Johnson Controls International plc 8-K, filed Sep 14, 2022
Johnson Controls International plc (JCI)
About this 8-K
Johnson Controls International plc filed this 8-K on September 14, 2022, reporting on events of September 6, 2022.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
(Address of principal executive offices and postal code)
Registrant’s telephone number, including area code:
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrants under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class |
Trading |
Name of Each Exchange | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01 | Other Events. |
Offering of the Notes
On September 6, 2022, Johnson Controls International plc (the “Company”) and its wholly owned subsidiary, Tyco Fire & Security Finance S.C.A. (“TFSCA” and, together with the Company, the “Issuers”), entered into an Underwriting Agreement (the “Underwriting Agreement”), dated September 6, 2022, among the Issuers and J.P. Morgan Securities LLC, BofA Securities Inc. and Morgan Stanley & Co. LLC, as representatives of the several other underwriters named therein (the “Underwriters”), under which the Issuers agreed to sell to the Underwriters $400 million aggregate principal amount of their 4.900% Senior Notes due 2032 (the “Notes”) in an offering registered under the Securities Act of 1933, as amended (the “Notes Offering”).
The Notes were issued pursuant to the Prospectus Supplement, dated September 6, 2022 and filed with the U.S. Securities and Exchange Commission (the “SEC”) on September 7, 2022, and the Prospectus, dated September 4, 2020, that forms a part of the Issuers’ registration statement on Form S-3, filed with the SEC on January 31, 2020 and as amended by the Post-Effective Amendment No. 1 thereto (File Nos. 333-236195 and 333-236195-01), filed with the SEC on September 4, 2020 (the “Registration Statement”) and which automatically became effective under the Securities Act of 1933, as amended, upon filing pursuant to Rule 462(e) promulgated thereunder.
The Issuers intend to use the net proceeds from the sale of the Notes for general corporate purposes, including the repayment or redemption of near term indebtedness. Pending such use, the net proceeds may be invested in short-term, investment-grade, interest-bearing securities, certificates of deposit or indirect or guaranteed obligations of the United States.
Indenture
On September 14, 2022, the Issuers completed the Notes Offering. The Notes were issued under that certain Indenture (the “Base Indenture”), dated as of December 28, 2016, between the Company and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), and the Ninth Supplemental Indenture, dated as of September 14, 2022, among the Issuers and the Trustee (the “Ninth Supplemental Indenture” and the Base Indenture, as so supplemented, the “Indenture”).
Terms of the Notes
Ranking: The Notes are the Issuers’ unsecured, unsubordinated obligations and rank senior in right of payment to the Issuers’ existing and future indebtedness and other obligations that are expressly subordinated in right of payment to the Notes; equal in right of payment to the Issuers’ existing and future indebtedness and other obligations that are not so subordinated; effectively junior to any of the Issuers’ secured indebtedness and other obligations to the extent of the value of the assets securing such indebtedness or other obligations; and structurally junior to all existing and future indebtedness and other obligations incurred by the Issuers’ subsidiaries.
Interest and Maturity: The Notes will bear interest at a rate equal to 4.900% per annum, which will be payable semi-annually in arrears on June 1 and December 1 of each year, beginning on December 1, 2022. The Notes will mature on December 1, 2032.
Redemption: At any time prior to September 1, 2032, the Issuers may redeem some or all of the Notes at a price equal to the greater of 100% of the principal amount of the Notes to be redeemed and a “make-whole” amount, plus, in either case, accrued and unpaid interest, if any, thereon to, but excluding, the redemption date. On or after September 1, 2032, the Issuers may redeem some or all of the Notes at a price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, thereon to, but excluding, the redemption date. In addition, the Issuers may redeem all, but not less than all, of the Notes upon the occurrence of specified tax events.
1
Change of Control: Upon the occurrence of a Change of Control Triggering Event (as such term is defined in the Indenture), unless the Issuers have exercised their right to redeem the Notes by giving irrevocable notice on or prior to the 30th day after the Change of Control Triggering Event in accordance with the Indenture (or have defeased the Notes as described therein), each holder of Notes will have the right to require the Issuers to purchase all or a portion of such holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to, but excluding, the date of purchase.
Covenants: The Indenture does not limit the ability of the Company or its subsidiaries to issue or incur other debt or issue preferred stock. Subject to certain exceptions, the Indenture contains covenants that, among other things, limit the Company’s ability and the ability of certain of the Company’s subsidiaries to incur certain liens and enter into certain sale and leaseback transactions and enter into mergers or consolidations or transfer all or substantially all of their assets.
The descriptions of the Indenture and the Notes herein are summaries and are qualified in their entirety by the terms of the Indenture and the Notes. All capitalized terms used above and not otherwise defined have the meaning given to such terms in the Indenture.
The following exhibits are filed with this Current Report on Form 8-K and are incorporated by reference herein and into the Registration Statement: (i) the Underwriting Agreement, (ii) the Base Indenture, (iii) the Ninth Supplemental Indenture, (iv) the legal opinion of Simpson Thacher & Bartlett LLP, (v) the legal opinion of Arthur Cox LLP and (vi) the legal opinion of Allen & Overy, Société en Commandite Simple.
The representations, warranties and covenants of each party set forth in the agreements described in this Current Report on Form 8-K have been made only for purposes of, and were and are solely for the benefit of the parties to, the applicable agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. In addition, certain representations and warranties were made only as of the date of the applicable agreement or such other date as is specified in the agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the applicable agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. Accordingly, such agreements are included with this filing only to provide investors with information regarding the terms of those agreements, and not to provide investors with any other factual information regarding the parties, their respective affiliates or their respective businesses. These agreements should not be read alone, but should instead be read in conjunction with the periodic and current reports and statements that the Company and/or its subsidiaries file with the SEC.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
2
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| JOHNSON CONTROLS INTERNATIONAL PLC | ||||||
| Date: September 14, 2022 | By: | /s/ Richard J. Dancy | ||||
| Name: | Richard J. Dancy | |||||
| Title: | Vice President and Corporate Secretary | |||||
3
Exhibit 1.1
Execution Version
UNDERWRITING AGREEMENT
September 6, 2022
New York, New York
J.P. Morgan Securities LLC
BofA Securities, Inc.
Morgan Stanley & Co. LLC
As Representatives of the several
Underwriters named in Schedule II hereto
| c/o | J.P. Morgan Securities LLC |
383 Madison Avenue
New York, New York 10179
| c/o | BofA Securities, Inc. |
One Bryant Park
New York, New York 10036
| c/o | Morgan Stanley & Co. LLC |
1585 Broadway, 29th Floor
New York, New York 10036
Ladies and Gentlemen:
Johnson Controls International plc, a public limited company organized under the laws of Ireland (the “Company”), and Tyco Fire & Security Finance S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and organized under the laws of the Grand Duchy of Luxembourg (the “Co-Issuer” and, together with the Company, the “Issuers” and each an “Issuer”), each confirms its agreement with each of the underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, with respect to the issue and sale by the Issuers and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth opposite their names in Schedule II hereto of $400,000,000 aggregate principal amount of the Issuers’ 4.900% Senior Notes due 2032 (the “Securities”), to be issued under a base indenture dated as of December 28, 2016 (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association (successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as supplemented by the ninth supplemental indenture (the “Ninth Supplemental Indenture”, and the Base Indenture, as supplemented by the Ninth Supplemental Indenture, the “Indenture”), to be dated as of the Closing Date, between the Issuers and the Trustee.
Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission (as defined herein) thereunder (the “Exchange Act”), on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 27 hereof.
This Agreement, the Indenture and the Securities are hereinafter referred to as the “Transaction Documents.”
1. Representations and Warranties. Each of the Issuers, jointly and severally, represents and warrants to, and agrees with, each Underwriter, as of the Execution Time and the Closing Date, as set forth below in this Section 1.
(a) Each of the Issuers meets the requirements for the use of Form S-3 under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (the “Act”), and has filed the Registration Statement with the Securities and Exchange Commission (the “Commission”). The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405), and the Registration Statement and any amendments thereto filed prior to the Execution Time became effective upon filing. The Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by either Issuer. The Issuers may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses, each of which has previously been furnished to the Representatives. The Issuers will file with the Commission pursuant to Rule 424(b) a final supplement to the form of prospectus included in the Registration Statement relating to the Securities and the offering thereof. As filed, such final prospectus supplement shall include all information required by the Act and the rules and regulations thereunder to be included therein with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Representatives prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Prospectus) as the Issuers have advised the Representatives, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act”); on the Effective Date and at the Execution Time, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; and on the date of any filing pursuant to Rule 424(b), and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuers make no representation or warranty as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement, the Disclosure Package and the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Issuers by or on behalf of any Underwriter specifically for inclusion in the Registration Statement, the Disclosure Package or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c) As of the Initial Sale Time, the Disclosure Package, as amended or supplemented as of the Initial Sale Time, and each electronic road show and any other road show that is a written communication, when taken together as a whole with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; provided, however, that the Issuers make no representation or warranty with respect to any information contained in or omitted
2
from the Disclosure Package in reliance upon and in conformity with information furnished in writing to the Issuers by any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(d) Each document filed by the Company pursuant to the Exchange Act which is incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus complied when so filed in all material respects with the applicable requirements of the Exchange Act.
(e) Any document filed with the Commission and incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus or from which information is so incorporated by reference, subsequent to the Execution Time and prior to or on the Closing Date, when so filed or becoming effective, as the case may be, complies or shall comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and the rules and regulations thereunder.
(f) The Issuers (including their agents and representatives, other than the Underwriters in their respective capacities as such) have not made, used, prepared, authorized, approved or referred to any Issuer Free Writing Prospectus that they were required to file with the Commission or retain under Rule 433 other than the Issuer Free Writing Prospectuses identified in Schedule III hereto.
(g) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time any Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was, is or will be, as the case may be, a Well-Known Seasoned Issuer.
(h) (i) At the earliest time after the filing of the Registration Statement that the Issuers or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), each Issuer was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that such Issuer be considered an Ineligible Issuer.
(i) Each Issuer is not and, after giving effect to the offering and issuance of the Securities and the application of the proceeds thereof (all as described in the Disclosure Package and the Final Prospectus), will not be, required to register as an “investment company” as defined in the Investment Company Act.
(j) The Company is subject to and in full compliance with the reporting requirements of Section 13 and 15(d) under the Exchange Act.
(k) The Company and its subsidiaries have not taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of any security of either Issuer, to facilitate the offering.
(l) Each of the Company, the Co-Issuer and each significant subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company has been duly organized and is validly existing in good standing (or its equivalent, if any) under the laws of the jurisdiction in which it is chartered or organized, with full power and authority to own its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing (or its equivalent, if any) under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and in which the failure to so qualify would have a Material Adverse Effect.
(m) PricewaterhouseCoopers LLP, who have reported on the financial statements of the Company and its consolidated subsidiaries for the fiscal year ended September 30, 2021, included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus, is an independent registered public accounting firm with respect to the Company as required by the Act and the rules and regulations thereunder.
3
(n) The Company has not received from the Commission any written comments, questions or requests for modification of disclosure in respect of any reports filed with the Commission pursuant to the Exchange Act and incorporated by reference into the Registration Statement, the Disclosure Package and the Final Prospectus.
(o) The financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the respective dates indicated, and the consolidated results of the operations and the consolidated cash flows of the Company and its subsidiaries for the periods specified. Such consolidated financial statements comply as to form with the applicable accounting requirements of the Act and the rules and regulations thereunder and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as may be stated in the related notes thereto. The supporting schedule included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus presents fairly the information required to be stated therein.
(p) [Reserved.]
(q) The Company has an authorized capitalization as set forth in the Registration Statement, the Disclosure Package and the Final Prospectus and all the outstanding shares of capital stock or other equity interests of each significant subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company (including the Co-Issuer) have been duly and validly authorized and issued, are fully paid and nonassessable and, except as otherwise set forth in the Registration Statement, the Disclosure Package and the Final Prospectus, are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(r) The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to their respective management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their respective disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(s) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Issuers, threatened that could reasonably be expected to have (i) a material adverse effect on the performance by the Issuers of the Transaction Documents or consummation of the transactions contemplated thereby or by the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) or the offer, issuance and sale of the Securities or (ii) a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(t) The Company, in respect of itself and its subsidiaries, maintains a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that complies in all material respects with the requirements of the Exchange Act and has been designed by, or under the supervision of, its respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific
4
authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. There are no material weaknesses in the Company’s internal control over financial reporting with respect to the Company and its subsidiaries.
(u) There is and has been no failure on the part of the Company or any of its directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(v) There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid under the tax laws of Ireland or Luxembourg in connection with the execution and delivery of the Transaction Documents or the offer, issuance and sale by the Issuers of the Securities, except with respect to Luxembourg, for registration duties (droits d’enregistrement) which will become payable upon any of the Transaction Documents being physically attached (annexé(s)) to a public deed or to any other document subject to mandatory registration, in which case either a nominal registration duty or an ad valorem duty (of, for instance, 0.24 (zero point twenty four) per cent of the amount of the payment obligation mentioned in the document so registered) will be payable depending on the nature of the document to be registered, or upon voluntary registration of the Transaction Documents with the Administration de l’Enregistrement, des Domaines et de la TVA.
(w) Except as to matters disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus: (i) none of the Company, any of its subsidiaries or, to the knowledge of the Issuers, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries has taken any action, directly or indirectly, that would result in a material violation by such persons of either (A) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (B) the U.K. Bribery Act 2010 (the “Bribery Act”); and (ii) the Company, its subsidiaries and, to the knowledge of the Issuers, their affiliates have conducted their businesses in compliance in all material respects with the FCPA and the Bribery Act and have instituted and maintain policies and procedures designed to ensure continued compliance therewith. No part of the proceeds of the offering of the Securities will be used, directly or, to the knowledge of the Issuers, indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
(x) Except as to matters disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, (i) the operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”); and (ii) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuers, threatened.
(y) Except as to matters disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, none of the Company, any of its subsidiaries or, to the knowledge of the Issuers, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is currently the subject of any international economic sanctions administered or enforced by the U.S. Department of State, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, or the United Kingdom (including Her Majesty’s Treasury) (collectively, the “Authorities”), nor is the Company or the Co-Issuer operating, organized or resident in a country or territory to the extent such country or territory itself is the subject of sanctions administered or enforced by the Authorities (on the date hereof, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria); and the Issuers will not directly or, to their knowledge, indirectly use the proceeds of the
5
offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, to fund any activities of or business with any person, government, country, or territory that, at the time of such funding, is the subject of sanctions administered or enforced by the Authorities. None of the representations and warranties given in this clause (y) shall be made to (i) any Underwriter incorporated in or organized under the laws of the Federal Republic of Germany to the extent that they would mean a breach of or result in a violation of or conflict with the German Foreign Trade Regulation (Außenwirtschaftsverordnung), or (ii) any Underwriter to the extent that they would mean a breach of or result in a violation of or conflict with Council Regulation (EC) No 2271/1996 (the “EU Blocking Regulation”), the EU Blocking Regulation as it forms part of domestic law in the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”) or any similar applicable anti-boycott law or regulation, as amended from time to time.
(z) To the knowledge of the Issuers, none of the Company nor its subsidiaries is subject to Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse or such regulation as it forms part of domestic law in the United Kingdom by virtue of the EUWA or any related implementing regulations (together, “MAR”).
(aa) None of the execution, delivery and performance by the Issuers of the Transaction Documents, or consummation of the transactions contemplated thereby or by the Disclosure Package and the Final Prospectus, or the conduct or consummation of the offering, issuance and sale of the Securities, will conflict with, result in a breach or violation of, or constitute a default under (i) any applicable law or (ii) the charter or by-laws, or the other organizational documents, as applicable, of either Issuer or (iii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or bound, or any judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries, except in the case of clauses (i) and (iii), as would not have a Material Adverse Effect.
(bb) No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for the execution, delivery and performance by the Issuers of the Transaction Documents, or consummation of the transactions contemplated thereby or by the Disclosure Package and the Final Prospectus, except such as have been obtained or made and are in full force and effect and except as may be required under the Act or applicable state or foreign securities or blue sky laws.
(cc) This Agreement has been duly authorized, executed and delivered by each Issuer.
(dd) (i) The Base Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles; and (ii) the Ninth Supplemental Indenture has been duly authorized by each Issuer and, as of the Closing Date, will have been duly qualified under the Trust Indenture Act and will have been duly executed and delivered by each Issuer, and will constitute a valid and binding agreement of each Issuer, enforceable against each Issuer in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(ee) The Securities have been duly authorized by each Issuer and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will have been duly executed and delivered by each Issuer, and will constitute valid and binding obligations of each Issuer entitled to the benefits of the Indenture and enforceable in accordance with their terms and the terms of the Indenture, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
6
(ff) The Securities and the Indenture conform in all material respects to the descriptions thereof in the Disclosure Package and the Final Prospectus.
(gg) No holders of securities of the Issuers have rights to the registration of such securities under the Registration Statement.
(hh) Since the date of the most recent financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or interference with the business of the Company and its subsidiaries, taken as a whole, from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case of clauses (i), (ii) and (iii) as otherwise disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus.
(ii) Each of the Company and its subsidiaries has filed all non-U.S., federal, state and local tax returns (including foreign, national, local or other) that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect), and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect.
(jj) Except as would not have a Material Adverse Effect, (i) there has been no security breach or incident, unauthorized access to or disclosure or other compromise of any information technology and computer systems, networks, hardware, software, websites, applications, and databases used in the businesses of the Company or its subsidiaries (or any data, including “personal data,” “personal information,” “nonpublic personal information,” or other similar terms as defined by applicable laws) that is processed or stored thereby (collectively, “IT Systems”); (ii) neither the Company nor its subsidiaries have been notified of any security breach or incident, unauthorized access to or disclosure or other compromise to any IT Systems and has never been required to notify any governmental or regulatory authority or other person of same; (iii) the Company and its subsidiaries have not received any written notice, request, claim, complaint, correspondence, or other communication from any governmental or regulatory authority or other person regarding same; (iv) the IT Systems operate and perform as necessary to operate the Company’s businesses, and do not contain any material “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “ransomware,” “worm,” or other disabling or malicious codes and the Company and its subsidiaries have implemented and maintain commercially reasonable controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of the IT Systems; and (v) the Company and its subsidiaries are presently in compliance with all applicable federal, state, local and foreign laws or statutes and all judgments, orders, rules and regulations of any governmental or regulatory authority (and all industry standards and internal and external policies and contractual obligations) relating to the privacy and security of IT Systems and to the protection of such IT Systems from unauthorized use, access, misappropriation or modification.
(kk) Except (1) as to matters disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, or (2) as would not reasonably be expected to have a Material Adverse Effect: (i) neither the Company nor any of its subsidiaries has received any written claims against them alleging potential liability under, or responsibility for violation of, any Environmental Law (as defined below) related to the businesses, operations or properties of the Company or any of its subsidiaries, and the businesses, operations and properties of the Company and its subsidiaries are in compliance with all applicable Environmental Laws; (ii) none of the Company or its subsidiaries, and to the knowledge of the Issuers, no other person has caused a Release (as defined below) of Hazardous Material on, at, under or from any property currently or, to the knowledge of the Issuers, formerly owned or operated by the Company or any of its subsidiaries which (x) constitute a violation of, or (y) require or would reasonably be expected to require response or other corrective action under, applicable
7
Environmental Laws, which violations, response or other corrective actions, in the aggregate, would reasonably be expected to result in a Material Adverse Effect; and (iii) none of the Company or any of its subsidiaries are undertaking, either individually or together with other parties, any investigation, response or other corrective action relating to any actual or threatened Release of Hazardous Materials at any location, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any applicable Environmental Law. As used herein: (i) “Environmental Laws” means any and all federal, state, local and foreign statutes, laws, including common law, regulations or ordinances, rules, judgments, orders, decrees, permits, licenses or restrictions imposed by a governmental or regulatory authority relating to pollution or protection of the environment and protection of human health (to the extent relating to exposure to Hazardous Materials), including those relating to the generation, use, handling, storage, transportation, treatment or Release or threat of Release of Hazardous Materials; (ii) “Hazardous Materials” means all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, toxic mold, polychlorinated biphenyls, per- and polyfluoroalkyl substances (including perfluorooctanoic acid or perfluorooctane sulfonate), radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated as “hazardous” or “toxic,” or as a “pollutant” or a “contaminant,” pursuant to any applicable Environmental Law; and (iii) “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material) into the environment or into, from or through any building or structure.
(ll) Any certificate signed by any officer of the Company or the Co-Issuer and delivered to an Underwriter or counsel for the Underwriters in connection with the offering shall be deemed a representation and warranty by the Company or the Co-Issuer, as applicable, as to matters covered thereby to the Underwriters.
2. Purchase and Sale. In reliance upon the representations, warranties and agreements herein contained and subject to the terms and conditions herein set forth, the Issuers agree to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Issuers, at the purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made on the date and at the time specified in Schedule I hereto, or such later date not later than five Business Days after such specified date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Issuers or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities specified in Schedule I being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Issuers by wire transfer payable in same-day funds to an account specified by the Issuers. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. Agreements of the Issuers. Each of the Issuers, jointly and severally, agrees with the several Underwriters that:
(a) During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Issuers will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings.
8
(b) During the Prospectus Delivery Period, the Issuers will promptly advise the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement has been filed or becomes effective, (iii) of any request by the Commission for any amendment of the Registration Statement or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Issuers will use their reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, and subject to the first sentence of paragraph (a) of this Section 4, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(c) The Issuers will prepare a final term sheet, containing solely a description of the Securities and the offering thereof, substantially in the form approved by you and attached as Schedule IV hereto, and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(d) If, during the Prospectus Delivery Period, any event occurs as a result of which, the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will (i) notify the Representatives of such event, (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment to the Registration Statement, a new registration statement or an amendment or supplement to the Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested.
(e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy Section 11(a) of the Act and Rule 158 under the Act.
(f) The Issuers will furnish to the Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any amendments or supplements thereto as the Representatives may reasonably request.
(g) The Issuers (i) will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, (ii) will maintain such qualifications in effect so long as required for the distribution of the Securities (provided that the Issuers will not be required to qualify to do business in any jurisdiction where they are not now qualified or to take any action that would subject them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where they are not now subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering.
(h) The Issuers will cooperate with the Underwriters and use their best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
9
(i) The Issuers agree to pay the costs and expenses relating to the transactions contemplated hereunder, including without limitation the following: (i) the preparation of this Agreement and the other Transaction Documents, the issuance of the Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements thereto) as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp, transfer or similar taxes in connection with the original issuance and sale of the Securities and initial resales thereof by the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (vi) any registration or qualification of the Securities for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with FINRA relating to the Securities (including filing fees and the reasonable fees and expenses of counsel for the Underwriters (not to exceed $25,000) relating to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (ix) the fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any fees payable in connection with the rating of the Securities with the ratings agencies; and (xii) all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(j) During the Prospectus Delivery Period, the Issuers will not, without the prior written consent of the Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, each electronic road show and any other road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act.
(l) Neither Issuer will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by such Issuer (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(m) The Issuers will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of either Issuer to facilitate the sale or resale of the Securities.
10
(n) Other than the appointment of J.P. Morgan Securities plc as stabilizing manager in connection with the offering of the €600,000,000 aggregate principal amount of the Issuers’ 3.000% senior notes due 2028, the Issuers will not take any action or omit to take any action (such as issuing any press release related to any Securities without an appropriate legend) which may result in the loss by the Underwriters of the ability to rely on any stabilization safe harbor under MAR or provided by the U.K. Financial Conduct Authority under the FSMA.
(o) The Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433.
(p) The Issuers will use the net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.
5. Agreements of the Underwriters. Each Underwriter, severally and not jointly, agrees with the Issuers that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus (which term includes use of any written information furnished to the Commission by the Issuers and not incorporated by reference into the Registration Statement, the Disclosure Package or the Final Prospectus or any press release issued by the Issuers) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule III, each electronic road show and any other road show that is a written communication, or Permitted Free Writing Prospectus prepared pursuant to Section 4(j) above or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuers in advance in writing. Notwithstanding the foregoing, the Underwriters may use a term sheet substantially in the form of Schedule IV hereto without the consent of the Issuers.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Issuers contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Issuers of their obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective; the Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(c) hereto, and any other material required to be filed by the Issuers pursuant to Rule 433(d), shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; if filing of any Issuer Free Writing Prospectus is required by Rule 433, each such Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Representatives shall have received an opinion of (i) Arthur Cox LLP, Irish counsel to the Company and (ii) Allen & Overy SCS, Luxembourg counsel to the Co-Issuer, in each case dated the Closing Date and in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received an opinion and 10b-5 statement of Simpson Thacher & Bartlett LLP, counsel for the Issuers, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, an opinion and 10b-5 statement, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Issuers shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
11
(e) The Issuers shall have furnished to the Representatives a certificate of the Issuers, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and an authorized representative of the Co-Issuer, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any amendments or supplements thereto, as well as each electronic road show and any other road show that is a written communication, used in connection with the offering of the Securities, and this Agreement and that:
(i) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to the use of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the Issuers’ knowledge, threatened;
(ii) the representations and warranties of each Issuer in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and each Issuer has complied hereunder with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(iii) solely with respect to the certificate of the Issuer, since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendments or supplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there has not been a change, or development involving a prospective change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries that would have a Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any amendments or supplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(f) At the Execution Time and on the Closing Date, the Issuers shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the date of this Agreement and the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that it is an independent accountant within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date.
References to the Registration Statement, any Preliminary Prospectus and the Final Prospectus in this paragraph (f) include any amendments or supplements thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), the Final Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) or any Issuer Free Writing Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there shall not have been (i) any change specified in the Closing Date comfort letter referred to in paragraph (f) of this Section 6 from the letter or letters dated the date hereof referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries on a consolidated basis, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any supplement or amendment thereto other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) the effect of which in any case referred to in paragraph (g)(i) or (ii) of this Section 6, is, in the sole judgment of the Representatives, so material and adverse as to make it
12
impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Disclosure Package, the Final Prospectus and any Issuer Free Writing Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(h) Subsequent to the earlier of the Initial Sale Time and the Execution Time, there shall not have been any decrease in the rating of any of either Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(j) Prior to the Closing Date, the Issuers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request for the purpose of enabling them or their counsel to pass upon the issuance of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Issuers in writing or by telephone or facsimile confirmed in writing.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Issuers to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Issuers will reimburse the Underwriters severally upon demand for all accountable out-of-pocket expenses (including fees and disbursements of counsel) actually incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) Each of the Issuers, jointly and severally, agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal, state or foreign statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) relate to, arise out of, or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus, any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus or the Disclosure Package, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Issuers will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein, in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of any Underwriter specifically for inclusion therein, it being understood and agreed that only such information furnished by or on behalf of any Underwriter consists of the information described as such in this Section 8. This indemnity agreement will be in addition to any liability that the Issuers may otherwise have.
13
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless each of the Issuers, each of their respective directors and officers, and each person who controls either of the Issuers within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from each Issuer to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion in the Registration Statement, the Preliminary Prospectus or Final Prospectus (or in any amendment or supplement thereto). This indemnity agreement will be in addition to any liability that such Underwriter may otherwise have. The Issuers acknowledge that the percentage in the third paragraph under the heading “Underwriting” relating to concessions and the statements set forth in the ninth and tenth paragraphs under the heading “Underwriting” relating to stabilization activities in any Preliminary Prospectus or the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and the Representatives confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent the indemnifying party is prejudiced as a result of such failure through the loss of substantial defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ one separate counsel (and local counsel, if required) and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Issuers and the Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Issuers and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Issuers on the one hand and by the Underwriters on the other from the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Issuers and the Underwriters shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Issuers on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Issuers shall be deemed to be equal to the total net proceeds from the
14
offering (before deducting expenses), and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information provided by the Issuers on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such alleged untrue statement or omission. The Issuers and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding anything to the contrary above (other than with respect to uncovered losses), in no event shall any Underwriter be responsible under this paragraph for any amounts in excess of the amount by which the total underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder (exclusive of amounts paid for reimbursement of expenses under this Agreement, including this Section 8, and amounts paid under this Section 8) exceeds the amount of any damages, that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls either Issuer within the meaning of either the Act or the Exchange Act, each officer and each director of either Issuer shall have the same rights to contribution as the Issuers, subject in each case to the applicable terms and conditions of this paragraph (d). For the avoidance of doubt, the contribution obligations of the Underwriters under this paragraph (d) are several and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Issuers. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Issuers and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Issuers prior to delivery of and payment for the Securities, if prior to such time (i) trading in the Company’s Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities, or (iii) there shall have occurred (1) any material disruption in commercial banking or securities settlement or clearance services, (2) any outbreak or escalation of hostilities, act of terrorism, attack on the United States, declaration by the United States of a national emergency or war or other calamity or crisis or (3) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls, and, with respect to either (1), (2) or (3) above, the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
15
11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, acknowledgments, indemnities and other statements of the Issuers or their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Issuers or any of the officers, directors, employees, affiliates, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Underwriters, will be mailed, delivered or telefaxed to the Representatives, J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk, facsimile number (212) 834-6081; BofA Securities, Inc., One Bryant Park, New York, New York 10036, Attention: High Grade Debt Capital Markets Transaction Management, facsimile number (212) 901-7881); Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, NY 200136, Attention: Investment Banking Division, Facsimile: (212) 507-8999, or, if sent to the Issuers, will be mailed, delivered or telefaxed to them at Johnson Controls International plc, c/o Johnson Controls, Inc., 5757 N. Green Bay Avenue, Milwaukee, Wisconsin 53209, Attention: General Counsel, facsimile number: 1-414-524-2299, email: CO-General.Counsel@jci.com.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, affiliates, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. Patriot Act Compliance. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuers, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
15. No Fiduciary Duty. Each Issuer acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuers with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, either Issuer or any other person. Additionally, neither the Representatives nor any other Underwriter is advising either Issuer or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Each Issuer shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Issuers with respect thereto (irrespective of whether any of the Underwriters has advised or is currently advising either Issuer on related or other matters). Any review by the Underwriters of the Issuers, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Issuers.
16. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuers and the Underwriters, or any of them, with respect to the subject matter hereof.
17. Jurisdiction. Each Issuer agrees that any suit, action or proceeding against such Issuer brought by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. Each Issuer hereby appoints CT Corporation System, 111 Eighth Avenue, New York, New York 10011 as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any State or U.S. federal court in The City of New York and County of New York, by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. Each Issuer hereby represents and
16
warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and each Issuer agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon each Issuer.
18. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. Any right to trial by jury with respect to any claim or proceeding related to or arising out of this Agreement or any transaction or conduct in connection herewith, is waived.
19. TRIAL BY JURY. EACH ISSUER (ON ITS BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS AND AFFILIATES) AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20. Currency. Each reference in this Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligation of the Issuers in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the Issuers will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligation of the Issuers not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.
21. Taxes. All payments to the Underwriters due under this Agreement are to be made free and clear of, and without deduction or withholding for, any applicable taxes, unless such deduction or withholding is required by applicable law. In such case, the Issuers will pay such additional amounts as will result in each Underwriter receiving and retaining (after any deduction or withholding) an amount equal to the payment that would have been due if no such deduction or withholding had been required or made; provided that each Underwriter shall, upon reasonable request, provide to the Issuers all such forms and other documentation that it is legally eligible to provide as would allow for payments under this Agreement to be paid without (or at a reduced rate of) deduction or withholding on account of taxes (and each Underwriter shall otherwise reasonably cooperate with the Issuers to reduce any such deduction and withholding). For this purpose, “taxes” means all forms of taxation, duties (including stamp duty), levies, imposts, charges and withholdings (including any related or incidental penalty, fine, interest or surcharge), whenever created or imposed, and whether required by the law or regulations of Ireland, the United States or elsewhere (for the avoidance of doubt, “taxes” shall not include any taxes imposed on or determined by reference to the net income of an Underwriter or any of its affiliates (or any taxes imposed in lieu of such taxes)).
22. Waiver of Immunity. To the extent that either Issuer has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, each Issuer hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement.
23. Counterparts. This Agreement may be signed in one or more counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall constitute an original and all of which together shall constitute one and the same instrument. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Agreement.
17
24. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
25. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 25:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b) or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
26. Contractual Recognition of Bail-In.
(a) EU Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the parties hereto, each party acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(i) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any of the Underwriters under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
a. the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
b. the conversion of all, or a portion of, the BRRD Liability into shares, other securities or other obligations of an Underwriter or another person, and the issue to or conferral on the other parties of such shares, securities or obligations;
c. the cancellation of the BRRD Liability;
18
d. the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
(b) As used in this Section 26:
(i) “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
(ii) “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
(iii) “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended.
(iv) “BRRD Liability” means a liability in respect of which the relevant Write-Down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
(v) “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.
(vi) “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant Underwriter.
(c) UK Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the parties hereto, each party acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the Relevant UK Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(i) the effect of the exercise of UK Bail-in Powers by the Relevant UK Resolution Authority in relation to any UK Bail-in Liability of any of the Underwriters under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
a. the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
b. the conversion of all, or a portion of, the UK Bail-in Liability into shares, other securities or other obligations of an Underwriter or another person, and the issue to or conferral on the other parties of such shares, securities or obligations;
c. the cancellation of the UK Bail-in Liability;
d. the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
19
(ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant UK Resolution Authority, to give effect to the exercise of UK Bail-in Powers by the Relevant UK Resolution Authority.
(d) As used in this Section 26:
(i) “Relevant UK Resolution Authority” means the resolution authority with the ability to exercise any UK Bail-in Powers in relation to the relevant Underwriter.
(ii) “UK Bail-In Legislation” means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
(iii) “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
(iv) “UK Bail-in Powers” means any powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers.
27. Definitions. The terms which follow, when used in this Agreement, shall have the meanings indicated.
“Basic Prospectus” shall mean the prospectus referred to in Section 1(a) above contained in the Registration Statement at the Effective Date.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York.
“Disclosure Package” shall mean (i) the Basic Prospectus as supplemented by all Preliminary Prospectuses; (ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus.
“FINRA” shall mean the Financial Industry Regulatory Authority.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“FSMA” shall mean the U.K. Financial Services and Markets Act 2000.
“Initial Sale Time” shall mean the date and time specified as such in Schedule I hereto.
20
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433, and any other electronic road show and road show that is a written communication.
“Material Adverse Effect” shall mean a material adverse effect on the business, financial condition, results of operations or properties of the Company and its subsidiaries, taken as a whole.
“NYSE” shall mean the New York Stock Exchange.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Basic Prospectus.
“Registration Statement” shall mean the registration statement, as amended by Post-Effective Amendment No. 1 thereto on Form S-3 (the File number of which is set forth on Schedule I hereto), filed by the Issuers on the date set forth on Schedule I hereto, registering under the Act the offer and sale of the Securities, including a basic prospectus, incorporated documents, exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended at the Execution Time and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 134,” “Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 401,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430B,” “Rule 433,” “Rule 436,” “Rule 456,” “Rule 457” and “Regulation S-K” refer to such rules or regulation under the Act.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
[Remainder of page intentionally left blank; Signatures follow]
21
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement among the Issuers and the several Underwriters.
| Very truly yours, | ||
| JOHNSON CONTROLS INTERNATIONAL PLC | ||
| By: |
/s/ Pieter Lens | |
| Name: Pieter Lens | ||
| Title: Vice President & Treasurer | ||
| TYCO FIRE & SECURITY FINANCE S.C.A. | ||
| By: |
/s/ Richard Dancy | |
| Name: Richard Dancy | ||
| Title: Manager | ||
[Underwriting Agreement]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
J.P. MORGAN SECURITIES LLC
BOFA SECURITIES, INC.
MORGAN STANLEY & CO. LLC
As Representatives of the several underwriters
| J.P. MORGAN SECURITIES LLC | ||||
| By: |
/s/ Som Bhattacharyya | |||
| Name: |
Som Bhattacharyya | |||
| Title: |
Executive Director | |||
| BOFA SECURITIES, INC. | ||||
| By: |
/s/ Laurie Campbell | |||
| Name: |
Laurie Campbell | |||
| Title: |
Managing Director | |||
| MORGAN STANLEY & CO. LLC | ||||
| By: |
/s/ Tammy Serbee | |||
| Name: |
Tammy Serbee | |||
| Title: |
Managing Director | |||
[Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated September 6, 2022.
Registration Statement No. 333-236195, filed by the Company on January 31, 2020 as amended by Post-Effective Amendment No. 1 thereto, filed by the Company and the Co-Issuer on September 4, 2020.
Initial Time of Sale: 3:25 p.m. New York City time on September 6, 2022.
Closing Date, time and location: 9:00 a.m. New York City time at the offices of Latham & Watkins LLP, 555 Eleventh Street, NW, Washington, DC 20004, on September 14, 2022.
Description of Securities:
Title: 4.900% Senior Notes due 2032
Aggregate principal amount: $400,000,000
Stated maturity date: December 1, 2032
Purchase price to Underwriters: 97.859%, plus accrued interest from September 14, 2022, if the Closing Date occurs after that date.
Purchase price to public: 98.509%, plus accrued interest from September 14, 2022, if the Closing Date occurs after that date.
Interest Payment Dates: Payable on June 1 and December 1 of each year, beginning on December 1, 2022
Sinking fund provisions: None
Redemption provisions:
Optional Redemption
Prior to September 1, 2032 (three months prior to the maturity date of the Securities) (the “Par Call Date”), the Issuers may, at their option, redeem the Securities, in whole at any time or in part from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Securities to be redeemed and (ii) as determined by the Quotation Agent and delivered to the Trustee in writing, the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if the Securities matured on the Par Call Date (exclusive of interest accrued to the redemption date), discounted to the redemption date (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Redemption Treasury Rate (as defined in the Final Prospectus) plus 30 basis points, plus, in either case, accrued and unpaid interest, if any, thereon to, but excluding, the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
On or after the Par Call Date, the Issuers may, at their option, redeem the Securities, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed, plus accrued and unpaid interest, if any, thereon to, but excluding, the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
SCHEDULE II
| Underwriters |
Principal Amount of Notes due 2032 to be Purchased |
|||
| J.P. Morgan Securities LLC |
$ | 93,333,000 | ||
| BofA Securities, Inc. |
93,333,000 | |||
| Morgan Stanley & Co. LLC |
93,333,000 | |||
| Citigroup Global Markets Inc. |
20,000,000 | |||
| Deutsche Bank Securities Inc. |
20,000,000 | |||
| ING Financial Markets LLC |
20,000,000 | |||
| TD Securities (USA) LLC |
20,000,000 | |||
| Barclays Capital Inc. |
6,667,000 | |||
| Credit Agricole Securities (USA) Inc |
6,667,000 | |||
| Danske Markets Inc. |
6,667,000 | |||
| Standard Chartered Bank |
6,667,000 | |||
| U.S. Bancorp Investments, Inc. |
6,667,000 | |||
| Westpac Banking Corporation |
6,666,000 | |||
|
|
|
|||
| Total |
$ | 400,000,000 | ||
|
|
|
|||
SCHEDULE III
ISSUER FREE WRITING PROSPECTUSES
1. The term sheet set forth in Schedule IV hereto.
SCHEDULE IV
|
Filed Pursuant to Rule 433 as amended by Post-Effective Supplementing the Prospectus |
Johnson Controls International plc
Tyco Fire & Security Finance S.C.A.
$400,000,000 4.900% Senior Notes due 2032
Pricing Term Sheet
September 6, 2022
| Issuers: | Johnson Controls International plc Tyco Fire & Security Finance S.C.A. | |
| Trade Date: | September 6, 2022 | |
| Settlement Date**: | September 14, 2022 (T+6) | |
| Joint Book-Running Managers: | J.P. Morgan Securities LLC BofA Securities, Inc. Morgan Stanley & Co. LLC Citigroup Global Markets Inc. Deutsche Bank Securities Inc. ING Financial Markets LLC TD Securities (USA) LLC | |
| Co-Managers: | Barclays Capital Inc. Credit Agricole Securities (USA) Inc Danske Markets Inc. Standard Chartered Bank U.S. Bancorp Investments, Inc. Westpac Banking Corporation | |
| Title of Securities: | 4.900% Senior Notes due 2032 | |
| Ratings (Moody’s / S&P)*: | [Intentionally omitted] | |
| Aggregate Principal Amount Offered: | $400,000,000 | |
| Maturity Date: | December 1, 2032 | |
| Interest Rate: | 4.900% per annum | |
| Benchmark Treasury: | UST 2.750% due August 15, 2032 | |
| Benchmark Treasury Price and Yield: | 95-01+; 3.340% | |
| Spread to Benchmark Treasury: | +175 basis points | |
| Yield to Maturity: | 5.090% | |
| Price to Public: | 98.509%, plus accrued interest, if any, from September 14, 2022 | |
| Gross Proceeds: | $394,036,000 | |
| Interest Payment Dates: | Payable on June 1 and December 1 of each year, beginning on December 1, 2022 | |
| Optional Redemption: | Prior to September 1, 2032 (three months prior to the maturity date of the Securities), callable at make-whole (T + 30 basis points) | |
| Par Call: | On or after September 1, 2032 (three months prior to the maturity date of the Securities) | |
| CUSIP/ISIN: | 47837R AE0 / US47837RAE09 | |
| Denominations: | $2,000 and integral multiples of $1,000 in excess thereof | |
| Listing: | Application will be made to list the notes on the New York Stock Exchange | |
| * | The security ratings set forth above are not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal by the assigning rating organization at any time. |
| ** | It is expected that delivery of the notes will be made to investors on or about September 14, 2022, which will be the sixth business day following the trade date set forth above (such settlement being referred to as “T+6”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes prior to two business days before the notes are delivered will be required, by virtue of the fact that the notes initially settle in T+6, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes more than two business days before the date of delivery should consult their own advisors. |
The issuers have filed a registration statement (including a prospectus) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuers have filed with the SEC for more complete information about the issuers and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuers, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling J.P. Morgan Securities LLC toll-free at (212) 834-4533; BofA Securities, Inc. toll-free at (800) 294-1322 or dg.prospectus_requests@bofa.com; or Morgan Stanley & Co. LLC toll-free at (866) 718-1649.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers or other notices were automatically generated as a result of this communication being sent via Bloomberg email or another communication system.
Sch. V-1
Exhibit 4.2
THIS NINTH SUPPLEMENTAL INDENTURE (“Ninth Supplemental Indenture”) is dated as of September 14, 2022, among Johnson Controls International plc, a public company limited by shares, incorporated under the laws of Ireland (the “Company”), Tyco Fire & Security Finance S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and organized under the laws of the Grand Duchy of Luxembourg (the “Co-Issuer” and, together with the Company, the “Issuers”), and U.S. Bank Trust Company, National Association, a national banking association (successor in interest to U.S. Bank National Association), as trustee (the “Trustee”).
RECITALS
A. The Company and the Trustee executed and delivered an Indenture, dated as of December 28, 2016 (the “Base Indenture” and together with this Ninth Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time of debt securities evidencing its indebtedness.
B. The Company and the Co-Issuer desire that the Co-Issuer co-issue the Offered Securities (as defined herein).
C. Pursuant to resolutions of the Board of Directors of the Company and the board of managers of Tyco Fire & Security Finance S.à r.l., the general partner and manager of the Co-Issuer, the Company and the Co-Issuer have each authorized the issuance of the Offered Securities.
D. The entry into this Ninth Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Base Indenture.
E. The Company and the Co-Issuer desire to enter into this Ninth Supplemental Indenture pursuant to Sections 9.01 and 2.02 of the Base Indenture to establish the terms of the Offered Securities, to add the Co-Issuer as co-issuer of the Offered Securities and to establish the form of the Offered Securities.
F. All things necessary to make this Ninth Supplemental Indenture a valid indenture and agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Issuers and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Offered Securities as follows:
ARTICLE I.
Section 1.01 Definitions of Terms.
(a) Capitalized terms used but not defined in this Ninth Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.
(b) As used herein, the following terms shall have the following meanings with respect to the Offered Securities only:
“Adjusted Redemption Treasury Rate” means, with respect to any redemption date for the Offered Securities, the rate equal to the semiannual equivalent yield to maturity or interpolated (on a 30/360 day count basis) yield to maturity of the Comparable Redemption Treasury Issue, assuming a price for the Comparable Redemption Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Redemption Treasury Price for such redemption date.
“Authentication Order” means a written order signed in the name of each of the Issuers by an Officer of each of the Issuers and delivered to the Trustee or Authenticating Agent, or, with respect to Sections 2.04, 2.05, 2.06, 2.07, and 9.04 of the Base Indenture, any other employee of such Issuer named in an Officer’s Certificate delivered to the Trustee.
“Change of Control Triggering Event” means the Offered Securities cease to be rated Investment Grade by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Issuers of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings downgrade or withdrawal). However, a Change of Control Triggering Event otherwise arising by virtue of a particular reduction in, or withdrawal of, rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Change of Control Triggering Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in, or withdrawal of, rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Issuers’ request that the reduction or withdrawal was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Change of Control Triggering Event). If a Rating Agency is not providing a rating for the Offered Securities at the commencement of any Trigger Period, the Offered Securities will be deemed to have ceased to be rated Investment Grade by such Rating Agency during that Trigger Period.
Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Co-Issuer” means Tyco Fire & Security Finance S.C.A., until a successor entity shall have become such pursuant to Section 10.01 and Section 10.02 hereto.
“Comparable Redemption Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Offered Securities to be redeemed if the Offered Securities matured on the Par Call Date that would be utilized at the time of selection and in accordance with customary financial practice in pricing new issues of corporate debt securities of comparable maturity to such remaining term of the Offered Securities.
“Comparable Redemption Treasury Price,” with respect to any redemption date for the Offered Securities, means (i) the average of the Redemption Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Redemption Reference Treasury Dealer Quotations (unless there is more than one highest or lowest quotation, in which case only one such highest and/or lowest quotation shall be excluded), or (ii) if the Quotation Agent obtains fewer than four such Redemption Reference Treasury Dealer Quotations, the average of all such Redemption Reference Treasury Dealer Quotations.
“Global Security” means an Offered Security executed by the Issuers and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Independent Investment Banker” means one of the Redemption Reference Treasury Dealers appointed by the Company.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Issuers under the circumstances permitting the Issuers to select a replacement rating agency and in the manner for selecting a replacement rating agency, in each case as set forth in the definition of “Rating Agency.”
“Offered Securities” means the $400,000,000 4.900% Senior Notes due 2032 issued pursuant to this Ninth Supplemental Indenture.
2
“Officer” means any manager, director, any managing director, the chairman or any vice chairman of the Board of Directors or a board of managers, as applicable, the chief executive officer, the president, the chief financial officer, any vice president, the treasurer, any assistant treasurer, the secretary or any assistant secretary, or any equivalent of the foregoing, of the Company or the Co-Issuer, as applicable, or any Person duly authorized to act for or on behalf of the Company or the Co-Issuer, as applicable.
“Officer’s Certificate” means a certificate, signed by any Officer of the Company and/or the Co-Issuer, as the case may be, that is delivered to the Trustee in accordance with the Indenture. Each such certificate shall include the statements provided for in Section 13.06 of the Base Indenture, if and to the extent required by the provisions thereof.
“Opinion of Counsel” means a written opinion acceptable to the Trustee from legal counsel licensed in any State of the United States of America and applying the laws of such State. The counsel may be an employee of or counsel to either Issuer. Each such opinion shall include the statements provided for in Section 13.06 of the Base Indenture, if and to the extent required by the provisions thereof.
“Quotation Agent” means a Redemption Reference Treasury Dealer appointed as such by the Company.
“Rating Agency” means each of Moody’s and S&P; provided that, if any of Moody’s or S&P ceases to provide rating services to issuers or investors, the Issuers may appoint another “nationally recognized statistical rating organization” as defined under Section 3(a)(62) of the Exchange Act as a replacement for such Rating Agency; provided, further, that the Issuers shall give notice of such appointment to the Trustee.
“Redemption Reference Treasury Dealer” means (1) each of J.P. Morgan Securities LLC, BofA Securities, Inc. and Morgan Stanley & Co. LLC (or their respective Affiliates that are Primary Treasury Dealers (as defined below)) and their respective successors and (2) two other Primary Treasury Dealers selected by the Company after consultation with the Independent Investment Banker; provided, however, that if any of the foregoing shall cease to be a primary U.S. government securities dealer in New York City (a “Primary Treasury Dealer”), the Company will substitute therefor another Primary Treasury Dealer.
“Redemption Reference Treasury Dealer Quotations” with respect to each Redemption Reference Treasury Dealer and any redemption date for the Offered Securities, means the average, as determined by the Quotation Agent, of the bid and offer prices at 11:00 a.m., New York City time, for the Comparable Redemption Treasury Issue (expressed in each case as a percentage of its principal amount) for settlement on the redemption date quoted in writing to the Quotation Agent by such Redemption Reference Treasury Dealer on the third Business Day preceding such redemption date.
“Securityholder,” “Holder,” “registered holder,” or other similar term, means the Person or Persons in whose name or names a particular Offered Security shall be registered on the books of the Issuers kept for that purpose in accordance with the terms of the Indenture.
Section 1.02 Terms of Offered Securities. The following terms relate to the Offered Securities:
(1) The Offered Securities constitute a single series of securities having the title “4.900% Senior Notes due 2032”.
(2) The initial aggregate principal amount of the Offered Securities that may be authenticated and delivered under the Indenture (except for Offered Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Offered Securities pursuant to Section 2.05, 2.06, 2.07, 2.11 or 3.03 of the Base Indenture) is $400,000,000.
(3) The entire Outstanding principal of the Offered Securities shall be payable on December 1, 2032.
(4) The Offered Securities will bear interest at a rate of 4.900% per annum. The basis upon which interest shall be calculated will be that of a 360-day year consisting of twelve 30-day months.
3
(5) Interest on the Offered Securities shall accrue from September 14, 2022, or, if later, the most recent Interest Payment Date to which interest in respect of the Offered Securities has been paid or provided for. The Interest Payment Dates for the Offered Securities shall be June 1 and December 1 of each year, beginning on December 1, 2022. Interest in respect of the Offered Securities shall be payable semi-annually in arrears on each applicable Interest Payment Date to the applicable Holders of record at the close of business on the May 15 and November 15, as the case may be, next preceding such Interest Payment Date (the “regular record dates”).
(6) [Reserved].
(7) [Reserved].
(8) Prior to September 1, 2032 (the “Par Call Date”), the Issuers may, at their option, redeem the Offered Securities, in whole at any time or in part from time to time, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Offered Securities to be redeemed, and
(ii) as determined by the Quotation Agent and delivered to the Trustee in writing, the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if the Offered Securities matured on the Par Call Date (exclusive of interest accrued to the redemption date), discounted to the redemption date (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 30 basis points, plus,
in either case, accrued and unpaid interest, if any, thereon to, but excluding, the redemption date (subject to the right of Holders of record on the relevant regular record date to receive interest due on the relevant Interest Payment Date).
On or after the Par Call Date, the Issuers may, at their option, redeem the Offered Securities, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Offered Securities to be redeemed, plus accrued and unpaid interest, if any, thereon to, but excluding, the redemption date (subject to the right of Holders of record on the relevant regular record date to receive interest due on the relevant Interest Payment Date).
In addition, the Offered Securities may be redeemed pursuant to Section 1.02(27) of this Ninth Supplemental Indenture (which supersedes and replaces Article XIV of the Base Indenture which shall not apply to the Offered Securities).
(9) Except as provided in Section 1.02(17) of this Ninth Supplemental Indenture (which supersedes and replaces Section 4.08 of the Base Indenture which shall not apply to the Offered Securities), the Offered Securities shall not be subject to redemption, repurchase or repayment at the option of any Holder thereof, upon the occurrence of any particular circumstance or otherwise. The Offered Securities will not have the benefit of any sinking fund.
(10) The Offered Securities shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference.
(11) The Offered Securities will be issued in registered form without interest coupons and only in minimum denominations of $2,000 and whole multiples of $1,000 in excess thereof.
(12) All payments of interest and principal, including payments made upon any redemption or repurchase of the Offered Securities, will be payable in Dollars.
(13) [Reserved].
(14) [Reserved].
4
(15) The Offered Securities shall be issuable in whole in the registered form of one or more Global Securities, and DTC shall be the initial Depositary.
(16) The Offered Securities will not be convertible into or exchangeable for other Securities, common shares or other securities of the Issuers.
(17) Solely with respect to the application of such provisions to the Offered Securities, Sections 4.01, 4.02, 4.03, 4.04, 4.05 and 4.08 of the Base Indenture are hereby replaced and superseded by the following provisions:
Section 4.01 Payment of Principal, Premium and Interest.
The Issuers will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest on the Offered Securities at the time and place and in the manner provided herein and established with respect to the Offered Securities.
Section 4.02 Maintenance of Office or Agency.
So long as the Offered Securities remain Outstanding, the Issuers will maintain an office or agency where the Offered Securities may be presented or surrendered for payment, where the Offered Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuers in respect of the Offered Securities and this Indenture may be given or served. Such designation will continue with respect to each office or agency until the Issuers, by written notice signed by any Officer of each of the Issuers and delivered to the Trustee, shall designate some other office or agency for such purposes or any of them. If at any time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuers hereby appoint the Trustee as its agent to receive all presentations, surrenders, notices and demands. The Issuers initially designate the office of U.S. Bank Trust Company, National Association, acting as the Issuers’ agent, located at 1555 North RiverCenter Drive, Suite 203, Milwaukee, WI 53212, as the office to be maintained by it for each such purpose.
Section 4.03 Paying Agents, Transfer Agent and Security Registrar.
(a) The Issuers will maintain one or more paying agents for the Offered Securities.
(b) In addition the Issuers will maintain a transfer agent and a registrar (the “Security Registrar”) for the Offered Securities. The Security Registrar will maintain the Security Register, and together with the transfer agent, will make payments on and facilitate transfers of the Offered Securities on behalf of the Issuers.
(c) The Issuers may enter into an appropriate agency agreement with any paying agent, Security Registrar or transfer agent. Such agreement shall implement the provisions of this Indenture that relate to such Agent. The Issuers shall notify the Trustee of the name and address of any such Agent. The Issuers may remove any paying agent, Security Registrar or transfer agent, as applicable, upon written notice to such paying agent, Security Registrar or transfer agent, as applicable, and to the Trustee; provided, however, that no such removal shall become effective until, if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuers and such successor paying agent, Security Registrar or transfer agent, as the case may be, and delivered to the Trustee.
(d) The Issuers may change or appoint any paying agent, Security Registrar or transfer agent with respect to the Offered Securities without prior notice to the Holders of the Offered Securities. The Issuers or any of the Issuers’ Subsidiaries may act as paying agent, transfer agent or Security Registrar in respect of the Offered Securities.
5
(e) The Issuers hereby initially appoint the Trustee as paying agent with respect to the Offered Securities. The Trustee hereby accepts such appointment and the Issuers confirm that such initial appointment is acceptable to them. The Issuers hereby initially appoint the Trustee as Security Registrar and transfer agent with respect to the Offered Securities. The obligations of the paying agent, transfer agent and Security Registrar shall be several and not joint.
(f) The Issuers shall require each paying agent (other than an Issuer) to agree in writing that the paying agent will hold for the benefit of Holders of Offered Securities or the Trustee all money held by the paying agent for the payment of principal of, premium, if any, on, interest on, or Additional Amounts, if any, on the Offered Securities, and will notify the Trustee of any default by the Issuers in making any such payment. Money held by the paying agent need not be segregated, except as required by law, and in no event shall the paying agent be liable for interest on any money received by it hereunder. If either of the Issuers or a Subsidiary of the Issuers acts as paying agent, it shall segregate and hold in a separate fund for the benefit of the Holders all money held by it as paying agent.
(g) The Issuers will make payments of any amounts owing in respect of any Global Securities (including principal, premium, if any, interest and any Additional Amounts) to the applicable paying agent, and such paying agent will, in turn, make such payments to the applicable Depositary or its nominee, as the case may be (subject to such paying agent having received cleared funds sufficient to make such payments), as the sole registered owner and the sole Holder of the Offered Securities represented by a Global Security for all purposes under this Indenture. The applicable Depositary will distribute such payments to Participants in accordance with the Applicable Procedures. Payments on all Offered Securities other than Global Securities will be made by the Issuers to the applicable paying agent and such paying agent will make payment by check to the address provided by the Holder of such Offered Securities (or by wire transfer to those Holders that have provided wire instructions to the Issuers or the applicable paying agent).
Section 4.04 Statement by Officers as to Default.
The Issuers will furnish to the Trustee on or before 120 days after the end of each fiscal year an Officer’s Certificate stating that in the course of the performance by the signers of their duties as Officers of the Issuers, they would normally have knowledge of any Default by the Issuers in the performance or fulfillment or observance of any covenants or agreements contained in this Indenture during the preceding fiscal year, stating whether or not they have knowledge of any such Default and, if so, specifying each such Default of which the signers have knowledge and the nature thereof. The Officer’s Certificate need not comply with Section 13.06 of the Base Indenture.
Section 4.05 Appointment to Fill Vacancy in Office of Trustee.
The Issuers, whenever necessary to avoid or to fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10 of the Base Indenture, a Trustee, so that there shall be at all times a Trustee hereunder.
Section 4.08 Offer to Repurchase Upon Change of Control Triggering Event.
Upon the occurrence of a Change of Control Triggering Event, unless the Issuers have exercised their right to redeem the Offered Securities as described under Section 1.02(8) of this Ninth Supplemental Indenture, each Holder of Offered Securities will have the right to require the Issuers to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Offered Securities pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to, but excluding, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date) (the “Change of Control Payment”). If the Change of Control Payment Date falls on a day that is not a Business Day, the related payment of the Change of Control Payment will be made on the next Business Day as if it were made on the date such payment was due, and no interest will accrue on the amounts so payable for the period from and after such date to the next Business Day.
Within 30 days following the date upon which the Change of Control Triggering Event occurs or, at the Issuers’ option, prior to and conditioned on the occurrence of, any Change of Control, but after the public announcement of the pending Change of Control, the Issuers will be required to send, by first class mail, or deliver electronically if the Offered Securities are held by any Depositary, a notice to each Holder of Offered Securities, with a copy to the Trustee, which notice will govern the terms of the Change of Control Offer. Such notice will state,
6
among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered electronically (or, in the case of a notice mailed or delivered electronically prior to the date of consummation of a Change of Control, no earlier than the date of the occurrence of the Change of Control), other than as may be required by law (the “Change of Control Payment Date”). The notice, if mailed or delivered electronically prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Issuers will, to the extent lawful:
(i) accept or cause a third party to accept for payment all Offered Securities properly tendered pursuant to the Change of Control Offer;
(ii) deposit or cause a third party to deposit with the applicable paying agent an amount equal to the Change of Control Payment in respect of all Offered Securities properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Offered Securities properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Offered Securities being repurchased.
The Issuers will not be required to make a Change of Control Offer with respect to the Offered Securities if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuers and such third party purchases all the Offered Securities properly tendered and not withdrawn under its offer. In addition, the Issuers will not repurchase Offered Securities if there has occurred and is continuing on the Change of Control Payment Date an Event of Default in respect of the Offered Securities, other than a Default in the payment of the Change of Control Payment on the Change of Control Payment Date.
The Issuers must comply in all material respects 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 Offered Securities as a result of a 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 Offered Securities, the Issuers will be required to comply with those securities laws and regulations and will not be deemed to have breached their obligations under this Section 4.08 with respect to the Offered Securities by virtue of any such conflict.
(18) Solely with respect to the application of such provisions to the Offered Securities, Section 6.01 of the Base Indenture is hereby amended as follows:
(i) any reference to the “Company” is hereby amended to refer instead to the “Issuers”; and
(ii) the reference to “$200,000,000” in Section 6.01(a)(4) of the Base Indenture is amended to refer instead to “$300,000,000.”
(19) [Reserved].
(20) Upon the Issuers’ request, each Holder and beneficial owner shall provide a properly completed and executed IRS Form W-9 or IRS Form W-8, as applicable, as would have been applicable if the Issuers were incorporated in the United States of America, any State thereof or the District of Columbia.
(21) As modified by this Ninth Supplemental Indenture, the Offered Securities may be defeased in accordance with the provisions of Section 11.03 of the Base Indenture and the Indenture shall cease to be of further effect with respect to the Offered Securities in accordance with the provisions of Section 11.02 of the Base Indenture. Solely with respect to the application of such provisions to the Offered Securities, Section 11.03 of the Base Indenture is hereby amended as follows:
(i) the reference to “Section 6.01(a)(4)” is amended to refer instead to “Section 6.01(a)(3)”;
(ii) any reference to the “Company” is hereby amended to refer instead to the “Issuers”; and
7
(iii) Section 11.03(c)(4) of the Base Indenture is hereby replaced and superseded by the following provision:
(4) the Issuers shall have delivered to the Trustee an Opinion of Counsel (which, in the case of a defeasance, must be based on a change in law or a ruling received from the U.S. Internal Revenue Service) to the effect that the beneficial owners of the Offered Securities will not recognize income, gain or loss for United States Federal income tax purposes as a result of the Issuers’ exercise of either option under this Section 11.03 and will be subject to United States Federal income tax in the same amount and in the same manner and at the same times as would have been the case if such election had not been exercised; and
(22) [Reserved].
(23) The Offered Securities will be issued as Unrestricted Securities.
(24) No Offered Securities shall be issued with guarantees.
(25) Solely with respect to the application of such provisions to the Offered Securities, the following sections of the Base Indenture are hereby amended as follows:
(i) any reference to the “Company” in the following sections or articles, as applicable, of the Base Indenture, to the extent applicable to the Offered Securities, is hereby amended to refer instead to the “Issuers”: Sections 2.02 through 2.15, 3.01 through 3.06, 5.01, 5.02, 5.04 and 6.02 through 6.08, and Articles VII, VIII, IX, XI, XII and XIII;
(ii) all references to “30 days” and “45 days” in Section 3.02 of the Base Indenture are amended to refer instead to “10 days”;
(iii) Sections 9.01(b), 9.01(c) and 9.01(i) of the Base Indenture are hereby replaced and superseded by the following provisions:
(b) to add an additional obligor on the Offered Securities or to add a guarantor of any Offered Securities, or to evidence the succession of another Person to the Company or the Co-Issuer or any additional obligor or guarantor of the Offered Securities, or successive successions, and the assumption by any Successor Company or Successor Co-Issuer of the covenants, agreements and obligations of such Company, Co-Issuer or such obligor or guarantor, as the case may be, pursuant to Article X;
(c) to provide for uncertificated Offered Securities in addition to or in place of certificated Offered Securities (provided, that the uncertificated Offered Securities are issued in registered form for purposes of Section 163(f) of the Code);
(i) to provide for the issuance of and establish the form and terms and conditions of the Offered Securities as provided in Section 2.01 of the Base Indenture, to provide which, if any, of the covenants of the Company shall apply to such series, to provide which of the Events of Default shall apply to such series, to add a co-issuer, to name one or more guarantors and provide for guarantees of such series, to provide for the terms and conditions upon which the guarantee by any guarantor of such series may be released or terminated, or to define the rights of the Holders of Offered Securities;
(iv) The following provision is added as Section 9.02(viii):
(viii) reduce the obligation to pay Additional Amounts or indemnity amounts for Taxes;
(26) Solely with respect to the application of such provisions to the Offered Securities, Sections 10.01 and 10.02 of the Base Indenture are hereby replaced and superseded by the following provisions:
8
Section 10.01 Consolidation, Merger and Sale of Assets.
The Company will not, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease all or substantially all of the Company’s assets in one or a series of related transactions to, any Person, unless:
(a) the resulting, surviving or transferee Person (the “Successor Company”) will be a corporation, limited liability company, public limited company, limited partnership or other entity organized and existing under the laws of (u) the United States of America, any State thereof or the District of Columbia, (v) Ireland, (w) England and Wales, (x) Jersey, (y) any member state of the European Union as in effect on the date the Offered Securities are first issued or (z) Switzerland; provided that the Successor Company (if not the Company) will expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Offered Securities and this Indenture;
(b) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
Notwithstanding the foregoing, (A) any conveyance, transfer or lease of assets between or among the Company and its Subsidiaries, including the Co-Issuer, shall not be prohibited hereunder, and (B) the Company may, directly or indirectly, consolidate with or merge with or into an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction within the United States of America, any State thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the Offered Securities are first issued or Switzerland to realize tax or other benefits.
The Co-Issuer will not, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease all or substantially all of the Co-Issuer’s assets in one or a series of related transactions to, any Person, unless:
(a) the resulting, surviving or transferee Person (the “Successor Co-Issuer”) will be a corporation, limited liability company, public limited company, limited partnership or other entity organized and existing under the laws of (u) the United States of America, any State thereof or the District of Columbia, (v) Ireland, (w) England and Wales, (x) Jersey, (y) any member state of the European Union as in effect on the date the Offered Securities are first issued or (z) Switzerland; provided that the Successor Co-Issuer (if not the Co-Issuer) will expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Co-Issuer under the Offered Securities and this Indenture;
(b) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Co-Issuer or any Restricted Subsidiary as a result of such transaction as having been incurred by the Successor Co-Issuer or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; and
(c) the Co-Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
Notwithstanding the foregoing, the Co-Issuer may, directly or indirectly, consolidate with or merge with or into an Affiliate incorporated solely for the purpose of reincorporating the Co-Issuer in another jurisdiction within the United States of America, any State thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the Offered Securities are first issued or Switzerland to realize tax or other benefits.
9
Section 10.02 Successor Company or Successor Co-Issuer Substituted.
Upon any consolidation or merger, or any conveyance, transfer or lease of all or substantially all of the assets of the Company or the Co-Issuer, as applicable, in accordance with Section 10.01, the Successor Company or Successor Co-Issuer, as applicable, will succeed to, and be substituted for, and may exercise every right and power of, the Company or the Co-Issuer hereunder, as applicable, and the predecessor issuer or Co-Issuer, as applicable, other than in the case of a lease, will be automatically released from all obligations under the Offered Securities and this Indenture, including, without limitation, the obligation to pay the principal of and interest on the Offered Securities.
(27) Solely with respect to the application of such provisions to the Offered Securities, Article XIV of the Base Indenture is hereby replaced and superseded by the following provisions:
ARTICLE XIV.
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
Section 14.01 Redemption Upon Changes in Withholding Taxes.
Either or both of the Issuers may redeem all, but not less than all, of the Offered Securities under the following conditions:
(i) if there is an amendment to, or change in, the laws or regulations of a Relevant Taxing Jurisdiction or any change in the written application or official written interpretation of such laws or regulations, including any action taken by, or a change in published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction, regardless of whether such action, change or holding is with respect to either or both of the Issuers, which amendment or change is publicly announced and becomes effective on or after the date of issuance of the Offered Securities (or, in the case of any Relevant Taxing Jurisdiction that becomes a Relevant Taxing Jurisdiction after such date of issuance, after such later date);
(ii) as a result of such amendment or change, either or both of the Issuers become, or there is a material probability that either or both of the Issuers will become, obligated to pay Additional Amounts on the next payment date with respect to the Offered Securities, and such Issuer cannot avoid any such payment obligation by taking reasonable measures available (including having the other Issuer make payments on the Offered Securities if such action would be reasonable);
(iii) the relevant Issuer (or Issuers) delivers to the Trustee a written opinion of independent tax counsel to such Issuer (or Issuers) of recognized standing to the effect that such Issuer (or Issuers) has become, or there is a material probability that it will become, obligated to pay Additional Amounts as a result of a change or amendment described in the foregoing clauses (i) and (ii); in addition, before the Issuer (or Issuers) mails notice of redemption of the Offered Securities as described below, it will deliver to the Trustee an Officer’s Certificate to the effect that the obligation to pay Additional Amounts cannot be avoided by such Issuer by taking reasonable measures available (including having the other Issuer make payments on the Offered Securities if such action would be reasonable); and
(iv) following the delivery of the opinion described in the foregoing clause (iii), the relevant Issuer (or Issuers) provides notice of redemption for the Offered Securities not less than 10 days, but not more than 90 days, prior to the redemption date. The notice of redemption cannot be given more than 90 days before the earliest date on which the Issuer (or Issuers) would be otherwise required to pay Additional Amounts, and the obligation to pay Additional Amounts must still be in effect when the notice is given.
Upon the occurrence of each of clauses (i), (ii), (iii) and (iv) above, the relevant Issuer (or Issuers) may redeem the Offered Securities at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, thereon to, but excluding, the redemption date and all Additional Amounts (if any) then due and that will become due on such redemption date as a result of the redemption or otherwise (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date that is prior to the redemption date and Additional Amounts (if any) in respect thereof).
10
The provisions of this Section 14.01 shall apply mutatis mutandis to any Successor Company to the Company or Successor Co-Issuer to the Co-Issuer, as applicable.
Section 14.02 Payment of Additional Amounts.
All payments in respect of the Offered Securities will be made by (or on behalf of) the Issuers free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature (including, without limitation, penalties and interest and other similar liabilities related thereto) (“Taxes”), unless the withholding or deduction of such Taxes is required by law.
In the event that the Issuers are required to withhold or deduct any amount for or on account of any Taxes imposed or levied by or on behalf of Ireland, Luxembourg or any other jurisdiction (other than the United States of America) in which either of the Issuers is incorporated, resident or doing business for tax purposes or from or through which payments by or on behalf of the Issuers are made, or any political subdivision or any authority thereof or therein (each, but not including the United States of America or any political subdivision or any authority thereof or therein, a “Relevant Taxing Jurisdiction”), from any payment made under or with respect to any Offered Security (including, without limitation, payments of principal, redemption price, purchase price, interest or premium), the Issuers will pay such additional amounts (“Additional Amounts”) so that the net amount received by each Holder or beneficial owner of Offered Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted.
Additional Amounts will not be payable with respect to a payment made to a Holder or beneficial owner of Offered Securities where such Holder or beneficial owner is subject to taxation on such payment by the Relevant Taxing Jurisdiction for or on account of:
(a) any Taxes that are imposed or withheld because such Holder or beneficial owner (or a fiduciary, settlor, beneficiary, or member of such Holder or beneficial owner if such Person is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a Person holding a power over an estate or trust administered by a fiduciary holder):
(1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Relevant Taxing Jurisdiction or has or had a permanent establishment or other taxable presence in the Relevant Taxing Jurisdiction; or
(2) has or had any present or former connection (other than the mere fact of ownership of the Offered Securities) with the Relevant Taxing Jurisdiction, including being or having been a national citizen or resident thereof, being treated as being or having been a resident thereof or being or having been physically present therein;
(b) any estate, inheritance, gift, transfer, personal property or similar Taxes imposed with respect to the Offered Securities;
(c) any Taxes imposed as a result of the presentation of the Offered Securities, where presentation is required, for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or Holder thereof would have been entitled to the payment of Additional Amounts had such Offered Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed or withheld as a result of the failure of such Holder or beneficial owner, upon a written request, made to the Holder or beneficial owner in writing at least 30 days before any such withholding or deduction would be made, by an Issuer, broker or other withholding agent, to timely and accurately comply (to the extent such Holder or beneficial owner is legally eligible to do so) with any applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection of the Holder or beneficial owner with the Relevant Taxing Jurisdiction, if such compliance is required by statute or regulation of the Relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
11
(e) any Taxes that are payable by any method other than withholding or deduction by the Issuers or any paying agent from payments in respect of the Offered Securities;
(f) any withholding or deduction required pursuant to Sections 1471 through 1474 of the Code as of the issue date of the Offered Securities (or any amended or successor provisions of such sections that are substantively comparable and not materially more onerous to comply with), any regulations thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b) of the Code, or any law or regulation implemented pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing; or
(g) any combination of Section 14.02(a), (b), (c), (d), (e) and (f).
Additional Amounts also will not be payable for any Taxes that are imposed with respect to any payment on an Offered Security to any Holder who is a fiduciary or partnership or Person other than the sole beneficial owner of such payment to the extent that no Additional Amounts would have been payable had the beneficial owner of the applicable Offered Security been the Holder of such Offered Security.
The Issuers also: (i) will make such withholding or deduction of Taxes; (ii) will remit the full amount of Taxes so deducted or withheld to the relevant tax authority in accordance with all applicable laws; (iii) will use their commercially reasonable efforts to obtain from each relevant tax authority imposing such Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld; and (iv) upon request, will make available to the Holders of the Offered Securities, within 90 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuers (unless, notwithstanding the Issuers’ efforts to obtain such receipts, the same are not obtainable, in which case the Issuers will provide other evidence of payments by the Issuers).
At least 30 days prior to each date on which any payment under or with respect to the Offered Securities is due and payable, if the Issuers will be obligated to pay Additional Amounts with respect to such payment, the Issuers will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information as is necessary to enable the Trustee to pay such Additional Amounts to Holders of the Offered Securities on the payment date (unless such obligation to pay Additional Amounts arises less than 30 days prior to the relevant payment date, in which case the Issuers may deliver such Officer’s Certificate as promptly as practicable after the date that is 30 days prior to the payment date).
In addition, the Issuers will pay for any present or future stamp, issue, registration, property, excise, transfer, court or documentary or other similar Taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in a Relevant Taxing Jurisdiction in respect of the creation, execution, issue, offering, enforcement, redemption or retirement of the Offered Securities or any other document or instrument referred to therein, or the receipt of any payments with respect thereto.
The provisions of this Article XIV shall survive any termination or the discharge of this Indenture and shall apply mutatis mutandis to any Successor Company or Successor Co-Issuer.
Whenever in this Indenture or any Offered Securities there is mentioned, in any context, the payment of principal, premium, if any, redemption price, repurchase price, interest or any other amount payable under or with respect to any Offered Securities, such mention shall be deemed to include the payment of Additional Amounts to the extent payable in the particular context.
(28) The additional provisions set forth below shall be applicable to the Offered Securities:
(a) Claims against the Issuers for the payment of principal or Additional Amounts, if any, of the Offered Securities will be prescribed ten years after the applicable due date for payment thereof. Claims against the Issuers for the payment of interest, if any, of the Offered Securities will be prescribed five years after the applicable due date for payment of interest.
12
(b) For the avoidance of doubt, articles 470-1 to 470-19 of the Luxembourg law of 10 August 1915 relating to commercial companies, as amended, do not apply to the Offered Securities.
ARTICLE II.
MISCELLANEOUS
Section 2.01 Confirmation of Indenture. The Base Indenture, as supplemented, amended and superseded by this Ninth Supplemental Indenture, as applicable, is in all respects ratified and confirmed, and the Base Indenture, this Ninth Supplemental Indenture and all indentures supplemental thereto in respect of the Offered Securities shall be read, taken and construed as one and the same instrument.
Section 2.02 Concerning the Trustee. In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses under the Indenture. The recitals contained herein and in the Offered Securities, except the certificate of authentication, shall be taken as the statements of the Issuers, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Ninth Supplemental Indenture or of the Offered Securities. The Trustee shall not be accountable for the use or application by the Company of the Offered Securities or the proceeds thereof. The Co-Issuer hereby affirms, and the Company hereby reaffirms, their respective obligations under the Base Indenture to indemnify and hold harmless the Trustee as required under Article 7 of the Base Indenture, including under Section 7.06 of the Base Indenture. This indemnity shall survive the final payment in full of the Offered Securities and the resignation or removal of the Trustee solely to the extent expressly provided in Article 7 of the Base Indenture.
Section 2.03 Governing Law. This Ninth Supplemental Indenture and the Offered Securities shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York without regard to conflicts of laws principles that would require the application of any other law.
Section 2.04 Separability. In case any provision in this Ninth Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.05 Counterparts. This Ninth Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement 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 2.06 No Benefit. Nothing in this Ninth Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns, and the Holders of the Offered Securities, any benefit or legal or equitable rights, remedy or claim under this Ninth Supplemental Indenture or the Base Indenture.
13
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed all as of the day and year first above written.
| JOHNSON CONTROLS INTERNATIONAL PLC | ||
| By: | /s/ Pieter Lens | |
| Name: | Pieter Lens | |
| Title: | Vice President and Treasurer | |
| TYCO FIRE & SECURITY FINANCE S.C.A.
By: TYCO FIRE & SECURITY S.À R.L. its General Partner and manager | ||
| By: | /s/ Richard J. Dancy | |
| Name: | Richard J. Dancy | |
| Title: | Manager | |
[Signature Page to Ninth Supplemental Indenture]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Yvonne Siira | |
| Name: | Yvonne Siira | |
| Title: | Vice President | |
[Signature Page to Ninth Supplemental Indenture]
EXHIBIT A
FORM OF 4.900% SENIOR NOTES DUE 2032
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE (AS DEFINED HEREIN) GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE HOLDERS OF BENEFICIAL INTERESTS HEREIN, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.05(C) OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
4.900% SENIOR NOTES DUE 2032
| No. [ ] ISIN No. US47837RAE09 CUSIP. 47837R AE0 |
$[ ] |
JOHNSON CONTROLS INTERNATIONAL PLC
TYCO FIRE & SECURITY FINANCE S.C.A.
promises to pay to [CEDE & CO.] [ ] or registered assigns, the principal sum of [ ] Dollars, or such other sum as is set forth in the Schedule of Increases or Decreases of the Global Security attached hereto, on December 1, 2032.
Interest Payment Dates: June 1 and December 1 of each year
Regular Record Dates: May 15 and November 15 of each year
Each Holder of this Note (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder of this Note hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose unless the Certificate of Authentication hereon shall have been duly executed by the Trustee or Authenticating Agent by manual or facsimile signature of an authorized signatory. The provisions of this Note are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Issuers have caused this instrument to be signed in accordance with Section 2.04 of the Indenture.
Date: September 14, 2022
| JOHNSON CONTROLS INTERNATIONAL PLC |
|
|
| Name: |
| Title: |
|
|
| Name: |
| Title: |
| TYCO FIRE & SECURITY FINANCE S.C.A.
By: TYCO FIRE & SECURITY S. À R.L. its General Partner and manager |
|
|
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
| Dated: | ||
JOHNSON CONTROLS INTERNATIONAL PLC
TYCO FIRE & SECURITY FINANCE S.C.A.
4.900% Senior Notes due 2032
This security is one of a duly authorized series of debt securities of Johnson Controls International plc, a public company limited by shares, incorporated under the laws of Ireland (the “Company”), and Tyco Fire & Security Finance S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and organized under the laws of the Grand Duchy of Luxembourg (the “Co-Issuer” and, together with the Company, the “Issuers”), issued or to be issued in one or more series under and pursuant to an Indenture, dated as of December 28, 2016 (the “Base Indenture”), duly executed and delivered by and among the Company and U.S. Bank Trust Company, National Association (successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as supplemented by the Ninth Supplemental Indenture, dated as of September 14, 2022 (the “Ninth Supplemental Indenture” and, the Base Indenture as so supplemented, the “Indenture”), by and among the Company, the Co-Issuer and the Trustee. By the terms of the Base Indenture, the Securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This Security is one of the series designated on the face hereof (individually, a “Note,” and collectively, the “Notes”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties and immunities of the Trustee, the Issuers and the Holders of the Notes (the “Noteholders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Ninth Supplemental Indenture, as applicable.
1. Interest. The Issuers promise to pay interest on the principal amount of this Note at an annual rate of 4.900%. The Issuers will pay interest semi-annually in arrears on June 1 and December 1 of each year (each such day, an “Interest Payment Date”). If any Interest Payment Date, redemption date or maturity date of this Note is not a Business Day, then payment of principal, premium, if any, or interest shall be made on the next Business Day with the same force and effect as if made on the nominal date such payment was due, and no interest shall accrue for the period after such nominal date to the date of such payment on the next Business Day. Interest on the Notes will accrue from the most recent date to which interest has been paid or duly provided for (or September 14, 2022, if no interest has been paid). Interest on the Notes will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
2. Method of Payment. The Issuers will pay the interest installment on this Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for the Notes to the Person in whose name this Note (or one or more Predecessor Securities hereto) is registered at the close of business on the regular record date referred to on the facing page of this Note for such interest installment. In the event that this Note or a portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on this Note will be paid upon presentation and surrender of this Note as provided in the Indenture. The principal of and the interest on this Note shall be payable in Dollars at the office or agency of the Issuers maintained for that purpose in accordance with the Indenture.
3. Paying Agent, Transfer Agent and Security Registrar. Initially, the Trustee will act as paying agent, transfer agent and Security Registrar. The Issuers may change or appoint any paying agent, Security Registrar or transfer agent without prior notice to any Noteholder. The Issuers or any of their subsidiaries may act as paying agent, transfer agent or Security Registrar in respect of any Notes.
4. Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect from time to time. The Notes are subject to all such terms, and Noteholders are referred to the Indenture and TIA for a statement of such terms. The Notes are unsecured general obligations of the Issuers and constitute the series designated on the face hereof as the “4.900% Senior Notes due 2032”, initially limited to $400,000,000 in aggregate principal amount.
The Issuers will furnish to any Noteholder upon written request and without charge a copy of the Base Indenture and the Ninth Supplemental Indenture. Requests may be made to: Johnson Controls International plc, One Albert Quay, Cork, Ireland T12 X8N6.
5. Optional Redemption. The Notes will be subject to redemption in accordance with the terms of Sections 1.02(8) and 1.02(27) of the Ninth Supplemental Indenture and Article III of the Base Indenture. If the giving of notice of redemption shall have been completed as provided in the Indenture, interest on such Notes or portions of Notes will cease to accrue on and after the date fixed for redemption, unless the Issuers default in the payment of the applicable redemption price and accrued interest (if any) with respect to any such Note or portion thereof. The Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
6. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event with respect to the Notes, unless the Issuers have exercised their right to redeem the Notes by giving irrevocable notice on or prior to the 30th day after the Change of Control Triggering Event in accordance with the Indenture, each Holder of the Notes will have the right to require the Issuers to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes pursuant to a Change of Control Offer in accordance with Section 1.02(17) of the Ninth Supplemental Indenture.
7. Denominations, Transfer, Exchange. The Notes are in registered form without interest coupons in the minimum denominations of $2,000 or any integral multiple of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. Subject to and in accordance with Section 2.05 of the Base Indenture, the Notes may be presented for exchange or for registration of transfer at the office of the Security Registrar or at the office of any transfer agent designated by the Issuers for such purpose.
8. Persons Deemed Owners. Prior to the due presentment for the registration of a transfer of any Note, the Issuers, the Trustee, any applicable paying agent, any transfer agent and any Security Registrar may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and neither the Issuers nor the Trustee nor any applicable paying agent, transfer agent or Security Registrar shall be affected by any notice to the contrary.
9. [Reserved].
10. [Reserved].
11. Defaults and Remedies. If an Event of Default shall have occurred and be continuing in respect of the Notes, in each and every such case, unless the principal of all the Notes shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding, by notice in writing to the Issuers, and to the Trustee if given by such Noteholders, may declare the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, notwithstanding anything contained in the Indenture or in the Notes to the contrary.
12. Trustee, Paying Agent, Transfer Agent and Security Registrar May Hold Notes. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest, it must either eliminate such conflict within 90 days, apply to the Commission for permission to continue as Trustee or resign. Any Authenticating Agent, paying agent, transfer agent or Security Registrar may do the same with like rights and duties. The Trustee must also comply with Section 7.08 of the Base Indenture.
13. No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement of the Indenture, or of any Note, or for any claim based thereon or otherwise in respect hereof or thereof, shall be had against any incorporator, shareholder, officer, manager or director, past, present or future as such, of the Issuers or of any predecessor or successor Person, either directly or through the Issuers or any such predecessor or successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that the Indenture, the Notes and the obligations issued hereunder and thereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers, managers or directors as such, of the Issuers or of any predecessor or successor Person, or any of them, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in any of
the Notes or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer, manager or director as such, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in any of the Notes or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of the Indenture and the issuance of the Notes.
14. Discharge of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
15. Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication attached to the other side of this Note.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures the Issuers have caused CUSIP numbers to be printed on this Note. No representation is made as to the correctness of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers placed thereon.
17. Additional Amounts. The Issuers are obligated to pay Additional Amounts on this Note to the extent provided in Section 1.02(27) of the Ninth Supplemental Indenture.
18. Abbreviations. Customary abbreviations may be used in the name of a Noteholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
19. Governing Law. The Indenture and this Note shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York without regard to conflicts of laws principles that would require the application of any other law.
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
| (Insert assignee’s soc. sec. or tax I.D. no.) |
(Print or type assignee’s name, address and zip code)
and irrevocably appoint agent to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.
| Date: | ||||||
| Your Signature: |
| |||||
| (Sign exactly as your name appears on the face of this Note) | ||||||
| Signature Guarantee: | ||||||
SCHEDULE OF INCREASES OR DECREASES OF THE GLOBAL SECURITY
The initial outstanding principal amount of this Global Security is $[ ]. The following increases and decreases in this Global Security have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of this Global Security |
Amount of increase in Principal Amount of this Global Security |
Principal Amount of this Global Security following such decrease (or increase) |
Signature of authorized officer of Registrar or Trustee | ||||
Exhibit 5.1
Simpson Thacher & Bartlett LLP
425 LEXINGTON AVENUE
NEW YORK, NY 10017-3954
TELEPHONE: +1-212-455-2000
FACSIMILE: +1-212-455-2502
| Direct Dial Number | E-mail Address |
September 14, 2022
Johnson Controls International plc
One Albert Quay
Cork, Ireland T12 X8N6
Tyco Fire & Security Finance S.C.A.
2 rue Jean Monnet
2180, Luxembourg, Grand Duchy of Luxembourg
Ladies and Gentlemen:
We have acted as U.S. counsel to Johnson Controls International plc, a public company limited by shares, incorporated under the laws of Ireland (the “Company”) and Tyco Fire & Security Finance S.C.A., a corporate partnership limited by shares, incorporated and organized under the laws of the Grand Duchy of Luxembourg (“TFSCA”), in connection with the Registration Statement on Form S-3 (as amended by Post-Effective Amendment No. 1 thereto, the “Registration Statement”) filed by the Company and the Co-Issuer with the U.S. Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended, relating to the issuance by the Company and the Co-Issuer from time to time of debt securities (the “Securities”).
| Simpson Thacher & Bartlett LLP | ||||
| Johnson Controls International plc Tyco Fire & Safety Finance S.C.A. |
-2- | September 14, 2022 | ||
We have examined the Registration Statement, the Underwriting Agreement dated September 6, 2022 (the “Underwriting Agreement”), among the Company, the Co-Issuer and the underwriters named therein pursuant to which such underwriters have agreed to purchase U.S.$400,000,000 aggregate principal amount of 4.900% Senior Notes due 2032 (the “Notes”) issued by the Company and the Co-Issuer, the Indenture, dated as of December 28, 2016 (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Ninth Supplemental Indenture, dated as of September 14, 2022, among the Company, the Co-Issuer and the Trustee (together with the Base Indenture, the “Indenture”), and duplicates of the global note representing the Notes. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and Co-Issuer and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.
In rendering the opinion set forth below, we have assumed further that (1) each of the Company and the Co-Issuer is validly existing and in good standing under the law of the jurisdiction in which it is organized and has duly authorized, executed, issued and delivered the Underwriting Agreement, the Indenture and the Notes, as applicable, in accordance with its organizational documents and the law of the jurisdiction in which it is organized, (2) the execution, issuance, delivery and performance by the Company and the Co-Issuer of the Underwriting
| Simpson Thacher & Bartlett LLP | ||||
| Johnson Controls International plc Tyco Fire & Safety Finance S.C.A. |
-3- | September 14, 2022 | ||
Agreement, the Indenture and the Notes, as applicable, do not constitute a breach or violation of its organizational documents or violate the law of the jurisdiction in which it is organized or any other jurisdiction (except that no such assumption is made with respect to the law of the State of New York) and (3) the execution, issuance, delivery and performance by the Company and the Co-Issuer of the Underwriting Agreement, the Indenture and the Notes, as applicable, do not constitute a breach or default under any agreement or instrument which is binding upon the Company or the Co-Issuer.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the provisions of the Underwriting Agreement, the Notes will constitute valid and legally binding obligations of the Company and the Co-Issuer enforceable against the Company and the Co-Issuer in accordance with their terms.
Our opinion set forth above is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) to the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights. In addition, we express no opinion as to the validity, legally binding effect or enforceability of Section 13.10 of the Base Indenture and Section 2.04 of the Supplemental Indenture, relating to the separability of provisions of the Base Indenture and the Supplemental Indenture, respectively.
| Simpson Thacher & Bartlett LLP | ||||
| Johnson Controls International plc Tyco Fire & Safety Finance S.C.A. |
-4- | September 14, 2022 | ||
In connection with the Indenture whereby the parties submit to the jurisdiction of any state or federal court in the City of New York, State of New York, United States of America, we note the limitations of 28 U.S.C. Sections 1331 and 1332 on subject matter jurisdiction of the U.S. federal courts. In connection with the provisions of the Indenture which relate to forum selection (including, without limitation, any waiver of any objection to venue or any objection that a court is an inconvenient forum), we note that under N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial, and under 28 U.S.C. Section 1404(a) a United States District Court has discretion to transfer an action from one U.S. federal court to another.
We do not express any opinion herein concerning any law other than the law of the State of New York.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.
| Very truly yours, |
| /s/ Simpson Thacher & Bartlett LLP |
| SIMPSON THACHER & BARTLETT LLP |
Exhibit 5.2
| Arthur Cox LLP | ||
| Ten Earlsfort Terrace | ||
| Dublin 2 | ||
| D02 T380 | ||
| 14 September 2022 | ||
| +353 1 920 1000 | ||
| Our ref: PC/TY027/113 | dublin@arthurcox.com | |
| dx: 27 dublin | ||
| phil.cody@arthurcox.com | Dublin | |
| Belfast | ||
| London | ||
| PRIVATE AND CONFIDENTIAL | New York | |
| San Francisco | ||
| Board of Directors | arthurcox.com | |
| Johnson Controls International plc 1 Albert Quay |
||
| Cork | ||
| T12 X8N6 | ||
| Re: | Johnson Controls International plc (the “Company”) |
$400,000,000 4.900% Senior Notes due 2032 (the “Notes”) issued by the Company and Tyco Fire & Security Finance S.C.A. as co-issuers.
| 1. | Basis of Opinion |
| 1.1 | We are acting as Irish counsel to Johnson Controls International plc, registered number 543654, a public company limited by shares, incorporated under the laws of Ireland, with its registered office at 1 Albert Quay, Cork, Ireland, in connection with (a) the entry into the Transaction Documents (as defined in the Schedule) by the Company and (b) the issuance of the Notes by the Company (as co-issuer) and any filing of a Form 8-K with the U.S. Securities and Exchange Commission in connection with the issuance of the Notes (collectively, the “Transaction”). |
| 1.2 | This Opinion is confined to and given in all respects on the basis of the laws of Ireland (meaning Ireland exclusive of Northern Ireland) in force as at the date of this opinion as currently applied by the courts of Ireland. We have made no investigations of and we express no opinion as to the laws of any other jurisdiction or their effect on this opinion. This Opinion speaks only as of its date. |
| 1.3 | This Opinion is given on the basis that our client is the Company. For the purposes of giving this Opinion, we have taken instructions solely from our client and from its U.S. counsel Simpson Thatcher & Bartlett LLP. |
| 1.4 | This Opinion is also strictly confined to: |
| (a) | the matters expressly stated herein at paragraph 2 below and is not to be read as extending by implication or otherwise to any other matter; |
1
| (b) | the documents listed in the Schedule to this Opinion (the “Documents”); and |
| (c) | the searches listed at 1.8 below (the “Searches”), |
and is subject to the assumptions and qualifications set out below. In giving this Opinion, we have reviewed a Corporate Certificate (as defined in the Schedule to this Opinion) and the Searches and any other materials necessary and appropriate for the issuance of this Opinion.
| 1.5 | No opinion is expressed as to the taxation consequences of the Transaction Documents or the Transaction. |
| 1.6 | In giving this Opinion, we have examined copies of the Documents sent to us by email in pdf or other electronic format. |
| 1.7 | All words and phrases defined in the Transaction Documents and not defined herein shall have the same meanings herein as are respectively assigned to them in the Transaction Documents. As used in this Opinion, the following terms shall have the following meanings: |
| (a) | “Base Indenture” means the indenture of 28 December 2016 between the Company and U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as trustee; |
| (b) | “Companies Act” means the Companies Act 2014 (as amended); |
| (c) | “Constitution” means the constitution of the Company; |
| (d) | “Corporate Certificate” has the meaning given to it in the Schedule; |
| (e) | “CRO” means the Irish Companies Registration Office; |
| (f) | “Indenture” means the Base Indenture as supplemented by the Ninth Supplemental Indenture; |
| (g) | “Member State” means a member state of the European Union; |
| (h) | “Prospectus” means the Prospectus dated 4 September 2020 and filed as part of Amendment No. 1 to the Registration Statement; |
| (i) | “Prospectus Regulation” means Regulation 2017/1129/EU 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; |
| (j) | “Qualified Investors” has the meaning given to that term in the Prospectus Regulation; |
| (k) | “Registration Statement” means the Registration Statement filed with the SEC on Form S-3 on 31 January 2020 as amended by the Post-Effective Amendment No. 1 filed with the SEC on 4 September 2020 (the “Amendment No. 1”); |
| (l) | “Ninth Supplemental Indenture” means a ninth supplemental indenture, supplemental to the Base Indenture, dated on or about the date of this Opinion and among the Company, Tyco Fire & Security Finance S.C.A. and U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as trustee; |
2
| (m) | “Transaction Documents” has the meaning given to that term in the Schedule; and |
| (n) | “Trustee” means U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association). |
| 1.8 | For the purpose of giving this Opinion, we have caused to be made the following legal searches against the Company on the date of this Opinion: |
| (a) | on the file of the Company maintained by the Registrar of Companies in the CRO for mortgages, debentures or similar charges or notices thereof and for the appointment of any examiner, receiver or liquidator; |
| (b) | in the Judgments Office of the High Court for unsatisfied judgments, orders, decrees and the like for the five years immediately preceding the date of the search; and |
| (c) | in the Central Office of the High Court for any petitions filed in respect of the Company. |
| 1.9 | This Opinion is governed by and is to be construed in accordance with the laws of Ireland (as interpreted by the courts of Ireland at the date hereof) and any addressee of this Opinion agrees, for our benefit, that the courts of Ireland shall have exclusive jurisdiction to settle any dispute arising out of, or in connection with, this Opinion. 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 of any change in law, change in interpretation of law which may occur after the date of this Opinion. |
| 2. | Opinion |
Subject to the assumptions and qualifications set out in this Opinion and to any matters not disclosed to us, we are of the opinion that:
| 2.1 | the Company is a public limited company and is duly incorporated and validly existing under the laws of Ireland and has the requisite corporate power and authority under its Constitution to offer, issue, sell and deliver the Notes; |
| 2.2 | the Company has (and in the case of any Transaction Document dated prior to the date of this Opinion, had) the necessary corporate power and authority under its Constitution to execute and deliver the Transaction Documents and to perform its obligations thereunder in accordance with the terms of those documents. |
| 2.3 | the execution and delivery of the Transaction Documents and the performance by the Company of its obligations thereunder and the issuance and delivery of the Notes does not contravene: |
| (a) | any law of Ireland applicable to the Company; or |
| (b) | the Constitution of the Company. |
| 2.4 | All necessary corporate action required on the part of the Company to authorise the execution and delivery of the Transaction Documents, the issuance of the Notes, the filing of the Registration Statement and the performance by the Company of its obligations under the Transaction Documents and the Notes has been duly taken. |
| 2.5 | The Transaction Documents, including the Notes, have been duly executed by the Company. |
3
| 3. | Assumptions |
For the purpose of giving this Opinion, we assume the following without any responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
Registration Statement and Indenture
| 3.1 | That the Registration Statement has become effective under the Securities Act. |
| 3.2 | That the filing of the Registration Statement with the SEC was authorised by all necessary actions under all applicable laws other than Irish law. |
| 3.3 | That the Trustee has been qualified to act as trustee under the Indenture and the Indenture has been qualified under the U.S. Trust Indenture Act of 1939, as amended. |
| 3.4 | That the Indenture has been duly executed and delivered by each party thereto. |
| 3.5 | That to the extent any offer of the Notes is or has been made in any Member State, such offer is or was addressed to fewer than 150 natural or legal persons in each Member State, other than Qualified Investors. |
Authenticity and bona fides
| 3.6 | The truth, completeness, accuracy and authenticity of all copy letters, resolutions, certificates, permissions, minutes, authorisations and all other documents of any kind submitted to us as originals or copies of originals, and (in the case of copies) conformity to the originals of copy documents, the genuineness of all signatures (electronic or otherwise), stamps and seals thereon, that any signatures are the signatures of the persons who they purport to be, that each witness to a signature actually witnessed that signature and that each original was executed in the manner appearing on the copy. |
| 3.7 | Where incomplete Transaction Documents have been submitted to us or signature pages only have been supplied to us for the purposes of issuing this Opinion that the originals of such Transaction Documents correspond in all respects with the last draft of the complete Transaction Documents submitted to us. |
| 3.8 | That the Transaction Documents have been executed in a form and content having no material difference to the final drafts provided to us and have, when executed, been in their final form and have been delivered by the parties thereto and are not subject to any escrow arrangements. |
| 3.9 | Where a Transaction Document has been executed on behalf of the Company using a software platform that enables an electronic signature to be applied to that Transaction Document, each such signature was applied under the authority and control of the relevant signatory. |
| 3.10 | That the copies produced to us of minutes of meetings and/or of resolutions correctly record the proceedings at such meetings and/or the subject matter which they purport to record and that any meetings referred to in such copies were duly convened, duly quorate and held and all formalities were duly observed, that those present at any such meetings were entitled to attend and vote at the meeting and acted bona fide throughout, that no further resolutions have been passed or corporate or other action taken which would or might alter the effectiveness thereof and that such resolutions have not been amended or rescinded and are in full force and effect. |
4
| 3.11 | That each director of the Company has disclosed any interest which he may have in the Transaction in accordance with the provisions of the Companies Act and the Constitution of the Company and none of the directors of the Company has any interest in the Transaction except to the extent permitted by the Constitution of the Company. |
| 3.12 | The absence of fraud, coercion, duress or undue influence and lack of bad faith on the part of the parties to the Transaction Documents and their respective officers, employees, agents and (with the exception of Arthur Cox LLP) advisers. |
Accuracy of Searches and the Corporate Certificate
| 3.13 | The accuracy and completeness of the information disclosed in the Searches and that such information is accurate as of the date of this Opinion and has not since the time of such search being on the date of this Opinion been altered. In this connection, it should be noted that: |
| (a) | the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted for; |
| (b) | the position reflected by the Searches may not be fully up-to-date; and |
| (c) | searches at the CRO do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or a petition presented or any other action taken for the winding-up of, or the appointment of a receiver or an examiner to, the Company or its assets. |
| 3.14 | The truth, completeness and accuracy of all representations and statements as to factual matters contained in the Corporate Certificate (as defined in the Schedule hereto) at the time they were made and at all times thereafter. |
No proceedings
| 3.15 | That no proceedings have been instituted or injunction granted against the Company to restrain it from issuing the Notes and the issue of any Notes would not be contrary to any state, governmental, court, state or quasi-governmental agency, licensing authority, local or municipal governmental body or regulatory authority’s order, direction, guideline, recommendation, decision, licence or requirement. |
Commercial Benefit
| 3.16 | That the Transaction Documents have been entered into for bona fide commercial purposes, on arm’s length terms and for the benefit of each party thereto and are in those parties’ respective commercial interests and for their respective corporate benefit. |
Authority, Capacity, Execution and Enforceability
| 3.17 | That: |
| (a) | no party to the Transaction Documents is a “consumer” for the purposes of Irish law or a “personal consumer” for the purposes of the Central Bank of Ireland’s Consumer Protection Code 2012; |
| (b) | the parties to the Transaction Documents (other than the Company to the extent opined on herein) are duly incorporated and validly in existence and that they and their respective signatories have the appropriate capacity, power and authority to execute the Transaction Documents to which they are a party, to exercise and perform their respective rights and obligations thereunder and to render those Transaction Documents and all obligations thereunder legal, valid, binding and enforceable on them; and |
5
| (c) | each party to the Transaction Documents (other than the Company to the extent opined on herein) has taken all necessary corporate action and other steps to execute, deliver, exercise and perform the Transaction Documents to which it is a party and the rights and obligations set out therein and has duly executed the Transaction Documents to which it is a party. |
Financial Assistance and Connected Transactions.
| 3.18 | The Company is not by entering into the Transaction Documents or performing its obligations thereunder, providing financial assistance for the purpose of an acquisition (by way of subscription, purchase, exchange or otherwise) made or to be made by any person of any shares in the Company or its holding company which would be prohibited by Section 82 of the Companies Act. |
| 3.19 | That none of the transactions contemplated by the Transaction Documents are prohibited by virtue of Section 239 of the Companies Act, which prohibits certain transactions between companies and their directors or persons connected with their directors. |
| 4. | Qualifications |
The opinions set out in this Opinion are subject to the following reservations:
General Matters
| 4.1 | A particular course of dealing among the parties or an oral amendment, variation or waiver may result in an Irish court finding that the terms of the Transaction Documents have been amended, varied or waived even if such course of dealing or oral amendment, variation or waiver is not reflected in writing among the parties. |
| 4.2 | No opinion is expressed on the irrevocability of, or on the enforceability of the delegation of, any power of attorney under the Transaction Documents. |
| 4.3 | No opinion is expressed on any deed of assignment, transfer, accession or similar document executed after the date of this opinion in relation to any of the rights and obligations contained in the Transaction Documents. |
| 4.4 | No opinion is expressed on any deed or agreement envisaged by the Transaction Documents to be entered at a future date or any future action taken by a party under the Transaction Documents. |
| 4.5 | We express no opinion as to whether the Transaction Documents breach any other agreement or instrument. |
Sanctions
| 4.6 | If a party to any Transaction Document or to any transfer of, or payment in respect of, the Transaction Documents is controlled by or otherwise connected with a person (or is itself) resident in, incorporated in or constituted under the laws of a country which is the subject of United Nations, European Union or Irish sanctions or sanctions under the Treaty on the Functioning of the European Union, as amended, or is otherwise the target of any such sanctions, then obligations to that party under the relevant Transaction Documents or in respect of the relevant transfer or payment may be unenforceable or void. |
6
| 4.7 | Pursuant to Article 4 of Council Regulation (EC) No 2271/96 of 22 November 1996, as amended by Commission Delegated Regulation (EU) 2018/1100 (the “Blocking Statute”), no judgment of a court or tribunal and no decision of an administrative authority located outside the European Union giving effect, directly or indirectly, to the laws specified in the Annex to the Blocking Statute or to actions based thereon or resulting there from will be recognised or be enforceable in any manner by the courts of Ireland. |
Execution of Documents
| 4.8 | We note the decision in the English case of R (on the application of Mercury Tax Ltd) v. Revenue and Customs Commissioners [2008] EWHC 2721. Although this decision will not be binding on the courts of Ireland it will be considered as persuasive authority. One of the decisions in that case would appear to indicate that a previously executed signature page from one document may not be transferred to another document, even where the documents in question are simply updated versions of the same document. Our Opinion is qualified by reference to the above referenced decision. |
| 5. | Disclosure |
We hereby consent to your filing this Opinion as an exhibit to the Form 8-K to be filed by the Company with the U.S. Securities and Exchange Commission in connection with the issuance of the Notes.
In giving this consent, we do not thereby admit that we are in a category of person whose consent is required under section 7 of the Securities Act.
| 6. | No Refresher |
This Opinion speaks only as of its date. We are not under any obligation to update this Opinion from time to time or to notify you of any change of law, fact or circumstances referred to or relied upon in the giving of this Opinion.
Yours sincerely
/s/ Arthur Cox LLP
ARTHUR COX LLP
7
SCHEDULE
Documents
| 1. | The Base Indenture. |
| 2. | The Ninth Supplemental Indenture. |
| 3. | The registered global notes in respect of the Notes. |
| 4. | A certificate of the Joint Company Secretary of the Company (the “Corporate Certificate”) dated the date of this Opinion attaching amongst other things, copies of: |
| (a) | the Company’s certificate of incorporation and certificate of incorporation on change of name; |
| (b) | the Company’s Constitution; |
| (c) | a list of the Company’s directors and company secretary; |
| (d) | resolutions of the board of directors of the Company approving the Transaction; |
| (e) | specimen signatures of each person authorised to sign the Transaction Documents on behalf of the Company. |
The documents listed at 1 to 3 above are collectively referred to as the “Transaction Documents”.
8
Exhibit 5.3
| The General Partner (as defined below), acting as manager and general partner of the Company (as defined below)
(the Addressee) |
Allen & Overy société en commandite simple, inscrite au barreau de Luxembourg 5 avenue J.F. Kennedy L-1855 Luxembourg Boîte postale 5017 L-1050 Luxembourg
Tel +352 4444 55 1 Fax +352 4444 55 222
paul.peporte@allenovery.com | |
Our ref A&O/0098354-0000921 EUO2: 2002585789.5
Luxembourg, 14 September 2022
Tyco Fire & Security Finance S.C.A. – 2022 Senior Bond Offering
Dear Sir or Madam,
| 1. | We have acted as legal advisers in the Grand Duchy of Luxembourg (Luxembourg) to Tyco Fire & Security Finance S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and organised under the laws of Luxembourg with its registered office at 2, rue Jean Monnet, L-2180 Luxembourg and registered with the Luxembourg trade and companies register (Registre de commerce et des sociétés, Luxembourg) (the Register) under number B190265 (the Company) in connection with the Company’s issuance, with Johnson Controls International plc, a public company limited by shares, incorporated under the laws of Ireland (JCI), as co-issuers, of $400,000,000 aggregate principal amount of 4.900%Senior Notes due 2032 (the Notes) and the Agreements (as defined below). |
| 2. | DOCUMENTS |
We have examined, to the exclusion of any other document, copies of the documents listed below:
| 2.1 | an electronic copy of the restated articles of association (statuts coordonnés) of the Company in a version dated 25 September 2020 (the Company Articles); |
| 2.2 | an electronic copy of the restated articles of association (statuts coordonnés) of Tyco Fire & Security S.à r.l. (the General Partner) in a version dated 25 September 2020 (the General Partner Articles and, together with the Company Articles, the Articles); |
| 2.3 | an electronic copy of a negative certificate (certificat négatif) issued by the Register in respect of the Company dated 14 September 2022 stating that on the day immediately prior to the date of issuance of the negative certificate, there were no records at the Register of any court order regarding, amongst others, a (i) bankruptcy adjudication against the Company, (ii) reprieve from payment (sursis de paiement), (iii) controlled management (gestion contrôlée) or (iv) composition with creditors (concordat préventif de la faillite) (the Company Certificate); |
Allen & Overy, société en commandite simple, is an affiliated office of Allen & Overy LLP. Allen & Overy LLP or an affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Bangkok, Beijing, Belfast, Boston, Bratislava, Brussels, Budapest, Casablanca, Dubai, Düsseldorf, Frankfurt, Hamburg, Hanoi, Ho Chi Minh City, Hong Kong, Istanbul, Jakarta (associated office), Johannesburg, London, Los Angeles, Luxembourg, Madrid, Milan, Moscow, Munich, New York, Paris, Perth, Prague, Rome, San Francisco, São Paulo, Séoul, Shanghai, Silicon Valley, Singapore, Sydney, Tokyo, Warsaw, Washington, D.C. and Yangon.
| 2.4 | an electronic copy of a negative certificate (certificat négatif) issued by the Register in respect of the General Partner dated 14 September 2022 stating that on the day immediately prior to the date of issuance of the negative certificate, there were no records at the Register of any court order regarding, amongst others, a (i) bankruptcy adjudication against the General Partner, (ii) reprieve from payment (sursis de paiement), (iii) controlled management (gestion contrôlée) or (iv) composition with creditors (concordat préventif de la faillite) (the General Partner Certificate and, together with the Company Certificate, the Certificates); |
| 2.5 | an e-mailed scanned signed copy of the resolutions taken by the board of managers of the General Partner in its capacity as manager and general partner (gérant - associé commandité) of the Company on 17 August 2022 (the Resolutions); |
| 2.6 | an e-mailed copy of the preliminary prospectus supplement dated 6 September 2022, relating to the offering of the Notes (the Preliminary Prospectus Supplement); |
| 2.7 | an e-mailed copy of the final prospectus supplement dated 6 September 2022, relating to the offering of the Notes (the Final Prospectus Supplement and together with the Preliminary Prospectus Supplement, the Prospectus Supplements); |
| 2.8 | an e-mailed scanned copy of the post-effective amendment No. 1 to the Registration Statement on Form S-3 (File Nos. 333-236195 and 333-236195-01) dated 4 September 2020 filed with the U.S. Securities and Exchange Commission (the SEC) by the Company as registrant with respect to debt securities described therein (the Debt Securities) and JCI as registrant (the Amendment to the Registration Statement); |
| 2.9 | an e-mailed scanned signed copy of the New York law governed underwriting agreement dated 6 September 2022 and made between, among others, the Company, acting through the General Partner, and JCI as issuers and J.P. Morgan Securities LLC, BofA Securities, Inc. and Morgan Stanley & Co. LLC as representatives of the several underwriters named in Schedule II thereto (the Underwriting Agreement); |
| 2.10 | an e-mailed scanned signed copy of the New York law governed ninth supplemental indenture agreement dated 14 September 2022 and made between the Company, acting through the General Partner, and JCI as issuers and U.S. Bank Trust Company, National Association (successor in interest to U.S. Bank National Association) (the Trustee) as trustee (the Ninth Supplemental Indenture), relating to the Base Indenture (as defined below); |
| 2.11 | an e-mailed scanned signed copy of the New York law governed indenture agreement dated 28 December 2016 and made between JCI as issuer and the Trustee as trustee (the Base Indenture, and as supplemented by the Ninth Supplemental Indenture, the Indenture); |
| 2.12 | an e-mailed scanned signed copy of the global notes representing the Notes; |
The documents listed in paragraphs 2.9 and 2.10 above are herein collectively referred to as the Agreements. The terms “Agreements”, “Underwriting Agreement” and “Indenture”, include, for the purposes of paragraphs 3. and 5. below, any document in connection therewith.
Unless otherwise provided herein, terms and expressions shall have the meaning ascribed to them in the Agreements.
2
| 3. | ASSUMPTIONS |
In giving this legal opinion, we have assumed with your consent, and we have not verified independently:
| 3.1 | the genuineness of all signatures, stamps and seals, the completeness and conformity to the originals of all the documents submitted to us as certified, photostatic, faxed, scanned or e-mailed copies or specimens and the authenticity of the originals of such documents and that the individuals purported to have signed, have in fact signed (and had the general legal capacity to sign) these documents; |
| 3.2 | the due authorisation, execution and delivery of the Agreements and the Indenture by all the parties thereto (other than the Company) as well as the capacity, power, authority and legal right of all the parties thereto (other than the Company) to enter into, execute, deliver and perform their respective obligations thereunder, and the compliance with all internal authorisation procedures by each party (other than the Company) for the execution by it of the Agreements and the Indenture to which it is expressed to be a party; |
| 3.3 | that all factual matters and statements relied upon or assumed herein were, are and will be (as the case may be) true, complete and accurate on the date of execution of the Agreements and the Amendment to the Registration Statement; |
| 3.4 | that all authorisations, approvals and consents under any applicable law (other than Luxembourg law to the extent opined upon herein) which may be required in connection with the execution, delivery and performance of the Agreements and the Indenture and with the execution and filing of the Amendment to the Registration Statement and the issue of the Notes have been or will be obtained; |
| 3.5 | that the Amendment to the Registration Statement and the Agreements have in fact been signed by Peter Schieser and Richard Dancy, as applicable, in their respective capacities as members of the board of managers of the General Partner or in conformity with the Resolutions; |
| 3.6 | 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 (within the meaning given to such term in Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast), as amended (the European Insolvency Regulation)) of the Company and the General Partner are located at the place of their respective registered office (siège statutaire) in Luxembourg and that the Company and the General Partner have no establishment (as such term is defined in the European Insolvency Regulation) outside Luxembourg; |
| 3.7 | that the Company and the General Partner comply with the provisions of the Luxembourg act dated 31 May 1999 concerning the domiciliation of companies, as amended; |
| 3.8 | that the Agreements and the Indenture are legally valid, binding and enforceable under their respective governing law (other than Luxembourg law to the extent opined upon herein), that the choices of such governing law and of the jurisdiction clauses are valid (as a matter of such governing law and all other applicable laws (other than Luxembourg law to the extent opined upon herein)) as the choice of the governing law and the submission to the jurisdiction of the chosen courts for the Agreements and the Indenture; |
| 3.9 | that the Agreements and the Indenture are entered into and performed by the parties thereto in good faith and without any intention of fraud or 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); |
| 3.10 | that there are no provisions of the laws of any jurisdiction outside Luxembourg which would adversely affect, or otherwise have any negative impact on, the opinions expressed in this legal opinion; |
| 3.11 | 9that the entry into and performance of the Agreements and the Indenture and the execution, the filing of the Amendment to the Registration Statement and the issue of the Notes are for the corporate benefit (intérêt social) of the Company; |
3
| 3.12 | that the Resolutions have not been amended, rescinded, revoked or declared void and that the meeting of the board of managers of the General Partner acting as manager and general partner of the Company (as referred to in paragraph 2.5 above) has been duly convened and validly held and included a proper discussion and deliberation in respect of all the items of the agenda of the meeting; |
| 3.13 | that the Articles have not been modified since the dates referred to in paragraphs 2.1 and 2.2 above; |
| 3.14 | that the Company and the General Partner do not 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); |
| 3.15 | the Company and the General Partner do not carry out an activity requiring the granting of a business licence under the Luxembourg act dated 2 September 2011 relating to the establishment of certain businesses and business licences, as amended; |
| 3.16 | the absence of any other arrangement by or between any of the parties to the Agreements and the Indenture or between the parties to the Agreements and the Indenture and any third parties which modifies or supersedes any of the terms of the Agreements or otherwise affects the opinions expressed herein; |
| 3.17 | there is neither a vitiated consent (vice de consentement) by reason of mistake (erreur), fraud (dol), duress (violence) or inadequacy (lésion), nor an illicit cause (cause illicite) in relation to any of the Agreements and the Indenture; |
| 3.18 | that all agreed conditions to the effectiveness of the Agreements and the Indenture have been or will be satisfied; and |
| 3.19 | that the Company does not or will not process personal data in relation to which it has not made a notification to, or obtained an authorisation from, the relevant Luxembourg authorities under applicable data protection laws. |
| 4. | OPINIONS |
Based upon, and subject to, the assumptions made above and the qualifications set out below and subject to any matters not disclosed to us, we are of the opinion that, under the laws of Luxembourg in effect, as construed and applied by the Luxembourg courts in published Luxembourg court decisions, on the date hereof:
| 4.1 | Status |
The Company is a partnership limited by shares (société en commandite par actions), formed for an unlimited duration under the laws of Luxembourg.
The General Partner is a private limited liability company (société à responsabilité limitée) formed for an unlimited duration under the laws of Luxembourg.
| 4.2 | Power, authority and authorisation |
The Company has the corporate power and authority to enter into and perform the Agreements and the Indenture and to issue the Notes and has taken all necessary corporate actions to authorise the execution of the Agreements and the issue of the Notes.
| 4.3 | Execution |
The Agreements and the Notes have been duly executed on behalf of the Company.
4
| 4.4 | Non-conflict |
The execution, delivery and performance by the Company of the Agreements, and the compliance by the Company with the terms of such Agreements and with the terms of the Indenture and the issue and delivery of the Notes by the Company, do not violate the Articles or any applicable law of Luxembourg relating to partnerships limited by shares generally.
| 4.5 | No consents |
No authorisations, approvals or consents of governmental, judicial and public bodies and authorities of or in Luxembourg are required under statute in connection with the entry into, delivery or performance by the Company of the Agreements, with the performance by the Company of its obligations under the Indenture and with the issue and delivery of the Notes by the Company.
| 4.6 | Application of governing law |
The choice of laws of the State of New York as the governing law of the Agreements, the Indenture and the Notes would be upheld as a valid choice of law by the courts of Luxembourg and applied by those courts in proceedings in relation to the Agreements, the Indenture and the Notes as the governing law thereof.
| 4.7 | Submission to jurisdiction |
The submission to the jurisdiction of New York state or federal court by the Company contained in the Agreements, the Indenture and the Notes constitutes an effective submission by the Company to the jurisdiction of such courts.
| 4.8 | Enforcement of judgments |
| (a) | A final and conclusive judgment in respect of the Agreements, the Indenture and the Notes obtained against the Company in a New York state or federal court would be recognised and enforced by the Luxembourg courts without re-examination of the merits subject to the applicable enforcement procedure (as set out in the relevant provisions of the Luxembourg New Civil Procedure Code and as this procedure may be varied where an international treaty applies). The enforcement of such judgment could be refused under certain circumstances (determined by Luxembourg case law or, as applicable, under an international treaty) which may include (but are not limited to) non-enforceability of the foreign judgment in the country of origin, violation of rights of defence or due process, manifest incompatibility with Luxembourg public policy, inconsistency with the effects of an existing Luxembourg judgment or fraudulent obtainment of judgment. |
| (b) | Any judgment awarded in the courts of Luxembourg may be expressed in a currency other than the euro. However, any obligation to pay a sum of money would be enforceable in Luxembourg in terms of the euro only. |
| 5. | QUALIFICATIONS |
The above opinions are subject to the following qualifications:
| 5.1 | The opinions expressed herein are subject to, and may be affected or limited by, the provisions of any applicable bankruptcy (faillite), insolvency, liquidation, reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), composition with creditors (concordat préventif de la faillite), reorganisation proceedings or similar Luxembourg or foreign law proceedings or regimes affecting the rights of creditors generally. |
5
| 5.2 | Notwithstanding a foreign jurisdiction clause, the Luxembourg courts would, in principle, have jurisdiction to order provisional measures in connection with assets or persons located in Luxembourg and such measures would most likely be governed by Luxembourg law. |
| 5.3 | International public policy means the fundamental concepts of Luxembourg law that the Luxembourg courts may deem to be of such significance so as to exclude the application of an (otherwise applicable) foreign law (deemed to be contrary in its results to such concepts). International public policy is a matter which is constantly evolving on the basis of the position of Luxembourg courts with respect to cases they hear. Accordingly, there are uncertainties as to what is considered as international public policy under Luxembourg law. |
| 5.4 | Claims may become barred under statutory limitation period rules and may be subject to defences of set-off or counter-claims. We express no opinion as to whether rights of set-off, including rights on close-out netting, are effective in a Luxembourg insolvency situation. |
| 5.5 | With respect to the opinions expressed in paragraph 4.6 above, the Luxembourg courts might not apply a chosen foreign law if that choice was not made bona fide and/or: |
| (a) | if it were not pleaded and proved; or |
| (b) | if such foreign law would be contrary to the mandatory provisions (lois impératives) or overriding mandatory provisions (lois de police) of Luxembourg law or manifestly incompatible with Luxembourg public policy; or |
| (c) | to the extent that relevant contractual obligations or matters fall outside of the scope of Regulation (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations; or |
| (d) | if all other elements relevant to the situation are located in a country other than the jurisdiction of the chosen governing law, in which case the Luxembourg courts may apply the applicable mandatory provisions of such country; or |
| (e) | where the chosen governing law is not the law of an EU Member State, if all other elements relevant to the situation are located in one or several EU Member States, in which case the Luxembourg courts may apply applicable mandatory EU law provisions (as implemented in Luxembourg); or |
| (f) | where contractual obligations are to be or have been performed in another country where such performance is prohibited by overriding mandatory provisions; or |
| (g) | if a party is subject to insolvency proceedings, in which case the Luxembourg courts would apply the law of the jurisdiction where such insolvency proceedings have been duly opened (lex concursus) to the effects of such insolvency proceedings without prejudice to the exceptions provided for in the European Insolvency Regulation. |
| 5.6 | 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 Luxembourg official gazette (Mémorial C, Recueil des Sociétés et Associations or RESA, Recueil électronique des sociétés et associations, as applicable) unless the company proves that the relevant third parties had prior knowledge thereof. |
6
| 5.7 | We do not express or imply any opinion in respect of a withholding tax that may become due or payable pursuant to the Luxembourg law of 23 December 2005 as amended introducing a withholding tax of 20% on payments of interest or similar income made or ascribed by a paying agent established in Luxembourg to or for the benefit of an individual beneficial owner who is resident of Luxembourg. |
| 5.8 | We express no tax opinion whatsoever in respect of the Company or the tax consequences of the transactions contemplated by the Agreements. |
| 5.9 | We express no opinion whatsoever on regulatory matters or on 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. |
| 5.10 | 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. |
| 5.11 | We have not made any enquiry regarding, and no opinion is expressed or implied in relation to, the accuracy of any representation or warranty given by, or concerning, any of the parties to the Agreements or whether such parties or any of them have complied with or will comply with any covenant or undertaking given by them or the terms and conditions of any obligations binding upon them, save as expressly provided herein. |
| 5.12 | The rights and obligations of the parties under the Agreements may be limited by the effects of (i) criminal law measures, including without limitation criminal freezing orders, or (ii) public law sanctions or restraining measures taken from time to time under applicable laws, treaties or other instruments. |
| 5.13 | A search at the Register is not capable of conclusively revealing whether a (and the Certificates do 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 or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), composition with creditors (concordat préventif de la faillite) or judicial liquidation (liquidation judiciaire) or similar action has been adopted or made. |
| 5.14 | As used in this legal opinion, the term enforceable means that the relevant rights and obligations are of a type which the Luxembourg courts do normally enforce. It does not mean that these obligations will necessarily be enforced in all circumstances in accordance with their respective terms, enforcement being subject to, inter alia, the nature of the remedies available in the Luxembourg courts, the acceptance by such court of jurisdiction, the discretion of the courts (within the limits of Luxembourg law), the power of such courts to stay proceedings, to grant grace periods, the provisions of Luxembourg procedure rules regarding remedies, enforcement measures available under Luxembourg law, mandatory provisions of Luxembourg law or principles of Luxembourg international public policy from time to time in force and the general principles of Luxembourg law in particular, the general principle of good faith performance. |
| 5.15 | 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. |
| 5.16 | Saved for the opinions expressed in paragraphs 4.6 and 4.7 above, we express no opinion whatsoever on the legal validity and the enforceability of the Agreements. |
| 5.17 | In the case of legal proceedings being brought before a Luxembourg court or production of the Agreements before an official Luxembourg authority, such Luxembourg court or official authority may require that the Agreements and/or any judgment obtained in a foreign court must be translated into French or German. |
7
| 5.18 | Punitive, treble or similar damages may not be enforceable in the Luxembourg courts. |
| 6. | This legal opinion is as of this date and we undertake no obligation to update it or advise of changes hereafter occurring. We express no opinion as to any matters other than those expressly set forth herein, and no opinion is, or may be, implied or inferred herefrom. We express no opinion on any economic, financial or statistical information (including formulas determining payments to be made) contained in the Agreements (or any document in connection therewith). |
| 7. | This legal opinion is given on the express basis, accepted by each person who is entitled to rely on it, that this legal opinion and all rights, obligations or liability in relation to it are governed by, and shall be construed in accordance with, Luxembourg law and that any action or claim in relation to it can be brought exclusively before the courts of Luxembourg. |
| 8. | The Addressee who is entitled to, and does, rely on this legal opinion agrees, by so relying, that, to the fullest extent permitted by law and regulation (and except in the case of wilful misconduct or fraud) there is no assumption of personal duty of care by, and such person will not bring any claim against, any individual who is a partner of, member of, employee of or consultant to Allen & Overy, société en commandite simple, Allen & Overy LLP or any other member of the group of Allen & Overy undertakings and that such person will instead confine any claim to Allen & Overy, société en commandite simple, Allen & Overy LLP or any other member of the group of Allen & Overy undertakings (and for this purpose “claim” means (save only where law and regulation applies otherwise) any claim, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise). |
| 9. | Luxembourg legal concepts are expressed in English terms and not in their original French or German terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. It should be noted that there are always irreconcilable differences between languages making it impossible to guarantee a totally accurate translation or interpretation. In particular, there are always some legal concepts which exist in one jurisdiction and not in another, and in those cases it is bound to be difficult to provide a completely satisfactory translation or interpretation because the vocabulary is missing from the language. We accept no responsibility for omissions or inaccuracies to the extent that they are attributable to such factors. |
This legal opinion is given to you exclusively in connection with the Agreements, the Indenture and the Notes and may not be relied upon by you for any other purpose. We consent to the filing of this opinion as Exhibit 5 to the Amendment to the Registration Statement and we further consent to the use of our name under the caption “Legal Matters” in the Prospectus Supplements. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under the U.S. Securities Act or the rules and regulations of the SEC.
Yours faithfully,
/s/ Allen & Overy
Allen & Overy
Paul Péporté*
Partner
Avocat à la Cour
| * | This document is signed on behalf of Allen & Overy, a société en commandite simple, registered on list V of the Luxembourg bar. The individual signing this document is a qualified lawyer representing this entity. |
8