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s Voting Stock immediately prior to that
transaction or (B) immediately following that transaction no Person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of
more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating
Event with respect to the Securities.
“Continuing Directors” means, as of any date of determination, any member of the Company’s Board of
Directors who: (i) was a member of such Board of Directors on the date the Securities were issued;
or (ii) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from
any additional rating agency or rating agencies selected by the Company.
“Moody’s” means Moody’s Investors Service Inc.
“Person” has the meaning set forth in the Indenture and includes a “person” or “group” as these
terms are used in Section 13(d)(3) of the Exchange Act.
“Rating Agencies” means (i) each of Moody’s and S&P; and (ii) if either of Moody’s or S&P ceases to
rate the Securities or fails to make a rating of the Securities publicly available for reasons
outside of the Company’s control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Moody’s or S&P, or both of them, as
the case may be.
“Rating Event” means the rating on the Securities is lowered by each of the Rating Agencies and the
Securities are rated below an Investment Grade Rating by each of the Rating Agencies on any day
within the 60-day period (which 60-day period shall be extended so long as the rating of the
Securities is under publicly announced consideration for a possible downgrade by any of the Rating
Agencies) after the earlier of: (i) the occurrence of a Change of Control; and (ii) public notice
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control;
provided, however, that a Rating Event otherwise arising by virtue of a particular reduction in
rating will not be deemed to have occurred in respect of a particular Change of Control (and thus
shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering
Event) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the
Company’s or the Trustee’s request that the reduction was the result, in whole or in part, of any
event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control (whether or not the applicable Change of Control has occurred at the time of the
Rating Event).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors
of such person.
5
The Securities of this series are not entitled to the benefit of any sinking fund.
The Indenture contains provisions for defeasance and discharge at any time of (i) the entire
indebtedness of this Security or (ii) certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations
of U.S.$2,000 or an integral multiple of U.S.$1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all
6
purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
7
Exhibit
5.1
[Letterhead of Dover Corporation]
March 11, 2008
Dover Corporation
280 Park Avenue
New York, NY 10017
280 Park Avenue
New York, NY 10017
Re: Form S-3 Registration Statement (File No. 333-149629)
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of Dover Corporation, a Delaware corporation
(the “Company”), and, as such, am generally familiar with its affairs, records, documents and
obligations. I have acted as counsel to the Company in connection with the issuance and sale of
$350,000,000 aggregate principal amount of the Company’s 5.45% Notes due 2018 (the “Notes due
2018”) and $250,000,000 aggregate principal amount of the Company’s 6.60% Notes due 2038 (the
“Notes due 2038” and together with the Notes due 2018, the “2008 Securities”) pursuant to a Pricing
Agreement dated March 11, 2008 (the “Pricing Agreement”) and related Underwriting Agreement dated
March 11, 2008 between the Company and J.P. Morgan Securities Inc., Banc of Americas Securities
LLC, Deutsche Bank Securities Inc., Goldman Sachs & Co. and Greenwich Capital Markets, Inc. as
representatives of the several underwriters named in the Pricing Agreement (the “Underwriters”).
The 2008 Securities will be issued pursuant to an Indenture, dated as of February 8, 2001, between
the Company and The Bank of New York, as trustee (the “Trustee” and the “Base Indenture”), and
supplemented by a supplemental indenture to be entered into between the Company and the Trustee
(the Base Indenture as so supplemented, the “Indenture”).
I have examined the Company’s Registration Statement on Form S-3 (File No. 333-149629) filed by the
Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of
1933, as amended (the “Securities Act”), on March 11, 2008 (the “Registration Statement”) and the
prospectus dated March 11, 2008 (the “Base Prospectus”) as supplemented by the preliminary
prospectus supplement dated March 11, 2008 (the “Preliminary Prospectus Supplement”) and the
prospectus supplement dated March 11, 2008 (the “Prospectus Supplement”), the form of Indenture and
the originals or certified, photostatic or facsimile copies of such records and other documents as
I have deemed relevant and necessary as the basis for the opinions set forth below. In such
examination, I have assumed the legal capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified, photostatic or facsimile copies
and the authenticity of the originals of such copies.
Based upon my examination described above, and subject to the assumptions and qualifications stated
herein, I am of the opinion that:
1. The Indenture has been duly authorized, the Base Indenture has been
executed and delivered by the
Company and when the supplemental indenture has been executed and delivered by the Company, the
Indenture will constitute a valid and legally binding instrument enforceable against the Company in
accordance with its terms.
2. The 2008 Securities have been duly authorized and when executed and delivered by the Company and
authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to,
and paid for by, the Underwriters, will constitute valid and legally binding obligations of the
Company enforceable against the Company, and entitled to the benefits provided by the Indenture.
The foregoing opinion is limited to the General Corporation Law of the State of Delaware and the
laws of the State of New York. The foregoing opinion is also subject to: (a) applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and similar laws which relate to or
affect creditors’ rights generally, and (b) general principles of equity, including (1) the
possible unavailability of specific performance, injunctive relief or any other equitable remedy
and (2) concepts of materiality, reasonableness, conscionability, good faith and fair dealing. In
addition, I express no opinion with respect to whether acceleration of the 2008 Securities may
affect the collectibility of any portion of the stated principal amount thereof which might be
determined to constitute unearned interest thereon.
I assume for purposes of this opinion that (i) the Trustee is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; (ii) the Trustee is duly
qualified to engage in the activities contemplated by the Indenture; (iii) the Indenture will be
duly authorized, executed and delivered by the Trustee and will constitute a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms;
(iv) the Trustee will be in compliance, generally and with respect to acting as Trustee under the
Indenture, with all applicable laws and regulations; and (v) the Trustee will have the requisite
legal power and authority to perform its obligations under the Indenture.
I hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on
Form 8-K to be filed on or about March 14, 2008, which Form 8-K will be incorporated by reference
into the Registration Statement and the reference of my name therein and in the related Base
Prospectus, Preliminary Prospectus Supplement and Prospectus Supplement under the caption “Legal
Matters.” In giving this consent, I do not thereby admit that I am within the category of persons
whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the
Commission promulgated thereunder.
| Very truly yours, |
||||
| /s/ Joseph W. Schmidt | ||||
| Joseph W. Schmidt | ||||