Eaton Corp plc 8-K, filed May 18, 2023
Eaton Corp plc (ETN)
About this 8-K
Eaton Corp plc filed this 8-K on May 18, 2023.
Items reported
- Item 2.03: New debt or off-balance-sheet obligation
- Item 9.01: Financial statements and exhibits
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(I.R.S. Employer
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Exhibit
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Description
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Indenture, dated as of August 23, 2022, among Eaton, the Guarantors and the Trustee (incorporated by reference to Exhibit 4.1 of the Company’s
Current Report on Form 8-K (File No. 000-54863), filed with the Securities and Exchange Commission on August 24, 2022).
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Third Supplemental Indenture, dated as of May 18, 2023, among Eaton, the Guarantors and the Trustee.
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Form of the Notes, including the Guarantees (included as part of Exhibit 4.2).
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Opinion of Lizbeth L. Wright, Eaton Corporation’s Vice President and Assistant Secretary, as to the validity of the Notes.
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Opinion of McCann FitzGerald LLP, Irish counsel, as to the validity of the Notes.
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Opinion of De Brauw Blackstone Westbroek N.V., Dutch counsel, as to the validity of the Notes.
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Opinion of White & Case S.à r.l., Luxembourg Counsel, as to the validity of the Notes.
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Opinion of White & Case LLP, New York counsel, as to the validity of the Notes.
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Consent of Lizbeth L. Wright (included in Exhibit 5.1).
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Consent of McCann FitzGerald LLP (included in Exhibit 5.2).
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Consent of De Brauw Blackstone Westbroek N.V. (included in Exhibit 5.3).
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Consent of White & Case S.à r.l. (included in Exhibit 5.4).
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Consent of White & Case LLP (included in Exhibit 5.5).
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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EATON CORPORATION PLC
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| Dated: May 18, 2023 |
By:
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/s/ Taras G. Szmagala | |
| Taras G. Szmagala |
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| Executive Vice President and Chief Legal Officer |
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EXHIBIT 4.2
EATON CORPORATION
and
each of the Guarantors as defined herein
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of May 18, 2023
to
Indenture dated as of August 23, 2022
$500,000,000 4.350% Notes due 2028
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS |
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| SECTION 1.1 | Generally | 1 |
| SECTION 1.2 | Definition of Certain Terms | 1 |
| ARTICLE II GENERAL TERMS OF THE NOTES |
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| SECTION 2.1 | Form | 4 |
| SECTION 2.2 | Amount and Payment of Principal and Interest | 4 |
| SECTION 2.3 | Denominations | 5 |
| SECTION 2.4 | Global Securities | 5 |
| SECTION 2.5 | Payment, Transfer and Exchange | 5 |
| SECTION 2.6 | Security Registrar and Paying Agent | 5 |
| SECTION 2.7 | Ranking | 5 |
| SECTION 2.8 | Trustee’s Right to Refuse Directions in Certain Circumstances | 5 |
| ARTICLE III REDEMPTION |
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| SECTION 3.1 | Redemption | 6 |
| SECTION 3.2 | Redemption Procedures | 6 |
| SECTION 3.3 | Notice of Redemption | 6 |
| ARTICLE IV CHANGE OF CONTROL |
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| SECTION 4.1 | Change of Control | 7 |
| ARTICLE V MISCELLANEOUS PROVISIONS |
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| SECTION 5.1 | Ratification of Base Indenture | 10 |
| SECTION 5.2 | Trustee Not Responsible for Recitals | 10 |
| SECTION 5.3 | Table of Contents, Headings, etc. | 10 |
| SECTION 5.4 | Counterpart Originals | 10 |
| SECTION 5.5 | Governing Law | 11 |
| EXHIBIT A | Form of 2028 Note | A-1 |
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of May 18, 2023 (this “Supplemental Indenture”), among Eaton Corporation, an Ohio corporation, as issuer (the “Company”), Eaton Corporation plc, an Irish public limited company (the “Parent”), the Subsidiary Guarantors (as defined below), and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “Trustee”).
RECITALS:
WHEREAS, the Company has executed and delivered to the Trustee an Indenture, dated as of August 23, 2022 (the “Base Indenture” and as supplemented by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its unsecured and unsubordinated debentures, notes or other evidences of indebtedness (the “Securities”) to be issued in one or more series unlimited as to principal amount;
WHEREAS, the Company has duly authorized and desires to cause to be established pursuant to the Base Indenture and this Supplemental Indenture a new series of Securities designated the 4.350% Notes due 2028 (the “Notes”), the form and terms of such Notes to be set forth in this Supplemental Indenture;
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company, the Parent, the Subsidiary Guarantors and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture have been done;
NOW, THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, that the Base Indenture is supplemented and amended, to the extent expressed herein, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Generally. (a) Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed thereto in the Base Indenture.
(b) The rules of interpretation set forth in the Base Indenture shall be applied hereto as if set forth in full herein.
SECTION 1.2 Definition of Certain Terms. For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the following respective meanings:
“Additional Notes” has the meaning specified in Section 2.2(b).
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the assets of the Parent and the assets of its subsidiaries, taken as a whole, to any person, other than the Parent or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the outstanding Voting Stock of the Parent or other Voting Stock into which the Voting Stock of the Parent is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (3) the Parent consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Parent, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Parent or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Parent outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction; or (4) the adoption of a plan relating to the liquidation or dissolution of the Parent. A transaction will not be deemed to involve a Change of Control under clause (2) above if (i) the Parent becomes a direct or indirect wholly-owned subsidiary of a holding company and (ii)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Parent immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company. The term “person,” as used in this definition, has the meaning given thereto in Section 13(d)(3) of the Exchange Act. “Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event.
“Change of Control Payment” has the meaning specified in Section 4.1(a).
“Change of Control Payment Date” has the meaning specified in Section 4.1(b).
“Fitch” means Fitch Inc., and its successors.
“Guarantee” means, with respect to the Notes, the guarantee by any Guarantor of the Company’s obligations, subject to the terms and limitations of Article 17 of the Base Indenture and Exhibit A hereof.
“Guarantors” means, with respect to the Notes, the Parent and the Subsidiary Guarantors.
“Interest Payment Date” has the meaning specified in Section 2.2(c).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Parent.
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Par Call Date” means April 18, 2028 (one month prior to maturity of the Notes).
“Prospectus Supplement” means the prospectus supplement, dated May 15, 2023, to the prospectus, dated September 15, 2021, relating to the offering by the Company of the Notes.
“Rating Agencies” means (1) each of Moody’s, S&P and Fitch; and (2) if any of Moody’s, S&P or Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons beyond the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the Parent (as certified by a resolution of the Parent’s Board of Directors) as a replacement agency for Moody’s, S&P or Fitch, or all of them, as the case may be.
“Rating Event” means the rating on the applicable Notes is lowered by at least two Rating Agencies and such Notes are rated below an Investment Grade Rating on any day during the period (which period will be extended so long as the rating of such Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) commencing 60 days prior to the first public notice of the occurrence of a Change of Control or the Parent’s intention to effect a Change of Control and ending 60 days following consummation of such Change of Control.
“S&P” means S&P Global Ratings, and any successor to its rating agency business.
“Subsidiary Guarantors” means Cooper B-Line, Inc., Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC, Cooper Industries Unlimited Company, Cooper Power Systems, LLC, Cooper Wiring Devices, Inc., Eaton Aeroquip LLC, Eaton Aerospace LLC, Eaton Capital Unlimited Company, Eaton Controls (Luxembourg) S.à r.l., Eaton Domhanda Unlimited Company, Eaton Electric Holdings LLC, Eaton Filtration LLC, Eaton Leasing Corporation, Eaton Technologies (Luxembourg) S.à r.l., Turlock B.V. and Wright Line LLC.
“Treasury Rate” means with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business Day preceding the redemption date H.15 TCM or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of that person that is at the time entitled to vote generally in the election of the board of directors of that person.
ARTICLE II
GENERAL TERMS OF THE NOTES
SECTION 2.1 Form. The Notes, the Trustee’s certificates of authentication and the Guarantee shall be substantially in the form of Exhibit A to this Supplemental Indenture, which are hereby incorporated into this Supplemental Indenture. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.2 Amount and Payment of Principal and Interest.(a) In accordance with the Company Order delivered to the Trustee pursuant to Section 3.03 of the Base Indenture, the Trustee shall authenticate and deliver the Notes with the Guarantee affixed thereto for original issue on the date hereof in the aggregate principal amount of $500,000,000. The principal amount of each Note shall be payable on May 18, 2028.
(b) Subject to the terms and conditions contained herein, the Company may, without the consent of the holders of the Notes, issue additional debt securities (the “Additional Notes”) having the same ranking and the same interest rate, maturity and other terms as the Notes of a particular series. Any such Additional Notes and the Notes of such series will constitute a single series under the Indenture.
(c) Interest shall be paid semi-annually in arrears on May 18 and November 18, beginning on November 18, 2023 (each an “Interest Payment Date”), to each person in whose name the Notes are registered at the close of business on May 3 and November 3 (whether or not that date is a Business Day as that term is defined in the Indenture) immediately preceding the Interest Payment Date.
(d) The Company will compute interest on the Notes on the basis of a 360-day year consisting of twelve 30-day months. If any Interest Payment Date or maturity or redemption date falls on a day that is not a Business Day, then the payment will be made on the next Business Day without additional interest and with the same effect as if it were made on the originally scheduled date. For the avoidance of doubt, the Trustee shall have no obligation to compute interest on the Notes or to verify the Company’s computation with respect thereto.
SECTION 2.3 Denominations. The Notes will be issuable only in fully registered form without coupons in denominations of $2,000 or an integral multiple of $1,000 in excess of $2,000.
SECTION 2.4 Global Securities. The Notes will be issuable in the form of one or more Global Securities and the Depositary for such Global Security will be The Depository Trust Company in accordance with the Base Indenture.
SECTION 2.5 Payment, Transfer and Exchange. (a) The principal and interest on Notes represented by Global Securities will be payable to the Depositary or its nominee, as the case may be, as the sole registered owner and the sole Holder of the Global Securities represented thereby. The principal and interest on Notes represented by physical securities will be payable, either in person or by mail, at the office of the Paying Agent.
(b) Transfers of Global Securities will be limited to transfer in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in the Global Securities may be transferred or exchanged for physical securities in accordance with the Indenture. If Notes represented by physical securities are presented to the Security Registrar with a request from the Holder of such Securities to register a transfer or to exchange them for an equal principal amount of Securities of other authorized denominations, the Security Registrar will register the transfer as requested in accordance with the Indenture.
SECTION 2.6 Security Registrar and Paying Agent. The Company initially appoints the Trustee as Security Registrar and Paying Agent. The Company may change the Paying Agent and Security Registrar without notice to Holders.
SECTION 2.7 Ranking. The Notes will be senior unsecured obligations of the Company. The payment of the principal of, premium, if any, and interest on the Notes will rank equally in right of payment with all other senior unsecured indebtedness of the Company that is not by its terms expressly subordinated to other indebtedness of the Company. The obligations of the Company under the Notes and the Indenture will be fully and unconditionally guaranteed by the Guarantors with such guarantees ranking equal in right of payment with all other existing and future unsecured and unsubordinated indebtedness of such Guarantor.
SECTION 2.8 Trustee’s Right to Refuse Directions in Certain Circumstances. With respect to directions given by the Holders of a majority in principal amount pursuant to the Indenture to the Trustee in its exercise of any trust or power, the Trustee will be entitled to refuse to follow any such direction that conflicts with law or the Indenture or that the Trustee determines in good faith is unduly prejudicial to the rights of other Holders or may impose personal liability upon the Trustee, unless the Trustee is offered indemnity satisfactory to it.
ARTICLE III
REDEMPTION
SECTION 3.1 Redemption. (a) Except as provided in this Article III, the Company shall have no obligation to redeem, purchase or repay the Notes pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof.
(b) The Notes are subject to redemption at the Company’s option, in whole or in part, at any time and from time to time. If the Notes are redeemed before the Par Call Date, the Notes shall be redeemed at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and
(2) 100% of the principal amount of the Notes to be redeemed plus, in either case, accrued and unpaid interest thereon to the redemption date. On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the redemption date.
The Trustee shall have no obligation with respect to the determination of the redemption price.
SECTION 3.2 Redemption Procedures. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by DTC in accordance with its procedures therefor, in the case of Notes represented by a Global Security; provided that Notes shall not be redeemed in principal amounts of $2,000 or less. In the case of Notes represented by physical securities, a new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of Notes represented by a Global Security, the outstanding principal amount of the Global Security representing the Notes will be reduced by book-entry. Notes called for redemption become due on the redemption date. On and after the redemption date, interest will cease to accrue on Notes or portions of them called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest). On or before the redemption date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on that date.
SECTION 3.3 Notice of Redemption. (a) The Company will deliver, not less than 10 but not more than 60 days prior to the redemption date, a notice of redemption to each Holder of Notes (with copy to the Trustee). At the Company’s written request delivered to the Trustee at least three Business Days prior to the date a notice of redemption is to be delivered (unless a shorter period shall be acceptable to the Trustee), the Trustee shall deliver such notice of redemption to the Holders of the Notes on behalf of the Company.
(b) Notices of redemption shall be sent electronically or by first class mail (or otherwise in accordance with applicable DTC procedures).
(c) Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an offering or financing, Change of Control or other corporate transaction or event. In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied and a new redemption date will be set by the Company in accordance with applicable DTC (as defined below) procedures, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed.
(d) Any notice to the Holders of the Notes of such a redemption must include the appropriate calculation of the redemption price, but need not include the redemption price itself.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.1 Change of Control. (a) If a Change of Control Triggering Event occurs with respect to the Notes, unless the Company has exercised its option to redeem the Notes by notifying the Holders of the Notes to such effect, the Company shall be required to make a Change of Control Offer to each Holder of the Notes as to which the Change of Control Triggering Event has occurred to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of that Holder’s Notes. In a Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of repurchase (a “Change of Control Payment”). Upon the occurrence of a Change of Control Repurchase Event, unless all Notes have been called for redemption, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at an offer price in cash equal to the Change of Control Payment.
(b) Within 30 days following any Change of Control Triggering Event, or at the Company’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be sent to Holders of the Notes, and a copy of such notice shall be delivered to the Trustee, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is sent (a “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control state that the Change of Control Offer is conditioned on the Change of Control Triggering Event with respect to the Notes occurring on or prior to the Change of Control Payment Date. The notice shall state, among other things:
(i) that a Change of Control Triggering Event has occurred or will occur, the date of such event, and that such Holder has the right to require the Company to repurchase such Holder’s Notes;
(ii) the circumstances and relevant facts regarding such Change of Control;
(iii) that the Change of Control Offer is being made pursuant to this Section 4.1 and that all Notes properly tendered pursuant to the Change of Control Offer will be accepted for payment on the Change of Control Payment Date;
(iv) the Change of Control Payment Date;
(v) the Change of Control Payment;
(vi) the name and address of the Paying Agent;
(vii) that the Notes must be surrendered at least five Business Days prior to the Change of Control Payment Date to the Paying Agent at the office of the Paying Agent, together with the form entitled “Option of Holder to Elect Repayment” which form is annexed to the Notes
(viii) that the Change of Control Payment for any Note which has been properly tendered and not withdrawn will be made promptly following the Change of Control Payment Date;
(ix) that any Note not tendered will continue to accrue interest; and
(x) that, unless the Company defaults in making the Change of Control Payment, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date.
A Change of Control Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of the provisions of this Indenture, the Notes and/or the Guarantees; provided that such Change of Control Offer shall not include the delivery of such consents as a condition precedent.
(c) In order to accept the Change of Control Offer the Holder must deliver to the Paying Agent, at least five Business Days prior to the Change of Control Payment Date, the Notes, together with the form entitled “Option to Elect Repayment”, which form is annexed to the Notes, duly completed, setting forth:
(i) the name of the Holder of the Notes;
(ii) the principal amount of the Notes;
(iii) the principal amount of the Notes to be repurchased;
(iv) the certificate number or description of the tenor and terms of the Notes;
(v) a statement that the Holder is accepting the Change of Control Offer; and
(vi) a guarantee that the Notes together with the form entitled “Option to Elect Repayment Form” duly completed will be received by the Paying Agent at least five Business Days prior to the Change of Control Payment Date.
Any exercise by a Holder of its election to accept the Change of Control Offer shall be irrevocable. The Change of Control Offer may be accepted for less than the entire principal amount of the Notes but in that event the principal amount of the Notes remaining outstanding after repurchase must be equal to $2,000 or an integral multiple of $1,000 in excess thereof. The Notes which are repurchased only in part (pursuant to the provisions of this Section 4.1) shall be so stated in the applicable “Option to Elect Repayment Form,” and, with respect to Notes represented by physical securities, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of the Notes without service charge, a new Note or Notes of the same series and tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Notes.
(d) On each Change of Control Payment Date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions of such Notes properly tendered pursuant to the applicable Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all such Notes or portions of such Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of the Notes or portions of the Notes being repurchased and that all conditions precedent provided for in this Indenture to the Change of Control Offer and to the repurchase by the Company of the Notes pursuant to the Change of Control Offer have been met.
(e) The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements of this Section 4.1 and the third party repurchases all Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under this Supplemental Indenture with respect to the Notes, other than a default in the payment of the Change of Control Payment upon a related Change of Control Triggering Event.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a related Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes, the Company shall comply with those securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.1 by virtue of any such conflict.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Ratification of Base Indenture. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. In addition to the modifications permitted by clauses (a) through (k) of Section 9.01 of the Base Indenture, the Company, without the consent of any Holders, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, to conform the provisions of this Indenture to the “Description of Notes” section of the Prospectus Supplement.
SECTION 5.2 Trustee Not Responsible for Recitals. The recitals contained herein and in the Notes, except with respect to the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture, of the Notes or of the Guaranties. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof.
SECTION 5.3 Table of Contents, Headings, etc. The table of contents and headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 5.4 Counterpart Originals. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Delivery of such an executed counterpart by facsimile transmission or electronic (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) shall constitute effective execution and delivery of this Indenture and may be used in lieu of the original signature for all purposes. The words “execution,” “signed,” “signature,” “delivery” and words of like import in or relating to this Supplemental Indenture or any document to be signed in connection with this Supplemental Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
SECTION 5.5 Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed all as of the date and year first written above.
| EATON CORPORATION | ||
| By: | /s/ Kirsten M. Park | |
| Name: Kirsten M. Park | ||
| Title: Senior Vice President - Treasury | ||
| By: | /s/ Lizbeth L. Wright | |
| Name: Lizbeth L. Wright | ||
| Title: Assistant Secretary | ||
| COOPER B-LINE, INC. | ||
| COOPER BUSSMANN, LLC | ||
| COOPER CROUSE-HINDS, LLC | ||
| COOPER POWER SYSTEMS, LLC | ||
| COOPER WIRING DEVICES, INC. | ||
| EATON AEROQUIP LLC | ||
| EATON AEROSPACE LLC | ||
| EATON ELECTRIC HOLDINGS LLC | ||
| EATON FILTRATION LLC | ||
| EATON LEASING CORPORATION | ||
| WRIGHT LINE LLC | ||
| By: | /s/ Lizbeth L. Wright | |
| Name: Lizbeth L. Wright | ||
| Title: Vice President and Secretary | ||
[Signature Page to the Third Supplemental Indenture]
| EATON CORPORATION PLC | ||
| By: | /s/ Lizbeth L. Wright | |
| Name: Lizbeth L. Wright | ||
| Title: Authorized Signatory | ||
| By: | /s/ Kirsten M. Park | |
| Name: Kirsten M. Park | ||
| Title: Authorized Signatory | ||
| COOPER INDUSTRIES UNLIMITED COMPANY | ||
| EATON CAPITAL UNLIMITED COMPANY | ||
| EATON DOMHANDA UNLIMITED COMPANY | ||
| By: | /s/ Nigel Crawford | |
| Name: Nigel Crawford | ||
| Title: Director | ||
| TURLOCK B.V. | ||
| By: | /s/ Alexis Hubert | |
| Name: Alexis Hubert | ||
| Title: Managing Director | ||
[Signature Page to the Third Supplemental Indenture]
| EATON CONTROLS (LUXEMBOURG) | ||
| S.À R.L. | ||
| a société à responsabilité limitée, having its registered office at 12, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies under number B 9.145 | ||
| EATON TECHNOLOGIES | ||
| (LUXEMBOURG) S.À R.L. | ||
| a société à responsabilité limitée, having its registered office at 12, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies under number B 172.818 | ||
| By: | /s/ Sabine Knobloch | |
| Name: Sabine Knobloch | ||
| Title: Manager | ||
[Signature Page to the Third Supplemental Indenture]
| THE BANK OF NEW YORK MELLON | ||
| TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ April Bradley | |
| Name: April Bradley | ||
| Title: Vice President | ||
[Signature Page to the Third Supplemental Indenture]
Exhibit A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED HERETO.
EATON CORPORATION
4.350% Notes due 2028
| No. [__] | CUSIP No. 278062 AK0 |
$[__]
Eaton Corporation, a corporation duly organized and existing under the laws of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [__________] ($[____]) on May 18, 2028, and to pay interest thereon from May 18, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on May 18 and November 18 in each year, commencing November 18, 2023, at the rate of 4.350% per annum until the principal hereof is paid or made available for payment.
The interest so payable, and duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on May 3 and November 3 (whether or not that date is a Business Day as that term is defined in the Indenture). Any such interest not so duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date.
Exhibit A
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Exhibit A
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated: [____]
| EATON CORPORATION | |||
| By: | |||
| Name: | |||
| Title: | |||
| Attest: | |||
| By: | |||
| Name: | |||
| Title: | |||
Exhibit A
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., | ||
| as Trustee | ||
| Dated: [_______] | By | |
| Authorized Signatory | ||
Exhibit A
Reverse of Security
EATON CORPORATION
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 23, 2022 (herein called the “Base Indenture”), among the Company; Eaton Corporation plc, Cooper B-Line, Inc., Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC, Cooper Industries Unlimited Company, Cooper Power Systems, LLC, Cooper Wiring Devices, Inc., Eaton Aeroquip LLC, Eaton Aerospace LLC, Eaton Capital Unlimited Company, Eaton Controls (Luxembourg) S.à r.l., Eaton Domhanda Unlimited Company, Eaton Electric Holdings LLC, Eaton Filtration LLC, Eaton Leasing Corporation, Eaton Technologies (Luxembourg) S.à r.l., Turlock B.V. and Wright Line LLC (together, the “Guarantors”); and The Bank of New York Mellon Trust Company, N.A., as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as supplemented by the Third Supplemental Indenture, dated as of May 18, 2023 (herein called the “Third Supplemental Indenture” and the Base Indenture, as so supplemented by the Third Supplemental Indenture, herein called the “Indenture”), among the Company, the Guarantors and the Trustee, and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
The Securities of this series are subject to redemption upon not less than 10, but not more than 60, days’ notice, at any time, as a whole or in part, at the election of the Company. If this Security is redeemed by the Company before the Par Call Date, it will be redeemed in accordance with the terms of the Indenture, at the greater of the following amounts:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and |
| (2) | 100% of the principal amount of the Notes to be redeemed |
plus, in either case, accrued and unpaid interest thereon to the redemption date.
The Trustee shall have no obligation with respect to the determination of the redemption price.
If this Security is redeemed by the Company on or after the Par Call Date, this Security will be redeemed by the Company at an amount equal to 100% of the principal amount of the Securities to be so redeemed, plus accrued and unpaid interest on such Securities to, but excluding, the redemption date.
Upon the occurrence of a Change of Control Triggering Event, unless all Securities have been called for redemption pursuant to the provision described above, each Holder of Securities of this series shall have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Securities at an offer price in cash equal to the Change of Control Payment.
Exhibit A
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
The Securities shall have the benefit of the Guarantee of the Guarantors on the terms set forth therein.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the Security upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of at least a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 30% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
Exhibit A
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 or an integral multiple of $1,000 in excess of $2,000. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THIS SECURITY WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Exhibit A
GUARANTEE
For value received, Eaton Corporation plc, Cooper B-Line, Inc., Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC, Cooper Industries Unlimited Company, Cooper Power Systems, LLC, Cooper Wiring Devices, Inc., Eaton Aeroquip LLC, Eaton Aerospace LLC, Eaton Capital Unlimited Company, Eaton Controls (Luxembourg) S.à r.l., Eaton Domhanda Unlimited Company, Eaton Electric Holdings LLC, Eaton Filtration LLC, Eaton Leasing Corporation, Eaton Technologies (Luxembourg) S.à r.l., Turlock B.V., and Wright Line LLC, (together, the “Guarantors”) hereby fully and unconditionally guarantee the cash payments in United States dollars of principal of and interest on the Security on which this Guarantee is endorsed in the amounts and at the time when due and interest on the overdue principal and interest, if any, on this Security, if lawful, and the payment of all other obligations of Eaton Corporation (the “Company”) under the Indenture or the Security, to the Holder of this Security and the Trustee, all in accordance with and subject to the terms and limitations of this Security, Article 17 of the Base Indenture and this Guarantee. This Guarantee will become effective in accordance with Article 17 of the Base Indenture and its terms shall be evidenced therein. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture, dated as of August 23, 2022 (herein called the “Base Indenture”), among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended or supplemented (as so amended or supplemented, the “Indenture”).
The obligations of the undersigned to the Holder of this Security and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 17 of the Base Indenture and reference is hereby made to the Indenture for the precise terms and limitations of the Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. Each Holder of the Security to which this Guarantee is endorsed, by accepting such Security, agrees to and shall be bound by such provisions. The Guarantor will be deemed released from all of its obligations under the Indenture and this Guarantee, and this Guarantee will terminate, without any action required on the part of the Trustee or any Holder of the Securities, upon the terms and conditions as provided in Sections 17.12 of the Indenture.
This Guarantee shall be an unsecured and unsubordinated obligation of the Guarantor and rank equally with other unsecured and unsubordinated indebtedness of the Guarantor that is currently outstanding or that it may issue in the future.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by manual or electronic signature.
THIS GUARANTEE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Exhibit A
IN WITNESS WHEREOF this instrument has been duly executed in the name of the Guarantors.
| COOPER B-LINE, INC. | ||
| COOPER BUSSMANN, LLC | ||
| COOPER CROUSE-HINDS, LLC | ||
| COOPER POWER SYSTEMS, LLC | ||
| COOPER WIRING DEVICES, INC. | ||
| EATON AEROQUIP LLC | ||
| EATON AEROSPACE LLC | ||
| EATON ELECTRIC HOLDINGS LLC | ||
| EATON FILTRATION LLC | ||
| EATON LEASING CORPORATION | ||
| WRIGHT LINE LLC | ||
| By: | ||
| Name: Lizbeth L. Wright | ||
| Title: Vice President and Secretary | ||
| EATON CORPORATION PLC | ||
| By: | ||
| Name: Lizbeth L. Wright | ||
| Title: Authorized Signatory | ||
| By: | ||
| Name: Kirsten M. Park | ||
| Title: Authorized Signatory | ||
Exhibit A
| COOPER INDUSTRIES UNLIMITED COMPANY | ||
| EATON CAPITAL UNLIMITED COMPANY | ||
| EATON DOMHANDA UNLIMITED COMPANY | ||
| By: | ||
| Name: Nigel Crawford | ||
| Title: Director | ||
| TURLOCK B.V. | ||
| By: | ||
| Name: Alexis Hubert | ||
| Title: Managing Director | ||
| EATON CONTROLS (LUXEMBOURG) S.À R.L. | ||
| EATON TECHNOLOGIES (LUXEMBOURG) S.À R.L. | ||
| By: | ||
| Name: Sabine Knobloch | ||
| Title: Manager | ||
Exhibit A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to the Company’s offer upon a Change of Control Triggering Event in accordance with the Indenture, check the box: ☐
If you want to elect to have only part of this Note purchased by the Company pursuant to the Indenture, state the amount in principal amount (must be denominations of $2,000 or an integral multiple of $1,000 in excess of $2,000): $________.
| Date: | Your Signature: | |||
| (Sign exactly as your name appears on the other side of the Note) | ||||
| Signature Guarantee: | ||
| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
A-11
Exhibit 5.1
EATON CORPORATION
1000 Eaton Blvd.
Cleveland, Ohio 44122
The United States
May 18, 2023
Boards of Directors or Managers
of the Obligors (as defined below)
Ladies and Gentlemen:
As Counsel and Assistant Secretary of Eaton Corporation, an Ohio corporation (the “Company”), and Vice President and Secretary of Eaton Aeroquip LLC, an Ohio limited liability company, and Eaton Leasing Corporation, an Ohio corporation (together with the Company, the “Opinion Parties”), I, or attorneys who I supervise, have acted and am furnishing this opinion in connection with the preparation and filing under the Securities Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”) of (i) a registration statement on Form S-3ASR (File No. 333-259545) on September 15, 2021 (the “Registration Statement”), (ii) a Prospectus, dated September 15, 2021, forming part of the Registration Statement (the “Base Prospectus”), and (iii) a prospectus supplement, dated May 15, 2023, filed pursuant to Rule 424(b) under the Securities Act (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”) relating to the issuance and sale of $500,000,000 in aggregate principal amount of the Company’s 4.350% Notes due 2028 (the “Notes”), and the guarantees of the Notes (the “Guarantees”) by the guarantors party thereto. The Notes are being issued pursuant to an indenture, dated as of the date hereof (the “Base Indenture”), among the Company, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the third supplemental indenture, dated as of the date hereof, among the Company, the guarantors party thereto and the Trustee (the Base Indenture, as so supplemented, the “Indenture”). In connection with the issuance and sale of the Notes, the Company, the guarantors party thereto and BNP Paribas Securities Corp., Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein (collectively, the “Underwriters”), entered into an Underwriting Agreement, dated May 15, 2023 (the “Underwriting Agreement”), attached to the Terms Agreement, dated May 15, 2023 (together with the Underwriting Agreement, the “Terms Agreement”).
I have examined such corporate records of the Opinion Parties and such other documents and certificates as I have deemed necessary as a basis for the opinions hereinafter expressed. Based on the foregoing and subject to the qualifications, assumptions and limitations stated herein, having regard for such legal considerations as I have deemed relevant, I am of the opinion that, under the laws of the state of Ohio:
| 1. | Each Opinion Party is a corporation or limited liability company, as applicable, duly incorporated or formed, as applicable, validly existing and in good standing under the laws of Ohio and has all requisite corporate or limited liability company power, as applicable, to execute and deliver, and to perform its obligations under, the Indenture, the Notes and the Guarantees (collectively, the “Transaction Documents”) to which it is a party. |
| 2. | The Indenture has been duly authorized, executed and delivered by each Opinion Party. |
| 3. | The Guarantees have been duly authorized, executed and delivered by each Opinion Party. |
I am a member of the Bar of the State of Ohio and do not purport to be an expert on, or to express any opinion herein concerning, any laws other than the laws of the State of Ohio and the federal laws of the United States. Accordingly, I do not express any opinion as to the laws of any other jurisdiction. The opinions expressed above are limited to the matters stated in this opinion letter, and no opinion is implied or may be inferred beyond those expressly stated in this opinion letter.
The opinions are subject to (i) applicable bankruptcy, insolvency, receivership, conservatorship, liquidation, reorganization, moratorium, fraudulent transfer and other laws affecting the enforcement of creditors’ rights generally and (ii) the application of general principles of equity (whether applied by a court in equity or at law), including, without limitation, (x) the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (y) concepts of materiality, mutuality, reasonableness, good faith and fair dealing in the performance and enforcement of contracts.
In making my examination of documents executed by parties other than the Opinion Parties, I have assumed (i) that such parties had the power, corporate or other, and authority to enter into and perform all their obligations thereunder, (ii) the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity, binding and enforceable effect thereof in accordance with their respective terms and (iii) that the Trustee is in compliance, generally and with respect to acting as trustee under the Indenture, with all applicable laws and regulations.
The opinions expressed above are as of the date hereof only, and I express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which I learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. I assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinions expressed in this opinion letter.
I hereby consent to the use of this opinion as an exhibit to the Form 8-K that shall be incorporated by reference into the Registration Statement and to the use of my name under the heading “Legal Opinions” in the Prospectus. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder, nor do I thereby admit that I am an expert with respect to any part of the Registration Statement or the Prospectus within the meaning of the term “expert” as used in the Securities Act or the rules and regulations of the Commission promulgated thereunder. The opinions set forth in this letter are effective as of the date hereof, and I express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which I learn, subsequent to the date of this opinion.
Very truly yours,
/s/ Lizbeth L. Wright
Lizbeth L. Wright, Vice President and Assistant Secretary
2
Exhibit 5.2
| SJP\62199564.3 | 18 May 2023 |
|
Eaton Corporation plc
Eaton Capital Unlimited Company Cooper Industries Unlimited Company Eaton Domhanda Unlimited Company Eaton House, 30 Pembroke Road Dublin 4 Ireland |
| Eaton Corporation plc (registered number 512978) (the “Parent”) Eaton Capital Unlimited Company (registered number 499912) (“Eaton Capital”) Cooper Industries Unlimited Company (registered number 471594) (“Cooper Industries”) Eaton Domhanda Unlimited Company (registered number 650031) (“Eaton Domhanda”) (together, the “Companies” and each a “Company”) $500,000,000 aggregate principal amount of 4.350% notes due 2028 (the “Notes”) |
Ladies & Gentlemen
| 1. | Introduction |
| 1.1 | We have acted as special legal counsel in Ireland to the Companies in connection with certain Irish law matters relating to the entry into of the Documents by the Companies. |
| 1.2 | We are qualified to give this legal opinion under Irish law on the bases, under the assumptions, and subject to the reservations and qualifications set out below. |
| 2. | Bases of Opinion |
| 2.1 | This Opinion speaks only as of its date. We assume no obligation to update this Opinion at any time in the future or to advise you or any person of any change in law, change in regulation, change in interpretation of law or regulation or change in the practices of the Irish Revenue Commissioners which may occur after the date of this Opinion. |
| 2.2 | For the purposes of giving this Opinion we have examined original, facsimile or electronic copies of: |
| (a) | the executed Documents; |
| (b) | a certificate of an authorised officer of each Company dated 18 May 2023 (the “Certificates”), attaching (as applicable): |
| (i) | copies of the certificate of incorporation, certificates of incorporation on change of name and/or re-registration and the constitution of each Company (as applicable); |
| (ii) | copies of the written resolutions of the board of directors of: |
| (A) | the Parent, passed on 24 February 2021; |
| (B) | Eaton Capital, passed on 1 March 2021, 8 September 2021 and 3 October 2022; |
| (C) | Cooper Industries, passed on 1 March 2021 and 8 September 2021; and |
| (D) | Eaton Domhanda, passed on 1 March 2021 and 8 September 2021, |
each authorising and approving the entry into the Documents;
| (c) | results of searches made by independent law searchers on our behalf against the Companies on 18 May 2023 in: |
| (i) | the Companies Registration Office; |
| (ii) | the Petitions Section of the Central Office of the High Court of Ireland; and |
| (iii) | the Judgments Office of the Central Office of the High Court of Ireland, |
(together, the “Searches”, copies of which are attached to this Opinion); and
| (d) | all other relevant corporate documents of each Company and such further documents and matters of law as we have considered necessary or appropriate for the preparation of this Opinion. |
| 2.3 | In this Opinion: |
“Act” means the Companies Act 2014;
“courts” means the courts of Ireland, unless otherwise indicated, and “court” shall be construed accordingly;
“Documents” means the documents listed in the Schedule hereto;
“Prospectus” means the supplemental prospectus dated 15 May 2023 relating to the offering of the Notes;
“Parties” means, in respect of each of the Documents, the parties to that Document and “Party” means any of them;
“Registration Statement” means the Form S-3 filed with the SEC on 15 September 2021 by the Parent;
“SEC” means the Securities and Exchange Commission;
“Transactions” means the obligations and transactions contemplated by the Documents or any of such obligations and transactions, as the context requires or permits; and
“Underwriters” means the parties named in the Terms Agreement.
| 2.4 | Initially capitalised terms used in this Opinion but not defined herein have the meanings given to them in the Documents. |
| 2.5 | This Opinion is governed by, and interpreted in accordance with, Irish law. |
| 2.6 | This Opinion is limited to the matters expressly stated in this letter only. In particular: |
| (a) | save as expressly stated herein, we express no advice on the effect, validity, or enforceability of or the creation or effectiveness of any document; |
| (b) | we express no advice on the contractual terms of any document other than by reference to the legal character thereof under the laws of Ireland; |
| (c) | we have made no investigation of, and express no advice on, the laws, or the effect on the Documents and the Transactions of the laws, of any country or jurisdiction other than Ireland, and this Opinion is strictly limited to the laws of Ireland as in force on the date hereof and as currently applied by the courts (excluding any foreign law to which reference may be made under the rules of Irish private international law). We have assumed without investigation that, insofar as the laws of any jurisdiction other than Ireland are relevant, such laws do not prohibit and are not inconsistent with any of the obligations or rights expressed in the Documents or the Transactions; and |
| (d) | save as expressly stated herein, we express no views or opinion on matters of fact or tax. |
| 2.7 | For the purposes of this Opinion, we have not examined any documents relating to the Transactions other than those documents set out in paragraph 2.2. Furthermore, we have not examined any other drafts and/or copies of contracts, documents or other instruments affecting any Company or any other person and any other corporate or other records of any Company or any other person, other than as stated in this Opinion. |
| 2.8 | In giving this Opinion, we have relied upon: |
| (a) | the Certificates and the statements made therein, together with the attachments thereto, and this Opinion is expressly given upon the terms that the information disclosed thereby has not changed since the date thereof and that no further investigation or diligence whatsoever in respect of any matter referred to, or the statements made, in a Certificate (or in the attachments thereto) is required of us by you; and |
| (b) | the results of the Searches. |
| 2.9 | It should be noted that the Documents contain express references to provisions of statutes and the law of jurisdictions other than Ireland and we express no opinion on any such provision or its application to the Documents or to any Company. We have proceeded on the basis that words and phrases used in the Documents to describe the laws and practices of such other jurisdictions have the same meaning and effect as if they were governed by Irish law. Accordingly, our opinion must be regarded as being qualified to the extent that, if this basis is incorrect, we would have found it necessary or appropriate to include further assumptions and/or qualifications. |
| 2.10 | We consent to the filing of this Opinion with the SEC as an exhibit to a current report on Form 8-K and its incorporation by reference into the Registration Statement and to the reference to our firm contained under the heading “Legal Opinions” in the Prospectus included therein. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 as amended, or the rules and regulations of the SEC. |
| 3. | Opinion |
Subject to:
| (a) | the bases of opinion set out in paragraph 2 above; |
| (b) | the assumptions and reservations set out in paragraphs 4 and 5, respectively, below; and |
| (c) | any matters or documents not disclosed to us, |
we are of the opinion as follows:
| 3.1 | Corporate Status |
The Parent is a public limited company having a share capital and is duly incorporated under the laws of Ireland. It is incorporated for an indefinite period, is a separate legal entity and is subject to suit in its own name.
Eaton Capital is a public unlimited company having a share capital and is duly incorporated under the laws of Ireland. It is incorporated for an indefinite period, is a separate legal entity and is subject to suit in its own name.
Each of Cooper Industries and Eaton Domhanda are private unlimited companies having a share capital and are duly incorporated under the laws of Ireland. They are incorporated for an indefinite period, are separate legal entities and are subject to suit in their own name.
The Searches do not disclose that any steps have been taken to appoint an examiner to any Company, to appoint a receiver to any Company or its assets or to wind it up. On the basis of the Searches only, each of the Companies is validly existing.
| 3.2 | Capacity and Authority of the Parent and the Guarantors |
Each Company has the necessary legal capacity to enter into, deliver and perform its obligations under the Documents to which it is a party. All necessary corporate action required on the part of each Company to authorise the execution and delivery of the Documents to which it is party and the performance by it of its obligations under the Documents to which it is party has been duly taken.
| 3.3 | Due execution |
Each Company has validly executed the Documents to which it is a party.
| 3.4 | Documents: No breach of constitutional documents/laws |
The execution and delivery by each Company of the Documents to which it is a party and the performance by it of its obligations under the Documents to which it is a party will not violate the Constitution of such Company or any law or regulation of general application in Ireland applicable to such Company.
| 3.5 | Registrations/filings |
No registration, filing, notarisation or recording of the Documents is necessary under the laws of Ireland as a condition of the legality, validity, admissibility in evidence or enforceability of the Documents in Ireland.
| 3.6 | Official Authorisations |
Based on our review of those laws and regulations which are normally applicable to transactions of the type contemplated by the Documents, the execution and delivery by each Company of the Documents to which it is a party and the performance by each Company of its obligations under the Documents to which it is a party, will not require on the part of such Company any consent, exemption, licence, approval or authorisation of any governmental or regulatory body or official of Ireland.
| 3.7 | Governing law |
Council Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual obligations, as amended by Corrigendum to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (“Rome I”) has force of law in Ireland. The incorporation of the laws of the State of New York, as the governing law of contractual obligations arising out of the Documents is, in respect of contractual obligations which are within the scope of Rome I, valid in accordance with Article 3(1) of Rome I and accordingly, subject to and in accordance with Rome I, the laws of the State of New York will, upon proof of the relevant provisions of the relevant laws, be applied by the courts if any claim to enforce such contractual obligations against any Company party to the Documents come under their jurisdiction.
Council Regulation (EC) No. 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”) has force of law in Ireland. The incorporation of the laws of the State of New York, as the governing law of non-contractual obligations arising out of the Documents is, in respect of non-contractual obligations which are within the scope of Rome II, valid in accordance with Article 14(1) of Rome II and accordingly, subject to and in accordance with Rome II, the laws of the State of New York will, upon proof of the relevant provisions of the relevant laws, be applied by the courts if any claim to enforce such non-contractual obligations against any Company party to the Documents comes under their jurisdiction.
| 3.8 | Submission to jurisdiction |
Any submission by a Company in the Documents to which it is a party to the jurisdiction of any New York or any federal court sitting in the Borough of Manhattan, The City of New York (together, the “New York Courts”) is legally valid, binding and enforceable against such Company under the laws of Ireland.
| 3.9 | Enforcement of judgments |
Any judgment in relation to any or all of the Documents obtained in the State of New York against a Company would be recognised and enforced in Ireland without re-trial or examination of the merits of the case provided that:
| (a) | the judgment has not been obtained or alleged to have been obtained by fraud or a trick; |
| (b) | the decision of the New York court and the enforcement thereof was not and would not be contrary to natural or constitutional justice under Irish law; |
| (c) | the enforcement of the judgment would not be contrary to public policy as understood by the courts or constitute the enforcement of a judgment of a penal or revenue nature or be inconsistent with a judgment of the courts in respect of the same matter; |
| (d) | the judgment is final and conclusive and is for a debt or definite sum of money; |
| (e) | the procedural rules of the New York court and the courts have been observed; and |
| (f) | the jurisdiction of the New York courts had been exercised in circumstances which, as a matter of Irish law, an Irish court will recognise as justifying enforcement of the judgment. |
| 4. | Assumptions |
We have assumed for the purposes of this Opinion (without any responsibility on our part if any assumption proves to have been untrue or incorrect as we have not independently verified any assumption):
Authenticity/Completeness of documents
| (a) | the genuineness of any signatures and seals upon all original documents of any kind examined by us; |
| (b) | the authenticity of all documents sent to us as originals; |
| (c) | that all documents requiring to be delivered pursuant to any applicable law have been delivered; |
| (d) | the completeness and conformity to the originals of all copy documents of any kind furnished to us; |
| (e) | that, where incomplete documents have been submitted to us or signature pages only have been supplied to us for the purposes of issuing this Opinion, the originals of such documents correspond in all respects with the last draft of the complete document submitted to us; |
| (f) | that none of the Documents has been amended, modified or terminated in any way since the date that it was executed by the parties thereto; |
Meetings
| (g) | that: |
| (i) | the copies produced to us of written resolutions are true copies and correctly record the subject matter which they purport to record; |
| (ii) | any meetings referred to in such copies were duly convened and held; |
| (iii) | at all times during such meetings there were sufficient members present to ensure a quorum; |
| (iv) | those present at any such meetings acted bona fide throughout; |
| (v) | all resolutions set out in such copies were duly passed; and |
| (vi) | no further resolutions have been passed, or corporate or other action taken which would or might alter the effectiveness thereof; |
Purposes, Benefits and Interests
| (h) | that the Documents and the Transactions have been entered into for bona fide commercial purposes, on arm’s length terms, without any intention to prefer any creditor over any other creditor, without any fraudulent purpose and for the benefit of each Party thereto and are in those Parties’ respective commercial interest and for their respective corporate benefit; |
| (i) | the business which a Company actually carries on is within the terms of its Constitution; |
| (j) | that each Company is entering into the Documents in furtherance of its principal objects; |
| (k) | that the Certificate of Incorporation, any Certificates of Incorporation on a Change of Name and Re-registration and the Constitution of each Company examined by us for the purposes of this Opinion are correct and up-to-date; |
Searches
| (l) | the accuracy and completeness of the results of the Searches, that the information disclosed by the Searches was up-to-date and that the information contained in the Searches has not, since the date and time the Searches were made, been altered and that there was no information which had been delivered for registration or filing that did not appear in the relevant records or files at the time the Searches were made; |
Certificates
| (m) | the accuracy and completeness of the statements contained in the Certificates and of the documents attached to the Certificates as at the date of the Certificates and on the date of this Opinion; |
Governing Law and Foreign Law
| (n) | as a matter of all relevant laws (other than, insofar as such laws apply to the matters expressly covered by this Opinion, the laws of Ireland): |
| (i) | all obligations under the Documents will, upon execution and, where executed as a deed, delivery thereof, be valid, legally binding upon, and enforceable against, the Parties thereto; |
| (ii) | words and phrases used therein have the same meaning and effect as they would if the Documents were governed by Irish law; |
| (iii) | the choice of governing law(s) is bona fide and valid; |
| (iv) | all consents, approvals, notices, filings, recordations, publications, registrations and other steps necessary or desirable in order to permit the execution, delivery (where relevant) or performance of the Documents or to perfect, protect or preserve any of the interests created by the Documents, have been obtained, made or done, or will be obtained, made or done, within any relevant permitted period(s); and |
| (v) | the legal effect of the Documents, and the matters expressed to be effected thereby, as set out in the Documents, and the creation of any security or other interest in any assets the subject thereof, will, upon execution and, where relevant, delivery of the Documents, be effective. |
For the purposes of this assumption, “relevant laws” include (without limitation) most notably the:
| (A) | laws of the jurisdiction of incorporation of each Party and each jurisdiction through which each Party acts for the purposes of the Documents; |
| (B) | the governing law of the Documents where such governing law is not Irish law; and |
| (C) | the lex situs and, if different, the law governing the creation of the assets which are, or purport to be, dealt with under the Documents; |
| (o) | that there are no provisions of the laws of any jurisdiction outside Ireland which are or will be applicable to the Documents which would be contravened by, or are inconsistent with, the execution, performance or delivery of the Documents and that none of the opinions expressed above will be affected by the laws (including the public policy) of any jurisdiction outside Ireland; |
| (p) | insofar as any obligation or right of a Party pursuant to the Documents falls or will fall to be performed or, as the case may be, exercised in any jurisdiction outside Ireland, that its performance or, as the case may be, exercise will not be illegal or ineffective by virtue of the laws of that jurisdiction; |
Parties
| (q) | that: |
| (i) | each Party to the Documents (other than the Companies): |
| (A) | has been duly incorporated; |
| (B) | is validly existing; |
| (C) | has the necessary power, authority and capacity to take the benefit of the Documents expressed or intended to be for that Party’s benefit, and to perform its obligations under the Documents, |
under the laws of the jurisdiction under which it is constituted and any other applicable laws; and
| (ii) | each Party has complied with and will comply with all the laws and regulations applicable to the Transactions in any jurisdiction (other than Ireland insofar as such laws and regulations apply to the matters expressly covered in this Opinion) and has obtained all governmental and other consents, licences and approvals required for the execution, delivery and performance thereof by the laws of the jurisdiction (other than Ireland insofar as such consents, licences and approvals apply to the matters expressly covered by this Opinion) under which the same is to be performed (including such filing, registration, recording or enrolling of the Documents in any such jurisdiction as may be required to ensure the legality, validity, enforceability or admissibility in evidence thereof); |
| (r) | all necessary corporate and shareholder action has been duly and correctly taken by each Party (other than the Companies) to authorise its entry into, delivery and execution of each of the Documents and to perform its obligations thereunder; |
| (s) | that the Documents have been or (as the case may be) will be duly executed by a person or persons duly authorised to do so and so delivered by each of the Parties thereto in accordance with its constitutional documents and the laws of the jurisdiction under which it is constituted; |
| (t) | other than The Bank of New York Mellon Trust Company, N.A., as trustee, each Party acts and shall act as principal and not as agent or in any other capacity whatsoever, fiduciary or otherwise and shall be personally liable as regards the obligations expressed to be owing by it and shall be the beneficial owner of obligations expressed in the Documents to be owed to it; |
| (u) | there are no contractual or similar restrictions binding on any of the Parties which would affect the conclusions in this Opinion; |
| (v) | no Party has or will have notice of any prohibition or restriction on the creation, execution or performance of the Documents; |
Calculations
| (w) | any calculation (including, without limitation, for the purposes of currency conversion) made under each of the Documents will be made in good faith and in a commercially reasonable manner; |
Disqualification of Directors
| (x) | that no person who has been appointed or acts in any way, whether directly or indirectly, as a director or secretary of, who has been concerned in or taken part in the promotion of, a Company has been the subject of a declaration under Section 819 (Restriction) or Section 839 (Disqualification of certain persons from acting as directors or auditors of or managing companies) of the Act; |
Financial Transfers
| (y) | that the Documents and the Transaction are not and will not be affected by: |
| (i) | any financial restrictions arising from orders made by the Minister for Finance under the Financial Transfers Act 1992, the Criminal Justice (Terrorist Offences) Act 2005 and 2015 or the European Communities Acts 1972 to 2012 or European Communities Regulations having direct effect in Ireland. Regulations and orders which have been made under those Acts and Regulations that are in effect at the date of this Opinion impose restrictions on financial transfers involving residents of certain countries, certain persons and certain entities arising from the implementation in Ireland of United Nations and EU sanctions; or |
| (ii) | any directions or orders made under the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 to 2021; |
Section 604, etc.
| (z) | that none of Section 604 (Unfair Preference) or Section 443 (Power of court to order the return of assets improperly transferred) of the Act applies to any of the Transactions; |
Section 238 and 239 of the Act
| (aa) | that Section 238 (Substantial transactions in respect of non-cash assets and involving directors etc.) and Section 239 (Prohibition of loans, etc. to directors and connected persons) have no application to the Documents or the Transactions; |
Insurance Legislation
| (bb) | that the Companies do not carry on any business of insurance, that the guarantees given by the Companies pursuant to the Documents would not be characterised as a contract of insurance under the governing law thereof (New York law), that none of the Companies has received or will receive any fee or other remuneration for providing any such guarantee, that such guarantee is given by the Companies at the request of the Group for the purposes of facilitating the financing of the business carried on by the Group (through the issue of the Notes), and that each of the Companies are members of the Group; |
Selling Restrictions
| (cc) | that the Underwriters have complied with and adhered to, and will comply with and adhere to, all the selling restrictions set out in the Prospectus in the section entitled “Notice to Prospective Investors – European Economic Area” at all times; |
Security Interest
| (dd) | that no security interests of any nature have been or will be created pursuant to or under the terms of the Documents; |
Stamp Duty
| (ee) | that the Notes: |
| (i) | do not carry a right of conversion into stocks or marketable securities of a company having a register in Ireland or into loan capital having such a right; |
| (ii) | do not carry rights of the same kind as shares in the capital of a company, including rights such as voting rights, a share in the profits or a share in the surplus on liquidation; |
| (iii) | are not issued for a price which is less than 90 per cent. of their nominal value; and |
| (iv) | do not carry a right to a sum in respect of repayment or interest which is related to certain movements in an index or indices (based wholly or partly and directly or indirectly on stocks or marketable securities) specified in any interest or other document relating to the loan capital; |
Miscellaneous
| (ff) | that the terms of the Documents will be observed and performed by the Parties; |
| (gg) | the truth, accuracy and completeness of any representations, certificates and information given to us by or on behalf of any Party (including, without limitation, each Company) in reply to any queries which we have considered necessary for the purpose of giving this opinion; |
| (hh) | the completeness and accuracy of all representations in the Documents as to matters of fact; |
| (ii) | the entry by the Parties into the Documents and the performance by them of the Transactions will not infringe the terms of, or constitute a default under, any trust deed, debenture, agreement or other instrument or obligation to which any Party is party or by which any of any Party’s property, undertaking, assets or revenues are bound; |
| (jj) | that there are no escrow arrangements or other agreements of a similar type in place in relation to the Documents; |
Financial Assistance
| (kk) | section 82 (Financial assistance for acquisition of shares) of the Act has no application to the Documents, the Notes or the Transactions; and |
Electronic Signatures
| (ll) | that any electronic signature inserted on the Documents was inserted by or on behalf of and with the consent of the relevant signatory for the purpose of signing and authenticating the Documents. |
| 5. | Reservations and Qualifications |
Our Opinion is subject to the following reservations and qualifications:
| 5.1 | Notwithstanding any provision in the Documents to the contrary, the Documents may be capable of being amended by oral agreement or conduct of the Parties. |
| 5.2 | Provisions in the Documents imposing additional obligations in the event of breach or default, or of payment or repayment being made other than on an agreed date, may be unenforceable to the extent that they are subsequently adjudicated to be penal in nature. The fact that any payment is held to be penal in nature would not, of itself, prejudice the legality or validity of any other provision contained in the Documents which does not provide for the making of such payment. |
| 5.3 | Provisions in the Documents that calculations or certifications or acknowledgements are to be conclusive and binding will not necessarily prevent judicial enquiry by the courts into the merits of any claim by a party claiming to be aggrieved by such calculations, certifications or acknowledgements; nor do such provisions exclude the possibility of such calculations, certifications or acknowledgements being amended by order of the courts. |
| 5.4 | To the extent that the Documents vest a discretion in any party, or provide for any party determining any matter in its opinion, the exercise of such discretion and the manner in which such opinion is formed and the grounds on which it is based may be the subject of a judicial enquiry and review by the courts. |
| 5.5 | Provisions of the Documents providing for severance of provisions due to illegality, invalidity or unenforceability thereof may not be effective, depending on the nature of the illegality, invalidity or unenforceability in question. |
| 5.6 | The effectiveness of terms of documents exculpating a party from a liability, obligation or duty otherwise owed is limited by law. |
| 5.7 | The description of obligations as “enforceable” or “binding” refers to the legal character of the obligations in question. It implies no more than that they are of a character which Irish law recognises and enforces. It does not mean that the Documents will be binding or enforced in all circumstances or that any particular remedy will be available. Equitable remedies, such as specific performance and injunctive relief, are at the discretion of the courts and may not be available to persons seeking to enforce provisions of the Documents. Furthermore, the courts may not allow acceleration of amounts payable under the Documents where an event of default occurs that is considered immaterial. More generally, in any proceedings to enforce the Documents, the courts may require that the Party seeking enforcement acts with reasonableness and good faith. Enforcement of the Documents may also be limited as a result of (a) the provisions of Irish law applicable to contracts held to have become frustrated by events happening after their execution; and (b) any breach of the terms of the Documents by the Party seeking to enforce the same. |
| 5.8 | The obligations of each Party under the Documents are subject to all laws relating to insolvency, bankruptcy, liquidation, reorganisation, moratorium, examinership, trust schemes, preferential creditors, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally. |
| 5.9 | Where an obligation is to be performed outside Ireland under the Documents, it may not be enforceable in Ireland to the extent that performance would be illegal or contrary to public policy under the laws of that jurisdiction. |
| 5.10 | Any judgment of the courts for moneys due under the Documents may be expressed in a currency other than euro but the order may issue out of the Central Office of the High Court expressed in euro by reference to the official rate of exchange prevailing on the date of issue. In addition, in a winding-up in Ireland of an Irish incorporated company, all foreign currency claims must be converted into an Irish currency for the purposes of proof. The rate of exchange to be used to convert foreign currency debts into euro for the purposes of proof in a winding-up is the spot rate as of, in the case of a compulsory winding-up, either the date of commencement of the winding-up (presentation of the petition for winding-up or earlier resolution for winding-up) or of the winding-up order and, in the case of a voluntary winding-up, on the date of the relevant winding-up resolution. |
| 5.11 | A court may refuse to give effect to a purported contractual obligation to pay costs arising from unsuccessful litigation brought against a party and may not award by way of costs all of the expenditure incurred by a successful litigator in proceedings before that court. |
| 5.12 | Claims against any Party may be or become the subject of set-off or counterclaim and any waiver of those or other defences available to each Party may not be enforceable in all circumstances. |
| 5.13 | Currency indemnities contained in the Documents may not be enforceable in all circumstances. |
| 5.14 | We express no opinion on how courts outside Ireland would apply the laws of Ireland in relation to any aspect of the Documents. |
| 5.15 | Claims against any Party may become barred under relevant statutes of limitation if not pursued within the time limited by such statutes. |
| 5.16 | We have not been responsible for investigating or verifying the accuracy of the facts, including statements of law, or the reasonableness of any statement of opinion contained in the Prospectus or that no material information has been omitted therefrom. |
| 5.17 | The failure of the Searches to reveal evidence that any Company has passed a voluntary winding-up resolution, that a petition has been presented or order made by a court for the winding-up of, or appointment of an examiner to any Company or that a receiver or similar officer has been appointed in relation to any of its assets or revenues is not conclusive proof that no such event has occurred, in particular: |
| (a) | the Searches may not have revealed whether a petition for winding-up or the appointment of any examiner had been presented; |
| (b) | notice of a resolution passed, a winding-up order made or the appointment of a receiver or examiner may not have been filed at the Companies Registration Office, Dublin immediately; |
| (c) | searches have not been undertaken in any Office of the Circuit Court, notwithstanding that the Circuit Court has jurisdiction with respect to the examinership of certain companies; and |
| (d) | the position may have changed since the time the Searches were made. |
Yours faithfully
/s/ McCann FitzGerald LLP
McCann FitzGerald LLP
Schedule
The Documents
| 1. | Base Indenture dated 23 August 2022, among Eaton Corporation as the issuer (the “Issuer”), the Parent, the Subsidiary Guarantors (as defined in the Base Indenture) (including the Parent, the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) (the “Base Indenture”), as supplemented by the third supplemental indenture dated 18 May 2023 among the Issuer, the Guarantors and the Trustee (the Base Indenture, as so supplemented, the “Indenture”); and |
| 2. | Underwriting Agreement (the “Underwriting Agreement”), attached to and incorporated therein to the Terms Agreement (together with the Underwriting Agreement, the “Terms Agreement”) dated 15 May 2023 and entered into between, amongst others, the Issuer, the Guarantors (including the Companies) and the representatives of the several underwriters named therein. |
Page 15/15
Exhibit 5.3
| Advocaten | ||
| Notarissen | ||
| Belastingadviseurs | ||
 |
| To Turlock B.V. | Claude Debussylaan 80 | ||
| Europalaan 210 | P.O. Box 75084 | ||
| 7559 SC Hengelo | 1070 AB Amsterdam | ||
| The Netherlands | |||
| T +31 20 577 1771 | |||
| F +31 20 577 1775 | |||
| Date 18 May 2023 | F.J.M. Hengst | ||
| E ferdinand.hengst@debrauw.com | |||
| Our ref. | M40550746/2/20738064 | T +31 20 577 1956 | |
| F +31 20 577 1775 | |||
Re:
Dear Sir/Madam,
Turlock B.V. (the “Guarantor”)
USD 500,000,000 4.350% Notes due 2028 (the “Notes”)
| 1 | Introduction |
De Brauw Blackstone Westbroek N.V. (“De Brauw”, “we”, “us” and “our”, as applicable) acted as Dutch legal adviser to the Guarantor in connection with the Registration.
In addition, we act as Dutch legal adviser to the Guarantor in connection with the issue of the Notes.
Certain terms used in this opinion are defined in the Annex (Definitions).
| 2 | Dutch Law |
This opinion (including all terms used in it) is to be construed in accordance with Dutch law. It is limited to Dutch law and the law of the European Union, to the extent directly applicable in the Netherlands, in effect on the date of this opinion and accordingly, we do not express any opinion on other matters such as (i) matters of fact, (ii) the commercial and non-legal aspects of the issue of the Notes and the transaction pursuant to the Agreements and (iii) the correctness of any representation or warranty included in the Agreements.
|
De Brauw Blackstone Westbroek N.V., Amsterdam, is registered with the Trade Register in the Netherlands under no. 27171912.
All services and other work are carried out under an agreement of instruction (“overeenkomst van opdracht”) with De Brauw Blackstone Westbroek N.V. The
agreement is subject to the General Conditions, which have been filed with the register of the District Court in Amsterdam and contain a limitation of liability. |
| 3 | Scope of Inquiry |
We have examined, and relied upon the accuracy of the factual statements in, the following documents:
| (a) | A copy of: |
| (i) | each Agreement signed by the Guarantor; |
| (ii) | the Registration Statement, including the Base Prospectus; |
| (iii) | the Preliminary Prospectus Supplement; and |
| (iv) | the Prospectus Supplement. |
| (b) | A copy of: |
| (i) | the Guarantor’s deed of incorporation dated 9 January 2008 and its current articles of association dated 11 January 2018, as provided by the Chamber of Commerce (Kamer van Koophandel); |
| (ii) | each Trade Register Extract. |
| (c) | A copy of each Corporate Resolution. |
| (d) | A copy of each Power of Attorney. |
In addition, we have obtained the following confirmations on 17 May 2023:
| (e) | Confirmation through https://data.europa.eu/data/datasets/consolidated-list-of-persons-groups-and-entities-subject-to-eu-financial-sanctions?locale=en and https://www.rijksoverheid.nl/documenten/rapporten/2015/08/27/nationale-terrorismelijst that the Guarantor is not included on any Sanctions List. |
| (f) |
| (i) | Confirmation through https://insolventies.rechtspraak.nl; and |
| (ii) | confirmation through www.rechtspraak.nl, derived from the segment for EU registrations of the Central Insolvency Register; |
in each case that the Guarantor is not registered as being subject to Insolvency Proceedings.
2 / 12
We have not examined any document, and do not express an opinion on, or on any reference to, any document other than the documents referred to in this paragraph 3. Our examination has been limited to the text of the documents and we have not investigated the meaning and effect of any document (or part of it) governed by a law other than Dutch law under that other law.
| 4 | Assumptions |
We have made the following assumptions:
| (a) |
| (i) | Each copy document conforms to the original and each original is genuine and complete. |
| (ii) |
| (A) | Each signature, including each Electronic Signature, is the genuine signature of the individual concerned; and |
| (B) | in relation to any Electronic Signature (other than any qualified electronic signature (elektronische gekwalificeerde handtekening)), the signing method used for that Electronic Signature is sufficiently reliable, taking into account the purpose for which that Electronic Signature was used and all other circumstances. |
| (iii) | Each confirmation referred to in paragraph 3 is true. |
| (iv) | Each Agreement has been signed by all parties, all Notes have been or will have been issued and the Prospectus Supplement has been or will have been filed with the SEC, in each case in the form referred to in this opinion. |
| (b) |
| (i) | Each Corporate Resolution has been duly adopted and remains in force without modification. |
| (ii) | No advice from any works council is required in respect of the Guarantor’s entry into the Agreements and decision to guarantee the Notes under the Dutch Works Council Act (Wet op de ondernemingsraden). |
| (c) | The most recent Trade Register Extract remains up to date. |
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| (d) | The Guarantor and the Issuer subsidiaries of the Parent. |
| (e) |
| (i) | Where required, the Notes have been or will have been validly authenticated in accordance with the Indenture. |
| (ii) | Each Power of Attorney remains in force without modification and no rule of law (other than Dutch law) which under the 1978 Hague Convention on the Law applicable to Agency applies or may be applied to the existence and extent of the authority of any person authorised to sign any Agreement on behalf of the Guarantor under each Power of Attorney, adversely affects the existence and extent of that authority as expressed in that Power of Attorney. |
| (f) |
| (i) | Any Notes offered to the public in the Netherlands have been, are and will be so offered in accordance with the Prospectus Regulation and the Offer Regulations. |
| (ii) | The Notes have not been, are not and will not be admitted to trading on the regulated market of Euronext Amsterdam or on any other regulated market in the Netherlands. |
| (iii) | At the time when it disposed or disposes of the Notes in the context of the offer of the Notes, neither the Issuer nor the Guarantor possessed or possesses inside information (voorwetenschap) in respect of the Issuer or the Guarantor or the trade in the Notes. |
| (g) | The Issuer does not qualify as a bank (bank) within the meaning of the Wft. |
| 5 | Opinion |
Based on the documents and confirmations referred to and assumptions made in paragraphs 3 and 4 and subject to the qualifications in paragraph 6 and any matters not disclosed to us, we are of the following opinion:
| (a) | The Guarantor has been incorporated and exists as a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid). |
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| (b) |
| (i) | The Guarantor has the corporate power to enter into and perform each Agreement. |
| (ii) | The Guarantor has taken all necessary corporate action to authorise its entry into and performance of each Agreement. |
| (c) | The Guarantor’s entry into and performance of each Agreement does not violate Dutch law or its articles of association. |
| 6 | Qualifications |
This opinion is subject to the following qualifications:
| (a) | This opinion is subject to any limitations arising from (a) rules relating to bankruptcy, suspension of payments or Preventive Restructuring Processes, (b) rules relating to foreign (i) insolvency proceedings (including foreign Insolvency Proceedings), (ii) arrangement or compromise of obligations or (iii) preventive restructuring frameworks, (c) any other collective judicial or administrative proceeding in any jurisdiction pursuant to a law relating to insolvency, (d) other rules regulating conflicts between rights of creditors, or (e) intervention and other measures in relation to financial enterprises or their affiliated entities. |
| (b) | If a legal act (rechtshandeling) performed by a Dutch legal entity (including (without limitation) an agreement pursuant to which it guarantees the performance of, or provides or agrees to provide security for, any of another person’s obligations and any other legal act having a similar effect) is not in the entity’s interest, the act may (i) exceed the entity’s corporate or other power and (ii) violate its articles of association. |
| (c) | Enforceability of each Agreement and the Notes may be limited under the Sanctions Act 1977 (Sanctiewet 1977) or otherwise by international sanctions. |
| (d) |
| (i) | An extract from the Trade Register does not provide conclusive evidence that the facts set out in it are correct. However, under the 2007 Trade Register Act (Handelsregisterwet 2007), subject to limited exceptions, a legal entity or partnership cannot invoke the incorrectness or incompleteness of its Trade Register registration against third parties who were unaware of the incorrectness or incompleteness. |
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| (ii) | A confirmation from an Insolvency Register does not provide conclusive evidence that an entity is not subject to Insolvency Proceedings. |
| (e) | We do not express any opinion on: |
| (i) | the validity, binding effect or enforceability of any Agreement and the Notes; and |
| (ii) | (i) tax matters, (ii) anti-trust, state-aid or competition laws, (iii) financial assistance, (iv) sanctions laws, (v) in rem matters, (vi) any laws that we, having exercised customary professional diligence, could not be reasonably expected to recognize as being applicable to the Agreements or the transaction pursuant to the Agreements to which this opinion relates, (vii) the validity and enforceability of the submission to exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the County and City of New York included in the Indenture and (viii) any representations, warranties or other statements contained in the Agreements. |
| 7 | Reliance |
| (a) | This opinion: |
| (i) | is an exhibit to a current report on Form 8-K, which Form 8-K will be incorporated by reference into the Registration Statement and may be relied upon for the purpose of the Registration and not for any other purpose; |
| (ii) | may not be supplied, and its contents may not be disclosed, to any person other than as an exhibit to (and therefore together with) the Form 8-K. |
| (b) | The Issuer may: |
| (i) | file this opinion as an exhibit to a current report on Form 8-K; and |
| (ii) | refer to De Brauw giving this opinion under the heading “Legal Opinions” in the Prospectus Supplement which is a part of the Registration Statement. |
The previous sentence is no admittance from us (or De Brauw) that we are (or De Brauw is) in the category of persons whose consent for the filing and reference as set out in that sentence is required under Section 7 of the Securities Act or any rules or regulations of the SEC promulgated under it.
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| (c) | Each person accepting this opinion agrees, in so accepting, that: |
| (i) | only De Brauw (and not any other person) will have any liability in connection with this opinion; |
| (ii) | the agreement in this paragraph 7 and all liability and other matters relating to this opinion will be governed exclusively by Dutch law; |
| (iii) | this opinion may be signed with an Electronic Signature. This has the same effect as if signed with a handwritten signature; and |
| (iv) | the agreements in this paragraph 7 apply in addition to, and do not set aside, De Brauw’s terms and conditions of business. |
(signature page follows)
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|
Yours faithfully, /s/ De Brauw Blackstone Westbroek N.V. De Brauw Blackstone Westbroek N.V. |
| Ferdinand Hengst |
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Annex – Definitions
In this opinion:
“Agreements” means:
| (a) | the Indenture; |
| (b) | the Third Supplemental Indenture; |
| (c) | the Terms Agreement; and |
| (d) | the Guarantee. |
“Base Prospectus” means the base prospectus included in the Registration Statement.
“BW” means the Civil Code (Burgerlijk Wetboek).
“Corporate Resolution” means each of:
| (a) | the September 2021 Board Resolution; and |
| (b) | the May 2023 Board Resolution. |
“De Brauw” means De Brauw Blackstone Westbroek N.V. , and “we”, “us” and “our” are to be construed accordingly.
“Dutch law” means the law directly applicable in the Netherlands.
“Electronic Signature” means any electronic signature (elektronische handtekening), any advanced electronic signature (geavanceerde elektronische handtekening) and any qualified electronic signature (elektronische gekwalificeerde handtekening) within the meaning of Article 3 of Regulation (EU) 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing directive 1999/93/EC, and article 3:15a BW.
“Form 8-K ” means the Issuer’s current report on Form 8-K to which this opinion is filed as an exhibit, reporting the issue of the Notes (excluding any documents incorporated by reference into the report and any exhibits to the report).
“Guarantee” means the guarantee of the Notes from the Guarantor included in the Notes.
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“Guarantor” means Turlock B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) with seat in Amsterdam, Trade Register Number 08169375.
“Indenture” means the indenture dated 18 May 2023, between among others, the Issuer (as defined therein), each of the guarantors thereto (including the Guarantor) and the Trustee.
“Issuer” means Eaton Corporation.
“Insolvency Proceedings” means insolvency proceedings as defined in Article 2(4) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“May 2023 Board Resolution” means the written resolution of the management board of the Guarantor dated 15 May 2023.
“Notes” means the USD 500,000,000 4.350% Notes due 2028 and includes, where the context permits the Notes, including the Guarantee, in all forms referred to in this opinion.
“Offer Regulations” means:
| (a) | Commission Delegated Regulation (EU) 2019/979 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council with regard to regulatory technical standards on key financial information in the summary of a prospectus, the publication and classification of prospectuses, advertisements for securities, supplements to a prospectus, and the notification portal, and repealing Commission Delegated Regulation (EU) No 382/2014 and Commission Delegated Regulation (EU) 2016/301; |
| (b) | Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Commission Regulation (EC) No 809/2004; |
| (c) | Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse; and |
| (d) | Commission Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies to the extent applicable to the Prospectus. |
“Parent” means Eaton Corporation plc.
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“Power of Attorney” means each of:
| (a) | the power of attorney to each of the Guarantor’s managing directors or any of its proxyholders which are registered at the relevant time with the Dutch Chamber of Commerce, included in the September 2021 Board Resolution; and |
| (b) | the power of attorney to each of the Guarantor’s managing directors or any of its proxyholders which are registered at the relevant time with the Dutch Chamber of Commerce, included in the May 2023 Board Resolution. |
“Preliminary Prospectus Supplement” means the preliminary prospectus supplement dated 15 May 2023.
“Preventive Restructuring Processes” means public and/or undisclosed preventive restructuring processes within the meaning of the Dutch Act on Court Confirmation of Extrajudicial Restructuring Plans (Wet homologatie onderhands akkoord).
“Prospectus” means the Base Prospectus as supplemented by the Preliminary Prospectus Supplement and the Prospectus Supplement.
“Prospectus Regulation” means Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
“Prospectus Supplement” means the final prospectus supplement dated 15 May 2023.
“Registration” means the registration of the Notes with the SEC under the Securities Act.
“Registration Statement” means the registration statement on Form S-3 dated 15 September 2021 in relation to the Registration (including the Base Prospectus, but excluding any documents incorporated by reference in it and any exhibits to it).
“Sanctions List” means each of:
| (a) | each list referred to in: |
| (i) | Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism; |
| (ii) | Article 2 of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the ISIL (Da’esh) and Al-Qaida organisations, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan; and |
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| (iii) | Article (1)(1) of the Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism; or |
| (b) | the national terrorism list (nationale terrorismelijst) of persons and organisations designated under the Sanction Regulation Terrorism 2007-II (Sanctieregeling terrorisme 2007-II). |
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“September 2021 Board Resolution” means the written resolution of the management board of the Guarantor dated 15 September 2021.
“Terms Agreement” means a terms agreement dated 15 May 2023 between the Issuer, each of the guarantors thereto (including the Guarantor) and the Underwriters, together with the Underwriting Agreement attached thereto.
“the Netherlands” means the part of the Kingdom of the Netherlands located in Europe.
“Third Supplemental Indenture” means the third supplemental indenture, dated 18 May 2023, among the Issuer, each of the guarantors thereto (including the Guarantor) and the Trustee.
“Trade Register Extract” means each Trade Register extract relating to the Guarantor provided by the Chamber of Commerce and dated 9 September 2021 and 17 May 2023.
“Trustee” means The Bank of New York Mellon Trust Company, N.A.
“Underwriters” means each of:
| (a) | BNP Paribas Securities Corp., |
| (b) | Goldman Sachs & Co. LLC; and |
| (c) | J.P. Morgan Securities LLC; |
as representatives of the several underwriters named in the Terms Agreement.
“Wft” means the Financial Markets Supervision Act (Wet op het financieel toezicht).
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Exhibit 5.4
Luxembourg, 18 May 2023
|
Eaton Controls (Luxembourg) S.à r.l. 12, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg
Eaton Technologies (Luxembourg) S.à r.l. 12, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg
(the “Addressees”) |
White & Case S.à r.l. 2453 Luxembourg R.C.S Luxembourg B422638
Registered with the Luxembourg Bar (List VI) VAT LU33384910
Whitecase.com |
Dear Sir, dear Madam,
| 1. | We have acted as Luxembourg legal counsel to (i) Eaton Controls (Luxembourg) S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg (“Luxembourg”), having its registered office at 12, rue Eugène Ruppert, L-2453 Luxembourg, Luxembourg and registered with the Luxembourg trade and companies register (Registre de commerce et des sociétés, Luxembourg) (the “Register”) under number B9145 (“Eaton Controls”) and (ii) Eaton Technologies (Luxembourg) S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg, having its registered office at 12, rue Eugène Ruppert, L-2453 Luxembourg, Luxembourg and registered with the Register under number B172818 (“Eaton Technologies” and together with Eaton Controls, the “Companies” and each a “Company”) in connection with the offering (the “Offering”) of $500,000,000 4.350% notes due 2028 (the “Notes”) and the entry into the agreements listed in paragraphs 2(i) through 2(k) below (the “Agreements”). |
Capitalised terms used and not otherwise defined herein shall have the meaning given to them in the Registration Statement.
| 2. | For the purposes of this opinion, we have examined, to the exclusion of any other document, the following documents (the “Documents”), which we deem sufficient and appropriate for the opinions expressed herein: |
| (a) | a copy of the articles of association of Eaton Controls (the “Eaton Controls Articles”) as at 8 December 2018; |
| (b) | a copy of the articles of association of Eaton Technologies (the “Eaton Technologies Articles” and together with the Eaton Controls Articles, the “Articles”) as at 9 February 2018; |
| (c) | an excerpt of the Register pertaining to Eaton Controls dated 17 May 2023; |
| (d) | an excerpt of the Register pertaining to Eaton Technologies dated 17 May 2023; |
| (e) | an electronic copy of a negative certificate (certificat négatif) issued by the Register pertaining to Eaton Controls dated 17 May 2023 (the “Eaton Controls Negative Certificate”) confirming that on the day immediately prior to the date of issuance of the Negative Certificates, there were no records at the Register of any court order regarding, amongst others, a (i) bankruptcy adjudication against each Company, (ii) reprieve from payment (sursis de paiement), (iii) controlled management (gestion contrôlée), (iv) composition with creditors (concordat préventif de la faillite), or (v) administrative dissolution without liquidation (dissolution administrative sans liquidation); |
| (f) | an electronic copy of a negative certificate (certificat négatif) issued by the Register pertaining to Eaton Technologies dated 17 May 2023 (the “Eaton Technologies Negative Certificate” and together with the Eaton Controls Negative Certificate, the “Negative Certificates”) confirming that on the day immediately prior to the date of issuance of the Negative Certificates, there were no records at the Register of any court order regarding, amongst others, a (i) bankruptcy adjudication against each Company, (ii) reprieve from payment (sursis de paiement), (iii) controlled management (gestion contrôlée), (iv) composition with creditors (concordat préventif de la faillite), or (v) administrative dissolution without liquidation (dissolution administrative sans liquidation); |
| (g) | a scanned copy of the written resolutions taken by the board of managers of Eaton Controls on 15 May 2023 (the “May 2023 Eaton Controls Board Resolutions”); |
| (h) | a scanned copy of the written resolutions taken by the board of managers of Eaton Technologies on 15 May 2023 (the “May 2023 Eaton Technologies Board Resolutions” and together with the May 2023 Eaton Controls Board Resolutions, the “May 2023 Board Resolutions”); |
| (i) | a scanned copy of the New York State law indenture in relation to the securities dated 23 August 2022 and entered into, among others, between Eaton Corporation, Eaton Corporation plc, certain other companies as guarantors and The Bank of New York Mellon, London Branch as Trustee (the “Indenture”); |
| (j) | an executed copy of a third New York State law governed supplemental indenture in relation to the Notes dated 18 May 2023 and entered into between, Eaton Corporation, Eaton Corporation plc, certain other companies as guarantors and The Bank of New York Mellon, N.A., as Trustee (the “Third Supplemental Indenture”); and |
| (k) | a scanned copy of the New York state law governed underwriting agreement, including the terms agreement in relation securities dated 15 May 2023 and entered into between Eaton Corporation, Eaton Corporation plc, certain other companies as guarantors and the underwriters thereto (the “Underwriting Agreement”). |
The term “Agreements” includes, for the purposes of Schedule A and Schedule B, any document in connection therewith.
We have not reviewed any other document than the Documents. Except as stated expressly herein, we have not examined any other agreements, arrangements, instruments or other documents affecting, directly or indirectly, either the parties to the Documents or the Documents, nor have we made any other enquiries concerning any of the parties.
Nothing in this opinion should be construed as implying that we are familiar with the affairs of any party to the Agreements or any of their affiliates and this opinion is based solely on the Documents. We assume no responsibility for the investigation or verification of any statements of facts or the reasonableness of any assumption or statement of opinion (including, without limitation, as to any representations and warranties and as to the solvency of any party to the Agreements), without prejudice to the opinions expressed below in this opinion.
| 3. | This opinion speaks as of its date and is confined to and is given solely on the basis of the laws of Luxembourg as presently in force. We do not purport to be experts on, or generally familiar with, any law other than the laws of Luxembourg. Accordingly, we express no opinion herein with regard to any system of law other than the laws of Luxembourg in force at the date hereof, as currently published, and as interpreted and applied in published case law of Luxembourg courts. |
This opinion expresses and describes Luxembourg legal concepts in English and not in their original French form. Luxembourg legal concepts expressed in English are to be construed in accordance with the Luxembourg legal concepts to which they refer. It cannot be excluded that due to the differences of legal systems, some words or phrases may have different connotations than the French words or phrases would have.
Furthermore, we have not been instructed to review or opine on any matter with respect to and we express no opinion as to (i) the capacity, power or existence of any party to the Agreements (other than the Companies), (ii) the due execution of the Agreements (other than by the Companies), (iii) the legality, validity, enforceability or admissibility in evidence of the Agreements, (iv) any liability to tax, which may arise or be suffered as a result of, or in connection with, any of the Documents or their execution, creation, issue, performance or enforcement, (v) any public international law or the rules of, or promulgated under, any treaty or by any treaty organisation, except to the extent it would have any direct effect under Luxembourg law, or (vi) on the laws of any jurisdiction other than Luxembourg.
No opinion is given that the future or continued performance of the obligations of any of the parties to the Agreements or the consummation of the transactions contemplated in the Agreements will not contravene Luxembourg law if such law is altered after the date hereof. We assume no obligation to advise any party or person of any changes of law or fact which occur after the date of this opinion, even if such change may affect the legal analysis, legal conclusions or information contained in this opinion.
| 4. | Based upon the assumptions set out in Schedule A and subject to the qualifications set out in Schedule B, and subject to any matters not disclosed to us, we are, as at the date hereof, of the following opinion: |
Status, power, authority and authorization
| (a) | Each Company has been formed for an indefinite duration and legally exists as a private limited liability company (société à responsabilité limitée) under the laws of Luxembourg. |
| (b) | Each Company has the corporate power and authority to enter into the Agreements and to perform its obligations thereunder. |
| (c) | Each Company has taken all necessary corporate actions to authorise the entry into the Agreements and the performance of its obligations thereunder. |
Due execution
| (d) | The Agreements have been duly executed on behalf of each Company. |
Negative certificates
| (e) | According to the Negative Certificates, on the day immediately prior to the date of issuance of the Negative Certificates, no court order was recorded with the Insolvency Register pursuant to which each Company had been adjudicated bankrupt (faillite) or become subject to, or benefited from, a reprieve from payment (sursis de paiement), controlled management (gestion contrôlée) or composition with creditors (concordat préventif de la faillite), judicial liquidation, judicial appointment of a temporary administrator, or proceedings of administrative dissolution without liquidation (dissolution administrative sans liquidation). |
No conflict
| (f) | Neither the entry by the Companies into the Agreements, nor the performance by any Company of its obligations thereunder, conflict with any provision of the Articles or any mandatory provision of Luxembourg law generally applicable to private limited liability companies |
| 5. | We have given this opinion solely for the benefit of the Addressees in connection with the Registration Statement and the Agreements. |
This opinion may not, without our prior written consent, be relied upon for any other purpose nor be relied upon by any other persons except for the persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion may not be disclosed without prior written consent except that we hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement and to the reference to our firm contained under the heading “Legal Opinions” in the prospectus included therein. In giving such consent we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder.
| 6. | This opinion is strictly limited to the matters stated herein and may not be read or construed as extending by implication to any matters not specifically referred to. The schedules to this opinion form an integral part of the opinion. |
| 7. | This opinion is to be governed by and construed in accordance with Luxembourg law, as at the date of this opinion, and any disputes relating to it shall be of the exclusive jurisdiction of the competent courts of the city of Luxembourg. In particular, but without limitation, it may only be relied upon under the express condition that any issues of interpretation or liability arising hereunder will be governed by Luxembourg law and be exclusively brought before the competent courts of the city of Luxembourg. |
Yours sincerely,
/s/White & Case S.à r.l.
White & Case S.à r.l.
Schedule A – Assumptions
For the purposes of this opinion, we have assumed, and we have not verified independently, with your consent:
| 1. | the completeness and conformity to the originals of all documents purporting to be copies of originals, the authenticity of all documents submitted to us as copies, received by us by telefax or through electronic transmission or submitted to us as conformed, certified or photo static copies or photocopies and the authenticity of the originals thereof and the genuineness of all signatures, seals and stamps; |
| 2. | that all documents submitted to us have been executed by the persons whose names are indicated thereon as being the names of the signatories (and that such persons had the general legal capacity to execute these documents); |
| 3. | that the Agreements have in fact been signed on behalf of each Company by the persons empowered in the Resolutions or in accordance with the Power of Attorney, as applicable; |
| 4. | that the place of the central administration (siège de l’administration centrale), the principal place of business (principal établissement) and the centre of main interests (as referred to in Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (the “EU Insolvency Regulation”)) of each Company are located at the place of its registered office (siège statutaire) in Luxembourg and none of the Companies has an establishment (as such term is defined in the EU Insolvency Regulation) outside Luxembourg; |
| 5. | that no Company does, or is not deemed to carry out an activity in the financial sector on a professional basis as referred to in the Luxembourg act dated 5 April 1993 relating to the financial sector, as amended or an activity requiring the holding of a business license under the Luxembourg act dated 2 September 2011 relating to the establishment of a certain business and business licence; |
| 6. | that each Company complies with the provisions of the Luxembourg act dated 31 May 1999 concerning the domiciliation of companies, as amended; |
| 7. | that the Articles have not been amended since the date referred to in paragraphs 2(a) and 2(b); |
| 8. | that the Agreements and all other agreements referred to therein represent and contain the entirety of the transaction entered into by the parties thereto and the absence of any other arrangements between any of the parties to the Agreements which modify or supersede any of the terms of the Agreements and, in particular, that there is no “side-letter” entered into by the parties regarding this transaction and which would be material to this opinion; |
| 9. | the truth, accuracy and completeness at all relevant times of each of the statements and matters of fact, relied upon, assumed herein, or contained in the Agreements; |
| 10. | that each party to the Agreements (other than the Companies) is duly incorporated or organised and validly existing; |
| 11. | that all parties have acted in good faith in connection with the Agreements, that there is no illicit cause (cause illicite) in relation to the Agreements, that there is neither fraud (dol), duress (violence), mistake (erreur) or inadequacy (lésion) on the part of any of the parties to the Agreements, their respective directors, employees, agents and advisers; that there has been no material mistake of fact or misunderstanding, duress or undue influence in connection with the negotiation, execution or delivery of the Agreements; |
| 12. | the truth, accuracy and completeness at all relevant times of each of the statements and matters of fact, relied upon, assumed herein, or contained in the Agreements; |
| 13. | that all agreed conditions to the effectiveness of the Agreements have been or will be satisfied; |
| 14. | that all of the representations and warranties (except to the extent opined upon in this opinion) given by any of the parties to the Agreements are, and will be, when made or repeated or when deemed made or repeated (as the case may be), and were at all relevant times, true and accurate and that any representation or warranty given by any of the parties to the Agreements that it is not aware of or has no notice of any act, matter, thing or circumstance means that the same does not exist or has not occurred; |
| 15. | the due compliance with all matters under any applicable law other than Luxembourg law (including, without limitation, the obtaining of the necessary consents, licenses, approvals and authority, the making of the necessary filings, registrations and notifications, and the payment of stamp duties and other documentary taxes and charges), as may relate to the Agreements or the parties to the Agreements or other persons affected thereby or for the performance or enforcement by or against the parties or such other persons of their obligations or rights as they are to be performed or enforced, as the case may be; |
| 16. | that each party to the Agreements (other than the Companies) has the capacity, power and authority to enter into and to exercise its rights and to perform its obligations under the Agreements to which it is a party; |
| 17. | that each party to the Agreements (other than the Companies) has duly authorised, executed and delivered the Agreements to which it is a party; |
| 18. | that the consent of any person (other than the Companies), authority, or governmental agency which is required under any applicable law other than Luxembourg law in relation to the execution and delivery of the Agreements and the performance and observation of the terms thereof by the parties has been obtained on the date of this opinion and none of these transactions will infringe the terms of, or constitute a default under, any rule of law (including any rule of public policy) of any jurisdiction (other than Luxembourg to the extent opined herein), any agreement or other instrument or obligation to which any party thereto is a party or by which any of its property, undertaking, assets or reserves are bound; |
| 19. | that none of the transactions contemplated under or further to any of the Agreements will constitute unlawful financial assistance under any applicable law; |
| 20. | that the transactions contemplated by the Agreements are bona fide (bonne foi) transactions that have been entered into by the parties thereto for legitimate commercial purposes, without any intention to deprive of any legal benefit any persons (including for the avoidance of doubt third parties) or to circumvent any applicable mandatory laws or regulations of any jurisdiction (including without limitation any tax laws), are compatible with that parties profit purpose (but lucratif), are in the corporate interest (intérêt social) of each Company and serve the corporate purpose of each Company; |
| 21. | that the entry by the Companies into the Agreements is not an abnormal transaction in the sense that those acting on behalf of the Companies know that, by doing so, it would prejudice its creditors; |
| 22. | that each Company is not, is not deemed to be, and, as a result of entering into and performing the Agreements, will not be, over-indebted in light of the current practice of the Luxembourg tax administration; |
| 23. | that all managers signed the Resolutions, that the Resolutions have not been amended, rescinded, revoked or declared void and that each member of the board of managers of any Company has carefully considered the entry into and performance of the Agreements before signing the Resolutions; |
| 24. | that the board of managers of each Company has satisfied itself that the obligations undertaken by each Company under the Agreements meet its corporate interest, are not disproportionate to its financial capacities and benefits, and the conclusions of the board in this respect are not unreasonable (under currently prevailing Luxembourg case law, this is primarily a question of fact for which the board of directors is solely responsible and as to which we express no opinion); |
| 25. | that none of the managers of the Company had a direct or indirect economic interest which conflicted with the decisions of or with the transactions approved by the board of managers when the resolutions set out in the Board Minutes were adopted; |
| 26. | that on the day of this opinion and on the date of any transaction contemplated in the Agreements, (A) no party to the Agreements (i) was or will be deemed to be in a situation of cessation of payments within the meaning of Luxembourg or any other relevant bankruptcy legislation, (ii) will as a result of the Agreements or the transactions contemplated thereunder be unable to pay its debts, (iii) has resolved to enter into voluntary liquidation, (iv) has filed an application for bankruptcy or judicial reorganization, for a moratorium or any other similar proceedings under any other laws, (v) has been adjudicated bankrupt or annulled as a legal entity, and (B) no receiver, trustee, administrator (whether out of court or otherwise) or similar officer has been appointed in relation to any of the parties to the Agreements or any of their assets (although not constituting conclusive evidence, the Negative Certificates do not contradict this assumption in respect of the Companies); |
| 27. | that, in respect of the Agreements and the transactions contemplated thereby, referred to therein, provided for or effected thereby each of the parties has entered into and will enter into the same on arms’ length commercial terms; |
| 28. | that the securities issued pursuant to the Indenture or the registration Statement (the “Securities”) will not be the subject of a public offering in any jurisdiction, including Luxembourg, for the purposes of the Luxembourg act dated 16 July 2019 on prospectuses for securities and implementing the Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “Prospectus Regulation”) (the “Prospectus Act 2019”) or the Prospectus Regulation or any other applicable law and no form of invitation, offer, application, advertisement or other material relating to the Securities is distributed or published in Luxembourg nor, except in such case in conformity with applicable laws and regulations, in any jurisdiction other than Luxembourg; |
| 29. | that the Securities are not and will not be listed on a regulated market within the meaning of the Prospectus Act 2019 or the Prospectus Regulation or any other applicable laws or regulations and are not and will not be listed or admitted to trading on any other market or trading venue in Luxembourg; |
| 30. | that the requirements of any applicable law in respect of a listing on a multilateral trading facility in a European Economic Area Member State or any other jurisdiction of the Securities (if any) on any such stock exchange have been or will be fulfilled; |
| 31. | that none of the Companies will issue any Securities which are preference shares, ordinary shares, depositary shares, warrants or other forms of securities which are convertible into shares; |
| 32. | that none of the opinions expressed above will be affected by the laws or by any document governed by the laws of any jurisdiction outside Luxembourg; |
| 33. | that the Agreements constitute legal, valid and binding obligations of each of the parties thereto and are enforceable in accordance with their terms under the relevant governing laws and any other applicable law (other than Luxembourg law to the extent opined herein); and |
| 34. | that the aggregate amount of guarantees to be granted for the debt obligations of Eaton Corporation plc or any of its wholly owned direct and indirect subsidiaries (being in aggregate at any point in time USD 10 billion) is not exceeded for each of the Companies respectively by the guarantee granted under the Agreements. |
Schedule B – Qualifications
Our opinion is subject to the following qualifications:
| 1. | Where any person is vested with discretion or may determine a matter in its opinion, Luxembourg law may require that such discretion is exercised in good faith. |
| 2. | This opinion is subject to any limitations arising from bankruptcy (faillite), insolvency, liquidation, administrative dissolution without liquidation (dissolution administrative sans liquidation), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), composition with creditors (concordat préventif de la faillite), moratorium, reorganisation and other laws of general application relating to or affecting the rights of creditors generally. |
| 3. | We express no opinion on the effectiveness or ineffectiveness of a purported revocation, or the consequences of such revocation by the principal of a power of attorney or agency (mandat) expressed to be irrevocable. |
| 4. | We express no tax opinion whatsoever in respect of the Company or the tax consequences of the transactions contemplated by the Agreements. |
| 5. | We express no opinion as to whether the performance of the Agreements would cause any borrowing limits, debt/equity or other ratios possibly agreed with the tax authorities to be exceeded nor as to the consequences thereof. |
| 6. | A Luxembourg company may only encumber its assets or provide guarantees in accordance with its corporate objects and for its corporate benefit. There is no Luxembourg legislation governing group companies which specifically regulates the establishment, organisation and liability of groups of companies. Consequently, the concept of group interest as opposed to the interest of the individual corporate entity is not expressly recognised. A company may, in principle, not encumber its assets or provide guarantees in favour of group companies in general (at least as far as parent companies and fellow subsidiaries of its parent companies are concerned). |
Based on relevant French and
Belgian case law and legal literature (to which Luxembourg courts are likely to refer in this context), we would take the view that a Luxembourg company may, in principle, validly assist other group companies if:
| (a) | they are part of an integrated group; |
| (b) | it can be established that the company derives a benefit from granting such assistance or that at least, there is no disruption of the balance of interests in the group to the detriment of the Luxembourg company; and |
| (c) | the assistance is not in terms of the amounts involved disproportionate to the company’s financial means and the benefits derived from granting such assistance. |
| 7. | If the assistance is deemed contrary to the interest of the company by the courts, its directors may be held liable for action taken in that context. Further, under certain circumstances, the directors of the Luxembourg company might incur criminal penalties based on the concept of misappropriation of corporate assets (article 1500-11 of the Luxembourg act dated 10 August 1915 on commercial companies, as amended (the “Luxembourg Companies Act”)). Article 1500-11 of the Luxembourg Companies Act makes it a criminal offence for the directors and managers of a Luxembourg company, whether having been officially appointed or being de facto directors or managers (which concept might include legal persons), if, acting in bad faith, they have made use of corporate assets or of corporate credit for uses other than those required by the interests of such company and for their own personal benefit or for the benefit of companies or enterprises in which they have a direct or indirect interest. It cannot be excluded ultimately that, if the relevant transaction were to be considered as a misappropriation of corporate assets by a Luxembourg court or if it could be evidenced that the other parties to the transaction were aware of the fact that the transaction was not for the corporate benefit of the Luxembourg company, the transaction might be declared void or ineffective based on the concept of illegal cause (cause illicite). Also, depending on the factual circumstances, a liquidator, an insolvency receiver or creditors of the assisting company could seek the liability of the banks (e.g., where the guarantee trigger has caused the insolvency of the assisting company and/or has caused a wider consequential loss to the creditors of such company). |
| 8. | We express no opinion whatsoever on regulatory matters or matters of fact or on matters other than those expressly set forth in this legal opinion, and no opinion is, or may be, implied or inferred herefrom. |
| 9. | The rights and obligations of the parties under the Agreements may be limited by the effects of criminal measures, including without limitation criminal freezing orders, public law sanctions or restraining measures taken from time to time under applicable laws treaties or other instruments. |
| 10. | Any national or international economic sanctions or other similar measures that may be applicable, directly or indirectly, to any party to the Documents, may result in the obligations of that party or other parties to the Documents being unenforceable or void or otherwise affected. |
| 11. | A search at the Insolvency Register is not capable of conclusively revealing whether a (and the Negative Certificate does not constitute conclusive evidence that no) winding-up resolution or petition, or an order adjudicating or declaring a, or a petition or filing for, bankruptcy (faillite) or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), composition with creditors (concordat préventif de la faillite), judicial liquidation (liquidation judiciaire), administrative dissolution without liquidation (dissolution administrative sans liquidation) or similar action has been adopted or made. |
| 12. | By application of article 1200-1 of the Luxembourg Companies Act, a company not respecting any provision of Luxembourg criminal law or which seriously contravenes any provision of the Luxembourg commercial code or any other Luxembourg law applicable to commercial companies may be put into judicial dissolution and liquidation upon the application of the public prosecutor |
| 13. | The corporate documents of, and relevant court orders affecting, a Luxembourg company (including, but not limited to, the notice of a winding-up order or resolution, notice of the appointment of a receiver or similar officer) may not be held at the Register immediately and there is generally a delay in the relevant document appearing on the files regarding the company concerned. Furthermore, it cannot be ruled out that the required filing of documents has not occurred or that documents filed with the Register may have been mislaid or lost. In accordance with Luxembourg company law, changes or amendments to corporate documents to be filed at the Register will be effective (opposable) vis-à-vis third parties only as of the day of their publication in the Official Gazette unless the company proves that the relevant third parties had prior knowledge thereof. |
| 14. | We express no opinion whatsoever on regulatory matters or matters of fact or on matters other than those expressly set forth in this legal opinion, and no opinion is, or may be, implied or inferred herefrom. |
| 15. | We express no tax opinion whatsoever in respect of the Company or the tax consequences of the transactions contemplated by the Agreements. |
| 16. | Actions in Luxembourg courts must, in principle, be brought in the name of the principal not in the name of an agent of the principal |
| 17. | The Luxembourg Companies Act reserves the right and the power to decide on certain matters (such as the winding-up or the liquidation of a company, the merger, the increase of the share capital, the distribution of dividends or the amendment of the articles of incorporation of the company) exclusively to the shareholders of the company. |
| 18. | A receiver may be limited in the exercise of its rights and powers (i) pursuant to the Luxembourg Companies Act and (ii), in the case of insolvency of a Luxembourg company, by the rights and powers of the insolvency receiver appointed by a Luxembourg court pursuant to Luxembourg insolvency laws. Further, the rights and powers of a receiver may not cover or extend to actions which, pursuant to the Luxembourg Companies Act or the Articles, require a decision of the shareholders of a Luxembourg company rather than the Luxembourg company itself. |
| 19. | We express no opinion on the legal validity and the enforceability of the Agreements. |
| Exhibit 5.5 |
May 18, 2023
| Eaton Corporation | |
| 1000 Eaton Boulevard | White & Case llp |
| Cleveland, Ohio 44122 | 1221 Avenue of the Americas |
| New York, NY 10020-1095 | |
| T +1 212 819 8200 | |
| whitecase.com |
Ladies and Gentlemen:
We have acted as New York counsel to Eaton Corporation, a corporation organized under the laws of Ohio (the “Company”) and each of the subsidiaries of the Company listed on Parts A and B of Schedule I hereto (the “Covered Guarantors” and, together with the Company, the “Eaton Entities”), in connection with the preparation and filing under the Securities Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”) of (i) a registration statement on Form S-3ASR (File No. 333-259545) on September 15, 2021 (the “Registration Statement”), (ii) a Prospectus, dated September 15, 2021, forming part of the Registration Statement (the “Base Prospectus”), and (iii) a prospectus supplement, dated May 15, 2023, filed pursuant to Rule 424(b) under the Securities Act (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”) relating to the issuance and sale of $500,000,000 in aggregate principal amount of the Company’s 4.350% Notes due 2028 (the “Notes”). The Notes are being issued pursuant to an indenture, dated as of the date hereof (the “Base Indenture”), among the Company, the Covered Guarantors and each of the entities listed on Part C of Schedule I hereto (the “Non-Covered Guarantors” and, together with the Covered Guarantors, the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the third supplemental indenture, dated as of the date hereof, among the Company, the Guarantors and the Trustee (the Base Indenture, as so supplemented, the “Indenture”). In connection with the issuance and sale of the Notes, the Company, the Guarantors and BNP Paribas Securities Corp., Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC, as representatives of the several underwriters (collectively, the “Underwriters”), entered into an Underwriting Agreement, dated May 15, 2023 (the “Underwriting Agreement”), attached to the Terms Agreement dated May 15, 2023 (together with the Underwriting Agreement, the “Terms Agreement”).
This opinion letter is rendered in accordance with the requirements of Item 601(b)(5) of Regulation S–K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, any prospectus filed pursuant to Rule 424(b) with respect thereto, other than as expressly stated herein with respect to the issuance and sale of the Notes.
In connection with our opinions expressed below, we have examined originals or copies certified or otherwise identified to our satisfaction of the following documents and such other documents, corporate records, certificates and other statements of government officials and corporate officers of the Eaton Entities, as applicable, as we deemed necessary for the purposes of the opinions set forth in this opinion letter:
| (a) | the Registration Statement; |
May 18, 2023
| (b) | the Prospectus; |
| (c) | the Indenture; |
| (d) | the Notes; |
| (e) | the Terms Agreement; |
| (f) | certificates of good standing of the Eaton Entities; and |
| (g) | (i) the certificates of incorporation (or equivalent documents) of the Eaton Entities, (ii) the by-laws (or equivalent documents) of the Eaton Entities and (iii) the resolutions or written consents, as applicable, of the Eaton Entities relating to the filing of the Registration Statement, the Indenture and the Notes. |
We have relied, to the extent we deem such reliance proper, upon such certificates or comparable documents of officers and representatives of the Eaton Entities, as applicable, and of public officials and upon statements and information furnished by officers and representatives of the Eaton Entities with respect to the accuracy of material factual matters contained therein which were not independently established by us. In rendering the opinions expressed below, we have assumed, without independent investigation or verification of any kind, the genuineness of all signatures on documents we have reviewed, the legal capacity and competency of all natural persons signing all such documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to authentic, complete original documents of all documents submitted to us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in all documents we have reviewed, the accuracy and completeness of all public records examined by us, and the accuracy of all statements in certificates of officers of the Eaton Entities that we reviewed.
Based upon the foregoing assumptions and the assumptions set forth below, and subject to the qualifications and limitations stated herein, having considered such questions of law as we have deemed necessary as a basis for the opinions expressed herein, we are of the opinion that when the Notes have been duly authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Terms Agreement, (i) the Notes will constitute valid and binding obligations of Company under the laws of the State of New York, enforceable in accordance with their terms, and (ii) the guarantees of the Notes by the Guarantors will constitute valid and legally binding obligations of the Guarantors under the laws of the State of New York, enforceable in accordance with their terms.
Our opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the laws of the State of New York and, to the extent relevant for our opinions herein, the Delaware General Corporation Law and the Delaware Limited Liability Company Act. For purposes of our opinions with respect to the Non-Covered Guarantors, we have, without conducting any research or investigation with respect thereto, relied on the opinions of (i) Lizbeth L. Wright, with respect to matters of Ohio law, (ii) McCann Fitzgerald, with respect to matters of Irish law, (iii) De Brauw Blackstone Westbroek N.V., with respect to matters of Dutch law, and (iv) White & Case (Luxembourg) S.à r.l., with respect to matters of Luxembourg law.
May 18, 2023
The opinion expressed above is limited to questions arising under the law of the State of New York, the Delaware General Corporation Law and the Delaware Limited Liability Company Act. We do not express any opinion as to the laws of any other jurisdiction.
In addition, we have assumed (a) that the Indenture has been authorized, executed and delivered by the Trustee, (b) that the Indenture and the Notes constitute valid and legally binding obligations of the parties thereto other than the Company and the Guarantors, enforceable against such parties in accordance with their respective terms, and (c) the Trustee is in compliance, generally and with respect to acting as trustee under the Indenture, with all applicable laws and regulations.
The foregoing opinion as to enforceability of obligations of the Company and the Guarantors is subject to (i) bankruptcy, insolvency, receivership, conservatorship, liquidation, reorganization, fraudulent transfer, moratorium or other laws affecting the enforcement of creditors’ rights generally, and by the application of general principles of equity (whether applied by a court in equity or at law) and the discretion of the court before which any proceedings therefor may be brought (such principles of equity are of general application, and in applying such principles, a court may include a covenant of good faith and fair dealing and apply concepts of reasonableness, mutuality and materiality); (ii) requirements that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and (iii) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. Rights to indemnification and contribution may also be limited by Federal and state securities laws.
We express no opinion as to the validity, legally binding effect or enforceability of any provision in any agreement or instrument that (i) requires or relates to payment of any interest at a rate or in an amount which a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or a forfeiture or (ii) relates to governing law and submission by the parties to the jurisdiction of one or more particular courts.
This opinion letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion letter is provided solely in connection with the distribution of the Notes pursuant to the Registration Statement and is not to be relied upon for any other purpose.
The opinion expressed above is as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinions expressed in this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.5 to a Current Report on Form 8-K and its incorporation by reference into the Registration Statement and to the reference to our firm in the Prospectus Supplement under the caption “Legal Opinions”. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
The opinions expressed above are limited to the matters stated in this opinion letter, and no opinion is implied or may be inferred beyond those expressly stated in this opinion letter.
May 18, 2023
| Very truly yours, | |
| /s/ White & Case LLP |
JC / RR / CM / EM
SCHEDULE I
Guarantors
| A. | Delaware Guarantors: |
| 1. | Delaware Corporation: |
Cooper B-Line, Inc.
| 2. | Delaware LLCs: |
Cooper Bussmann, LLC
Cooper Crouse-Hinds, LLC
Cooper Power Systems, LLC
Eaton Aerospace LLC
Eaton Electric Holdings LLC
Eaton Filtration LLC
Wright Line LLC
| B. | New York Guarantor: |
| 1. | New York Corporation: |
Cooper Wiring Devices, Inc.
| C. | Other Guarantors: |
| 1. | Eaton Leasing Corporation |
| 2. | Eaton Aeroquip LLC |
| 3. | Eaton Controls (Luxembourg) S.à r.l. |
| 4. | Eaton Technologies (Luxembourg) S.à r.l. |
| 5. | Eaton Domhanda Unlimited Company |
| 6. | Cooper Industries Unlimited Company |
| 7. | Turlock B.V. |
| 8. | Eaton Capital Unlimited Company |
| 9. | Eaton Corporation plc |
Schedule I – 1