EX-2.1 2 d43850dex21.htm EX-2.1 FORM OF SEPARATION AND DISTRIBUTION AGREEMENT by and between DANAHER CORPORATION and FORTIVE CORPORATION Dated as of [●], 2016 DEFINITIONS AND INTERPRETATION THE SEPARATION CERTAIN ACTIONS AT OR PRIOR TO THE...

EX-2.1 2 d43850dex21.htm EX-2.1

Exhibit 2.1

FORM OF

SEPARATION AND DISTRIBUTION AGREEMENT

by and between

XXXXXXX CORPORATION

and

FORTIVE CORPORATION

Dated as of [●], 2016

TABLE OF CONTENTS


Article I	Page

DEFINITIONS AND INTERPRETATION

Section 1.1	General	2
Section 1.2	References; Interpretation	22

Article II

THE SEPARATION

Section 2.1	General	22
Section 2.2	Restructuring: Transfer of Assets; Assumption of Liabilities	23
Section 2.3	Treatment of Shared Contracts	24
Section 2.4	Intercompany Accounts, Loans and Agreements	25
Section 2.5	Limitation of Liability; Intercompany Contracts	26
Section 2.6	Transfers Not Effected at or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time	26
Section 2.7	Conveyancing and Assumption Instruments	28
Section 2.8	Further Assurances; Ancillary Agreements	29
Section 2.9	Novation of Liabilities; Indemnification	30
Section 2.10	Guarantees; Credit Support Instruments	31
Section 2.11	Disclaimer of Representations and Warranties	33
Section 2.12	Fortive Financing Arrangements	34
Section 2.13	Cash Management; Cash Adjustment	35

Article III

CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTIONS

Section 3.1	Organizational Documents	37
Section 3.2	Directors	37
Section 3.3	Officers	37
Section 3.4	Resignations and Removals	37
Section 3.5	Ancillary Agreements	38

Article IV

THE DISTRIBUTION

Section 4.1	Distribution	38
Section 4.2	Fractional Shares	38


Section 4.3	Actions in Connection with the Distribution	39
Section 4.4	Sole Discretion of Xxxxxxx	39
Section 4.5	Conditions to Distribution	40

Article V

CERTAIN COVENANTS

Section 5.1	Cooperation	41
Section 5.2	Retained Names	42
Section 5.3	No Restriction on Competition	43
Section 5.4	No Hire and No Solicitation of Employees	43

Article VI

INDEMNIFICATION

Section 6.1	Release of Pre-Distribution Claims	43
Section 6.2	Indemnification by Xxxxxxx	46
Section 6.3	Indemnification by Fortive	46
Section 6.4	Procedures for Indemnification	47
Section 6.5	Cooperation in Defense and Settlement	49
Section 6.6	Indemnification Payments	50
Section 6.7	Indemnification Obligations Net of Insurance Proceeds and Other Amounts	50
Section 6.8	Contribution	51
Section 6.9	Additional Matters; Survival of Indemnities	51
Section 6.10	Environmental Matters	52

Article VII

PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE

Section 7.1	Preservation of Corporate Records	53
Section 7.2	Financial Statements and Accounting	54
Section 7.3	Provision of Corporate Records	55
Section 7.4	Witness Services	57
Section 7.5	Reimbursement; Other Matters	57
Section 7.6	Confidentiality	58
Section 7.7	Privilege Matters	59
Section 7.8	Ownership of Information	61
Section 7.9	Personal Data	61
Section 7.10	Other Agreements	62


Article VIII

DISPUTE RESOLUTION

Section 8.1	Negotiation.	62
Section 8.2	Arbitration	63
Section 8.3	Specific Performance	64
Section 8.4	Treatment of Arbitration	64
Section 8.5	Continuity of Service and Performance	64
Section 8.6	Consolidation	65

Article IX

INSURANCE

Section 9.1	Insurance Matters	65
Section 9.2	Certain Matters Relating to Xxxxxxx’x Organizational Documents	68
Section 9.3	Directors and Officers Liability Insurance	68

Article X

MISCELLANEOUS

Section 10.1	Entire Agreement; Construction	68
Section 10.2	Ancillary Agreements	69
Section 10.3	Counterparts	69
Section 10.4	Survival of Agreements	69
Section 10.5	Expenses	69
Section 10.6	Notices	70
Section 10.7	Waivers	70
Section 10.8	Assignment	70
Section 10.9	Successors and Assigns	71
Section 10.10	Termination and Amendment	71
Section 10.11	Payment Terms	71
Section 10.12	Subsidiaries	72
Section 10.13	Third Party Beneficiaries	72
Section 10.14	Title and Headings	72
Section 10.15	Exhibits and Schedules	72
Section 10.16	Governing Law	72
Section 10.17	Severability	72
Section 10.18	Public Announcements	73
Section 10.19	Interpretation	73
Section 10.20	No Duplication; No Double Recovery	73
Section 10.21	Tax Treatment of Payments	73
Section 10.22	No Waiver	73
Section 10.23	No Admission of Liability	73
Section 10.24	Advisors	74

iii


List of Exhibits
Exhibit A		Employee Matters Agreement
Exhibit B		Tax Matters Agreement
Exhibit C		Transition Services Agreements
Exhibit D		Intellectual Property Matters Agreement
Exhibit E		DBS License Agreement

FORM OF SEPARATION AND DISTRIBUTION AGREEMENT

This SEPARATION AND DISTRIBUTION AGREEMENT (this “Agreement”), dated as of [●], 2016, is entered into by and between Xxxxxxx Corporation, a Delaware corporation (“Xxxxxxx”), and Fortive Corporation, a Delaware corporation and a wholly owned subsidiary of Xxxxxxx (“Fortive”). “Party” or “Parties” means Xxxxxxx or Fortive, individually or collectively, as the case may be. Capitalized terms used and not defined herein shall have the meaning set forth in Section 1.1.

W I T N E S S E T H:

WHEREAS, Xxxxxxx, acting through its direct and indirect Subsidiaries, currently conducts the Xxxxxxx Retained Business and the Fortive Business;

WHEREAS, the Board of Directors of Xxxxxxx (the “Board”) has determined that it is appropriate, desirable and in the best interests of Xxxxxxx and its stockholders to separate Xxxxxxx into two separate, publicly traded companies, one for each of (i) the Xxxxxxx Retained Business, which shall be owned and conducted, directly or indirectly, by Xxxxxxx and its Subsidiaries (other than Fortive and its Subsidiaries) and (ii) the Fortive Business, which shall be owned and conducted, directly or indirectly, by Fortive and its Subsidiaries;

WHEREAS, in order to effect such separation, the Board has determined that it is appropriate, desirable and in the best interests of Xxxxxxx and its stockholders for Xxxxxxx to undertake the Internal Reorganization and, in connection therewith, effect the Contribution to Fortive;

WHEREAS, following the completion of the Internal Reorganization, Xxxxxxx shall cause the Distribution Agent to issue pro rata to the Record Holders, in accordance with the Distribution Ratio, all of the issued and outstanding shares of Fortive Common Stock (such issuance, the “Distribution”) on the terms and conditions set forth in this Agreement;

WHEREAS, (i) the Board has (x) determined that the Distribution and the other transactions contemplated by this Agreement and the Ancillary Agreements (as defined below) have a valid business purpose, are in furtherance of and consistent with its business strategy and are in the best interests of Xxxxxxx and its stockholders and (y) approved this Agreement and each of the Ancillary Agreements and (ii) the Board of Directors of Fortive has approved this Agreement and each of the Ancillary Agreements (to the extent Fortive is a party thereto);

WHEREAS, the Parties desire to set forth the principal corporate transactions required to effect the Distribution and certain other agreements relating to the relationship of Xxxxxxx and Fortive and their respective Subsidiaries following the Distribution;

WHEREAS, Xxxxxxx has requested the IRS Ruling from the IRS;

WHEREAS, it is the intention of the Parties that the Contribution and the Distribution, taken together, will qualify as a transaction that is tax-free for U.S. federal income tax purposes under Section 355 and Section 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended (the “Code”); and

WHEREAS, this Agreement is intended to be a “plan of reorganization” within the meaning of Treas. Reg. Section 1.368-2(g).

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1 General. As used in this Agreement, the following terms shall have the following meanings:

(1) “AAA” shall have the meaning set forth in Section 8.2.

(2) “Action” shall mean any demand, action, claim, suit, countersuit, arbitration, inquiry, subpoena, case, litigation, proceeding or investigation (whether civil, criminal, administrative or investigative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal.

(3) “Affiliate” shall mean, when used with respect to a specified Person and at a point in, or with respect to a period of, time, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person at such point in or during such period of time. For the purposes of this definition, “control”, when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by Contract or otherwise. It is expressly agreed that no Party or member of its Group shall be deemed to be an Affiliate of another Party or member of such other Party’s Group solely by reason of having one or more directors in common or by reason of having been under common control of Xxxxxxx or Xxxxxxx’x stockholders prior to or, in case of Xxxxxxx’x stockholders, after, the Effective Time.

(4) “Agreement” shall have the meaning set forth in in the Preamble.

(5) “Ancillary Agreements” shall mean the Transition Services Agreement, the Employee Matters Agreement, the Tax Matters Agreement, the Intellectual Property Matters Agreement, the DBS License Agreement, the lease agreements for the sites set forth in Schedule 1.1(5), any Continuing Arrangements, any and all Conveyancing and Assumption Instruments and any other agreements to be entered into by and between any member of the Xxxxxxx Group, on one hand, and any member of the Fortive Group, on the other hand, at, prior to or after the Distribution in connection with the Distribution.

(6) “Arbitral Tribunal” shall have the meaning set forth in Section 8.2(a).

(7) “Assets” shall mean all rights (including Intellectual Property), title and ownership interests in and to all properties, claims, Contracts, businesses, or assets (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, in each case, whether or not recorded or reflected on the books and records or financial statements of any Person. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes (including any Tax items, attributes or rights to receive any Tax Refunds (as defined in the Tax Matters Agreement)) shall not be treated as Assets.

(8) “Asset Transferors” shall mean the entities transferring Assets to Fortive or Xxxxxxx, as the case may be, or one of their respective Subsidiaries in order to consummate the transactions contemplated hereby.

(9) “Assume” shall have the meaning set forth in Section 2.2(c); and the terms “Assumed” and “Assumption” shall have their correlative meanings.

(10) “Audited Party” shall have the meaning set forth in Section 7.2(a).

(11) “Board” shall have the meaning set forth in the Recitals.

(12) “Business” shall mean the Xxxxxxx Retained Business or the Fortive Business, as applicable.

(13) “Business Day” shall mean any day other than Saturday or Sunday and any other day on which commercial banking institutions located in New York, New York are required, or authorized by Law, to remain closed.

(14) “Business Entity” shall mean any corporation, partnership, limited liability company, joint venture or other entity which may legally hold title to Assets.

(15) “Cash Adjustment” shall have the meaning set forth in Section 2.13(b)(vi)

(16) “Cash Equivalents” shall mean (i) cash and (ii) checks, certificates of deposit having a maturity of less than one year, money orders, marketable securities, money market funds, commercial paper, short-term instruments and other cash equivalents, funds in time and demand deposits or similar accounts, and any evidence of indebtedness issued or guaranteed by any Governmental Entity, minus the amount of any outbound checks, plus the amount of any deposits in transit.

(17) “Code” shall have the meaning set forth in the Recitals.

(18) “Commission” shall mean the United States Securities and Exchange Commission.

(19) “Company Policies” shall mean all insurance policies, insurance contracts and claim administration contracts of any kind of any member of the Xxxxxxx Group, which are in effect at the Effective Time, except all insurance policies, insurance contracts and claim administration contracts established in contemplation of the Distribution to cover any member of the Fortive Group after the Effective Time.

(20) “Confidential Information” shall mean all non-public, confidential or proprietary Information to the extent concerning a Party, its Group and/or its Subsidiaries or with respect to Fortive, the Fortive Business, any Fortive Assets or any Fortive Liabilities or with respect to Xxxxxxx, the Xxxxxxx Retained Business, any Xxxxxxx Retained Assets or any Xxxxxxx Liabilities, including any such Information that was acquired by any Party after the Effective Time pursuant to Article VII or otherwise in accordance with this Agreement, or that was provided to a Party by a third party in confidence, including (a) any and all technical information relating to the design, operation, testing, test results, development, and manufacture of any Party’s product (including product specifications and documentation; engineering, design, and manufacturing drawings, diagrams, and illustrations; formulations and material specifications; laboratory studies and benchmark tests; quality assurance policies procedures and specifications; evaluation and/validation studies; assembly code, software, firmware, programming data, databases, and all information referred to in the same); product costs, margins and pricing; as well as product marketing studies and strategies; all other methodologies, procedures, techniques and Know-How related to research, engineering, development and manufacturing; (b) information, documents and materials relating to the Party’s financial condition, management and other business conditions, prospects, plans, procedures, infrastructure, security, information technology procedures and systems, and other business or operational affairs; (c) pending unpublished patent applications and trade secrets; and (d) any other data or documentation resident, existing or otherwise provided in a database or in a storage medium, permanent or temporary, intended for confidential, proprietary and/or privileged use by a Party; except for any Information that is (i) in the public domain or known to the public through no fault of the receiving Party or its Subsidiaries, (ii) lawfully acquired after the Effective Time by such Party or its Subsidiaries from other sources not known to be subject to confidentiality obligations with respect to such Information or (iii) independently developed by the receiving Party after the Effective Time without reference to any Confidential Information. As used herein, by example and without limitation, Confidential Information shall mean any information of a Party intended or marked as confidential, proprietary and/or privileged.

(21) “Consents” means any consents, waivers, notices, reports or other filings to be obtained from or made, including with respect to any Contract, or any registrations, licenses, permits, authorizations to be obtained from, or approvals from, or notification requirements to, any third parties, including any third party to a Contract and any Governmental Entity.

(22) “Continuing Arrangements” shall mean:

(i) those arrangements set forth on Schedule 1.1(22)(i);

(ii) this Agreement and the Ancillary Agreements (and each other Contract expressly contemplated by this Agreement or any Ancillary Agreement to be entered into or continued by any of the Parties or any of the members of their respective Groups);

(iii) any Contracts or intercompany accounts solely between or among members of the Fortive Group;

(iv) any Contracts between: (i) a Subsidiary of Xxxxxxx that is in the business of selling or buying products or services to or from third parties; and (ii) a member of the Fortive Group, and which Contract is related primarily to the provision of such products or services and was or is entered into in the ordinary course of business and on arms’-length terms; and

such other commercial arrangements among the Parties that are intended to survive and continue following the Effective Time; provided that none of the intercompany Contracts set forth on Schedule 1.1(22)(ii) shall be deemed to be Continuing Arrangements, it being understood that Schedule 1.1(22)(ii) is not intended to be an exclusive list of arrangements that are to be terminated at the Effective Time; provided, however, that for the avoidance of doubt, Continuing Arrangements shall not be Third Party Agreements.

(23) “Contract” shall mean any agreement, contract, subcontract, obligation, binding understanding, note, indenture, instrument, option, lease, promise, arrangement, release, warranty, license, sublicense, insurance policy, benefit plan, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).

(24) “Contribution” shall mean the Transfer, directly or indirectly, of Assets from Xxxxxxx or its Subsidiaries to Fortive or its Subsidiaries and the Assumption of Liabilities, directly or indirectly, by Fortive or its Subsidiaries pursuant to the Internal Reorganization or otherwise relating to, arising out of or resulting from the transactions contemplated by this Agreement.

(25) “Conveyancing and Assumption Instruments” shall mean, collectively, the various Contracts, including the related local asset transfer agreements and local stock transfer agreements, and other documents entered into prior to the Effective Time and to be entered into to effect the Transfer of Assets and the Assumption of Liabilities in the manner contemplated by this Agreement, or otherwise relating to, arising out of or resulting from the transactions contemplated by this Agreement, in such form or forms as the applicable Parties thereto agree.

(26) “Credit Support Instruments” shall mean any letters of credit, performance bonds, surety bonds (including, with respect to the surety bonds, letters of credit and performance bonds set forth on Schedule 1.1(26), the allocable portion of the surety bonds, letters of credit and performance bonds as set forth on Schedule 1.1(26)), bankers acceptances, or other similar arrangements.

(27) “Xxxxxxx” shall have the meaning set forth in in the Preamble.

(28) “Xxxxxxx Asset Transferee” shall mean any Xxxxxxx Retained Business to which Xxxxxxx Retained Assets shall be or have been transferred, directly or indirectly, prior to the Effective Time, or which is contemplated by the Internal Reorganization or this Agreement or the Ancillary Agreements to occur after the Effective Time, by an Asset Transferor in order to consummate the transactions contemplated hereby.

(29) “Xxxxxxx Common Stock” shall mean the common stock of Xxxxxxx, par value $0.01 per share.

(30) “Xxxxxxx CSIs” shall have the meaning set forth in Section 2.10(d).

(31) “Xxxxxxx Former Business” shall mean any Former Business (other than the Fortive Business or the Fortive Former Businesses) that, at the time of sale, conveyance, assignment, transfer, disposition, divestiture (in whole or in part) or discontinuation, abandonment, completion or termination of the operations, activities or production thereof, was primarily managed by or associated with the Xxxxxxx Retained Business as then conducted.

(32) “Xxxxxxx Group” shall mean (i) Xxxxxxx, the Xxxxxxx Retained Business and each Person that is a direct or indirect Subsidiary of Xxxxxxx as of immediately following the Distribution and (ii) each Business Entity that becomes a Subsidiary of Xxxxxxx after the Effective Time.

(33) “Xxxxxxx Group Landlord Property” shall mean any real properties owned by the Xxxxxxx Group as to which the Fortive Group will enter into a lease or other agreement with a member of the Xxxxxxx Group to conduct business operations after the Effective Time. A non-exclusive list of the Xxxxxxx Group Landlord Property is set forth on Schedule 1.1(33).

(34) “Xxxxxxx Indemnitees” shall mean each member of the Xxxxxxx Group and each of their respective Affiliates from and after the Effective Time and each member of the Xxxxxxx Group’s and such Affiliates’ respective current, former and future directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing, except, for the avoidance of doubt, the Fortive Indemnitees.

(35) “Xxxxxxx Personal Data” shall mean Personal Data of Xxxxxxx and its Subsidiaries that is held, transferred to or processed by or on behalf of Fortive or any of its Subsidiaries after the Effective Time.

(36) “Xxxxxxx Released Liabilities” shall have the meaning set forth in Section 6.1(a)(i).

(37) “Xxxxxxx Retained Assets” shall mean:

(i) the Assets listed or described on Schedule 1.1(37) and any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by Xxxxxxx or any other member of the Xxxxxxx Group;

(ii) any and all Assets that are owned, leased or licensed, at or prior to the Effective Time, by Xxxxxxx and/or any of its Subsidiaries, that are not Fortive Assets;

(iii) any and all Assets that are acquired or otherwise becomes an Asset of the Xxxxxxx Group after the Effective Time; and

(iv) all Xxxxxxx Retained IP.

(38) “Xxxxxxx Retained Business” shall mean (i) those businesses operated by the Xxxxxxx Group prior to the Effective Time other than the Fortive Business, (ii) those Business Entities or businesses acquired or established by or for any member of the Xxxxxxx Group after the Effective Time, and (iii) any Xxxxxxx Former Business; provided that Xxxxxxx Retained Business shall not include any Fortive Former Business or Fortive Former Real Property.

(39) “Xxxxxxx Retained IP” shall mean (i) all Intellectual Property other than Fortive Intellectual Property, (ii) any Intellectual Property licensed to Fortive pursuant to the Ancillary Agreements, including DBS, and (iii) the Xxxxxxx Retained Names.

(40) “Xxxxxxx Retained Liabilities” shall mean:

(i) any and all Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement as Liabilities to be retained or assumed by Xxxxxxx or any other member of the Xxxxxxx Group, and all agreements, obligations and other Liabilities of Xxxxxxx or any member of the Xxxxxxx Group under this Agreement or any of the Ancillary Agreements;

(ii) any and all Liabilities of a member of the Xxxxxxx Group to the extent relating to, arising out of or resulting from any Xxxxxxx Retained Assets (other than Liabilities arising under any Shared Contracts to the extent such Liabilities relate to the Fortive Business);

(iii) the Liabilities listed on Schedule 1.1(40); and

(iv) any and all Liabilities of Xxxxxxx and each of its Subsidiaries that are not Fortive Liabilities.

(41) “Xxxxxxx Retained Names” shall mean the names and marks set forth in Schedule 1.1(41), and any Trademarks containing or comprising any of such names or marks, and any Trademarks derivative thereof or confusingly similar thereto, or any telephone numbers or other alphanumeric addresses or mnemonics containing any of the foregoing names or marks.

(42) “Data Processor” shall have the meaning set forth in the EU Data Protection Directive.

(43) “Data Protection Laws” shall mean any and all Laws concerning the privacy, protection and security of personal information Laws throughout the world, including the EU Data Protection Directive, the Laws of each member state of the European Union that implement the EU Data Protection Directive, and any related or similar Laws of any member state of the European Union or the European Economic Area.

(44) “DBS” shall mean the Xxxxxxx Business System in existence as of the Effective Time, which is a set of proprietary tools, processes, methodologies, practices, related training materials, and related Know-How that are designed to continuously improve business management and performance in the areas of quality, delivery, cost and innovation.

(45) “DBS License Agreement” shall mean the DBS License Agreement between Xxxxxxx and Fortive in the form attached hereto as Exhibit E.

(46) “Decision on Interim Relief” shall have the meaning set forth in Section 8.2(d).

(47) “Dispute Notice” shall have the meaning set forth in Section 8.1.

(48) “Disputes” shall have the meaning set forth in Section 8.1.

(49) “Distribution” shall have the meaning set forth in the Recitals.

(50) “Distribution Agent” shall mean Computershare Trust Company, N.A.

(51) “Distribution Cash Amount Dispute Notice” shall have the meaning set forth in Section 2.13(b)(iii).

(52) “Distribution Cash Amount Statement” shall have the meaning set forth in Section 2.13(b)(i).

(53) “Distribution Date” shall mean the date, as shall be determined by the Board, on which the Distribution occurs.

(54) “Distribution Date Cash Amount” shall have the meaning set forth in Section 2.13(b)(i).

(55) “Distribution Disclosure Documents” shall mean the Form 10 and all exhibits thereto (including the Information Statement), any current reports on Form 8-K and the registration statement on Form S-8 related to securities to be offered under Fortive’s employee benefit plans, in each case as filed or furnished by Fortive with or to the Commission in connection with the Distribution or filed or furnished by Xxxxxxx with or to the Commission solely to the extent such documents relate to Fortive or the Distribution.

(56) “Distribution Ratio” shall mean [●] share[s] of Fortive Common Stock for every [●] share[s] of Xxxxxxx Common Stock.

(57) “Effective Time” shall mean 12:01 a.m., New York time, on the Distribution Date.

(58) “Employee Matters Agreement” shall mean the Employee Matters Agreement by and between Xxxxxxx and Fortive, in the form attached hereto as Exhibit A.

(59) “Environmental Laws” shall mean all Laws relating to pollution or protection of human health or safety or the environment, including Laws relating to the exposure to, or Release, threatened Release or the presence of Hazardous Substances, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, transport or handling of Hazardous Substances and all Laws with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances, and all laws relating to endangered or threatened species of fish, wildlife and plants and the management or use of natural resources.

(60) “Environmental Liabilities” shall mean Liabilities relating to Environmental Law or the Release or threatened Release of or exposure to Hazardous Substances, including, without limitation, the following: (i) actual or alleged violations of or non-compliance with any Environmental Law, including a failure to obtain, maintain or comply with any Environmental Permits; (ii) obligations arising under or pursuant to any applicable Environmental Law or Environmental Permit; (iii) the presence of Hazardous Substances or the introduction of Hazardous Substances to the environment at, in, on, under or migrating from any of the building, facility, structure or real property, including Liabilities relating to, resulting from or arising out of the investigation, remediation, or monitoring of such Hazardous Substances; (iv) natural resource damages, property damages, personal or bodily injury or wrongful death relating to the presence of or exposure to Hazardous Substances (including asbestos-containing materials), at, in, on, under or migrating to or from any building, facility, structure or real property; (v) the transport, disposal, recycling, reclamation, treatment or storage, Release or threatened Release of Hazardous Substances at Off-Site Locations; and (vi) any agreement, decree, judgment, or order relating to the foregoing. The term “Environmental Liabilities” does not include Liabilities arising in connection with claims for injuries to persons or property from products sold by or services provided by the Fortive Group, the Xxxxxxx Group or their predecessors, including claims related to exposure to asbestos with respect to such products or services.

(61) “Environmental Permit” shall mean any permit, license, approval or other authorization under any applicable Law or of any Governmental Entity relating to Environmental Laws or Hazardous Substances.

(62) “EU Data Protection Directive” shall mean the EU Data Protection Directive entitled “Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data”, as may be amended.

(63) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.

(64) “Excluded Environmental Liabilities” shall mean any and all Environmental Liabilities whether arising before, on or after the Effective Time, to the extent relating to, resulting from, or arising out of the past, present or future operation, conduct or actions of Xxxxxxx Retained Business.

(65) “Final Cash Amount” shall have the meaning set forth in Section 2.13(b)(v).

(66) “Final Determination” shall have the meaning set forth in the Tax Matters Agreement.

(67) “Form 10” shall mean the registration statement on Form 10 (Registration No. 001-37654) filed by Fortive with the Commission under the Exchange Act in connection with the Distribution, including any amendment or supplement thereto.

(68) “Former Business” means any corporation, partnership, entity, division, business unit or business (in each case, including any assets and liabilities comprising the same) that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part) to a Person that is not a member of the Fortive Group or the Xxxxxxx Group or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated (in whole or in part), in each case, prior to the Effective Time.

(69) “Fortive” shall have the meaning set forth in the Preamble.

(70) “Fortive Asset Transferee” shall mean any Business Entity that is or will be a member of the Fortive Group or Fortive Subsidiary to which Fortive Assets shall be or have been transferred at or prior to the Effective Time, or which is contemplated by the Internal Reorganization or this Agreement or the Ancillary Agreements to occur after the Effective Time, by an Asset Transferor in order to consummate the transactions contemplated hereby.

(71) “Fortive Assets” shall mean, without duplication:

(i) all interests in the capital stock of, or any other equity interests in, the members of the Fortive Group held, directly or indirectly, by Xxxxxxx immediately prior to the Distribution (other than Fortive);

(ii) the Assets set forth on Schedule 1.1(71)(ii) (which for the avoidance of doubt is not a comprehensive listing of all Fortive Assets and is not intended to limit other clauses of this definition of “Fortive Assets”);

(iii) any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets which have been or are to be Transferred to or retained by any member of the Fortive Group;

(iv) any and all Assets (other than Cash Equivalents, which shall be governed solely by Section 2.13, and Assets listed on Schedule 1.1(71)(iv)) reflected on the Fortive Balance Sheet or the accounting records supporting such balance sheet and any Assets acquired by or for Fortive or any member of the Fortive Group subsequent to the date of the Fortive Balance Sheet which, had they been so acquired on or before such date and owned as of such date, would have been reflected on the Fortive Balance Sheet if prepared on a consistent basis, subject to any dispositions of any of such Assets subsequent to the date of the Fortive Balance Sheet;

(v) all rights, title and interest in and to the owned real property set forth on Schedule 1.1(71)(v) and other real property primarily related to the Fortive Business, including all land and land improvements, structures, buildings and building improvements, other improvements and appurtenances located thereon (the “Fortive Owned Real Property”);

(vi) all rights, title and interest in, and to and under the leases or subleases of the real property set forth on Schedule 1.1(71)(vi) and other leases primarily related to Fortive Business, including, to the extent provided for in the Fortive leases, any land and land improvements, structures, buildings and building improvements, other improvements and appurtenances (the “Fortive Leased Real Property”);

(vii) all Contracts primarily related to the Fortive Business and any rights or claims arising thereunder, including any Contracts set forth on Schedule 1.1(71)(vii) (the “Fortive Contracts”);

(viii) Intellectual Property exclusively related to the Fortive Business, including the Intellectual Property applications and registrations set forth on Schedule 1.1(71)(viii) (the “Fortive Intellectual Property”);

(ix) all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity and are held by a member of the Fortive Group or relate primarily to, or to the extent transferable, are used primarily in the Fortive Business (other than to the extent that any member of the Xxxxxxx Group benefits from such licenses, permits, registrations, approvals and authorizations in connection with the Xxxxxxx Retained Business);

(x) all Information exclusively related to, or exclusively used in, the Fortive Business;

(xi) excluding any Intellectual Property (which is addressed in Section 1.1(71)(viii) above), the IT Assets that are primarily used or primarily held for use in the Fortive Business, including the IT Assets listed on Schedule 1.1(71)(xi) (“Fortive IT Assets”);

(xii) all office equipment and furnishings located at the physical site of which the ownership or a leasehold or sub leasehold interest is being transferred to or retained by a member of the Fortive Group, and which as of the Effective Time is not subject to a lease or sublease back to a member of the Xxxxxxx Group (excluding any office equipment and furnishings owned by persons other than Xxxxxxx and its Subsidiaries);

(xiii) subject to Article IX, any rights of any member of the Fortive Group under any insurance policies held solely by one or more members of the Fortive Group; and

(xiv) all other Assets (other than any Assets relating to the Intellectual Property, Fortive Owned Real Property, Fortive Group Landlord Property, Fortive Leased Real Property, or Assets that are of the type that would be listed in clauses (v), (vi) and (ix) through (xiii)) that are held by the Fortive Group or the Xxxxxxx Group immediately prior to the Distribution and that are primarily used and primarily held for use in the Fortive Business as conducted immediately prior to the Distribution (the intention of this clause (xiv) is only to rectify an inadvertent omission of transfer or assignment of any Asset that, had the Parties given specific consideration to such Asset as of the date of this Agreement, would have otherwise been classified as a Fortive Asset based on the principles of this Section 1.1(71); provided that no Asset shall be a Fortive Asset solely as a result of this clause (xiv) unless a written claim with respect thereto is made by Fortive on or prior to the date that is eighteen (18) months after the Distribution).

Notwithstanding anything to the contrary herein, the Fortive Assets shall not include (i) any Assets that are expressly contemplated by this Agreement or by any Ancillary Agreement (or the Schedules hereto or thereto) as Assets to be retained by or Transferred to any member of the Xxxxxxx Group (including all Xxxxxxx Retained Assets), (ii) any Assets governed by the Tax Matters Agreement or (iii) any Assets that are expressly listed on Schedule 1.1(71)(xii).

(72) “Fortive Balance Sheet” shall mean the pro forma balance sheet of the Fortive Group, including the notes thereto, as of [●], as included in the Information Statement.

(73) “Fortive Business” shall mean the businesses comprising of Xxxxxxx’x test and measurement segment, its industrial technologies segment (other than

such segment’s product identification business), its retail/commercial petroleum business, and its Invetech contract engineering business, including the businesses and operations conducted prior to the Effective Time by any member of the Fortive Group and any other businesses or operations conducted primarily through the use of the Fortive Assets, as such businesses are described in the Information Statement, or established by or for Fortive or any of its Subsidiaries after the Effective Time and shall include the Fortive Former Business; provided that, other than the Fortive Former Businesses listed on Schedule 1.1(79), the Fortive Business shall not include any Xxxxxxx Former Business.

(74) “Fortive Common Stock” shall mean the common stock of Fortive, par value $0.01 per share.

(75) “Fortive Disclosure” shall mean any form, statement, schedule or other material (other than the Distribution Disclosure Documents) filed with or furnished to the Commission, including in connection with Fortive’s obligations under the Securities Act and the Exchange Act, any other Governmental Entity, or holders of any securities of any member of the Fortive Group, in each case, on or after the Distribution Date by or on behalf of any member of the Fortive Group in connection with the registration, sale, or distribution of securities or disclosure related thereto (including periodic disclosure obligations).

(76) “Fortive Environmental Liabilities” shall mean any and all Environmental Liabilities, whether arising before, on or after the Effective Time, to the extent relating to or resulting from or arising out of (i) the past, present or future operation, conduct or actions of the Fortive Group, Fortive Business or the past, present or future use of the Fortive Assets or (ii) the Fortive Former Business or Fortive Former Real Property, including, without limitation, any agreement, decree, judgment, or order relating to the foregoing entered into by Xxxxxxx or any Affiliate of Xxxxxxx prior to the Effective Time, but in any event excluding the Excluded Environmental Liabilities.

(77) “Fortive Financing Arrangements” means the financing arrangements described on Schedule 1.1(77).

(78) “Fortive Financing Cash Distribution” means the cash distribution made from Fortive to Xxxxxxx in connection with the Fortive Financing Arrangements as further described on Schedule 1.1(78).

(79) “Fortive Former Businesses” means (i) any Former Business that, at the time of sale, conveyance, assignment, transfer, disposition, divestiture (in whole or in part) or discontinuation, abandonment, completion or termination of the operations, activities or production thereof, was primarily managed by or associated with the Fortive Business as then conducted and (ii) the Former Businesses set forth on Schedule 1.1(79), whether or not such Former Business would meet the standard set forth in sub-clause (i) of this definition.

(80) “Fortive Former Real Property” shall mean any real property that at the time of sale, conveyance, assignment, transfer, disposition, divestiture (in whole or

in part) or discontinuation, abandonment, completion or termination of the operations, activities or production thereof, was primarily owned, leased or operated in connection with Fortive Business or Fortive Former Business.

(81) “Fortive Group” shall mean Fortive and each Person that is a direct or indirect Subsidiary of Fortive as of immediately prior to the Distribution (but after giving effect to the Internal Reorganization), and each Person that becomes a Subsidiary of Fortive after the Effective Time.

(82) “Fortive Group Landlord Property” shall mean the Fortive Owned Real Property as to which the Xxxxxxx Group will enter into a lease or other agreement to conduct business operations after the Effective Time. A non-exclusive list of the Fortive Group Landlord Property is set forth on Schedule 1.1(82).

(83) “Fortive Indemnitees” shall mean each member of the Fortive Group and each of their respective Affiliates from and after the Effective Time and each member of the Fortive Group’s and such respective Affiliates’ respective current, former and future directors, officers, employees and agents and each of the heirs, administrators, executors, successors and assigns of any of the foregoing.

(84) “Fortive Liabilities” shall mean:

(i) any and all Liabilities to the extent relating to, arising out of or resulting from (a) the operation or conduct of the Fortive Business, as conducted at any time prior to, at or after the Effective Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person’s authority) of the Fortive Group); (b) the operation or conduct of any business conducted by any member of the Fortive Group at any time after the Effective Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person’s authority) of the Fortive Group); or (c) any Fortive Asset, whether arising before, on or after the Effective Time (including any Liability relating to, arising out of or resulting from Fortive Contracts, Shared Contracts (to the extent such Liability relates to the Fortive Business) and any real property and leasehold interests):

(ii) the Liabilities set forth on Schedule 1.1(84)(ii) and any and all other Liabilities that are expressly provided by this Agreement or any of the Ancillary Agreements as Liabilities to be assumed by Fortive or any other member of the Fortive Group, and all agreements, obligations and Liabilities of Fortive or any other member of the Fortive Group under this Agreement or any of the Ancillary Agreements;

(iii) any and all Liabilities reflected on the Fortive Balance Sheet (other than those in Schedule 1.1(84)(iii)) or the accounting records supporting such

balance sheet and any Liabilities incurred by or for Fortive or any member of the Fortive Group subsequent to the date of the Fortive Balance Sheet which, had they been so incurred on or before such date, would have been reflected on the Fortive Balance Sheet if prepared on a consistent basis, subject to any discharge of any of such Liabilities subsequent to the date of the Fortive Balance Sheet;

(iv) any and all Liabilities to the extent relating to, arising out of, or resulting from, whether prior to, at or after the Effective Time, any infringement, misappropriation or other violation of any Intellectual Property of any other Person related to the conduct of the Fortive Business;

(v) any and all Fortive Environmental Liabilities;

(vi) any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from (i) the Distribution Disclosure Documents, and (ii) any Fortive Disclosure;

(vii) for the avoidance of doubt, and without limiting any other matters that may constitute Fortive Liabilities, any Liabilities relating to, arising out of or resulting from any Action primarily related to the Fortive Business, including such Actions listed on Schedule 1.1(84)(vii);

(viii) any product liability claims or other claims of third parties, including any and all product liabilities, whether such product liabilities are known or unknown, contingent or accrued, relating to loss of life or injury to persons due to exposure to asbestos prior to, at or after the Effective Time, primarily relating to, arising out of or resulting from any product developed, manufactured, marketed, distributed, leased or sold by the Fortive Business;

(ix) all Liabilities relating to, arising out of or resulting from any Indebtedness of any member of the Fortive Group or any Indebtedness secured exclusively by any of the Fortive Assets; and

(x) any and all other Liabilities that are held by the Fortive Group or the Xxxxxxx Group immediately prior to the Distribution that were inadvertently omitted or assigned that, had the parties given specific consideration to such Liability as of the date of this Agreement, would have otherwise been classified as a Fortive Liability based on the principles set forth in this Section 1.1(84); provided, that no Liability shall be a Fortive Liability solely as a result of this clause (x) unless a claim with respect thereto is made by Xxxxxxx on or prior to the date that is eighteen (18) months after the Distribution.

Notwithstanding the foregoing, the Fortive Liabilities shall not include any Liabilities that are expressly (A) contemplated by this Agreement or by any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities to be Assumed by any member of the Xxxxxxx Group or (B) discharged pursuant to Section 2.2(c) of this Agreement. Any Liabilities of any member of the Xxxxxxx Group not referenced in this Section 1.1(84) are Xxxxxxx Retained Liabilities, and all Xxxxxxx Retained Liabilities shall not be Fortive Liabilities; provided, however, that Xxxxxxx Retained Liabilities shall not include any Liabilities for Taxes that are governed by the Tax Matters Agreement.

(85) “Fortive Personal Data” shall mean Personal Data of Fortive and its Subsidiaries that is held, transferred to or processed by or on behalf of Xxxxxxx and its Subsidiaries after the Effective Time.

(86) “Fortive Released Liabilities” shall have the meaning set forth in Section 6.1(a)(ii).

(87) “Governmental Approvals” shall mean any notices or reports to be submitted to, or other registrations or filings to be made with, or any consents, approvals, licenses, permits or authorizations to be obtained from, any Governmental Entity.

(88) “Governmental Entity” shall mean any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational, or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof.

(89) “Group” shall mean (i) with respect to Xxxxxxx, the Xxxxxxx Group and (ii) with respect to Fortive, the Fortive Group.

(90) “Hazardous Substance” shall mean (a) any substances defined, listed, classified or regulated as “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants,” “pollutants,” “wastes,” “radioactive materials,” “petroleum,” “oils” or designations of similar import under any Environmental Law, or (b) any other chemical, material or substance that is regulated or for which liability can be imposed under any Environmental Law.

(91) “Indebtedness” shall mean, with respect to any Person, (i) the principal amount, prepayment and redemption premiums and penalties (if any), unpaid fees and other monetary obligations in respect of any indebtedness for borrowed money, whether short term or long term, and all obligations evidenced by bonds, debentures, notes, other debt securities or similar instruments, (ii) any indebtedness arising under any capital leases (excluding, for the avoidance of doubt, any real estate leases), whether short term or long term, (iii) all liabilities secured by any Security Interest on any assets of such Person, (iv) all liabilities under any interest rate, currency, commodity or other swap, collar, cap or other hedging or similar agreements or arrangements, (v) all liabilities under any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement or other similar agreement designed to protect such Person against fluctuations in interest rates, (vi) all interest bearing indebtedness for the deferred purchase price of property or services, (vii) all liabilities under any Credit Support Instruments, (viii) all interest, fees and other expenses owed with respect to indebtedness described in the foregoing clauses (i) through (vii), and (iv) without duplication, all guarantees of indebtedness referred to in the foregoing clauses (i) through (viii).

(92) “Indemnifiable Loss” and “Indemnifiable Losses” shall mean any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder).

(93) “Indemnifying Party” shall have the meaning set forth in Section 6.4(a).

(94) “Indemnitee” shall have the meaning set forth in Section 6.4(a).

(95) “Indemnity Payment” shall have the meaning set forth in Section 6.7(a).

(96) “Independent Accounting Firm” shall mean PricewaterhouseCoopers LLP or if such firm is not available or is unwilling to serve, then a mutually acceptable expert in public accounting upon which Xxxxxxx and Fortive mutually agree.

(97) “Information” shall mean information, content, and data in written, oral, electronic, computerized, digital or other tangible or intangible media, including (i) books and records, whether accounting, legal or otherwise, ledgers, studies, reports, surveys, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, marketing plans, customer names and information (including prospects), technical information relating to the design, operation, testing, test results, development, and manufacture of any Party’s or its Group’s product or facilities (including product or facility specifications and documentation; engineering, design, and manufacturing drawings, diagrams, layouts, maps and illustrations; formulations and material specifications; laboratory studies and benchmark tests; quality assurance policies procedures and specifications; evaluation and/validation studies; process control and/or shop-floor control strategy, logic or algorithms; assembly code, software, firmware, programming data, databases, and all information referred to in the same); product costs, margins and pricing; as well as product marketing studies and strategies; all other methodologies, procedures, techniques and Know-How related to research, engineering, development and manufacturing; communications, correspondence, materials, product literature, artwork, files, documents; and (ii) financial and business information, including earnings reports and forecasts, macro-economic reports and forecasts, all cost information (including supplier records and lists), sales and pricing data, business plans, market evaluations, surveys, credit-related information, and other such information as may be needed for reasonable compliance with reporting, disclosure, filing or other requirements, including under applicable securities laws or regulations of securities exchanges.

(98) “Information Statement” shall mean the Information Statement attached as Exhibit 99.1 to the Form 10, to be distributed to the holders of shares of Xxxxxxx Common Stock in connection with the Distribution, including any amendment or supplement thereto.

(99) “Insurance Proceeds” shall mean those monies (i) received by an insured from an insurance carrier or (ii) paid by an insurance carrier on behalf of an insured, in either case net of any applicable deductible or retention.

(100) “Insured Claims” shall mean those Liabilities that, individually or in the aggregate, are covered within the terms and conditions of any of the Company Policies, whether or not subject to deductibles, co-insurance, uncollectability or retrospectively-rated premium adjustments, but only to the extent that such Liabilities are within applicable Company Policy limits, including aggregates.

(101) “Intellectual Property” shall mean all U.S. and foreign: (i) trademarks, trade dress, service marks, certification marks, logos, slogans, design rights, names, corporate names, trade names, Internet domain names, social media accounts and addresses and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “Trademarks”); (ii) patents and patent applications, and any and all related national or international counterparts thereto, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions thereof (collectively, “Patents”); (iii) copyrights and copyrightable subject matter, excluding Know-How (collectively, “Copyrights”); (iv) trade secrets, and all other confidential or proprietary information, know-how, inventions, processes, formulae, models, and methodologies, excluding Patents (collectively, “Know-How”); (v) all applications and registrations for the foregoing; and (vi) all rights and remedies against past, present, and future infringement, misappropriation, or other violation thereof.

(102) “Intellectual Property Matters Agreement” shall mean the Intellectual Property Matters Agreement between Xxxxxxx and Fortive in the form attached hereto as Exhibit D.

(103) “Interim Relief” shall have the meaning set forth in Section 8.2(d).

(104) “Internal Reorganization” shall mean the allocation and transfer or assignment of Assets and Liabilities, including by means of the Conveyance and Assumption Instruments, resulting in (i) the Fortive Group owning and operating the Fortive Business, and (ii) the Xxxxxxx Group continuing to own and operate the Xxxxxxx Retained Business, as described in the plan of reorganization provided to Fortive by Xxxxxxx prior to the date hereof, as updated from time to time by Xxxxxxx at its sole discretion prior to the Distribution.

(105) “IRS” shall have the meaning set forth in the Tax Matters Agreement.

(106) “IRS Ruling” shall have the meaning set forth in the Tax Matters Agreement.

(107) “IRS Ruling Request” shall have the meaning set forth in the Tax Matters Agreement.

(108) “IT Assets” shall mean all software, computer systems, telecommunications equipment, databases, Internet Protocol addresses, data rights and documentation, reference, resource and training materials relating thereto, and all Contracts (including Contract rights) relating to any of the foregoing (including software license agreements, source code escrow agreements, support and maintenance agreements, electronic database access contracts, domain name registration agreements, website hosting agreements, software or website development agreements, outsourcing agreements, service provider agreements, interconnection agreements, governmental permits, radio licenses and telecommunications agreements).

(109) “Law” shall mean any applicable U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, income tax treaty, order, requirement or rule of law (including common law) or other binding directives promulgated, issued, entered into or taken by any Governmental Entity.

(110) “Liabilities” shall mean any and all Indebtedness, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, known or unknown, reserved or unreserved, or determined or determinable, including those arising under any Law (including Environmental Law), Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity and those arising under any Contract or any fines, damages or equitable relief which may be imposed and including all costs and expenses related thereto. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes shall not be treated as Liabilities governed by this Agreement other than for purposes of indemnification related to the Distribution Disclosure Documents.

(111) “Liable Party” shall have the meaning set forth in Section 2.9(b).

(112) “LIBOR” shall mean an interest rate per annum equal to the applicable thirty-day London Interbank Offer Rate for deposits in United States dollars published in the Wall Street Journal at the date of the relevant determination.

(113) “Negotiation Period” shall have the meaning set forth in Section 8.1.

(114) “NYSE” shall mean the New York Stock Exchange.

(115) “Off-Site Location” means any third party location that is not now nor has ever been owned, leased or operated by the Xxxxxxx Group or the Fortive Group

or any of their respective predecessors. “Off-Site Location” does not include any property that is adjacent to or neighboring any property formerly, currently or in the future owned, leased or operated by the Xxxxxxx Group, the Fortive Group, or their respective predecessors that has been impacted by Hazardous Substances Released from such properties.

(116) “Other Party” shall have the meaning set forth in Section 2.9(a).

(117) “Other Party’s Auditors” shall have the meaning set forth in Section 7.2(a).

(118) “Party” and “Parties” shall have the meanings set forth in the Preamble.

(119) “Person” shall mean any natural person, firm, individual, corporation, business trust, joint venture, association, bank, land trust, trust company, company, limited liability company, partnership, or other organization or entity, whether incorporated or unincorporated, or any Governmental Entity.

(120) “Policies” shall mean insurance policies and insurance contracts of any kind (other than life and benefits policies or contracts), including primary, excess and umbrella policies, commercial general liability policies, fiduciary liability, directors and officers liability, automobile, property and casualty, workers’ compensation and employee dishonesty insurance policies and bonds, together with the rights, benefits and privileges thereunder.

(121) “Privilege” shall have the meaning set forth in Section 7.7(a).

(122) “Privileged Information” has the meaning set forth in Section 7.7(a).

(123) “Record Date” shall mean the date determined by the Board of Directors of Xxxxxxx as the record date for determining the holders of Xxxxxxx Common Stock entitled to receive Fortive Common Stock in the Distribution.

(124) “Record Holders” shall mean holders of Xxxxxxx Common Stock on the Record Date.

(125) “Records” shall mean any Contracts, documents, books, records or files.

(126) “Release” shall mean any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water, groundwater or property.

(127) “Released Insurance Matters” shall have has the meaning set forth in Section 9.1(j).

(128) “Rules” shall have the meaning set forth in Section 8.2.

(129) “Securities Act” shall mean the Securities Act of 1933, together with the rules and regulations promulgated thereunder.

(130) “Security Interest” shall mean any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-entry, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever, excluding restrictions on transfer under securities Laws.

(131) “Shared Contract” shall have the meaning set forth in Section 2.3(a).

(132) “Subsidiary” shall mean with respect to any Person (i) a corporation, fifty percent (50%) or more of the voting or capital stock of which is, as of the time in question, directly or indirectly owned by such Person and (ii) any other Person in which such Person, directly or indirectly, owns fifty percent (50%) or more of the equity or economic interest thereof or has the power to elect or direct the election of fifty percent (50%) or more of the members of the governing body of such entity.

(133) “Target Cash Amount” shall have the meaning set forth in Section 2.13(a).

(134) “Tax” or “Taxes” shall have the meaning set forth in the Tax Matters Agreement.

(135) “Tax Contest” shall have the meaning as set forth in the Tax Matters Agreement.

(136) “Tax Matters Agreement” shall mean the Tax Matters Agreement by and between Xxxxxxx and Fortive, in the form attached hereto as Exhibit B.

(137) “Tax Returns” shall have the meaning set forth in the Tax Matters Agreement.

(138) “Taxing Authority” shall have the meaning set forth in the Tax Matters Agreement.

(139) “Third Party Agreements” shall mean any agreements, arrangements, commitments or understandings between or among a Party (or any member of its Group) and any other Persons (other than either Party or any member of its respective Groups) (it being understood that to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts constitute Fortive Assets or Fortive Liabilities, or Xxxxxxx Retained Assets or Xxxxxxx Retained Liabilities, such Contracts shall be assigned or retained pursuant to Article II)

(140) “Third Party Claim” shall have the meaning set forth in Section 6.4(b).

(141) “Third Party Proceeds” shall have the meaning set forth in Section 6.7(a).

(142) “Transfer” shall have the meaning set forth in Section 2.2(b)(i); and the term Transferred shall have its correlative meaning.

(143) “Transition Services Agreement” shall mean the Transition Services Agreements by and between the Parties, which is attached hereto as Exhibit C.

Section 1.2 References; Interpretation. References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa. Unless the context otherwise requires, the words “include”, “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation”. Unless the context otherwise requires, references in this Agreement to Articles, Sections, Annexes, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement. Unless the context otherwise requires, the words “hereof”, “hereby” and “herein” and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement. The words “written request” when used in this Agreement shall include email. Reference in this Agreement to any time shall be to New York City, New York time unless otherwise expressly provided herein. Unless the context requires otherwise, references in this Agreement to “Xxxxxxx” shall also be deemed to refer to the applicable member of the Xxxxxxx Group, references to “Fortive” shall also be deemed to refer to the applicable member of the Fortive Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Xxxxxxx or Fortive shall be deemed to require Xxxxxxx or Fortive, as the case may be, to cause the applicable members of the Xxxxxxx Group or the Fortive Group, respectively, to take, or refrain from taking, any such action. In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the definitions set forth in Section 1.1, for the purpose of determining what is and is not included in such definitions, any item explicitly included on a Schedule referred to in any such definition shall take priority over any provision of the text thereof.

ARTICLE II

THE SEPARATION

Section 2.1 General. Subject to the terms and conditions of this Agreement, the Parties shall use, and shall cause their respective Affiliates to use, their respective commercially reasonable efforts to consummate the transactions contemplated hereby, a portion of which may have already been implemented prior to the date hereof, including the completion of the Internal Reorganization.

Section 2.2 Restructuring: Transfer of Assets; Assumption of Liabilities.

(a) Internal Reorganization. Prior to the Effective Time, except for Transfers contemplated by the Internal Reorganization or this Agreement or the Ancillary Agreements to occur after the Effective Time, the Parties shall complete the Internal Reorganization, including by taking the actions referred to in Sections 2.2(b) and 2.2(c) below.

(b) Transfer of Assets. At or prior to the Effective Time (it being understood that some of such Transfers may occur following the Effective Time in accordance with Section 2.2(a) and Section 2.6), pursuant to the Conveyancing and Assumption Instruments and in connection with the Contribution:

(i) Xxxxxxx shall, and shall cause the applicable Asset Transferors to, transfer, contribute, distribute, assign and/or convey or cause to be transferred, contributed, distributed, assigned and/or conveyed (“Transfer”) to (A) the respective Xxxxxxx Asset Transferees, all of the applicable Asset Transferors’ right, title and interest in and to the Xxxxxxx Retained Assets and (B) Fortive and/or the respective Fortive Asset Transferees, all of its and the applicable Asset Transferors’ right, title and interest in and to the Fortive Assets, and the applicable Xxxxxxx Asset Transferees and Fortive Asset Transferees shall accept from Xxxxxxx and the applicable members of the Xxxxxxx Group, all of Xxxxxxx’x and the other members’ of the Xxxxxxx Group’s respective direct or indirect rights, title and interest in and to the applicable Assets, including all of the outstanding shares of capital stock or other ownership interests.

(ii) Any costs and expenses incurred after the Effective Time to effect any Transfer contemplated by this Section 2.2(b) (including any transfer effected pursuant to Section 2.6) shall be paid by the Parties as set forth on Section 10.5(b). Other than costs and expenses incurred in accordance with the foregoing, nothing in this Section 2.2(b) shall require any member of any Group to incur any material obligation or grant any material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.2(b).

(c) Assumption of Liabilities. Except as pursuant to this Agreement or as otherwise specifically set forth in any Ancillary Agreement, in connection with the Internal Reorganization and the Contribution or, if applicable, from and after, the Effective Time (i) pursuant to this Agreement or the applicable Conveyancing and Assumption Instruments, Xxxxxxx shall, or shall cause a member of the Xxxxxxx Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms (“Assume”), all of the Xxxxxxx Retained Liabilities and (ii) pursuant to this Agreement or the applicable Conveyancing and Assumption Instruments, Fortive shall, or shall cause a member of the Fortive Group to, Assume all of the Fortive Liabilities, in each case, regardless of (A) when or where such Liabilities arose or arise, (B) whether the facts upon which they are based

occurred prior to, on or subsequent to the Effective Time, (C) where or against whom such Liabilities are asserted or determined (D) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Xxxxxxx Group or the Fortive Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates, (E) which entity is named in any Action associated with any Liability.

(d) Consents. The Parties shall use their commercially reasonable efforts to obtain the Consents required to Transfer any Assets, Contracts, licenses, permits and authorizations issued by any Governmental Entity or parts thereof as contemplated by this Agreement. Notwithstanding anything herein to the contrary, no Contract or other Asset shall be transferred if it would violate applicable Law or, in the case of any Contract, the rights of any third party to such Contract; provided that Section 2.6, to the extent provided therein, shall apply thereto.

(e) It is understood and agreed by the Parties that certain of the Transfers referenced in Section 2.2(b) or Assumptions referenced in Section 2.2(c) have heretofore occurred and, as a result, no additional Transfers or Assumptions by any member of the Xxxxxxx Group or the Fortive Group, as applicable, shall be deemed to occur upon the execution of this Agreement with respect thereto. Moreover, to the extent that any Subsidiary of the Xxxxxxx Group or the Fortive Group, as applicable, is liable for any Xxxxxxx Retained Liability or Assumed Liability, respectively, by operation of law immediately following any Transfer in accordance with this Agreement or any Conveyancing and Assumption Instruments, there shall be no need for any other member of the Xxxxxxx Group or the Fortive Group, as applicable, to Assume such Liability in connection with the operation of Section 2.2(c) and, accordingly, no other member of such Group shall Assume and such Liability in connection with Section 2.2(c).

Section 2.3 Treatment of Shared Contracts. Without limiting the generality of the obligations set forth in Sections 2.2(a) and (b):

(a) Unless the Parties otherwise agree or the benefits of any Contract described in this Section 2.3 are expressly conveyed to the applicable Party pursuant to an Ancillary Agreement, any Contract that is listed on Schedule 2.3(a) (a “Shared Contract”) shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the members of their respective Groups as of the Effective Time shall be entitled to the rights and benefits, and shall Assume the related portion of any Liabilities, inuring to their respective Businesses; provided, however, that (x) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled, subject to Section 2.2(d)), and (y) if any Shared Contract cannot be so partially assigned by its terms or otherwise, cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, (A) at the reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared

Contract inures in part, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Fortive Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the Distribution Date (unless the term of Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions to cause such member of the Fortive Group or the Xxxxxxx Group, as the case may be, to receive the benefit of that portion of each Shared Contract that relates to the Fortive Business or the Xxxxxxx Retained Business, as the case may be (in each case, to the extent so related) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group pursuant to this Section 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement) as if such Liabilities had been Assumed by a member of the applicable Group pursuant to this Section 2.3; provided that the Party for which such Shared Contract is a Xxxxxxx Retained Asset or a Fortive Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Fortive Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).

(b) Each of Xxxxxxx and Fortive shall, and shall cause the members of its Group to, (A) treat for all Tax purposes the portion of each Shared Contract inuring to its respective Businesses as Assets owned by, and/or Liabilities of, as applicable, such Party as of the Effective Time and (B) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or good faith resolution of a Tax Contest).

Section 2.4 Intercompany Accounts, Loans and Agreements.

(a) Except as set forth in Section 6.1(b), all intercompany receivables and payables (other than (x) intercompany loans (which shall be governed by Section 2.4(c)) (y) receivables or payables otherwise specifically provided for on Schedule 2.4(a), and (z) payables created or required hereby or by any Ancillary Agreement or any Continuing Arrangements) and intercompany balances, including in respect of any cash balances, any cash balances representing deposited checks or drafts or any cash held in any centralized cash management system between any member of the Xxxxxxx Group, on the one hand, and any member of the Fortive Group, on the other hand, which exist and are reflected in the accounting records of the relevant Parties immediately prior to the Effective Time, shall continue to be outstanding after the Effective Time and thereafter (i) shall be an obligation of the relevant Party (or the relevant member of such Party’s Group), each responsible for fulfilling its (or a member of such Party’s Group’s) obligations in accordance with the terms and conditions applicable to such obligation or if such terms and conditions are not set forth in writing, such obligation shall be satisfied within 30 days of a written request by the beneficiary of such obligation given to the corresponding obligor thereunder, and (ii) shall be for each relevant Party (or the relevant member of such Party’s Group) an obligation to a third party and shall no longer be an intercompany account.

(b) As between the Parties (and the members of their respective Group) all payments and reimbursements received after the Effective Time by one Party (or member of its Group) that relate to a Business, Asset or Liability of the other Party (or member of its Group), shall be held by such Party in trust for the use and benefit of the Party entitled thereto (at the expense of the Party entitled thereto) and, promptly upon receipt by such Party of any such payment or reimbursement, such Party shall pay or shall cause the applicable member of its Group to pay over to the Party entitled thereto the amount of such payment or reimbursement without right of set-off.

(c) Except as set forth on Schedule 2.4(c), each of Xxxxxxx or any member of the Xxxxxxx Group, on the one hand, and Fortive or any member of the Fortive Group, on the other hand, will settle with the other Party, as the case may be, all intercompany loans, including any promissory notes, owned or owed by the other Party on or prior to the Distribution, except as otherwise agreed to in good faith by the Parties in writing on or after the date hereof, it being understood and agreed by the Parties that all guarantees and Credit Support Instruments shall be governed by Section 2.10.

Section 2.5 Limitation of Liability; Intercompany Contracts. No Party nor any Subsidiary thereof shall be liable to the other Party or any Subsidiary of the other Party based upon, arising out of or resulting from any Contract, arrangement, course of dealing or understanding between or among it and the other Party existing at or prior to the Effective Time (other than as set forth on Schedule 2.5, pursuant to this Agreement, any Ancillary Agreement, any Continuing Arrangements, any Third Party Agreements, as set forth in Section 2.4 or Section 6.1(b) or pursuant to any other Contract entered into in connection herewith or in order to consummate the transactions contemplated hereby or thereby) and each Party hereby terminates any and all Contracts, arrangements, courses of dealing or understandings between or among it and the other Party effective as of the Effective Time (other than as set forth on Schedule 2.5, this Agreement, any Ancillary Agreement, any Continuing Arrangements, any Third Party Agreements, as set forth in Section 2.4 or Section 6.1(b) or pursuant to any Contract entered into in connection herewith or in order to consummate the transactions contemplated hereby or thereby), provided, however, that with respect to any Contract, arrangement, course of dealing or understanding between or among the Parties or any Subsidiaries thereof discovered after the Effective Time, the Parties agree that such Contract, arrangement, course of dealing or understanding shall nonetheless be deemed terminated as of the Effective Time with the only liability of the Parties in respect thereof to be the obligations incurred between the Parties pursuant to such Contract, arrangement, course of dealing or understanding between the Effective Time and the time of discovery or later termination of any such Contract, arrangement, course of dealing or understanding.

Section 2.6 Transfers Not Effected at or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time.

(a) To the extent that any Transfers or Assumptions contemplated by this Article II shall not have been consummated at or prior to the Effective Time, the Parties shall

use commercially reasonable efforts to effect such Transfers or Assumptions as promptly following the Effective Time as shall be practicable. Nothing herein shall be deemed to require or constitute the Transfer of any Assets or the Assumption of any Liabilities which by their terms or operation of Law cannot be Transferred; provided, however, that the Parties and their respective Subsidiaries shall cooperate and use commercially reasonable efforts to seek to obtain, in accordance with applicable Law, any necessary Consents or Governmental Approvals for the Transfer of all Assets and Assumption of all Liabilities contemplated to be Transferred and Assumed pursuant to this Article II to the fullest extent permitted by applicable Law. In the event that any such Transfer of Assets or Assumption of Liabilities has not been consummated, from and after the Effective Time (i) the Party (or relevant member in its Group) retaining such Asset shall thereafter hold (or shall cause such member in its Group to hold) such Asset in trust for the use and benefit of the Party entitled thereto (at the expense of the Party entitled thereto) and (ii) the Party intended to Assume such Liability shall, or shall cause the applicable member of its Group to, pay or reimburse the Party retaining such Liability for all amounts paid or incurred in connection with the retention of such Liability. To the extent the foregoing applies to any Contracts (other than Shared Contracts, which shall be governed solely by Section 2.3) to be assigned for which any necessary Consents or Governmental Approvals are not received prior to the Effective Time, the treatment of such Contracts shall, for the avoidance of doubt, be subject to Section 2.8 and Section 2.9, to the extent applicable. In addition, the Party retaining such Asset or Liability (or relevant member of its Group) shall (or shall cause such member in its Group to) treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Asset or Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the Party to which such Asset is to be Transferred or by the Party Assuming such Liability in order to place such Party, insofar as reasonably possible and to the extent permitted by applicable Law, in the same position as if such Asset or Liability had been Transferred or Assumed as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for income and gain, and dominion, control and command over such Asset or Liability, are to inure from and after the Effective Time to the relevant member or members of the Xxxxxxx Group or the Fortive Group entitled to the receipt of such Asset or required to Assume such Liability. In furtherance of the foregoing, the Parties agree that, as of the Effective Time, subject to Section 2.2(c) and Section 2.9(b), each Party shall be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have Assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to Assume pursuant to the terms of this Agreement.

(b) If and when the Consents, Governmental Approvals and/or conditions, the absence or non-satisfaction of which caused the deferral of Transfer of any Asset or deferral of the Assumption of any Liability pursuant to Section 2.6(a), are obtained or satisfied, the Transfer, assignment, Assumption or novation of the applicable Asset or Liability shall be effected without further consideration in accordance with and subject to the terms of this Agreement (including Section 2.2) and/or the applicable Ancillary Agreement, and shall, to the extent possible without the imposition of any undue cost on any Party, be deemed to have become effective as of the Effective Time.

(c) The Party (or relevant member of its Group) retaining any Asset or Liability due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability pursuant to Section 2.6(a) or otherwise shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, assumed, or agreed in advance to be reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability, other than reasonable attorneys’ fees and recording or similar or other incidental fees, all of which shall be promptly reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be.

(d) After the Effective Time, each Party (or any member of its Group) may receive mail, packages, electronic mail and any other written communications properly belonging to another Party (or any member of its Group). Accordingly, at all times after the Effective Time, each Party is hereby authorized to receive and, if reasonably necessary to identify the proper recipient in accordance with this Section 2.6(d), open all mail, packages, electronic mail and any other written communications received by such Party that belongs to such other Party, and to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail, packages, electronic mail or any other written communications (or, in case the same also relates to the business of the receiving Party or another Party, copies thereof) to such other Party as provided for in Section 10.6; it being understood that if a Party receives a telephone call that relates to the business of the other Party, then the receiving Party shall inform the person making such telephone call to contact the other Party. The provisions of this Section 2.6(d) are not intended to, and shall not, be deemed to constitute an authorization by any Party to permit the other to accept service of process on its behalf and no Party is or shall be deemed to be the agent of any other Party for service of process purposes.

(e) With respect to Assets and Liabilities described in Section 2.6(a), each of Xxxxxxx and Fortive shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes (A) the deferred Assets as assets having been Transferred to and owned by the Party entitled to such Assets not later than the Effective Time and (B) the deferred Liabilities as liabilities having been Assumed and owned by the Person intended to be subject to such Liabilities not later than the Effective Time and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Law or good faith resolution of a Tax Contest).

Section 2.7 Conveyancing and Assumption Instruments. In connection with, and in furtherance of, the Transfers of Assets and the Assumptions of Liabilities contemplated by this Agreement, the Parties shall execute or cause to be executed, on or after the date hereof by the appropriate entities to the extent not executed prior to the date hereof, any Conveyancing and Assumption Instruments necessary to evidence the valid Transfer to the applicable Party or member of such Party’s Group of all right, title and interest in and to its accepted Assets and the valid and effective Assumption by the applicable Party of its Assumed Liabilities for Transfers and Assumptions to be effected pursuant to Delaware Law or the Laws of one of the other states

of the United States or, if not appropriate for a given Transfer or Assumption, and for Transfers or Assumptions to be effected pursuant to non-U.S. Laws, in such form as the Parties shall reasonably agree, including the Transfer of real property by mutually acceptable conveyance deeds as may be appropriate and in form and substance as may be required by the jurisdiction in which the real property is located. The Transfer of capital stock shall be effected by means of executed stock powers and notation on the stock record books of the corporation or other legal entities involved, or by such other means as may be required in any non-U.S. jurisdiction to Transfer title to stock and, only to the extent required by applicable Law, by notation on public registries.

Section 2.8 Further Assurances; Ancillary Agreements.

(a) In addition to and without limiting the actions specifically provided for elsewhere in this Agreement and subject to the limitations expressly set forth in this Agreement, including Section 2.6, each of the Parties shall cooperate with each other and use (and shall cause its respective Subsidiaries and Affiliates to use) commercially reasonable efforts, at and after the Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements.

(b) Without limiting the foregoing, at and after the Effective Time, each Party shall cooperate with the other Party, and without any further consideration, but at the expense of the requesting Party (except as provided in Sections 2.2(b)(ii) and 2.6(c)) from and after the Effective Time, to execute and deliver, or use commercially reasonable efforts to cause to be executed and delivered, all instruments, including instruments of Transfer or title, and to make all filings with, and to obtain all Consents and/or Governmental Approvals, any permit, license, Contract, indenture or other instrument (including any Consents or Governmental Approvals), and to take all such other actions as such Party may reasonably be requested to take by any other Party from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the Transfers of the applicable Assets and the assignment and Assumption of the applicable Liabilities and the other transactions contemplated hereby and thereby. Without limiting the foregoing, each Party shall, at the reasonable request, cost and expense of any other Party (except as provided in Sections 2.2(b)(ii) and 2.6(c)), take such other actions as may be reasonably necessary to vest in such other Party such title and such rights as possessed by the transferring Party to the Assets allocated to such other Party under this Agreement or any of the Ancillary Agreements, free and clear of any Security Interest.

(c) Without limiting the foregoing, in the event that any Party (or member of such Party’s Group) receives any Assets (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable with respect to such Asset) or is liable for any Liability that is otherwise allocated to any Person that is a member of the other Group pursuant to this Agreement or the Ancillary Agreements, such Party agrees to promptly Transfer, or cause to be Transferred such Asset or Liability to the other Party so entitled thereto (or member of such other Party’s Group as designated by such other Party) at such other Party’s expense. Prior to any such Transfer, such Asset or Liability, as the case may be, shall be held in accordance with the provisions of Section 2.6.

(d) At or prior to the Effective Time, each of Xxxxxxx and Fortive shall enter into, and/or (where applicable) shall cause a member or members of their respective Group to enter into, the Ancillary Agreements and any other Contracts in respect of the Distributions reasonably necessary or appropriate in connection with the transactions contemplated hereby and thereby.

(e) On or prior to the Distribution Date, Xxxxxxx and Fortive in their respective capacities as direct or indirect stockholders of their respective Subsidiaries, shall each ratify any actions that are reasonably necessary or desirable to be taken by any Subsidiary of Xxxxxxx or Subsidiary of Fortive, as the case may be, to effectuate the transactions contemplated by this Agreement and the Ancillary Agreements.

Section 2.9 Novation of Liabilities; Indemnification.

(a) Each Party, at the request of any member of the other Party’s Group (such other Party, the “Other Party”), shall use commercially reasonable efforts to obtain, or to cause to be obtained, any Consent, Governmental Approval, substitution or amendment required to novate or assign to the fullest extent permitted by applicable Law all obligations under Contracts (other than Shared Contracts, which shall be governed by Section 2.3) and Liabilities (other than with regard to guarantees or Credit Support Instruments, which shall be governed by Section 2.10), but solely to the extent that the Parties are jointly or each severally liable with regard to any such Contracts or Liabilities and such Contracts or Liabilities have been, in whole, but not in part, allocated to the first Party, or, if permitted by applicable Law, to obtain in writing the unconditional release of the applicable Other Party so that, in any such case, the members of the applicable Group shall be solely responsible for such Contracts or Liabilities; provided, however, that no Party shall be obligated to pay any consideration therefor to any third party from whom any such Consent, Governmental Approval, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party). In addition, with respect to any Action where any Party hereto is a defendant, when and if requested by such Party, the Other Party will use commercially reasonable efforts to petition the applicable court to remove the requesting Party as a defendant to the extent that such Action relates solely to Assets or Liabilities that the Other Party (or any member of such requesting Party’s Group) has been allocated pursuant to this Article II, and the Other Party will cooperate and assist in any required communication with any plaintiff or other related third party.

(b) If the Parties are unable to obtain, or to cause to be obtained, any such required Consent, Governmental Approval, release, substitution or amendment referenced in Section 2.9(a), the Other Party or a member of such Other Party’s Group shall continue to be bound by such Contract, license or other obligation that does not constitute a Liability of such Other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who Assumed or retained such Liability as set forth in this Agreement (the “Liable Party”) shall, or shall cause a member of its Group to, pay, perform and discharge fully all the obligations or other Liabilities of such Other Party or member of such Other Party’s Group thereunder from and after the Effective Time. For the

avoidance of doubt, in furtherance of the foregoing, the Liable Party or a member of such Liable Party’s Group, as agent or subcontractor of the Other Party or a member of such Other Party’s Group, to the extent reasonably necessary to pay, perform and discharge fully any Liabilities, or retain the benefits (including pursuant to Section 2.6) associated with such Contract or license, is hereby granted the right to, among other things, (i) prepare, execute and submit invoices under such Contract or license in the name of the Other Party (or the applicable member of such Other Party’s Group), (ii) send correspondence relating to matters under such Contract or license in the name of the Other Party (or the applicable member of such Other Party’s Group), (iii) file Actions in the name of the Other Party (or the applicable member of such Other Party’s Group) in connection with such Contract or license and (iv) otherwise exercise all rights in respect of such Contract or license in the name of the Other Party (or the applicable member of such Other Party’s Group); provided that (y) such actions shall be taken in the name of the Other Party (or the applicable member of such Other Party’s Group) only to the extent reasonably necessary or advisable in connection with the foregoing and (z) to the extent that there shall be a conflict between the provisions of this Section 2.9(b) and the provisions of any more specific arrangement between a member of such Liable Party’s Group and a member of such Other Party’s Group, such more specific arrangement shall control. The Liable Party shall indemnify each Other Party and hold each of them harmless against any Liabilities (other than Liabilities of such Other Party) arising in connection therewith; provided, that the Liable Party shall have no obligation to indemnify the Other Party with respect to any matter to the extent that such Liabilities arise from such Other Party’s willful breach, knowing violation of Law, fraud, misrepresentation or gross negligence in connection therewith, in which case such Other Party shall be responsible for such Liabilities. The Other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or, at the direction of the Liable Party, to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such Other Party pursuant to this Agreement). If and when any such Consent, Governmental Approval, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the Other Party shall, to the fullest extent permitted by applicable Law, promptly Transfer or cause the Transfer of all rights, obligations and other Liabilities thereunder of such Other Party or any member of such Other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall Assume such rights and Liabilities to the fullest extent permitted by applicable Law. Each of the applicable Parties shall, and shall cause their respective Subsidiaries to, take all actions and do all things reasonably necessary on its part, or such Subsidiaries’ part, under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Section 2.9.

Section 2.10 Guarantees; Credit Support Instruments.

(a) Except as otherwise specified in any Ancillary Agreement, at or prior to the Effective Time or as soon as practicable thereafter, (i) Xxxxxxx shall (with the reasonable cooperation of the applicable member of the Fortive Group) use its commercially reasonable efforts to have each member of the Fortive Group removed as guarantor of or obligor for any Xxxxxxx Retained Liability to the fullest extent permitted by applicable Law, including in

respect of those guarantees set forth on Schedule 2.10(a)(i), to the extent that they relate to Xxxxxxx Retained Liabilities and (ii) Fortive shall (with the reasonable cooperation of the applicable member of the Xxxxxxx Group) use commercially reasonable efforts to have each member of the Xxxxxxx Group removed as guarantor of or obligor for any Fortive Liability, to the fullest extent permitted by applicable Law, including in respect of those guarantees set forth on Schedule 2.10(a)(ii), to the extent that they relate to Fortive Liabilities.

(b) At or prior to the Effective Time, to the extent required to obtain a release from a guaranty:

(i) of any member of the Xxxxxxx Group, Fortive shall execute a guaranty agreement substantially in the form of the existing guaranty or such other form as is agreed to by the relevant parties to such guaranty agreement, except to the extent that such existing guaranty contains representations, covenants or other terms or provisions either (A) with which Fortive would be reasonably unable to comply or (B) which would be reasonably expected to be breached; and

(ii) of any member of the Fortive Group, Xxxxxxx shall execute a guaranty agreement substantially in the form of the existing guaranty or such other form as is agreed to by the relevant parties to such guaranty agreement, except to the extent that such existing guaranty contains representations, covenants or other terms or provisions either (A) with which Xxxxxxx would be reasonably unable to comply or (B) which would be reasonably expected to be breached.

(c) If Xxxxxxx or Fortive is unable to obtain, or to cause to be obtained, any such required removal as set forth in clauses (a) and (b) of this Section 2.10, (i) Xxxxxxx, to the extent a member of the Xxxxxxx Group has assumed the underlying Liability with respect to such guaranty or Fortive, to the extent a member of the Fortive Group has assumed the underlying Liability with respect to such guaranty, as the case may be, shall indemnify and hold harmless the guarantor or obligor for any Indemnifiable Loss arising from or relating thereto (in accordance with the provisions of Article VI) and shall or shall cause one of its Subsidiaries, as agent or subcontractor for such guarantor or obligor to pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder, (ii) Fortive shall reimburse the applicable member of the Xxxxxxx Group for all out of pocket expenses incurred by it arising out of or related to any such guaranty; and (iii) each of Xxxxxxx and Fortive, on behalf of themselves and the members of their respective Groups, agree not to renew or extend the term of, increase its obligations under, or Transfer to a third party, any loan, guaranty, lease, contract or other obligation for which another Party or member of such Party’s Group is or may be liable without the prior written consent of such other Party, unless all obligations of such other Party and the other members of such Party’s Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to such Party.

(d) Xxxxxxx and Fortive shall cooperate and Fortive shall use commercially reasonable efforts to replace all Credit Support Instruments issued by Xxxxxxx or other members of the Xxxxxxx Group on behalf of or in favor of any member of the Fortive

Group or the Fortive Business (the “Xxxxxxx CSIs”) as promptly as practicable with Credit Support Instruments from Fortive or a member of the Fortive Group as of the Effective Time. With respect to any Xxxxxxx CSIs that remain outstanding after the Effective Time, (i) Fortive shall, and shall cause the members of the Fortive Group to, jointly and severally indemnify and hold harmless the Xxxxxxx Indemnitees for any Liabilities arising from or relating to such Credit Support Instruments, including, without limitation, any fees in connection with the issuance and maintenance thereof and any funds drawn by (or for the benefit of), or disbursements made to, the beneficiaries of such Xxxxxxx CSIs in accordance with the terms thereof, (ii) Fortive shall reimburse the applicable member of the Xxxxxxx Group for all out of pocket expenses incurred by it arising out of or related to any such Credit Support Instrument, and (iii) without the prior written consent of Xxxxxxx, Fortive shall not, and shall not permit any member of the Fortive Group to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which Xxxxxxx or any member of the Xxxxxxx Group has issued any Credit Support Instruments which remain outstanding. Neither Xxxxxxx nor any member of the Xxxxxxx Group will have any obligation to renew any Credit Support Instruments issued on behalf of or in favor of any member of the Fortive Group or the Fortive Business after the expiration of any such Credit Support Instrument.

Section 2.11 Disclaimer of Representations and Warranties.

(a) EACH OF XXXXXXX (ON BEHALF OF ITSELF AND EACH MEMBER OF THE XXXXXXX GROUP) AND FORTIVE (ON BEHALF OF ITSELF AND EACH MEMBER OF THE FORTIVE GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IN ANY ANCILLARY AGREEMENT OR IN ANY CONTINUING ARRANGEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENTS OR OTHERWISE, IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR BUSINESS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS, WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE,

FREE AND CLEAR OF ANY SECURITY INTEREST AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

(b) Each of Xxxxxxx (on behalf of itself and each member of the Xxxxxxx Group) and Fortive (on behalf of itself and each member of the Fortive Group) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 2.11(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Xxxxxxx or any member of the Xxxxxxx Group, on the one hand, and Fortive or any member of the Fortive Group, on the other hand, are jointly or severally liable for any Xxxxxxx Liability or any Fortive Liability, respectively, then, the Parties intend that, notwithstanding any provision to the contrary under the Laws of such foreign jurisdictions, the provisions of this Agreement and the Ancillary Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and their respective Subsidiaries.

(c) Xxxxxxx hereby waives compliance by itself and each and every member of the Xxxxxxx Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Xxxxxxx Assets to Xxxxxxx or any member of the Xxxxxxx Group.

(d) Fortive hereby waives compliance by itself and each and every member of the Fortive Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Fortive Assets to Fortive or any member of the Fortive Group.

Section 2.12 Fortive Financing Arrangements. Prior to the Effective Time, Fortive shall enter into the Fortive Financing Arrangements, on such terms and conditions as agreed by Xxxxxxx in its sole discretion (including the amount that shall be borrowed pursuant to the Fortive Financing Arrangements and the terms and interest rates for such borrowings) and the Fortive Financing Arrangements shall have been consummated in accordance therewith. Xxxxxxx and Fortive shall participate in the preparation of all materials and presentations as may be reasonably necessary to secure funding pursuant to the Fortive Financing Arrangements, including rating agency presentations necessary to obtain the requisite ratings needed to secure the financing under any of the Fortive Financing Arrangements. The Parties agree that Fortive, and not Xxxxxxx, shall be ultimately responsible for all costs and expenses incurred by, and for reimbursement of such costs and expenses to, any member of the Xxxxxxx Group or the Fortive Group associated with the Fortive Financing Arrangements. It is the intent of the Parties that the Fortive Financing Cash Distribution is made in connection with the separation and Internal Reorganization, including the transfer of the Fortive Assets to Xxxxxxx in the Internal Reorganization whenever made.

Section 2.13 Cash Management; Cash Adjustment.

(a) From the date of this Agreement until the Distribution, Xxxxxxx and its Subsidiaries shall be entitled to use, retain or otherwise dispose of all cash and cash equivalents generated by the Fortive Business and the Fortive Assets in accordance with the ordinary course operation of Xxxxxxx’x cash management systems. Notwithstanding the foregoing, it is the intention of Xxxxxxx and Fortive that, at the time of the Distribution, Fortive shall have a minimum Cash Equivalents balance, as would be reflected on the unaudited consolidated balance sheet of the Fortive Group as of the close of business on the date prior to the Distribution Date, of $[●] (the “Target Cash Amount”). Subject to any adjustment in accordance with this Section 2.13, all cash held by any member of the Fortive Group as of the Distribution shall be a Fortive Asset and all cash held by any member of the Xxxxxxx Group as of the Distribution shall be a Xxxxxxx Retained Asset.

(b) Cash Adjustment.

(i) No later than sixty (60) days after the Distribution Date, Xxxxxxx shall prepare and deliver, or cause to be prepared and delivered, to Fortive a statement reflecting the amount of Cash Equivalents on the unaudited consolidated balance sheet of the Fortive Group as of the close of business on the last day prior to the Distribution Date (giving effect to the Distribution and reflecting the terms and conditions of Article II of this Agreement) (the “Distribution Date Cash Amount”), including supporting account information (the “Distribution Cash Amount Statement”). The Distribution Cash Amount Statement shall be calculated in U.S. dollars and consistently with the historical practices used in calculating cash in Xxxxxxx.

(ii) Subject to the terms set forth in Section 7.6, in connection with the preparation of the Distribution Cash Amount Statement, Xxxxxxx shall have reasonable access, during normal business hours and upon reasonable notice, to the books and records, the financial systems and finance personnel and any other information of the members of the Fortive Group that Xxxxxxx or its representatives reasonably request, and Fortive shall, and shall cause the members of the Fortive Group and their respective representatives and employees to, cooperate with Xxxxxxx and its representatives in connection therewith.

(iii) Fortive shall have thirty (30) days following receipt of the Distribution Cash Amount Statement to review such statement and to notify Xxxxxxx, in writing, if Fortive disputes any of the amounts set forth on the Distribution Cash Amount Statement (the “Distribution Cash Amount Dispute Notice”), specifying the reasons therefor in reasonable detail.

(iv) Subject to the terms set forth in Section 7.6, in connection with Fortive’s review of the Distribution Cash Amount Statement, Fortive and its representatives shall have reasonable access, during normal business hours and upon reasonable notice, to all relevant work papers, schedules, memoranda and other documents prepared by Xxxxxxx or its representatives in connection with its preparation of the Distribution Cash Amount Statement and to

finance personnel of Xxxxxxx and any other information that Fortive or its representatives reasonably requests, and Xxxxxxx shall cooperate with Fortive and its representatives in connection therewith.

(v) In the event that Fortive shall deliver a Distribution Cash Amount Dispute Notice to Xxxxxxx, Fortive and Xxxxxxx shall cooperate in good faith to resolve such dispute as promptly as practicable and, upon such resolution, if any, any adjustments to the Distribution Date Cash Amount shall be made in accordance with the written agreement of Fortive and Xxxxxxx. Subject to the terms set forth in Section 7.6, in connection with Xxxxxxx’x review of the Distribution Cash Amount Dispute Notice, Xxxxxxx and its representatives shall have reasonable access, during normal business hours and upon reasonable notice, to all relevant work papers, schedules, memoranda and other documents prepared by Fortive or its representatives in connection with Fortive’s preparation of the Distribution Cash Amount Dispute Notice and to finance personnel of Fortive and any other information that Xxxxxxx or its representatives reasonably requests, and Fortive shall cooperate with Xxxxxxx and its representatives in connection therewith. If Fortive and Xxxxxxx are unable to resolve any such dispute within fifteen (15) Business Days (or such longer period as Fortive and Xxxxxxx shall mutually agree in writing) of Fortive’s delivery of such Distribution Cash Amount Dispute Notice, such dispute shall be resolved by the Independent Accounting Firm, and the final determination of such Independent Accounting Firm with regard to the matters referenced in the Distribution Cash Amount Dispute Notice shall be final and binding on the Parties as from the date rendered. Any expenses relating to the engagement of the Independent Accounting Firm in respect of its services pursuant to this Section 2.13 shall be shared equally by Xxxxxxx and Fortive. With respect to matters referenced in the Distribution Cash Amount Dispute Notice, the Independent Accounting Firm’s determination, if not in accordance with the position of either Fortive or Xxxxxxx, shall not be in excess of the higher, nor less than the lower, of the amounts set forth by Fortive or Xxxxxxx in the Distribution Cash Amount Dispute Notice, as applicable. The Independent Accounting Firm shall be instructed to complete the performance of its services as promptly as practicable, but in any event, no later than thirty (30) days after submission of such dispute to the Independent Accounting Firm. The Distribution Date Cash Amount, (i) if no Distribution Cash Amount Dispute Notice has been timely delivered by Fortive in accordance with Section 2.13(b)(iii), as originally submitted by Xxxxxxx, or (ii) if a Distribution Cash Amount Dispute Notice has been timely delivered by Fortive, the Distribution Date Cash Amount as adjusted pursuant to the resolution of such dispute in accordance with this Section 2.13(b), shall be deemed to be the “Final Cash Amount.”

(vi) (A) if the Final Cash Amount exceeds the Target Cash Amount, the amount of such excess, plus any interest accrued in accordance with Section 2.13(c), shall be paid by Fortive to Xxxxxxx in accordance

with Section 2.13(b)(vii) or (B) if the Target Cash Amount exceeds the Final Cash Amount, the amount of such excess, plus any interest accrued in accordance with Section 2.13(c), shall be paid by Xxxxxxx to Fortive in accordance with Section 2.13(b)(vii) (the amount of such increases or decreases, as the case may be, the “Cash Adjustment”).

(vii) If payment is required to be made by Fortive in accordance with Section 2.13(b)(vi)(A), Fortive shall, within five (5) Business Days after the determination of the Final Cash Amount pursuant to this Section 2.13, make payment to Xxxxxxx by wire transfer in immediately available funds of the amount payable by Fortive in an amount equal to the Cash Adjustment. If payment is required to be made by Xxxxxxx in accordance with Section 2.13(b)(vi)(B), Xxxxxxx shall, within five (5) Business Days after the determination of the Final Cash Amount pursuant to this Section 2.13, make payment to Fortive by wire transfer in immediately available funds of the amount payable by Xxxxxxx in an amount equal to the Cash Adjustment.

(c) Any payments made by Fortive or Xxxxxxx with respect to the Cash Adjustment shall accrue interest from the Distribution Date to the date of payment at a rate equal to LIBOR. Such interest shall be calculated based on a year of 365 days and the number of days elapsed since the Distribution Date. Any payment made in accordance with this Section 2.13 shall be treated in accordance with the terms of Section 10.21.

ARTICLE III

CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTIONS

Section 3.1 Organizational Documents. At or prior to the Effective Time, all necessary actions shall be taken to adopt the form of amended and restated certificate of incorporation and bylaws filed by Fortive with the Commission as exhibits to the Form 10, to be effective as of the Effective Time.

Section 3.2 Directors. At or prior to the Effective Time, Xxxxxxx shall take all necessary action to cause the board of directors of Fortive to include, at the Effective Time, the individuals identified in the Information Statement as director nominees of Fortive.

Section 3.3 Officers. At or prior to the Effective Time, Xxxxxxx shall take all necessary action to cause the individuals identified as such in the Information Statement to be officers of Fortive as of the Effective Time.

Section 3.4 Resignations and Removals.

(a) On or prior to the Distribution Date or as soon thereafter as practicable, (i) Xxxxxxx shall cause all its employees and any employees of its Subsidiaries (excluding any employees of any member of the Fortive Group) to resign or be removed, effective as of the Effective Time, from all positions as officers or directors of any member of the Fortive Group in which they serve, and (ii) Fortive shall cause all its employees and any employees of its Subsidiaries to resign, effective as of the Effective Time, from all positions as officers or directors of any members of the Xxxxxxx Group in which they serve.

(b) No Person shall be required by any Party to resign from any position or office with another Party if such Person is disclosed in the Information Statement as the Person who is to hold such position or office following the Distribution.

Section 3.5 Ancillary Agreements. At or prior to the Effective Time, Xxxxxxx and Fortive shall enter into, and/or (where applicable) shall cause a member or members of their respective Groups to enter into, the Ancillary Agreements.

ARTICLE IV

THE DISTRIBUTION

Section 4.1 Distribution. On or prior to the Effective Time, in connection with the Distribution, including the transfer of the Fortive Assets to the Fortive Group in the Internal Reorganization whenever made, Fortive shall issue to Xxxxxxx such number of shares of Fortive Common Stock (or Xxxxxxx and Fortive shall take or cause to be taken such other appropriate actions to ensure that Xxxxxxx has the requisite number of shares of Fortive Common Stock) as may be requested by Xxxxxxx after consultation with Fortive in order to effect the Distribution, which shares as of the date of issuance shall represent (together with such shares previously held by Xxxxxxx) all of the issued and outstanding shares of Fortive Common Stock. Subject to the conditions and other terms set forth in this Article IV, Xxxxxxx shall cause the Distribution Agent on the Distribution Date to make the Distribution, including by crediting the appropriate number of shares of Fortive Common Stock to book-entry accounts for each Record Holder or designated transferee or transferees of such Record Holder. For Record Holders who own Xxxxxxx Common Stock through a broker or other nominee, their shares of Fortive Common Stock will be credited to their respective accounts by such broker or nominee. No action by any Record Holder (or such Record Holder’s designated transferee or transferees) shall be necessary to receive the applicable number of shares of Fortive Common Stock (and, if applicable, cash in lieu of any fractional shares) such stockholder is entitled to in the Distribution.

Section 4.2 Fractional Shares. Record Holders who, after aggregating the number of shares of Fortive Common Stock (or fractions thereof) to which such stockholder would be entitled on the Record Date, would be entitled to receive a fraction of a share of Fortive Common Stock in the Distribution, will receive cash in lieu of fractional shares. Fractional shares of Fortive Common Stock will not be distributed in the Distribution nor credited to book-entry accounts. The Distribution Agent shall, as soon as practicable after the Distribution Date (a) determine the number of whole shares and fractional shares of Fortive Common Stock allocable to each Record Holder, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions at then prevailing trading prices on behalf of holders who would otherwise be entitled to fractional share interests, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder’s or owner’s ratable share of the net proceeds of such sale, based upon the average gross selling price per share of Fortive Common Stock after making appropriate deductions for any amount required to be withheld for United States federal income tax purposes. Xxxxxxx shall bear the cost of brokerage fees and transfer Taxes incurred in connection with these sales of fractional shares, which such sales shall occur as soon after the Distribution Date as practicable and as determined by the Distribution Agent. None of Xxxxxxx, Fortive or the applicable Distribution

Agent will guarantee any minimum sale price for the fractional shares of Fortive Common Stock. Neither Xxxxxxx nor Fortive will pay any interest on the proceeds from the sale of fractional shares. The Distribution Agent will have the sole discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares. Neither the Distribution Agent nor the selected broker-dealers will be Affiliates of Xxxxxxx or Fortive.

Section 4.3 Actions in Connection with the Distribution.

(a) Prior to the Distribution Date, Fortive shall file such amendments and supplements to its Form 10 as Xxxxxxx may reasonably request, and such amendments as may be necessary in order to cause the same to become and remain effective as required by Law, including filing such amendments and supplements to its Form 10 as may be required by the Commission or federal, state or foreign securities Laws. Xxxxxxx shall, or at Xxxxxxx’x election, Fortive shall, mail (or deliver by electronic means where not prohibited by Law) to the holders of Xxxxxxx Common Stock, at such time on or prior to the Distribution Date as Xxxxxxx shall determine, the Information Statement included in its Form 10 (or a Notice of Internet Availability of the Information Statement), as well as any other information concerning Fortive, its business, operations and management, the transaction contemplated herein and such other matters as Xxxxxxx shall reasonably determine are necessary and as may be required by Law. Promptly after receiving a request from Xxxxxxx, Fortive shall prepare and, in accordance with applicable Law, file with the Commission any such documentation that Xxxxxxx reasonably determines is necessary or desirable to effectuate the Distribution, and Xxxxxxx and Fortive shall each use commercially reasonable efforts to obtain all necessary approvals from the Commission with respect thereto as soon as practicable.

(b) Fortive shall use commercially reasonable efforts in preparing, filing with the Commission and causing to become effective, as soon as reasonably practicable (but in any case prior to the Effective Time), an effective registration statement or amendments thereof which are required in connection with the establishment of, or amendments to, any employee benefit plans of Fortive.

(c) To the extent not already approved and effective, Fortive shall use commercially reasonable efforts to have approved and made effective, the application for the original listing on the NYSE of the Fortive Common Stock to be distributed in the Distribution, subject to official notice of distribution.

(d) To the extent not already completed, Fortive shall use its commercially reasonable efforts to take all actions to effectuate the transactions contemplated by the Fortive Financing Arrangements, pursuant to the terms and conditions of the agreements governing the foregoing.

(e) Nothing in this Section 4.3 shall be deemed to shift or otherwise impose Liability for any portion of Fortive’s Form 10 or Information Statement to Xxxxxxx.

Section 4.4 Sole Discretion of Xxxxxxx. Xxxxxxx, in its sole and absolute discretion, shall determine the Distribution Date, the Effective Time and all other terms of the

Distribution, including the form, structure and terms of any transactions and/or offerings to effect the Distribution and the timing of and conditions to the consummation thereof. In addition, Xxxxxxx may, in accordance with Section 10.10, at any time and from time to time until the completion of the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution, including by accelerating or delaying the timing of the consummation of all or part of the Distribution. Without limiting the foregoing, Xxxxxxx shall have the right not to complete the Distribution if, at any time prior to the Effective Time, the Board shall have determined, in its sole discretion, that the Distribution is not in the best interests of Xxxxxxx or its stockholders, that a sale or other alternative is in the best interests of Xxxxxxx or its stockholders or that it is not advisable at that time for Fortive Business to separate from Xxxxxxx.

Section 4.5 Conditions to Distribution. Subject to Section 4.4, the obligation of Xxxxxxx to consummate the Distribution is subject to the prior or simultaneous satisfaction, or, to the extent permitted by applicable Law, waiver by Xxxxxxx, in its sole and absolute discretion, of the following conditions. None of Fortive, any other member of the Fortive Group, or any third party shall have any right or claim to require the consummation of the Distribution, which shall be effected at the sole discretion of the Board. Any determination made by Xxxxxxx prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.5 shall be conclusive and binding on the Parties hereto. The conditions are for the sole benefit of Xxxxxxx and shall not give rise to or create any duty on the part of Xxxxxxx or the Board to waive or not waive any such condition. Each Party will use its commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the following conditions:

(a) the Commission shall have declared effective the Form 10, of which the information statement forms a part, and no stop order relating to the registration statement will be in effect, no proceedings seeking such stop order shall be pending before or threatened by the Commission, and the information statement (or the Notice of Internet Availability of the Information Statement) shall have been distributed to holders of Xxxxxxx Common Stock;

(b) the Fortive Common Stock shall have been approved and accepted for listing by the NYSE, subject to official notice of issuance;

(d) the receipt of the opinion of Xxxxxxx tax counsel, in form and substance acceptable to Xxxxxxx, substantially to the effect that the Contribution and Distribution will, based upon and subject to the assumptions, representations and qualifications set forth therein, qualify as a tax-free transaction under Section 355 and Section 368(a)(1)(D) of Code;

(e) all permits, registrations and consents required under the securities or blue sky laws of states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have been received;

(f) no order, injunction, or decree issued by any Governmental Entity of competent jurisdiction, or other legal restraint or prohibition preventing the consummation of the Distribution or any of the related transactions shall be pending, threatened, issued or in effect, and no other event outside the control of Xxxxxxx shall have occurred or failed to occur that prevents the consummation of all or any portion of the Distribution;

(g) the Internal Reorganization shall have been effectuated prior to the Distribution, except for such steps (if any) as Xxxxxxx in its sole discretion shall have determined need not be completed or may be completed after the Effective Time;

(h) the Board shall have declared the Distribution and approved all related transactions (and such declaration or approval shall not have been withdrawn);

(i) Xxxxxxx shall have elected the board of directors of Fortive, as described in the Form 10, immediately prior to the Distribution;

(j) Fortive shall have entered into all Ancillary Agreements in connection with the Distribution prior to or concurrent with the Distribution;

(k) the Fortive Financing Arrangements shall have been executed and delivered, and the proceeds thereof shall have been received by Fortive and distributed to Xxxxxxx; and

(l) no events or developments shall have occurred or shall exist that, in the sole and absolute judgment of the Board, make it inadvisable to effect the Distribution or would result in the Distribution and related transactions not being in the best interest of Xxxxxxx or its stockholders.

ARTICLE V

CERTAIN COVENANTS

Section 5.1 Cooperation. From and after the Effective Time, and subject to the terms of and limitations contained in this Agreement and the Ancillary Agreements, each Party shall, and shall cause each of its respective Affiliates and employees to, (i) provide reasonable cooperation and assistance to the other Party (and any member of its respective Group) in connection with the completion of the transactions contemplated herein and in each Ancillary Agreement, (ii) reasonably assist the other Party in the orderly and efficient transition in becoming an independent company to the extent set forth in the Transition Services Agreement or as otherwise set forth herein (including, but not limited to, complying with Articles VI, VII and IX) and (iii) reasonably assist the other Party to the extent such Party is providing or has provided services, as applicable, pursuant to the Transition Services Agreement in connection with requests for information from, audits or other examinations of, such other Party by a Governmental Entity; in each case, except as otherwise set forth in this Agreement or may otherwise be agreed to by the Parties in writing, at no additional cost to the Party requesting such assistance other than for the actual out-of-pocket costs (which shall not include the costs of salaries and benefits of employees of such Party or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing) incurred by any such Party, if applicable.

Section 5.2 Retained Names.

(a) No later than twenty (20) days following the Distribution Date, Fortive shall, and shall cause the members of the Fortive Group, to change their names and cause their certificates of incorporation and bylaws (or equivalent organizational documents), as applicable, to be amended to remove any reference to the Xxxxxxx Retained Names. Following the Distribution Date, Fortive shall, and shall cause the members of the Fortive Group, to (i) immediately cease to hold themselves out as having any affiliation with Xxxxxxx or any members of the Xxxxxxx Group (provided that this obligation shall not apply to inventory of printed materials of the Fortive Group existing as of the Distribution Date), and (ii) as soon as practicable, but in no event later than sixty (60) days following the Distribution Date, cease to make any use of any Xxxxxxx Retained Names. In furtherance thereof, as soon as practicable but in no event later than six (6) months following the Distribution Date, Fortive shall, and shall cause the members of the Fortive Group, to remove, strike over, or otherwise obliterate all Xxxxxxx Retained Names from all assets and other materials owned by or in the possession of any member of the Fortive Group, including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, promotional materials, manuals, forms, websites, email, computer software and other materials and systems; provided, however, that Fortive shall promptly after the Distribution Date post a disclaimer in a form and manner reasonably acceptable to Xxxxxxx on the “xxx.xxxxxxx.xxx” website informing its customers that as of the Effective Time and thereafter Fortive, and not Xxxxxxx, is responsible for the operation of the Fortive Business, including such website and any applicable services. Any use by the members of the Fortive Group of any of the Xxxxxxx Retained Names as permitted in this Section 5.2(a) is subject to their use of the Xxxxxxx Retained Names in a form and manner, and with standards of quality, of that in effect for the Xxxxxxx Retained Names as of the Distribution Date. Fortive and the members of the Fortive Group shall not use the Xxxxxxx Retained Names in a manner that may reflect negatively on such name and marks or on Xxxxxxx or any member of the Xxxxxxx Group. Upon expiration or termination of the rights granted to the Fortive Group pursuant to this Section, Fortive hereby assigns, and shall cause the other members of the Fortive Group to assign, to Xxxxxxx their rights (if any) to any Trademarks forming a part of or associated with the Xxxxxxx Retained Names. Xxxxxxx shall have the right to terminate the foregoing license, effective immediately, if any member of the Fortive Group fails to comply with the foregoing terms and conditions or otherwise fails to comply with any reasonable direction of Xxxxxxx in relation to use of the Xxxxxxx Retained Names. Fortive shall indemnify, defend and hold harmless Xxxxxxx and the members of the Xxxxxxx Group from and against any and all Indemnifiable Losses arising from or relating to the use by any member of the Fortive Group of the Xxxxxxx Retained Names pursuant to this Section 5.2(a).

(b) Each of the Parties acknowledges and agrees that the remedy at Law for any breach of the requirements of this Section 5.2 would be inadequate and agrees and consents that without intending to limit any additional remedies that may be available, Xxxxxxx and the members of the Xxxxxxx Group shall be entitled to a temporary or permanent injunction, without proof of actual damage or inadequacy of legal remedy, and without posting any bond or other undertaking, in any Action which may be brought to enforce any of the provisions of this Section 5.2.

Section 5.3 No Restriction on Competition. It is the explicit intent of each of the Parties hereto that the provisions of this Agreement shall not include any non-competition or other similar restrictive arrangements with respect to the range of business activities which may be conducted by the Parties hereto. Accordingly, each of the Parties hereto acknowledges and agrees that nothing set forth in this Agreement shall be construed to create any explicit or implied restriction or other limitation on (i) the ability of any party hereto to engage in any business or other activity which competes with the business of any other Party hereto or (ii) the ability of any party to engage in any specific line of business or engage in any business activity in any specific geographic area.

Section 5.4 No Hire and No Solicitation of Employees. For and during the six (6) month period following the Distribution (“No Hire Period”), none of Xxxxxxx, Fortive or any member of their respective Groups will, without the prior written consent of the other applicable Party, either directly or indirectly, on their own behalf or in the service or on behalf of others, agree to an employment, contractual or other relationship or otherwise hire, retain or employ any employee of any other Party’s respective Group. For and during the eighteen (18) month period following the Distribution, none of Xxxxxxx, Fortive or any member of their respective Groups will, without the prior written consent of the other applicable Party, either directly or indirectly, on their own behalf or in the service or on behalf of others, solicit, aid, induce or encourage any employee of any other Party’s respective Group to leave his or her employment; provided, however, that nothing in this Section 5.4 shall restrict or preclude Xxxxxxx, Fortive or any member of their respective Groups from soliciting or hiring (i) any employee who responds to a general solicitation or advertisement or contact by a recruiter, whether in-house or external, that is not specifically targeted or focused on the employees employed by any other Party’s respective Group (and nothing shall prohibit such generalized searches for employees through various means, including, but not limited to, the use of advertisements in the media (including trade media) or the engagement of search firms to engage in such searches); provided that the applicable Party has not encouraged or advised such firm to approach any such employee; (ii) any employee whose employment has been terminated by the other Party’s respective Group without cause; or (iii) any employee whose employment has been terminated by such employee after sixty (60) days from the date of termination of such employee’s employment.

ARTICLE VI

INDEMNIFICATION

Section 6.1 Release of Pre-Distribution Claims.

(a) Except (i) as provided in Section 6.1(b), (ii) as may be otherwise expressly provided in this Agreement or in any Ancillary Agreement and (iii) for any matter for which any Party is entitled to indemnification pursuant to this Article VI:

(i) Xxxxxxx, for itself and each member of the Xxxxxxx Group, its Affiliates as of the Effective Time and, to the extent permitted by Law, all Persons who at any time prior to the Effective Time were directors, officers, agents or employees of any member of the Xxxxxxx Group (in their respective

capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge Fortive and the other members of the Fortive Group, its Affiliates and all Persons who at any time prior to the Effective Time were stockholders, directors, officers, agents or employees of any member of the Fortive Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all Xxxxxxx Retained Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Time, including in connection with the Internal Reorganization and the Distribution and any of the other transactions contemplated hereunder and under the Ancillary Agreements (such liabilities, the “Xxxxxxx Released Liabilities”) and in any event shall not, and shall cause its respective Subsidiaries not to, bring any Action against any member of the Fortive Groups in respect of any Xxxxxxx Released Liabilities; provided, however, that nothing in this Section 6.1(a)(i) shall relieve any Person released in this Section 6.1(a)(i) who, after the Effective Time, is a director, officer or employee of any member of the Fortive Group and is no longer a director, officer or employee of any member of the Xxxxxxx Group from Liabilities arising out of, relating to or resulting from his or her service as a director, officer or employee of any member of the Fortive Group after the Effective Time. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to limit Xxxxxxx, any member of the Xxxxxxx Group, or their respective Affiliates from commencing any Actions against any Fortive officer, director, agent or employee, or their respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to, (i) theft of Xxxxxxx Know-How or (ii) intentional criminal acts by any such officers, directors, agents or employees.

(ii) Fortive, for itself and each member of the Fortive Group, its Affiliates as of the Effective Time and, to the extent permitted by Law, all Persons who at any time prior to the Effective Time were directors, officers, agents or employees of any member of the Fortive Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge Xxxxxxx and the other members of the Xxxxxxx Group, its Affiliates and all Persons who at any time prior to the Effective Time were stockholders, directors, officers, agents or employees of any member of the Xxxxxxx Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all Fortive Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Time, including in connection

with the Internal Reorganization and the Distribution and any of the other transactions contemplated hereunder and under the Ancillary Agreements (such liabilities, the “Fortive Released Liabilities”) and in any event shall not, and shall cause its respective Subsidiaries not to, bring any Action against any member of the Xxxxxxx Group in respect of any Fortive Released Liabilities; provided, however that for purposes of this Section 6.1(a)(ii), the members of the Fortive Group shall also release and discharge any officers or other employees of any member of the Xxxxxxx Group, to the extent any such officers or employees served as a director or officer of any members of the Fortive Group prior to the Distribution, from any and all Liability, obligation or responsibility for any and all past actions or failures to take action, in each case in their capacity as a director or officer of any such member of the Fortive Group, prior to the date of the Distribution, including actions or failures to take action that may be deemed to have been negligent or grossly negligent.

(b) Nothing contained in this Agreement, including Section 6.1(a), Section 2.4(a) or Section 2.5, shall impair or otherwise affect any right of any Party and, as applicable, a member of such Party’s Group, as well as their respective heirs, executors, administrators, successors and assigns, to enforce this Agreement, any Ancillary Agreement or any agreements, arrangements, commitments or understandings contemplated in this Agreement or in any Ancillary Agreement to continue in effect after the Effective Time. In addition, nothing contained in Section 6.1(a) shall release any person from:

(i) any Liability Assumed, Transferred or allocated to a Party or a member of such Party’s Group pursuant to or as contemplated by, or any other Liability of any member of such Group under, this Agreement or any Ancillary Agreement including (A) with respect to Xxxxxxx, any Xxxxxxx Retained Liability and (B) with respect to Fortive, any Fortive Liability;

(ii) any Liability provided for in or resulting from any other Contract or understanding that is entered into after the Effective Time between any Party (and/or a member of such Party’s or Parties’ Group), on the one hand, and any other Party or Parties (and/or a member of such Party’s or Parties’ Group), on the other hand;

(iii) any Liability with respect to any Continuing Arrangements;

(iv) any Liability that the Parties may have with respect to indemnification pursuant to this Agreement or otherwise for Actions brought against the Parties by third Persons, which Liability shall be governed by the provisions of this Agreement and, in particular, this Article VI and, if applicable, the appropriate provisions of the Ancillary Agreements; and

(v) any Liability the release of which would result in a release of any Person other than the Persons released in Section 6.1(a); provided that the Parties agree not to bring any Action or permit any other member of their respective Group to bring any Action against a Person released in Section 6.1(a) with respect to such Liability.

In addition, nothing contained in Section 6.1(a) shall release Xxxxxxx from indemnifying any director, officer or employee of the Fortive Group who was a director, officer or employee of Xxxxxxx or any of its Affiliates prior to the Distribution Date, as the case may be, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification pursuant to then-existing obligations; it being understood that if the underlying obligation giving rise to such Action is a Fortive Liability, Fortive shall indemnify Xxxxxxx for such Liability (including Xxxxxxx’x costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VI.

(c) Each Party shall not, and shall not permit any member of its Group to, make any claim for offset, or commence any Action, including any claim of contribution or any indemnification, against any other Party or any member of any other Party’s Group, or any other Person released pursuant to Section 6.1(a), with respect to any Liabilities released pursuant to Section 6.1(a).

(d) If any Person associated with a Party (including any director, officer or employee of a Party) initiates any Action with respect to claims released by this Section 6.1, the Party with which such Person is associated shall be responsible for the fees and expenses of counsel of the other Party (and/or the members of such Party’s Group, as applicable) and such other Party shall be indemnified for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article VI.

Section 6.2 Indemnification by Xxxxxxx. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, following the Effective Time, Xxxxxxx shall indemnify, defend and hold harmless the Fortive Indemnitees from and against any and all Indemnifiable Losses of the Fortive Indemnitees to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Xxxxxxx Retained Liabilities, including the failure of any member of the Xxxxxxx Group or any other Person to pay, perform or otherwise discharge any Xxxxxxx Retained Liability in accordance with its respective terms, whether arising prior to, on or after the Effective Time, (b) any Xxxxxxx Retained Asset or Xxxxxxx Retained Business, whether arising prior to, on or after the Effective Time, or (c) any breach by Xxxxxxx of any provision of this Agreement or any Ancillary Agreement unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder.

Section 6.3 Indemnification by Fortive. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, following the Effective Time, Fortive shall and shall cause the other members of the Fortive Group to indemnify, defend and hold harmless the Xxxxxxx Indemnitees from and against any and all Indemnifiable Losses of the Xxxxxxx Indemnitees to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Fortive Liabilities, including the failure of any member of the Fortive

Group or any other Person to pay, perform or otherwise discharge any Fortive Liability in accordance with its respective terms, whether prior to, on or after the Effective Time, (b) any Fortive Asset or Fortive Business, whether arising prior to, on or after the Effective Time, (c) any breach by Fortive of any provision of this Agreement or any Ancillary Agreement unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder, or (d) any Liabilities of the Xxxxxxx Group under any of the agreements listed on Schedule 6.3.

Section 6.4 Procedures for Indemnification.

(a) Direct Claims. Other than with respect to Third Party Claims, which shall be governed by Section 6.4(b), each Xxxxxxx Indemnitee and Fortive Indemnitee (each, an “Indemnitee”) shall notify in writing, with respect to any matter that such Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement or any Ancillary Agreement, the Party which is or may be required pursuant to this Article VI or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”), within forty-five (45) days of such determination, stating in such written notice the amount of the Indemnifiable Loss claimed, if known, and, to the extent practicable, method of computation thereof, and referring to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, however, that the failure to provide such written notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. The Indemnifying Party will have a period of forty-five (45) days after receipt of a notice under this Section 6.4(a) within which to respond thereto. If the Indemnifying Party fails to respond within such period, the Liability specified in such notice from the Indemnitee shall be conclusively determined to be a Liability of the Indemnifying Party hereunder. If such Indemnifying Party responds within such period and rejects such claim in whole or in part, the disputed matter shall be resolved in accordance with Article VIII.

(b) Third Party Claims. If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (a “Third Party Claim”) as to which such Indemnitee is or may be entitled to indemnification pursuant to this Agreement or any Ancillary Agreement, such Indemnitee shall notify the Indemnifying Party in writing (which notice obligation may be satisfied by providing copies of all notices and documents received by the Indemnitee relating to the Third Party Claim), and in reasonable detail, of the Third Party Claim promptly (and in any event within the earlier of (x) forty-five (45) days or (y) 2 Business Days prior to the final date of the applicable response period under such Third Party Claim) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that the failure to provide notice of any such Third Party Claim pursuant to this or the preceding sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. For all purposes of this Section 6.4(b), each Party shall be deemed to have notice of the matters set forth on Schedule 1.1(84)(vii).

(c) Other than in the case of (i) Taxes addressed in the Tax Matters Agreement, which shall be addressed as set forth therein or (ii) indemnification by a beneficiary Party of a guarantor Party pursuant to Section 2.10(c) (the defense of which shall be controlled by the beneficiary Party), the Indemnifying Party shall be entitled, if it so chooses, to assume the defense thereof, and if it does not assume the defense of such Third Party Claim, to participate in the defense of any Third Party Claim in accordance with the terms of Section 6.5 at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the Indemnitee, within thirty (30) days of the receipt of an indemnification notice from such Indemnitee; provided, however, that the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is an Action by a Governmental Entity, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnitee. In connection with the Indemnifying Party’s defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, at its own expense and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Information, materials and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided, however, that in the event of a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), or in the event that any Third Party Claim seeks equitable relief which would restrict or limit the future conduct of the Indemnitee’s business or operations, such Indemnitee(s) shall be entitled to retain, at the Indemnifying Party’s expense, separate counsel as required by the applicable rules of professional conduct with respect to such matter; provided, further, that if the Indemnifying Party has assumed the defense of the Third Party Claim but has specified, and continues to assert, any reservations or exceptions to such defense or to its liability therefor, then, in any such case, the reasonable fees and expenses of one separate counsel for all Indemnitees shall be borne by the Indemnifying Party. The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to this Section 6.4(c) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnitee, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnitee unless such settlement (A) completely and unconditionally releases the Indemnitee in connection with such matter, (B) provides relief consisting solely of money damages borne by the Indemnifying Party and (C) does not involve any admission by the Indemnitee of any wrongdoing or violation of Law.

(d) If an Indemnifying Party fails for any reason to assume responsibility for defending a Third Party Claim within the period specified in this Section 6.4, such Indemnitee may defend such Third Party Claim at the cost and expense of the Indemnifying Party. If an Indemnifying Party has failed to assume the defense of the Third Party Claim within the time period specified in clause (c) above, it shall not be a defense to any obligation to pay any amount in respect of such Third Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or that such Third Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.

(e) Except as otherwise set forth in Section 7.6 and Section 8.3, or to the extent set forth in any Ancillary Agreement, absent fraud or willful misconduct by an Indemnifying Party, the indemnification provisions of this Article VI shall be the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or losses resulting from any breach of this Agreement or any Ancillary Agreement and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the foregoing other than under this Article VI against any Indemnifying Party. For the avoidance of doubt, all disputes in respect of this Article VI shall be resolved in accordance with Article VIII.

(f) Notwithstanding the foregoing, to the extent any Ancillary Agreement provides procedures for indemnification that differ from the provisions set forth in this Section 6.4, the terms of the Ancillary Agreement will govern.

(g) The provisions of this Article VI shall apply to Third Party Claims that are already pending or asserted as well as Third Party Claims brought or asserted after the date of this Agreement. There shall be no requirement under this Section 6.4 to give a notice with respect to any Third Party Claim that exists as of the Effective Time. The Parties acknowledge that Liabilities for Actions (regardless of the parties to the Actions) may be partly Xxxxxxx Liabilities and partly Fortive Liabilities. If the Parties cannot agree on the allocation of any such Liabilities for Actions, they shall resolve the matter pursuant to the procedures set forth in Article VIII. Neither Party shall, nor shall either Party permit its Subsidiaries to, file Third Party claims or cross-claims against the other Party or its Subsidiaries in an Action in which a Third Party Claim is being resolved.

Section 6.5 Cooperation in Defense and Settlement.

(a) With respect to any Third Party Claim that implicates both Parties in any material respect due to the allocation of Liabilities, responsibilities for management of defense and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use commercially reasonable efforts to cooperate fully and maintain a joint defense (in a manner that, to the extent reasonably practicable, will preserve for all Parties any Privilege with respect thereto). The Party that is not responsible for managing the defense of any such Third Party Claim shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to assist in the defense of such claims. Notwithstanding the foregoing, nothing in this Section 6.5(a) shall derogate from any Party’s rights to control the defense of any Action in accordance with Section 6.4.

(b) Notwithstanding anything to the contrary in this Agreement, with respect to any Action (i) by a Governmental Entity against Fortive relating to matters involving anti-bribery, anti-corruption, anti-money laundering, export control and similar laws, where the facts and circumstances giving rise to the Action occurred prior to the Effective Time or (ii) where the resolution of such Action by order, judgment, settlement or otherwise, could include any condition, limitation or other stipulation that could, in the reasonable judgment of Xxxxxxx,

adversely impact the conduct of the Xxxxxxx Retained Businesses, Xxxxxxx shall have, at Xxxxxxx’x expense, the reasonable opportunity to consult, advise and comment in all preparation, planning and strategy regarding any such Action, including with regard to any drafts of notices and other conferences and communications to be provided or submitted by Fortive to any third party involved in such Action (including any Governmental Entity), to the extent that Xxxxxxx’x participation does not affect any privilege in a material and adverse manner; provided that to the extent that any such action requires the submission by Fortive of any content relating to any current or former officer or director of Xxxxxxx, such content will only be submitted in a form approved by Xxxxxxx in its reasonable discretion. With regard to the matters specified in the preceding clauses (i) and (ii), Xxxxxxx shall have a right to consent to any compromise or settlement related thereto.

(c) Each of Xxxxxxx and Fortive agrees that at all times from and after the Effective Time, if an Action is commenced by a third party naming two (2) or more Parties (or any member of such Parties’ respective Groups) as defendants and with respect to which one or more named Parties (or any member of such Party’s respective Group) is a nominal defendant and/or such Action is otherwise not a Liability allocated to such named Party under this Agreement or any Ancillary Agreement, then the other Party or Parties shall use commercially reasonable efforts to cause such nominal defendant to be removed from such Action, as soon as reasonably practicable.

Section 6.6 Indemnification Payments. Indemnification required by this Article VI shall be made by periodic payments of the amount of Indemnifiable Losses in a timely fashion during the course of the investigation or defense, as and when bills are received or an Indemnifiable Loss incurred.

Section 6.7 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.

(a) Any recovery by any Indemnitee for any Indemnifiable Loss subject to indemnification pursuant to this Article VI shall be calculated (i) net of Insurance Proceeds actually received by such Indemnitee with respect to any Indemnifiable Loss (which such proceeds shall be reduced by the present value, based on that Party’s then cost of short term borrowing, of future premium increases known at such time) and (ii) net of any proceeds actually received by the Indemnitee from any third party with respect to any such Liability corresponding to the Indemnifiable Loss (“Third Party Proceeds”). Accordingly, the amount which any Indemnifying Party is required to pay pursuant to this Article VI to any Indemnitee pursuant to this Article VI shall be reduced by any Insurance Proceeds or Third Party Proceeds theretofore actually recovered by or on behalf of the Indemnitee corresponding to the related Indemnifiable Loss. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party corresponding to any Indemnifiable Loss (an “Indemnity Payment”) and subsequently receives Insurance Proceeds or Third Party Proceeds, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the Indemnity Payment was made.

(b) Any Indemnity Payment shall be increased as necessary so that after making all payments corresponding to Taxes imposed on or attributable to such Indemnity Payment, the Indemnitee receives an amount equal to the sum it would have received had no such Taxes been imposed.

(c) Insurers and Other Third Parties Not Relieved. The Parties hereby agree that an insurer or other third party that would otherwise be obligated to pay any amount shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect thereto by virtue of any provision contained in this Agreement or any Ancillary Agreement, and that no insurer or any other Third Party shall be entitled to a “windfall” (e.g., a benefit they would not otherwise be entitled to receive, or the reduction or elimination of an insurance coverage obligation that they would otherwise have, in the absence of the indemnification or release provisions) by virtue of any provision contained in this Agreement or any Ancillary Agreement. Each Party shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to collect or recover, or allow the Indemnifying Party to collect or recover, or cooperate with each other in collecting or recovering, any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification may be available under this Article VI. Notwithstanding the foregoing, an Indemnifying Party may not delay making any indemnification payment required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Actions to collect or recover Insurance Proceeds, and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement.

Section 6.8 Contribution. If the indemnification provided for in this Article VI is unavailable for any reason to an Indemnitee (other than failure to provide notice with respect to any Third Party Claims in accordance with Section 6.4(b)) in respect of any Indemnifiable Loss, then the Indemnifying Party shall, in accordance with this Section 6.8, contribute to the Indemnifiable Losses incurred, paid or payable by such Indemnitee as a result of such Indemnifiable Loss in such proportion as is appropriate to reflect the relative fault of Fortive and each other member of the Fortive Group, on the one hand, and Xxxxxxx and each other member of the Xxxxxxx Group, on the other hand, in connection with the circumstances which resulted in such Indemnifiable Loss. With respect to any Indemnifiable Losses arising out of or related to information contained in the Distribution Disclosure Documents or other securities law filing, the relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact relates to information supplied by the Fortive Business of a member of the Fortive Group, on the one hand, or the Xxxxxxx Retained Business or a member of the Xxxxxxx Group, on the other hand.

Section 6.9 Additional Matters; Survival of Indemnities.

(a) The indemnity agreements contained in this Article VI shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee; and (ii) the knowledge by the Indemnitee of Indemnifiable Losses for which it might be entitled to indemnification hereunder. The indemnity agreements contained in this Article VI shall survive the Distribution.

(b) The rights and obligations of any member of the Xxxxxxx Group or any member of the Fortive Group, in each case, under this Article VI shall survive (i) the sale or other Transfer by any Party or its Affiliates of any Assets or businesses or the assignment by it of any Liabilities and (ii) any merger, consolidation, business combination, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of its Subsidiaries.

Section 6.10 Environmental Matters.

(a) Exchange of Information. Without limiting any other provision of this Agreement, each of Xxxxxxx and Fortive agrees to provide, or cause to be provided, at any time before, on, or after the Effective Time, as soon as reasonably practicable after written request therefore, reasonable access to any non-privileged information in the possession or under the control of such respective Group and reasonable access to its employees to the extent that (i) such information relates to, or such employees have relevant knowledge regarding, specific alleged Environmental Liabilities, including the requesting party’s alleged or potential link to environmental contamination at an Off-Site Location or real property that was allegedly owned or operated by the Xxxxxxx Group and any operating group, business unit, division, Subsidiary, line of business or investment of Xxxxxxx or any of its Subsidiaries (including any member of the Fortive Group) prior to the Effective Time; or (ii) such information relates to, or such employees have relevant knowledge regarding, the impact that any alleged Environmental Liability could have on the operations, activities or liability exposure of the requesting party; and (iii) the information and access to employees can be provided without significant disruption to the Group’s business or operations.

(b) Substitution.

(i) Fortive shall use its best efforts to obtain any consents, transfers, assignments, assumptions, waivers, or other legal instruments necessary to cause Fortive or the appropriate subsidiary of Fortive to be fully substituted for Xxxxxxx or other member of the Xxxxxxx Group with respect to: (i) any order, decree, judgment, agreement or Action with respect to Fortive Environmental Liabilities that are in effect as of the Effective Time; or (ii) Environmental Permits, financial assurance obligations or instruments, or other environmental approvals or filings associated with the Fortive Assets. Fortive shall inform the applicable Governmental Entity about its assumption of the Environmental Liabilities associated with the matters listed on Section 6.10(b) and request that the Governmental Entities direct all communications, requirements, notifications and/or official letters related to such matters to Fortive. Xxxxxxx shall use its best efforts to provide necessary assistance or signatures to Fortive to achieve the purposes of this section.

(ii) Until such time as Fortive and Xxxxxxx complete the substitutions outlined in Section 6.10(b)(i) above, Fortive shall comply with all applicable Environmental Laws, including all reporting obligations, and the terms and conditions of all orders, decrees, judgments, agreements, actions, Environmental Permits, financial assurances, obligations, instruments or other environmental approvals or filings that remain in Xxxxxxx’x name relating to the Fortive Assets and the Fortive Environmental Liabilities.

ARTICLE VII

PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE

Section 7.1 Preservation of Corporate Records.

(a) Except to the extent otherwise contemplated by any Ancillary Agreement, a Party providing Records or access to Information to another Party under this Article VII shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses (which shall not include the costs of salaries and benefits of employees of such Party or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as are reasonably incurred in providing such Records or access to Information.

(b) Except as otherwise required or agreed in writing, or as otherwise provided in any Ancillary Agreement, with regard to any Information referenced in Section 7.3, each Party shall use its commercially reasonable efforts, at such Party’s sole cost and expense, to retain, until the latest of, as applicable, (i) the date on which such Information is no longer required to be retained pursuant to the applicable record retention policy of Xxxxxxx or such other member of the Xxxxxxx Group, respectively, as in effect immediately prior to the Distribution, including, without limitation, pursuant to any “Litigation Hold” issued by Xxxxxxx or any of its Subsidiaries prior to the Distribution, (ii) the concluding date of any period as may be required by any applicable Law, (iii) the concluding date of any period during which such Information relates to a pending or threatened Action which is known to the members of the Xxxxxxx Group or the Fortive Group, as applicable, in possession of such Information at the time any retention obligation with regard to such Information would otherwise expire, and (iv) the concluding date of any period during which the destruction of such Information could interfere with a pending or threatened investigation by a Governmental Entity which is known to the members of the Xxxxxxx Group or the Fortive Group, as applicable, in possession of such Information at the time any retention obligation with regard to such Information would otherwise expire; provided that with respect to any pending or threatened Action arising after the Distribution, clause (iii) of this sentence applies only to the extent that whichever member of the Xxxxxxx Group or the Fortive Group, as applicable, is in possession of such Information has been notified in writing pursuant to a “Litigation Hold” by the other Party of the relevant pending or threatened Action. The Parties hereto agree that upon written request from the other that certain Information relating to the Fortive Business, the Xxxxxxx Retained Businesses or the transactions contemplated hereby be retained in connection with an Action, the Parties shall use reasonable efforts to preserve and not to destroy or dispose of such Information without the consent of the requesting Party.

(c) Xxxxxxx and Fortive intend that any transfer of Information that would otherwise be within the attorney-client or attorney work product privileges shall not operate as a waiver of any potentially applicable privilege.

Section 7.2 Financial Statements and Accounting. Each Party agrees to provide the following reasonable assistance and, subject to Section 7.6, reasonable access to its properties, Records, other Information and personnel set forth in this Section 7.2, from the Effective Time until the completion of each Party’s audit for the fiscal year ending December 31, 2016, (i) in connection with the preparation and audit of each Party’s quarterly and annual financial statements for the fiscal years ended December 31, 2016, and the filing of such financial statements and the audit of each Party’s internal controls over financial reporting and management’s assessment thereof and management’s assessment of each Party’s disclosure controls and procedures, if required, and (ii) to the extent reasonably necessary to respond (and for the limited purpose of responding) to any written request or official comment from a Governmental Entity, such as in connection with responding to a comment letter from the Commission. Notwithstanding the foregoing, in the event that either Party changes its independent auditors within one (1) year following the Distribution Date, then such Party may request reasonable access on the terms set forth in this Section 7.2 for a period of up to one hundred and eighty (180) days from such change. Without limiting the foregoing and from the Effective Time until the completion of each Party’s audit for the fiscal year ending December 31, 2016, each Party agrees as follows:

(a) Access to Personnel and Records. Except to the extent otherwise contemplated by the Ancillary Agreements and subject to Section 7.6, each Party shall authorize and request its respective auditors to make reasonably available to the other Party’s auditors (the “Other Party’s Auditors”) both the personnel who performed or are performing the annual audits of such audited Party (each Party with respect to its own audit, the “Audited Party”) and work papers related to the annual audits of such Audited Party (subject to the execution of any reasonable and customary access letters that such Audited Party’s auditors may require in connection with the review of such work papers by such Other Party’s Auditors), in all cases within a reasonable time prior to such Audited Party’s auditors’ opinion date, so that the Other Party’s Auditors are able to perform the procedures they reasonably consider necessary to take responsibility for the work of the Audited Party’s auditors as it relates to their auditors’ report on such other Party’s financial statements, all within sufficient time to enable such other Party to meet its timetable for the filing of its annual financial statements with the Commission.

(b) Current, Quarterly and Annual Reports. At least three (3) Business Days prior to the earlier of public dissemination or filing with the Commission, each Party shall deliver to the other Party, a reasonably complete draft of any earnings news release, any filing with the Commission containing financial statements, including, but not limited to current reports on Form 8-K, quarterly reports on 10-Q and annual reports on Form 10-K or any other annual report purporting to fulfill the requirements of 17 CFR 240-14c-3. Each Party shall notify the other Party, as soon as reasonably practicable after becoming aware thereof, of any material accounting differences between the financial statements to be included in such Party’s annual report on Form 10-K and the pro-forma financial statements included, as applicable, in the Form 10 or the Form 8-K to be filed by Xxxxxxx with the Commission on or about the time of the Distribution. If any such differences are notified by any Party, the Parties shall confer and/or

meet as soon as reasonably practicable thereafter, and in any event prior to the filing of any Annual Report, to consult with each other in respect of such differences and the effects thereof on the Parties’ applicable Annual Reports.

(c) Nothing in this Article VII shall require any Party to violate any agreement with any third party regarding the confidentiality of confidential and proprietary Information relating to that third party or its business; provided, however, that in the event that a Party is required under this Section 7.2 to disclose any such Information, such Party shall use commercially reasonable efforts to seek to obtain such third party’s written consent to the disclosure of such Information.

(d) The Parties acknowledge that Information provided under this Section 7.2 may constitute material, nonpublic information, and trading in the securities of a Party (or the securities of its affiliates, subsidiaries or partners) while in possession of such material, nonpublic material information may constitute a violation of the U.S. federal securities laws.

Section 7.3 Provision of Corporate Records. Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article VI shall govern) or for matters related to provision of Tax Records (in which event the provisions of the Tax Matters Agreement shall govern) and subject to appropriate restrictions for Privileged Information or Confidential Information:

(a) After the Effective Time, and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Fortive for specific and identified Information:

(i) that (x) relates to Fortive or the Fortive Business, as the case may be, prior to the Effective Time or (y) is necessary for Fortive to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Xxxxxxx and/or Fortive are parties, Xxxxxxx shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Fortive has a reasonable need for such originals) in the possession or control of Xxxxxxx or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Fortive; provided that, to the extent any originals are delivered to Fortive pursuant to this Agreement or the Ancillary Agreements, Fortive shall, at its own expense, return them to Xxxxxxx within a reasonable time after the need to retain such originals has ceased; provided further that, such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the first anniversary of the date of this Agreement; provided further that, in the event that Xxxxxxx, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 7.2) would violate any Law or Contract with a third party or could reasonably result in the waiver of any attorney-client privilege, rights under the work product doctrine or other applicable privilege, Xxxxxxx shall not be obligated to provide such Information requested by Fortive;

(ii) that (x) is required by Fortive with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Fortive (including under applicable securities laws) by a Governmental Entity having jurisdiction over Fortive, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Xxxxxxx shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Fortive has a reasonable need for such originals) in the possession or control of Xxxxxxx or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Fortive; provided that, to the extent any originals are delivered to Fortive pursuant to this Agreement or the Ancillary Agreements, Fortive shall, at its own expense, return them to Xxxxxxx within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that Xxxxxxx, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 7.2) would violate any Law or Contract with a Third Party or waive any attorney-client privilege, the work product doctrine or other applicable privilege, Xxxxxxx shall not be obligated to provide such Information requested by Fortive; or

(b) After the Effective Time, and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Xxxxxxx for specific and identified Information:

(i) that (x) relates to Xxxxxxx or the Xxxxxxx Retained Business, as the case may be, prior to the Effective Time or (y) is necessary for Xxxxxxx to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Xxxxxxx and/or Fortive are parties, Fortive shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Xxxxxxx has a reasonable need for such originals) in the possession or control of Fortive or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Xxxxxxx; provided that, to the extent any originals are delivered to Xxxxxxx pursuant to this Agreement or the Ancillary Agreements, Xxxxxxx shall, at its own expense, return them to Fortive within a reasonable time after the need to retain such originals has ceased; provided further that, such obligation to provide any requested information shall terminate and be of no further force and effect on the date that is the first anniversary of the date of this Agreement; provided further that, in the event that Fortive, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 7.2) would violate any Law or Contract with a third party or waive any attorney-client privilege, the work product doctrine or other applicable privilege, Fortive shall not be obligated to provide such Information requested by Xxxxxxx.

(ii) that (x) is required by Xxxxxxx with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Xxxxxxx (including under applicable securities laws) by a Governmental Entity having jurisdiction over Xxxxxxx, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Fortive shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Xxxxxxx has a reasonable need for such originals) in the possession or control of Fortive or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Xxxxxxx; provided that, to the extent any originals are delivered to Xxxxxxx pursuant to this Agreement or the Ancillary Agreements, Xxxxxxx shall, at its own expense, return them to Fortive within a reasonable time after the need to retain such originals has ceased.

(c) Each of Xxxxxxx and Fortive shall inform their respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the other Party’s Confidential Information or other information provided pursuant to Section 7.2 or this Article VII of their obligation to hold such information confidential in accordance with the provisions of this Agreement.

Section 7.4 Witness Services. At all times from and after the Effective Time, each of Xxxxxxx and Fortive shall use its commercially reasonable efforts to make available to the other, upon reasonable written request, its and its Subsidiaries’ officers, directors, employees and agents (taking into account the business demands of such individuals) as witnesses to the extent that (i) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Action in which the requesting Party may from time to time be involved (except for claims, demands or Actions in which one or more members of one Group is adverse to one or more members of the other Group) and (ii) there is no conflict in the Action between the requesting Party and the other Party. A Party providing a witness to the other Party under this Section 7.4 shall be entitled to receive from the recipient of such witness services, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses (which shall not include the costs of salaries and benefits of employees who are witnesses or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service as witnesses), as may be reasonably incurred and properly paid under applicable Law.

Section 7.5 Reimbursement; Other Matters. Except to the extent otherwise contemplated by this Agreement or any Ancillary Agreement, a Party providing Information or access to Information to the other Party under this Article VII shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses (which shall not include the costs of

salaries and benefits of employees of such Party or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as may be reasonably incurred in providing such Information or access to such Information.

Section 7.6 Confidentiality.

(a) Notwithstanding any termination of this Agreement, and except as otherwise provided in the Ancillary Agreements, each of Xxxxxxx and Fortive shall hold, and shall cause their respective Affiliates and their officers, employees, agents, consultants and advisors to hold, in strict confidence (and not to disclose or release or, except as otherwise permitted by this Agreement or any Ancillary Agreement, use, including for any ongoing or future commercial purpose, without the prior written consent of the Party to whom the Confidential Information relates (which may be withheld in such Party’s sole and absolute discretion, except where disclosure is required by applicable Law)), any and all Confidential Information concerning or belonging to the other Party or its Affiliates; provided that each Party may disclose, or may permit disclosure of, Confidential Information (i) to its respective auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who have a need to know such Information or auditing and other non-commercial purposes and are informed of the obligation to hold such Information confidential and in respect of whose failure to comply with such obligations, the applicable Party will be responsible, (ii) if any Party or any of its respective Subsidiaries is required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule or is advised by outside counsel in connection with a proceeding brought by a Governmental Entity that it is advisable to do so, (iii) as required in connection with any legal or other proceeding by one Party against any other Party or in respect of claims by one Party against the other Party brought in a proceeding, (iv) as necessary in order to permit a Party to prepare and disclose its financial statements in connection with any regulatory filings or Tax Returns, (v) as necessary for a Party to enforce its rights or perform its obligations under this Agreement (including pursuant to Section 2.3) or an Ancillary Agreement, (vi) to Governmental Entities in accordance with applicable procurement regulations and contract requirements or (vii) to other Persons in connection with their evaluation of, and negotiating and consummating, a potential strategic transaction, to the extent reasonably necessary in connection therewith, provided an appropriate and customary confidentiality agreement has been entered into with the Person receiving such Confidential Information. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made by a third party pursuant to clause (ii), (iii), (v) or (vi) above, each Party, as applicable, shall promptly notify (to the extent permissible by Law) the Party to whom the Confidential Information relates of the existence of such request, demand or disclosure requirement and shall provide such affected Party a reasonable opportunity to seek an appropriate protective order or other remedy, which such Party will cooperate in obtaining to the extent reasonably practicable. In the event that such appropriate protective order or other remedy is not obtained, the Party which faces the disclosure requirement shall furnish only that portion of the Confidential Information that is required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such Confidential Information.

(b) Each Party acknowledges that it and the other members of its Group may have in its or their possession confidential or proprietary Information of third parties that was received under confidentiality or non-disclosure agreements with such third party while such Party and/or members of its Group were part of the Xxxxxxx Group. Each Party shall comply, and shall cause the other members of its Group to comply, and shall cause its and their respective officers, employees, agents, consultants and advisors (or potential buyers) to comply, with all terms and conditions of any such third-party agreements entered into prior to the Effective Time, with respect to any confidential and proprietary Information of third parties to which it or any other member of its Group has had access.

(c) Notwithstanding anything to the contrary set forth herein, (i) the Parties shall be deemed to have satisfied their obligations hereunder with respect to Confidential Information if they exercise at least the same degree of care that applies to Xxxxxxx’x confidential and proprietary information pursuant to policies in effect as of the Effective Time and (ii) confidentiality obligations provided for in any Contract between each Party or its Subsidiaries and their respective employees shall remain in full force and effect. Notwithstanding anything to the contrary set forth herein, Confidential Information of any Party in the possession of and used by any other Party as of the Effective Time may continue to be used by such Party in possession of the Confidential Information in and only in the operation of the Fortive Business (in the case of the Fortive Group) or the Xxxxxxx Retained Business (in the case of the Xxxxxxx Group); provided that such Confidential Information may only be used by such Party and its officers, employees, agents, consultants and advisors in the specific manner and for the specific purposes for which it is used as of the date of this Agreement; and may only be shared with additional officers, employees, agents, consultants and advisors of such Party on a need-to-know basis exclusively with regard to such specified use; provided, further that such Confidential Information may be used only so long as the Confidential Information is maintained in confidence and not disclosed in violation of Section 7.6(a).

(d) The Parties agree that irreparable damage may occur in the event that the provisions of this Section 7.6 were not performed in accordance with their specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to seek an injunction or injunctions to enforce specifically the terms and provisions hereof in any court having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.

(e) For the avoidance of doubt and notwithstanding any other provision of this Section 7.6, (i) the disclosure and sharing of Privileged Information shall be governed solely by Section 7.7, and (ii) Information that is subject to any confidentiality provision or other disclosure restriction in any Ancillary Agreement shall be governed by the terms of such Ancillary Agreement.

Section 7.7 Privilege Matters.

(a) Pre-Distribution Services. The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the Xxxxxxx Group and the Fortive Group, and that each of the members of the Xxxxxxx Group and the Fortive Group

should be deemed to be the client with respect to such pre-distribution services for the purposes of asserting all privileges, immunities, or other protections from disclosure which may be asserted under applicable Law, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege, and protection under the work-product doctrine (“Privilege”). The Parties shall have a shared Privilege with respect to all Information subject to Privilege (“Privileged Information”) which relates to such pre-distribution services. For the avoidance of doubt, Privileged Information within the scope of this Section 7.7 includes, but is not limited to, services rendered by legal counsel retained or employed by any Party (or any member of such Party’s respective Group), including outside counsel and in-house counsel.

(b) Post-Separation Services. The Parties recognize that legal and other professional services will be provided following the Effective Time to each of Xxxxxxx and Fortive. The Parties further recognize that certain of such post-separation services will be rendered solely for the benefit of Xxxxxxx or Fortive, as the case may be, while other such post-separation services may be rendered with respect to claims, proceedings, litigation, disputes, or other matters which involve both Xxxxxxx and Fortive. With respect to such post-separation services and related Privileged Information, the Parties agree as follows:

(i) All Privileged Information relating to any claims, proceedings, litigation, disputes, or other matters which involve both Xxxxxxx and Fortive shall be subject to a shared Privilege among the Parties involved in the claims, proceedings, litigation, disputes, or other matters at issue; and

(ii) Except as otherwise provided in Section 7.7(b)(i), Privileged Information relating to post-separation services provided solely to one of Xxxxxxx or Fortive shall not be deemed shared between the Parties, provided, that the foregoing shall not be construed or interpreted to restrict the right or authority of the Parties (x) to enter into any further agreement, not otherwise inconsistent with the terms of this Agreement, concerning the sharing of Privileged Information or (y) otherwise to share Privileged Information without waiving any Privilege which could be asserted under applicable Law.

(c) The Parties agree as follows regarding all Privileged Information with respect to which the Parties shall have a shared Privilege under Section 7.7(a) or (b):

(i) Subject to Section 7.7(c)(iii) and (iv), no Party may waive, nor allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which the other Party has a shared Privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within fifteen (15) days after written notice by the requesting Party to the Party whose consent is sought;

(ii) If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a Privilege should be waived to protect or advance the interest of any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of

the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it shall not withhold consent to waive for any purpose except to protect its own legitimate interests;

(iii) If, within fifteen (15) days of receipt by the requesting Party of written objection, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether a Privilege should be waived, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance its interest, the requesting Party shall provide the objecting Party fifteen (15) days written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings in accordance with Section 8.2 to enjoin such disclosure under applicable Law shall be deemed full and effective consent to such disclosure, and the Party’s agree that any such Privilege shall not be waived by either party under the final determination of such dispute in accordance with Section 8.2; and

(iv) In the event of any litigation or dispute between the Parties, or any members of their respective Groups, either such Party may waive a Privilege in which the other Party or member of such Group has a shared Privilege, without obtaining the consent of the other Party; provided that such waiver of a shared Privilege shall be effective only as to the use of Privileged Information with respect to the litigation or dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared Privilege with respect to third parties.

(d) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Xxxxxxx or Fortive as set forth in Section 7.6 and this Section 7.7, to maintain the confidentiality of Privileged Information and to assert and maintain any applicable Privilege. The access to Information being granted pursuant to Sections 6.5, 7.2 and 7.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 6.5 and 7.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.5 hereof, and the transfer of Privileged Information between the Parties and their respective Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.

Section 7.8 Ownership of Information. Any Information owned by one Party or any of its Subsidiaries that is provided to a requesting Party pursuant to this Article VII shall be deemed to remain the property of the providing Party. Unless expressly set forth herein, nothing contained in this Agreement shall be construed as granting a license or other rights to any Party with respect to any such Information, whether by implication, estoppel or otherwise.

Section 7.9 Personal Data.

(a) With respect to any Xxxxxxx Personal Data, effective as of the Effective Time, Xxxxxxx appoints Fortive as a Data Processor, and Fortive accepts such appointment, and as such, Fortive shall (i) only process such Xxxxxxx Personal Data in

accordance with written instructions given to Fortive by Xxxxxxx, and (ii) take appropriate technical and organizational security measures to safeguard against unlawful processing, accidental loss or destruction of, or damage to, Xxxxxxx Personal Data processed by Fortive as required by applicable Data Protection Laws.

(b) With respect to any Fortive Personal Data, effective as of the Effective Time, Fortive appoints Xxxxxxx as a Data Processor, and Xxxxxxx accepts such appoint, and as such, Xxxxxxx shall (i) only process Fortive Personal Data in accordance with written instructions given to Xxxxxxx by Fortive, and (ii) take appropriate technical and organizational security measures to safeguard against unlawful processing, accidental loss or destruction of, or damage to, Fortive Personal Data processed by Xxxxxxx as required by applicable Data Protection Laws.

(c) Without limiting the foregoing, both Parties shall otherwise cooperate to ensure that their creation, collection, receipt, access, use, storage, disposal, processing and disclosure of the other Party’s Personal Data hereunder does and will comply with all applicable Data Protection Laws and take all reasonable precautions to avoid acts that place the other Party in breach of its obligations under any applicable Data Protection Laws. Nothing in this Section shall be deemed to prevent any Party from taking the steps it reasonably deems necessary to comply with any applicable Data Protection Laws.

Section 7.10 Other Agreements. The rights and obligations granted under this Article VII are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of Information set forth in any Ancillary Agreement.

ARTICLE VIII

DISPUTE RESOLUTION

Section 8.1 Negotiation. In the event of a controversy, dispute or Action arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity or breach of this Agreement or the Ancillary Agreements or otherwise arising out of, or in any way related to, this Agreement or the Ancillary Agreements or the transactions contemplated hereby, including any Action based on contract, tort, statute or constitution (collectively, “Disputes”), the general counsels of the Parties (or such other individuals designated by the respective general counsels) and/or the executive officers designated by the Parties shall negotiate for a reasonable period of time to settle such Dispute; provided, that such reasonable period shall not, unless otherwise agreed by the Parties in writing, exceed sixty (60) days (the “Negotiation Period”) from the time of receipt by a Party of written notice of such Dispute (“Dispute Notice”) and settlement of such Dispute pursuant to this Section 8.1 shall be confidential, and no written or oral statements or offers made by the Parties during such settlement negotiations shall be admissible for any purpose in any subsequent proceedings, including any arbitration proceeding pursuant to Section 8.2; provided, further, that in the event of any arbitration in accordance with Section 8.2 hereof, the Parties shall not assert the defenses of statute of limitations and laches arising during the period beginning after the date of receipt of the Dispute Notice, and any contractual time period or deadline under this Agreement or any Ancillary Agreement to which such Dispute relates occurring after the Dispute Notice is received shall not be deemed to have passed until such Dispute has been resolved.

Section 8.2 Arbitration. If the Dispute has not been resolved for any reason after the Negotiation Period, such Dispute shall be submitted to final and binding arbitration administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”), except as modified herein.

(a) The arbitration shall be conducted by a three-member arbitral tribunal (the “Arbitral Tribunal”). The claimant shall nominate one arbitrator in accordance with the Rules, and the respondent shall nominate one arbitrator in accordance with the Rules within twenty-one days (21) after the appointment of the first arbitrator. The third arbitrator, who shall serve as chair of the Arbitral Tribunal, shall be jointly nominated by the two party-nominated arbitrators within twenty-one (21) days of the confirmation of the appointment of the second arbitrator. If any arbitrator is not appointed within the time limit provided herein, such arbitrator shall be appointed by the AAA in accordance with the listing, striking and ranking procedure in the Rules.

(b) The arbitration shall be held, and the award shall be rendered, in New York, New York, in the English language.

(c) For the avoidance of doubt, by submitting their dispute to arbitration under the Rules, the Parties expressly agree that all issues of arbitrability, including all issues concerning the propriety and timeliness of the commencement of the arbitration (including any defense based on a statute of limitation, if applicable), the jurisdiction of the Arbitral Tribunal, and the procedural conditions for arbitration, shall be finally and solely determined by the Arbitral Tribunal.

(d) Without derogating from Section 8.2(e) below, the Arbitral Tribunal shall have the full authority to grant any pre-arbitral injunction, pre-arbitral attachment, interim or conservatory measure or other order in aid of arbitration proceedings (“Interim Relief”). The Parties shall exclusively submit any application for Interim Relief to only: (A) the Arbitral Tribunal; or (B) prior to the constitution of the Arbitral Tribunal, an Emergency Arbitrator appointed in the manner provided for in the Rules. Any Interim Relief so issued shall, to the extent permitted by applicable Law, be deemed a final arbitration award for purposes of enforceability, and, moreover, shall also be deemed a term and condition of this Agreement subject to specific performance in Section 8.3 below. The foregoing procedures shall constitute the exclusive means of seeking Interim Relief, provided, however, that (i) the Arbitral Tribunal shall have the power to continue, review, vacate or modify any Interim Relief granted by an Emergency Arbitrator; (ii) in the event an Emergency Arbitrator or the Arbitral Tribunal issues an order granting, denying or otherwise addressing Interim Relief (a “Decision on Interim Relief”), any Party may apply to enforce or require specific performance of such Decision on Interim Relief in any court of competent jurisdiction; and (iii) either Party shall retain the right to apply for freezing orders to prevent the improper dissipation of transfer of assets to a court of competent jurisdiction.

(e) The Arbitral Tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the terms of this Agreement, including specific performance and temporary or final injunctive relief, provided, however, that the Arbitral Tribunal shall have no authority or power to limit, expand, alter, amend, modify, revoke or suspend any condition or provision of this Agreement or any Ancillary Agreement, nor any right or power to award punitive, exemplary or treble damages.

(f) The Arbitral Tribunal shall have the power to allocate the costs and fees of the arbitration, including reasonable attorneys’ fees and costs as well as those costs and fees addressed in the Rules, between the Parties in the manner it deems fit.

(g) Arbitration under this Article VIII shall be the sole and exclusive remedy for any Dispute, and any award rendered thereby shall be final and binding upon the Parties as from the date rendered. Judgment on the award rendered by the Arbitral Tribunal may be entered in any court having jurisdiction thereof, including any court having jurisdiction over the relevant Party or its Assets.

Section 8.3 Specific Performance. From and after the Distribution, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement or any Ancillary Agreement, the Parties agree that the Party or Parties to this Agreement or such Ancillary Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Article VIII (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement or such Ancillary Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that, from and after the Distribution, the remedies at law for any breach or threatened breach of this Agreement or any Ancillary Agreement, including monetary damages, are inadequate compensation for any Indemnifiable Loss, that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

Section 8.4 Treatment of Arbitration. The Parties agree that any arbitration hereunder shall be kept confidential, and that the existence of the proceeding and all of its elements (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall be deemed confidential, and shall not be disclosed beyond the Arbitral Tribunal, the Parties, their counsel, and any Person necessary to the conduct of the proceeding, except as and to the extent required by law and to defend or pursue any legal right. In the event any Party makes application to any court in connection with this Section 8.4 (including any proceedings to enforce a final award or any Interim Relief), that party shall take all steps reasonably within its power to cause such application, and any exhibits (including copies of any award or decisions of the Arbitral Tribunal or Emergency Arbitrator) to be filed under seal, shall oppose any challenge by any third party to such sealing, and shall give the other Party immediate notice of such challenge.

Section 8.5 Continuity of Service and Performance. Unless otherwise agreed in writing, the Parties shall continue to provide service and honor all other commitments under

this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions of this Article VIII with respect to all matters not subject to such dispute resolution.

Section 8.6 Consolidation. The arbitrator may consolidate an arbitration under this Agreement with any arbitration arising under or relating to the Ancillary Agreements or any other agreement between the Parties entered into pursuant hereto, as the case may be, if the subject of the Disputes thereunder arises out of or relates essentially to the same set of facts or transactions. Such consolidated arbitration shall be determined by the arbitrator appointed for the arbitration proceeding that was commenced first in time.

ARTICLE IX

INSURANCE

Section 9.1 Insurance Matters.

(a) Fortive acknowledges and agrees that, from and after the Effective Time, neither Fortive nor any member of the Fortive Group shall have any rights to or under any Policies of Xxxxxxx, including the Company Policies, other than any insurance policies acquired prior to the Effective Time directly by and in the name of Fortive or a member of the Fortive Group or as expressly provided in Section 6.7 or this Article IX.

(b) Notwithstanding Section 9.1(a), from and after the Effective Time, with respect to any Liability accrued and/or incurred by Fortive or its predecessors prior to the Effective Time, Xxxxxxx shall, at its sole discretion, provide Fortive with access to, and, if and to the extent determined by Xxxxxxx in its sole discretion, Fortive and Xxxxxxx may jointly make claims under, Company Policies if and solely to the extent that the terms of such policies provide for such coverage to Fortive or its predecessors with respect to any Fortive Liabilities accrued and/or incurred prior to the Effective Time, and subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and subject to the following additional conditions:

(i) Fortive shall inform Xxxxxxx of any potential claim under any of the Company Policies with regard to any Fortive Liability and Xxxxxxx shall determine whether and at what time to report any such claims under such Company Policies directly to the applicable insurance company, and to submit a claim for coverage thereunder, and Xxxxxxx shall provide a copy of all such claim reports and submissions to Fortive; provided, that with respect to any such claims, Fortive shall provide Xxxxxxx with the information regarding the claims and provide recommendations with regard to the reporting and submission of such claims, and Xxxxxxx shall consult with Fortive with regard to the timing thereof;

(ii) If and to the extent that Fortive is the sole entity recovering insurance proceeds under one or more of the Company Policies in respect of a particular claim for coverage, Fortive shall exclusively bear and be

responsible for (and Xxxxxxx shall have no obligation to repay or reimburse Fortive for) and pay the applicable insurers as required under the applicable Company Policies for any and all costs as a result of having access to, or making claims under, such Policies, including any amounts of deductibles and self-insured retention associated with such claims, claim handling and administrative costs, Taxes, surcharges, state assessments, reinsurance costs, and other related costs, relating to all open, closed, re-opened claims covered by the applicable Policies, whether such claims are made by Fortive, its employees or third parties, and Fortive shall indemnify, hold harmless and reimburse Xxxxxxx for any such amounts incurred by Xxxxxxx to the extent resulting from any access to, any claims made by Fortive under, any Company Policies provided pursuant to this Section 9.1. If Xxxxxxx and Fortive jointly make a claim for coverage under the Company Policies for amounts that have been or may in the future be incurred partially by Xxxxxxx and partially by Fortive, any insurance recovery resulting therefrom will first be allocated to reimburse Xxxxxxx and/or Fortive for their respective costs, legal and consulting fees, and other out-of-pocket expenses incurred in pursuing such insurance recovery, with the remaining net proceeds from the insurance recovery to be allocated as between Xxxxxxx and Fortive in a manner to be negotiated in good faith by Xxxxxxx and Fortive at or near the time of such recovery; provided that if the Parties cannot agree to an allocation within twenty (20) Business Days of the grant, settlement or other agreement, either Party may submit the dispute to arbitration in accordance with the terms and procedures set forth in Section 8.2;

(iii) Fortive shall exclusively bear (and Xxxxxxx shall have no obligation to repay or reimburse Fortive for) and shall be liable for all uninsured, uncovered, unavailable or uncollectible amounts, incurred from and after the Effective Time, of all such claims pursued by Fortive under the Company Policies as provided for in this Section 9.1(b); and

(iv) in connection with making any joint claim under any Company Policies pursuant to this Section 9.1(b), Xxxxxxx shall control the administration of all such claims, including the timing of any assertion and pursuit of coverage, and Fortive shall not take any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Xxxxxxx and the applicable insurance company; (B) result in the applicable insurance company terminating or reducing coverage to Xxxxxxx or Fortive, or increasing the amount of any premium owed by Xxxxxxx under the applicable Company Policies; (C) otherwise compromise, jeopardize or interfere with the rights of Xxxxxxx under the applicable Company Policies or (D) otherwise compromise or impair Xxxxxxx’x ability to enforce its rights with respect to any indemnification under or arising out of this Agreement, and Xxxxxxx shall have the right, in its sole discretion, to cause Fortive to desist from any action that Xxxxxxx determines, in its sole discretion, would compromise or impair Xxxxxxx’x rights in accordance with this clause (D).

At all times, Xxxxxxx and Fortive shall, subject to the limitations set forth in Section 7.6, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.

(c) Any payments, costs and adjustments required pursuant to Section 9.1(b) shall be billed by Xxxxxxx to Fortive on a monthly basis and Fortive shall pay such billed payments, costs and adjustments to Xxxxxxx within sixty (60) days from receipt of invoice. If Xxxxxxx incurs costs to enforce Fortive’s obligations under this Section 9.1, Fortive agrees to indemnify Xxxxxxx for such enforcement costs, including reasonable attorneys’ fees.

(d) Notwithstanding anything to the contrary in this Agreement, from and after the Effective Time, neither Fortive nor any member of the Fortive Group shall have any rights or claims against or with respect to any self-insurance or captive insurance company arrangement of Xxxxxxx or any member of the Xxxxxxx Group. In addition, as of the Effective Time, Fortive, for itself and each member of the Fortive Groups does hereby remise, release and forever discharge Xxxxxxx and the other members of the Xxxxxxx Group of any rights or claims against or with respect to any self-insurance or captive insurance company arrangement of Xxxxxxx or any member of the Xxxxxxx Group.

(e) At the Effective Time, Fortive shall have in effect all insurance programs required to comply with Fortive’s statutory obligations.

(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance in its entirety, nor is it considered to be itself a contract of insurance, and further this Agreement shall not be construed to waive any right or remedy of Xxxxxxx under or with respect to any of the Company Policies and programs or any other contract or policy of insurance, and Xxxxxxx reserves all of its rights under such Policies.

(g) Xxxxxxx shall not be liable to Fortive for claims not reimbursed by insurers for any reason not within the control of Xxxxxxx, including coinsurance provisions, deductibles, quota share deductibles, exhaustion of aggregates, self-insured retentions, bankruptcy or insolvency of an insurance carrier, Company Policy limitations or restrictions, any coverage disputes, any failure to timely claim by Xxxxxxx or any defect in such claim or its processing.

(h) In the event that Insured Claims of more than one Party exist relating to the same occurrence, the relevant Parties shall jointly defend and waive any conflict of interest to the extent necessary to the conduct of the joint defense. Nothing in this Section 9.1(h) shall be construed to limit or otherwise alter in any way the obligations of the Parties, including those obligations under Article VI, including those created by this Agreement, by operation of law or otherwise.

(i) In the event of any Action by any Party (or both of the Parties) to recover or obtain insurance proceeds, or to defend against any Action by an insurance carrier to deny any Policy benefits, both Parties may join in any such Action and be represented by joint counsel and both Parties shall waive any conflict of interest to the extent necessary to conduct any such Action. Nothing in this Section 9.1(i) shall be construed to limit or otherwise alter in any way the obligations of the Parties, including those created under Article VI of this Agreement or otherwise, by operation of Law, or otherwise.

(j) Notwithstanding anything contained in this Section 9.1, to the extent Xxxxxxx has entered into or agrees to enter into, whether on its own or with respect to the any arrangement provided for under this Section 9.1, any settlement agreement or other arrangement with any insurance provider regarding coverage under any Company Policy that provides for any limitation of coverage or release of such insurance provider with regard to any coverage thereunder, whether in whole or in part (collectively, the “Released Insurance Matters”), Fortive agrees that it shall (i) abide by the terms of and, to the extent required, consent to, any such settlement or arrangement relating to the Released Insurance Matters as a condition to receiving any coverage under any Company Policy related thereto, (ii) have no rights to any such coverage under the Company Policies with respect to any Released Insurance Matters and (iii) make no claims under any Company Policies with respect to any Released Insurance Matters.

Section 9.2 Certain Matters Relating to Xxxxxxx’x Organizational Documents. For a period of six (6) years from the Distribution Date, the Certificate of Incorporation and Bylaws of Xxxxxxx shall contain provisions no less favorable with respect to indemnification of directors and officers than are set forth in such Certificate of Incorporation or Bylaws of Xxxxxxx immediately before the Effective Time, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Distribution Date in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were indemnified under such Certificate of Incorporation or Bylaws, unless such amendment, repeal, or other modification shall be required by Law and then only to the minimum extent required by Law or approved by Xxxxxxx’x shareholders.

Section 9.3 Directors and Officers Liability Insurance. Effective as of the Effective Time, Xxxxxxx shall not be obligated to maintain insurance coverage with respect to the Fortive Business, except as is expressly provided as follows: prior to the Distribution Date, Xxxxxxx shall obtain and fully pay for a “tail” directors and officers insurance policy for directors and officers of Xxxxxxx and its subsidiaries and Fortive and its subsidiaries covering acts and omissions in their respective capacities as directors and officers of Xxxxxxx, Xxxxxxx’x subsidiaries, Fortive or Fortive’s subsidiaries prior to the Distribution Date for a period of six (6) years from and after the Distribution Date and such tail directors and officers insurance policy shall contain terms and conditions as Xxxxxxx determines, and following the Effective Time, each party shall be responsible for any deductibles, co-payments or retention amounts with respect to any claims that it may make under such tail policy.

ARTICLE X

MISCELLANEOUS

Section 10.1 Entire Agreement; Construction. This Agreement, including the Exhibits and Schedules, and the Ancillary Agreements shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Schedule hereto, the Schedule

shall prevail. In the event and to the extent that there shall be a conflict between the provisions of (a) this Agreement and the provisions of any Ancillary Agreement or Continuing Arrangement, such Ancillary Agreement or Continuing Arrangement shall control (except with respect to any Conveyancing and Assumption Instruments, in which case this Agreement shall control) and (b) this Agreement and any agreement which is not an Ancillary Agreement, this Agreement shall control unless specifically stated otherwise in such agreement. For the avoidance of doubt, the Conveyancing and Assumption Instruments are intended to be ministerial in nature and only to effect the transactions contemplated by this Agreement with respect to the applicable local jurisdiction and shall not expand or modify the rights and obligations of the parties hereto or their Affiliates under this Agreement or any of the Ancillary Agreements that are not Conveyancing and Assumption Instruments. Except as expressly set forth in this Agreement or any Ancillary Agreement: (i) all matters relating to Taxes and Tax Returns of the Parties and their respective Subsidiaries shall be governed exclusively by the Tax Matters Agreement; and (ii) for the avoidance of doubt, in the event of any conflict between this Agreement or any Ancillary Agreement, on the one hand, and the Tax Matters Agreement, on the other hand, with respect to such matters, the terms and conditions of the Tax Matters Agreement shall govern.

Section 10.2 Ancillary Agreements. Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements.

Section 10.3 Counterparts. This Agreement may be executed in more than one counterpart, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

Section 10.4 Survival of Agreements. Except as otherwise contemplated by this Agreement or any Ancillary Agreement, all covenants and agreements of the Parties contained in this Agreement and each Ancillary Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.

Section 10.5 Expenses.

(a) Except as otherwise expressly provided in this Agreement (including paragraphs (b) and (c) of this Section 10.5) or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, all out-of-pocket fees and expenses incurred on or prior to the Effective Time in connection, and as required by, with the preparation, execution, delivery and implementation of this Agreement and any Ancillary Agreement, the Distribution, the Information Statement, the Internal Reorganization and the consummation of the transactions contemplated hereby and thereby shall be borne and paid by Xxxxxxx.

(b) Except as otherwise expressly provided in this Agreement (including paragraphs (b) and (c) of this Section 10.5) or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, each Party shall bear its own costs and expenses incurred or accrued after the Effective Time; provided, however, that any costs and expenses incurred in obtaining any Consents or novation from a third party in connection with the

assignment to or assumption by a Party or its Subsidiary of any Contracts in connection with the Internal Reorganization or the Distribution shall be borne by the Party or its Subsidiary to which such Contract is being assigned.

(c) With respect to any expenses incurred pursuant to a request for further assurances granted under Section 2.8, the Parties agree that any and all fees and expenses incurred by either Party shall be borne and paid by the requesting Party; it being understood that no Party shall be obliged to incur any third party accounting, consulting, advisor, banking or legal fees, costs or expenses, and the requesting Party shall not be obligated to pay such fees, costs or expenses, unless such fee, cost or expense shall have had the prior written approval of the requesting Party. Notwithstanding the foregoing, each Party shall be responsible for paying its own internal fees, costs and expenses (e.g., salaries of personnel). With respect to any fees, costs and expenses incurred by either Party in satisfying its obligations under Section 7.2, the requesting Party shall be responsible for the other Party’s fees, costs and expenses.

Section 10.6 Notices. All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the Ancillary Agreements shall be in English, shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, or by facsimile with receipt confirmed (followed by delivery of an original via overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.6):

To Xxxxxxx:

Xxxxxxx Corporation

0000 Xxxxxxxxxxxx Xxx., XX - Xxxxx 000X

Xxxxxxxxxx, XX 00000-0000

Attn: General Counsel

To:

Fortive Corporation

0000 Xxxxxx Xxxx.

Xxxxxxx, XX 00000

Attn: General Counsel

Section 10.7 Waivers. Any consent required or permitted to be given by any Party to the other Party under this Agreement shall be in writing and signed by the Party giving such consent and shall be effective only against such Party (and its Group).

Section 10.8 Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior written consent of the other Party (not to be unreasonably withheld or delayed), and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. Notwithstanding

the foregoing, this Agreement shall be assignable to (i) with respect to Xxxxxxx, an Affiliate of Xxxxxxx, or (ii) a bona fide third party in connection with a merger, reorganization, consolidation or the sale of all or substantially all the assets of a party hereto so long as the resulting, surviving or transferee entity assumes all the obligations of the relevant party hereto by operation of law or pursuant to an agreement in form and substance reasonably satisfactory to the other Party to this Agreement; provided however that in the case of each of the preceding clauses (i) and (ii), no assignment permitted by this Section 10.8 shall release the assigning Party from liability for the full performance of its obligations under this Agreement.

Section 10.9 Successors and Assigns. The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.

Section 10.10 Termination and Amendment. This Agreement (including Article VI hereof) may be terminated, modified or amended and the Distribution may be amended, modified or abandoned at any time prior to the Effective Time by and in the sole discretion of Xxxxxxx without the approval of Fortive or the stockholders of Xxxxxxx. In the event of such termination, no Party shall have any liability of any kind to the other Party or any other Person. After the Effective Time, this Agreement may not be terminated, modified or amended except by an agreement in writing signed by Xxxxxxx and Fortive.

Section 10.11 Payment Terms.

(a) Except as set forth in Article VI or as otherwise expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount to be paid or reimbursed by a Party (and/or a member of such Party’s Group), on the one hand, to the other Party (and/or a member of such Party’s Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within sixty (60) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

(b) Except as set forth in Article VI or as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such xxxx, invoice or other demand) shall bear interest at a rate per annum equal to LIBOR, from time to time in effect, calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.

(c) Without the consent of the party receiving any payment under this Agreement specifying otherwise, all payments to be made by either Xxxxxxx or Fortive under this Agreement shall be made in US Dollars. Except as expressly provided herein, any amount which is not expressed in US Dollars shall be converted into US Dollars by using the exchange rate published on Bloomberg at 5:00 pm Eastern Standard time (EST) on the day before the relevant date or in the Wall Street Journal on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any indemnification payment required to be made hereunder or under any Ancillary Agreement may be denominated in a currency other than US Dollars, the amount of such payment shall be converted into US Dollars on the date in which notice of the claim is given to the Indemnifying Party.

Section 10.12 Subsidiaries. Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party at and after the Effective Time, to the extent such Subsidiary remains a Subsidiary of the applicable Party.

Section 10.13 Third Party Beneficiaries. Except (i) as provided in Article VI relating to Indemnitees and for the release under Section 6.1 of any Person provided therein, (ii) as provided in Section 9.3 relating to the directors, officers, employees, fiduciaries or agents provided therein and (iii) as specifically provided in any Ancillary Agreement, this Agreement is solely for the benefit of the Parties and should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, claim of Action or other right in excess of those existing without reference to this Agreement.

Section 10.14 Title and Headings. Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 10.15 Exhibits and Schedules.

(a) The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. Nothing in the Exhibits or Schedules constitutes an admission of any liability or obligation of any member of the Xxxxxxx Group or the Fortive Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the Xxxxxxx Group or the Fortive Group or any of their respective Affiliates. The inclusion of any item or liability or category of item or liability on any Exhibit or Schedule is made solely for purposes of allocating potential liabilities among the Parties and shall not be deemed as or construed to be an admission that any such liability exists.

(b) Subject to the prior written consent of the other Party (not to be unreasonably withheld or delayed), each Party shall be entitled to update the Schedules from and after the date hereof until the Effective Time.

Section 10.16 Governing Law. This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

Section 10.17 Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 10.18 Public Announcements. From and after the Effective Time, Xxxxxxx and Fortive shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement or the Ancillary Agreements, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; (b) for disclosures made that are substantially consistent with disclosure contained in any Distribution Disclosure Document, (c) as otherwise set forth on Schedule 10.18, or (d) as may pertain to disputes between one Party or any member of its Group, on one hand, and the other Party or any member of its Group, on the other hand.

Section 10.19 Interpretation. The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.

Section 10.20 No Duplication; No Double Recovery. Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances (including with respect to the rights, entitlements, obligations and recoveries that may arise out of one or more of the following Sections: Section 6.2; Section 6.3; and Section 6.4).

Section 10.21 Tax Treatment of Payments. Unless otherwise required by a Final Determination, this Agreement or the Tax Matters Agreement or otherwise agreed to among the Parties, for U.S. federal Tax purposes, any payment made pursuant to this Agreement (other than any payment of interest pursuant to Section 10.11) by: (i) Fortive to Xxxxxxx shall be treated for all Tax purposes as a distribution by Fortive to Xxxxxxx with respect to stock of Fortive occurring immediately before the Distribution; or (ii) Xxxxxxx to Fortive shall be treated for all Tax purposes as a tax-free contribution by Xxxxxxx to Fortive with respect to its stock occurring immediately before the Distribution; and in each case, no Party shall take any position inconsistent with such treatment. In the event that a Taxing Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in the preceding sentence, such Party shall use its commercially reasonable efforts to contest such challenge.

Section 10.22 No Waiver. No failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder or under the other Ancillary Agreements shall operate as a waiver hereof or thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or thereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 10.23 No Admission of Liability. The allocation of Assets and Liabilities herein (including on the Schedules hereto) is solely for the purpose of allocating such

Assets and Liabilities between Xxxxxxx and Fortive and is not intended as an admission of liability or responsibility for any alleged Liabilities vis-à-vis any third party, including with respect to the Liabilities of any non-wholly owned subsidiary of Xxxxxxx or Fortive.

Section 10.24 Advisors. It is acknowledged and agreed by each of the Parties hereto that Xxxxxxx, on behalf of itself and the other members of the Xxxxxxx Group, has retained each of the Persons identified on Schedule 10.24 to act as counsel in connection with this Agreement, the Ancillary Agreements, the Contribution and the other transactions contemplated hereby and thereby and that the Persons listed on Schedule 10.24 have not acted as counsel for Fortive or any other member of the Fortive Group in connection with this Agreement, the Ancillary Agreements, the Contribution and the other transactions contemplated hereby and thereby and that none of Fortive or any member of the Fortive Group has the status of a client of the Persons listed on Schedule 10.24 for conflict of interest or any other purposes as a result thereof. Fortive hereby agrees, on behalf of itself and each other member of the Fortive Group that, in the event that a dispute arises after the Effective Date in connection with this Agreement, the Ancillary Agreements, the Contribution and the other transactions contemplated hereby and thereby between Xxxxxxx and Fortive or any of the members of their respective Groups, each of the Persons listed on Schedule 10.24 may represent any or all of the members of the Xxxxxxx Group in such dispute even though the interests of the Xxxxxxx Group may be directly adverse to those of the Fortive Group. Fortive further agrees, on behalf of itself and each other member of the Fortive Group that, with respect to this Agreement, the Ancillary Agreements, the Contribution and the other transactions contemplated hereby and thereby, the attorney-client privilege and the expectation of client confidence belongs to Xxxxxxx or the applicable member of the Xxxxxxx Group and may be controlled by Xxxxxxx or such member of the Xxxxxxx Group and shall not pass to or be claimed by Fortive or any member of the Fortive Group. Furthermore, Fortive acknowledges and agrees that Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP is representing Xxxxxxx, and not Fortive, in connection with the transactions contemplated herein.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.


XXXXXXX CORPORATION

By:
Name:
Title:

FORTIVE CORPORATION

By:
Name:
Title:

Document Metadata

Table of Contents

EX-2.1 2 d43850dex21.htm EX-2.1 FORM OF SEPARATION AND DISTRIBUTION AGREEMENT by and between DANAHER CORPORATION and FORTIVE CORPORATION Dated as of [●], 2016 DEFINITIONS AND INTERPRETATION THE SEPARATION CERTAIN ACTIONS AT OR PRIOR TO THE...

Document Metadata