Trane Technologies plc S-3ASR, filed May 7, 2021
Trane Technologies plc (TT)
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As filed with the Securities and Exchange Commission on May 7, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| Ireland | Trane Technologies plc | 98-0626632 | ||
| Delaware | Trane Technologies HoldCo Inc. | 85-0886257 | ||
| Ireland | Trane Technologies Financing Limited | N/A | ||
| Luxembourg | Trane Technologies Lux International Holding Company S.à r.l. | N/A | ||
| Delaware | Trane Technologies Global Holding Company Limited | 46-4716676 | ||
| Ireland | Trane Technologies Irish Holdings Unlimited Company | N/A | ||
| Delaware | Trane Technologies Company LLC | 13-5156640 | ||
| (State or Other Jurisdiction of Incorporation or Organization) |
(Exact Name of Registrant as Specified in Its Charter) | (I.R.S. Employer Identification Number) | ||
| Trane Technologies plc | ||||
| Trane Technologies HoldCo Inc. | ||||
| Trane Technologies Financing Limited | ||||
| Trane Technologies Lux International Holding Company S.à r.l. | ||||
| Trane Technologies Global Holding Company Limited | ||||
| Trane Technologies Irish Holdings Unlimited Company | ||||
| Trane Technologies Company LLC | ||||
| c/o Trane Technologies plc | ||||
| 170/175 Lakeview Dr. | ||||
| Airside Business Park | ||||
| Swords, Co. Dublin Ireland | ||||
| +(353)(0) 18707400 |
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants’ Principal Executive Offices)
Evan M. Turtz, Esq.
Senior Vice President, General Counsel and Secretary
c/o Trane Technologies Company LLC
800-E Beaty Street
Davidson, North Carolina 28036
(704) 655-4000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
Jonathan B. Newton
Michael S. Hamilton
King & Spalding LLP
1100 Louisiana Street, Suite 4100
Houston, Texas 77002
(713) 751-3200
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large Accelerated Filer | ☒ | Accelerated Filer | ☐ | |||
| Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
| 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 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of each class of securities to be registered | Amount to be registered(1) |
Proposed maximum aggregate offering price(1) |
Amount of registration fee(1) | |||
| Debt securities of Trane Technologies plc |
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| Debt securities of Trane Technologies HoldCo Inc. |
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| Debt securities of Trane Technologies Financing Limited |
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| Debt securities of Trane Technologies Lux International Holding Company S.à r.l. |
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| Debt securities of Trane Technologies Global Holding Company Limited |
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| Guarantees of Trane Technologies plc(2) |
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| Guarantees of Trane Technologies HoldCo Inc.(2) |
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| Guarantees of Trane Technologies Financing Limited(2) |
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| Guarantees of Trane Technologies Lux International Holding Company S.à r.l.(2) |
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| Guarantees of Trane Technologies Global Holding Company Limited (2) |
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| Guarantees of Trane Technologies Irish Holdings Unlimited Company(2) |
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| Guarantees of Trane Technologies Company LLC(2) |
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| Ordinary shares of Trane Technologies plc |
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| Preferred shares of Trane Technologies plc |
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| Depositary shares of Trane Technologies plc |
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| Share purchase contracts of Trane Technologies plc |
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| Share purchase units of Trane Technologies plc |
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| Warrants of Trane Technologies plc |
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| (1) | An indeterminate amount of securities to be offered at indeterminate prices and as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable anti-dilution provisions, is being registered pursuant to this registration statement. The Registrants are deferring payment of the registration fee pursuant to Rule 456(b) under the Securities Act of 1933, as amended (the “Securities Act”), and are omitting this information in reliance on Rule 456(b) and Rule 457(r) under the Securities Act. |
| (2) | No separate consideration will be received for any guarantee of debt securities. Pursuant to Rule 457(n) under the Securities Act, no registration fee is required with respect to such guarantees. |
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PROSPECTUS
Trane Technologies plc
Debt Securities
Guarantees of Debt Securities
Ordinary Shares
Preferred Shares
Depositary Shares
Share Purchase Contracts
Share Purchase Units
Warrants
Trane Technologies HoldCo Inc.
Debt Securities
Guarantees of Debt Securities
Trane Technologies Financing Limited
Debt Securities
Guarantees of Debt Securities
Trane Technologies Lux International Holding
Company S.à r.l.
Debt Securities
Guarantees of Debt Securities
Trane Technologies Global Holding Company Limited
Debt Securities
Guarantees of Debt Securities
Trane Technologies Irish Holdings Unlimited Company
Guarantees of Debt Securities
Trane Technologies Company LLC
Guarantees of Debt Securities
We may offer, issue and sell the types of securities set forth above from time to time, together, separately or in some combination. This prospectus describes some of the general terms that may apply to these securities. We will provide a prospectus supplement each time we offer, issue and sell any of these securities. The specific terms
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of any securities to be offered will be described in the related prospectus supplement. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement carefully before making an investment decision.
We may offer, issue and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
Our ordinary shares are listed on the New York Stock Exchange under the trading symbol “TT.”
Investing in our securities involves risks. Please read “Risk Factors” on page 7 of this prospectus, in any applicable prospectus supplement and the risk factors included in our periodic reports that we file with the Securities and Exchange Commission before you invest in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
May 7, 2021
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| DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS |
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You should rely on the information contained or incorporated by reference in this prospectus and in any accompanying prospectus supplement or any applicable free writing prospectus. We have not authorized any person to provide you with any information other than the information contained in this prospectus, any prospectus supplement, any applicable free writing prospectuses and those documents incorporated by reference herein or therein. This prospectus and any applicable prospectus supplement or free writing prospectus do not constitute an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus and any such prospectus supplement or free writing prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation. Neither the delivery of this prospectus or any prospectus supplement or free writing prospectus, nor any sale made hereunder or thereunder, implies that there has been no change in our affairs or that the information in this prospectus is correct as of any date after the date of this prospectus.
As used in this prospectus and any prospectus supplement, “we,” “our,” “us” and “Trane Technologies” mean Trane Technologies plc, an Irish public limited company, together with its consolidated subsidiaries, unless otherwise specified or the context otherwise requires.
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “Commission” or “SEC”), using a “shelf” registration process. Pursuant to this registration statement, we may offer, issue and sell securities as set forth on the cover page of this prospectus.
We may offer, issue and sell the securities from time to time, together, separately or in some combination. This prospectus describes some of the general terms that may apply to these securities. We will provide a prospectus supplement each time we offer, issue and sell any of these securities. The specific terms of any securities to be offered will be described in the related prospectus supplement. The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement.
In addition, we may prepare and deliver one or more “free writing prospectuses” to you in connection with any offering of securities under this prospectus. Any such free writing prospectus may contain additional information about us, our business, the offered securities, the manner in which such securities are being offered, our intended use of the proceeds from the sale of such securities, risks relating to our business or an investment in such securities, or other information.
This prospectus and certain of the documents incorporated by reference into this prospectus contain, and any accompanying prospectus supplement or free writing prospectus that we deliver to you may contain, summaries of information contained in documents that we have filed or will file as exhibits to our SEC filings. Such summaries do not purport to be complete, and are subject to, and qualified in their entirety by reference to, the actual documents filed with the SEC. You should read this prospectus and any applicable prospectus supplement or free writing prospectus, together with the additional information described under the heading “Where You Can Find More Information.”
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the SEC. This prospectus is part of the registration statement and does not contain all the information in the registration statement. You will find additional information about us in the registration statement. Any statement made in this prospectus concerning a contract or other document of ours is not necessarily complete, and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter. Each such statement is qualified in all respects by reference to the document to which it refers.
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We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov and on our corporate website at www.tranetechnologies.com. Information on our website does not constitute part of this prospectus, and any references to this website or any other website are inactive textual references only.
Our ordinary shares are listed on the New York Stock Exchange (the “NYSE”) under the trading symbol “TT.” Our SEC filings are also available at the office of the NYSE located at 11 Wall Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read the information with the same care that you read this prospectus. Later information that we file with the SEC will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents are filed. We have filed with the SEC, and incorporate by reference in this prospectus, the following documents:
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| • | Trane Technologies’ Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021, as filed with the SEC on May 5, 2021; and |
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All future filings that we make under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), until all the securities offered by this prospectus have been issued as described in this prospectus, are deemed incorporated into and part of this prospectus once filed. We are not, however, incorporating, in each case, any documents (or portions thereof) or information that we are deemed to furnish and not file in accordance with SEC rules. Any statement in this prospectus, in any prospectus supplement, or in any document incorporated by reference that is different from any statement contained in any later-filed document should be regarded as changed by that later statement. Once so changed, the earlier statement is no longer considered part of this prospectus or any prospectus supplement.
You may request by phone or in writing a copy of any of the materials incorporated (other than exhibits, unless the exhibits are themselves specifically incorporated) into this prospectus and we will provide to you these materials free of charge. Please make your request to Evan M. Turtz, Secretary, c/o Trane Technologies Company LLC, 800-E Beaty Street, Davidson, North Carolina 28036, telephone (704) 655-4000.
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This summary highlights selected information included or incorporated by reference in this prospectus. This summary does not contain all of the information that you should consider before investing in our securities. You should read this entire prospectus, including the information incorporated by reference, before making an investment decision. See “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus.
Trane Technologies plc
Trane Technologies, a public limited company incorporated in Ireland in 2009, together with its consolidated subsidiaries, is a global climate innovator that brings efficient and sustainable climate solutions to buildings, homes and transportation driven by strategic brands Trane® and Thermo King® and an environmentally responsible portfolio of products and services. We generate revenue and cash primarily through the design, manufacture, sale and service of a diverse portfolio of climate control products and services for Heating, Ventilation and Air Conditioning and transport solutions.
To achieve our mission of being a world leader in creating comfortable, sustainable and efficient environments, we continue to focus on growth by increasing our recurring revenue stream from parts, services, controls, used equipment and rentals; and to continuously improve efficiencies and capabilities of our operations and products and services for our customers. We also continue to focus on operational excellence strategies as a central theme to improving our earnings and cash flow.
Our reportable segments are as follows:
Americas
Our Americas segment innovates for customers in the North America and Latin America regions. The Americas segment encompasses commercial heating and cooling systems, building controls and energy services and solutions; residential heating and cooling; and transport refrigeration systems and solutions.
EMEA
Our EMEA segment innovates for customers in the Europe, Middle East and Africa region. The EMEA segment encompasses heating and cooling systems, services and solutions for commercial buildings and transport refrigeration systems and solutions.
Asia Pacific
Our Asia Pacific segment innovates for customers throughout the Asia Pacific region. The Asia Pacific segment encompasses heating and cooling systems, services and solutions for commercial buildings and transport refrigeration systems and solutions.
The principal executive office of Trane Technologies is located at 170/175 Lakeview Dr., Airside Business Park, Swords, Co. Dublin, Ireland, telephone +(353) (0) 18707400.
Trane Technologies HoldCo Inc.
Trane Technologies HoldCo Inc. (“Trane Holdco”), a corporation incorporated in Delaware in April 2020, is an indirect, wholly owned subsidiary of Trane Technologies.
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The principal executive office of Trane Holdco is located at 800-E Beaty Street, Davidson, NC, 28036, telephone (704) 655-4000.
Trane Technologies Financing Limited
Trane Technologies Financing Limited (“TTFL”), an Irish private limited company incorporated in April 2018, is an indirect, wholly owned subsidiary of Trane Technologies.
The registered office of TTFL is located at 170/175 Lakeview Dr., Airside Business Park, Swords, Co. Dublin, Ireland, telephone +(353) (0) 18707400.
Trane Technologies Lux International Holding Company S.à r.l.
Trane Technologies Lux International Holding Company S.à r.l. (“Lux International”), a Luxembourg private limited liability company (société à responsabilité limitée) incorporated on November 20, 2013 and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B182.971, is an indirect, wholly owned subsidiary of Trane Technologies.
The registered office of Lux International is located 1, Avenue du Bois, L-1251 Luxembourg, telephone +(352) 28571620.
Trane Technologies Global Holding Company Limited
Trane Technologies Global Holding Company Limited (“TTGH”), a Delaware corporation, was formerly a Bermuda exempted company until it was incorporated under the laws of Delaware on January 31, 2014 pursuant to a domestication transaction and is an indirect, wholly owned subsidiary of Trane Technologies.
The principal executive office of TTGH is located at 800-E Beaty Street, Davidson, NC, telephone (704) 655-4000.
Trane Technologies Irish Holdings Unlimited Company
Trane Technologies Irish Holdings Unlimited Company (“Irish Holdings”), an Irish private unlimited company incorporated in November 1998, is a wholly owned subsidiary of Trane Technologies.
The registered office of Irish Holdings is located at 170/175 Lakeview Drive, Airside Business Park, Swords Co. Dublin, K67 Ew96, Ireland, telephone +(353) (1) 8953200.
Trane Technologies Company LLC
Trane Technologies Company LLC (“TTC”), a limited liability company formed in Delaware in May 2020 upon conversion from a Texas limited liability company, is an indirect, wholly owned subsidiary of Trane Technologies.
The principal executive office of TTC is located at 800-E Beaty Street, Davidson, NC, 28036, telephone (704) 655-4000.
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Investment in any securities offered pursuant to this prospectus involves risks. Before acquiring any such securities, you should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and each subsequently filed Quarterly Report on Form 10-Q, the other information contained or incorporated by reference in this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in or incorporated by reference in this prospectus, other than purely historical information, are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Exchange Act. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “forecast,” “outlook,” “intend,” “strategy,” “plan,” “may,” “could,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” or the negative thereof or variations thereon or similar terminology generally intended to identify forward-looking statements.
Forward-looking statements may relate to such matters as projections of revenue, margins, expenses, tax provisions, earnings, cash flows, benefit obligations, share or debt repurchases or other financial items; any statements of the plans, strategies and objectives of management for future operations, including those relating to any statements concerning expected development, performance or market share relating to our products and services; any statements regarding future economic conditions or our performance including our future performance during the COVID-19 global pandemic; any statements regarding pending investigations, claims or disputes; any statements of expectation or belief; and any statements of assumptions underlying any of the foregoing. These statements are based on currently available information and our current assumptions, expectations and projections about future events. While we believe that our assumptions, expectations and projections are reasonable in view of the currently available information, you are cautioned not to place undue reliance on our forward-looking statements. You are advised to review any further disclosures we make on related subjects in materials we file with or furnish to the SEC. Forward-looking statements speak only as of the date they are made and are not guarantees of future performance. They are subject to future events, risks and uncertainties—many of which are beyond our control—as well as potentially inaccurate assumptions, that could cause actual results to differ materially from our expectations and projections. We do not undertake to update any forward-looking statements.
Factors that might affect our forward-looking statements include, among other things:
| • | impacts of the COVID-19 global pandemic on our business operations, financial results and financial position and on the world economy; |
| • | overall economic, political and business conditions in the markets in which we operate; |
| • | trade protection measures such as import or export restrictions and requirements, the imposition of tariffs and quotas or revocation or material modification of trade agreements; |
| • | competitive factors in the industries in which we compete; |
| • | our ability to develop new products and services and the acceptance of these products in the markets that we serve; |
| • | other capital market conditions, including availability of funding sources, interest rate fluctuations and other changes in borrowing costs; |
| • | currency exchange rate fluctuations, exchange controls and currency devaluations; |
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| • | the outcome of any litigation, governmental investigations or proceedings; |
| • | the outcome of Chapter 11 proceedings for our deconsolidated subsidiaries Aldrich Pump LLC and Murray Boiler LLC; |
| • | the impact of potential information technology, system failures, data security breaches or other cybersecurity issues; |
| • | evolving data privacy and protection laws; |
| • | intellectual property infringement claims and the inability to protect our intellectual property rights; |
| • | changes in laws and regulations; |
| • | health epidemics or pandemics or other contagious outbreaks; |
| • | climate change, changes in weather patterns, natural disasters and seasonal fluctuations; |
| • | availability of and fluctuations in the prices of key commodities; |
| • | the outcome of any income tax audits or settlements; |
| • | the strategic acquisition of businesses, product lines and joint ventures; |
| • | impairment of our goodwill, indefinite-lived intangible assets and/or our long-lived assets; |
| • | changes in tax laws and requirements (including tax rate changes, new tax laws, new and/or revised tax law interpretations and any legislation that may limit or eliminate potential tax benefits resulting from our incorporation in a non-U.S. jurisdiction, such as Ireland); and |
| • | work stoppages, union negotiations, labor disputes and similar issues. |
Some of the significant risks and uncertainties that could cause actual results to differ materially from our expectations and projections are described more fully in the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and each subsequently filed Quarterly Report on Form 10-Q, the other information contained or incorporated by reference in this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement. You should read that information in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our most recent Annual Report on Form 10-K, and each subsequently filed Quarterly Report on Form 10-Q, and our Consolidated Financial Statements and related notes in our most recent Annual Report on Form 10-K, and each subsequently filed Quarterly Report on Form 10-Q.
Except as may be otherwise set forth in the applicable prospectus supplement accompanying this prospectus, we plan to add the net proceeds we receive from sales of the securities offered by this prospectus to our general funds and to use the funds for general corporate purposes. These could include, but are not limited to, capital expenditures, the repayment of debt, investment in subsidiaries, additions to working capital, the repurchase, redemption or retirement of securities, including ordinary shares, acquisitions and other business opportunities.
DESCRIPTION OF THE DEBT SECURITIES
The following description of debt securities sets forth certain general terms and provisions of the debt securities which may be offered hereunder. This summary does not contain all of the information that you may find useful.
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As used herein, “Trane Parent” refers to Trane Technologies plc and its successors. Under this prospectus, debt securities issued by Trane Parent, Trane Holdco, TTFL, Lux International or TTGH (as applicable, the “Issuer”) will be offered. The debt securities offered will be issued under an indenture (as supplemented, the “indenture”) to be entered into by and among Trane Parent, Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings, TTC and Wells Fargo Bank, National Association, as trustee.
Debt securities issued by Trane Parent may be guaranteed by certain subsidiaries of Trane Parent, including Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by Trane Holdco will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including TTFL, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by TTFL will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including Trane Holdco, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by Lux International will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including Trane Holdco, TTFL, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by TTGH will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including Trane Holdco, TTFL, Lux International, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement.
When we offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement. We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus apply to the series of debt securities. In addition, the terms and conditions of the debt securities of a series may be different in one or more respects from the terms and conditions described below. If so, those differences will be described in the applicable prospectus supplement and will supersede this prospectus.
The following description only summarizes the terms of the indenture and the debt securities. For more information you should read the indenture. In addition, the following description is qualified in all respects by reference to the actual text of the indenture and the forms of the debt securities.
General
Trane Parent, Trane Holdco, TTFL, Lux International and TTGH may issue debt securities either separately, or together with, or upon the conversion of or in exchange for, other securities. The debt securities will be issued in one or more series under the indenture.
The trustee for each series of debt securities will be Wells Fargo Bank, National Association, unless otherwise specified in the applicable prospectus supplement.
The indenture does not limit the amount of debt securities that may be issued and provides that debt securities may be issued thereunder from time to time in one or more series.
You should review the prospectus supplement for the following terms of the series of debt securities being offered:
| • | the Issuer of such series of debt securities; |
| • | the designation, aggregate principal amount and authorized denominations of such series of debt securities; |
| • | whether the debt securities rank as senior debt or subordinated debt and the terms of any subordination; |
| • | the purchase price of such series of debt securities; |
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| • | the date or dates on which such series of debt securities will mature; |
| • | the rate or rates per annum, if any (which may be fixed or variable), at which the debt securities of such series will bear interest or the method by which such rate or rates will be determined; |
| • | the dates on which the interest will be payable and the record dates for payment of interest, if any; |
| • | the coin or currency in which payment of the principal of (and premium, if any, on) and interest, if any, on such series of debt securities will be payable; |
| • | the terms of any mandatory or optional redemption (including any sinking fund) or any obligation of us to repurchase such series of debt securities; |
| • | whether such series of debt securities are to be issued in whole or in part in the form of one or more temporary or permanent global notes and, if so, the identity of the depositary, if any, for such note or notes; |
| • | the terms, if any, upon which such series of debt securities may be convertible into or exchangeable for other securities; |
| • | whether such series of debt securities will be guaranteed by any person other than as identified in this prospectus; |
| • | any special tax implications of such series of debt securities; |
| • | whether the debt securities of the series will be secured by any collateral and, if so, the terms and conditions upon which those debt securities will be secured and, if applicable, upon which those liens may be subordinated to other liens securing other indebtedness of us or of any guarantor; |
| • | any addition to or change or deletion of any event of default or any covenant specified in the indenture; and |
| • | any other additional provisions or specific terms which may be applicable to that series of debt securities. |
Unless otherwise indicated in the prospectus supplement, the debt securities will be issued only in fully registered form without coupons in denominations of $2,000 or multiples of $1,000.
The debt securities may be issued as discounted debt securities (bearing no interest or interest at a rate which at the time of issuance is below market rates) to be sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any of these discounted debt securities will be described in the applicable prospectus supplement.
The indenture provides that each holder of debt securities offered pursuant to this prospectus consents to the Issuer or any Guarantor (as defined in “—Guarantees” below) applying to a court of competent jurisdiction for an order sanctioning, approving, consenting to or confirming a reduction in any of its share capital accounts including, without limitation, by re-characterizing any sum standing to the credit of an undenominated capital account as a distributable reserve.
Guarantees
Under this prospectus, debt securities issued by Trane Parent, Trane Holdco, TTFL, Lux International and/or TTGH, as the case may be, will be offered. Debt securities issued by Trane Parent may be guaranteed by certain subsidiaries of Trane Parent, including Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by Trane Holdco will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent,
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including TTFL, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by TTFL will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including Trane Holdco, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by Lux International will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including Trane Holdco, TTFL, TTGH, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. Debt securities issued by TTGH will be guaranteed by Trane Parent and may also be guaranteed by certain other subsidiaries of Trane Parent, including Trane Holdco, TTFL, Lux International, Irish Holdings and/or TTC, as may be specified in the applicable prospectus supplement. As used herein, in respect of a series of the debt securities, “Guarantors” mean, collectively, (a)(i) each person named as a “Guarantor” pursuant to the applicable prospectus supplement and (ii) Trane Parent, in the case of debt securities issued by Trane Holdco, TTFL, Lux International or TTGH, in each case until such person ceases to be a Guarantor pursuant to the terms of the indenture, and (b) any successor company thereof that shall have become a Guarantor pursuant to the applicable provisions of the indenture.
The guarantees of the debt securities of any series will be structurally subordinated to all the liabilities of the subsidiaries of Trane Parent that are not themselves Guarantors or the Issuer of such series.
The obligations of any Guarantor under its guarantee will be limited as necessary to prevent such guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law.
Conversion and Exchange
The terms, if any, on which debt securities of any series are convertible into or exchangeable for ordinary shares, preferred shares, other debt securities or any other securities will be set forth in the related prospectus supplement. The terms may include provisions for conversion or exchange, either mandatory, at the option of the holders, the Issuer (if other than Trane Parent) or Trane Parent.
Registration of Transfer and Exchange
Subject to the terms of the indenture and the limitations applicable to global securities, debt securities may be transferred or exchanged at the corporate trust office of the trustee or at any other office or agency maintained by the Issuer for that purpose. No service charge will be made for any registration of transfer or exchange of the debt securities, but the Issuer may require a payment by the holder to cover any tax or other governmental charge. The Issuer will not be required to register the transfer of or exchange debt securities of any series:
| • | during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of securities of that series selected for redemption; or |
| • | selected for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. |
Payment
Unless otherwise indicated in the applicable prospectus supplement, principal, interest and any premium on the debt securities will be paid at the place or places that the Issuer will designate for such purposes. However, the Issuer, at its option, may make interest payments by check mailed to persons in whose names the debt securities are registered. Unless otherwise indicated in the applicable prospectus supplement, payment of interest on a debt security that is payable and is punctually paid or duly provided for on any interest payment date will be made to the person in whose name that debt security is registered at the close of business on the regular record date for that interest payment. The Issuer will pay the principal of (and premium, if any, on) registered debt securities only against surrender of those debt securities.
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Global Notes
The debt securities of a series may be issued in whole or in part in the form of one or more global notes that will be deposited with or on behalf of a depositary located in the United States identified in the prospectus supplement relating to the applicable series.
The specific terms of the depositary arrangement with respect to any debt securities of a series will be described in the prospectus supplement relating to the series. The following provisions are expected to apply to all depositary arrangements.
Unless otherwise specified in an applicable prospectus supplement, debt securities which are to be represented by a global note to be deposited with or on behalf of a depositary will be represented by a global note registered in the name of such depositary or its nominee. Upon the issuance of a global note in registered form, the depositary for the global note will credit, on its book-entry registration and transfer system, the principal amounts of the debt securities represented by the global note to the accounts of institutions that have accounts with the depositary or its nominee (“participants”). The accounts to be credited shall be designated by the underwriters or agents of the debt securities or by the Issuer, if the debt securities are offered and sold directly by the Issuer. Ownership of beneficial interests in the global notes will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests by participants in the global notes will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the depositary or its nominee for the global notes. Ownership of beneficial interests in global notes by persons that hold the beneficial interests through participants will be shown on, and the transfer of that ownership interest within such participant will be effected only through, records maintained by the participant.
So long as the depositary for a global note in registered form, or its nominee, is the registered owner of the global note, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the global note for all purposes under the indenture. Except as described below, owners of beneficial interests in the global notes will not be entitled to have debt securities of the series represented by the global notes registered in their names, will not receive or be entitled to receive physical delivery of debt securities of the series in definitive form and will not be considered the owners or holders thereof under the indenture.
Payment of principal of (and premium, if any, on) and interest, if any, on debt securities registered in the name of or held by a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner or the holder of the global note representing the debt securities. The Issuer will not, nor will the Guarantors, the trustee, any paying agent or the security registrar for the debt securities have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global note for the debt securities or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
It is expected that the depositary for debt securities of a series, upon receipt of any payment of principal, premium or interest in respect of a permanent global note, will credit immediately participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global note as shown on the records of the depositary. It is also expected that payments by participants to owners of beneficial interests in the global note held through the participants will be governed by customary practices. Each person owning a beneficial interest in a global security must rely on the procedures of the depositary (and, if such person is not a participant, on procedures of the participant through which such person owns its interest) to exercise any rights of a holder under the indenture.
A global note may not be transferred except as a whole by the depositary for the global note to a nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any nominee to a successor of the depositary or a nominee of the successor. If a depositary for debt
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securities of a series is at any time unwilling or unable to continue as a depositary and a successor depositary is not appointed by us within ninety days, the Issuer will issue debt securities in definitive registered form in exchange for the global note or notes representing the debt securities. In addition, the Issuer may at any time and in its sole discretion determine not to have any debt securities in registered form represented by one or more global notes and, in that event, the Issuer will issue debt securities in definitive form in exchange for the global note or notes representing the debt securities.
Certain Covenants of the Debt Securities
The debt securities will include the following covenants:
Limitation on Liens. Unless otherwise indicated in the prospectus supplement relating to a series of debt securities, Trane Parent will not, and will not permit any restricted subsidiary to, create, assume or guarantee any indebtedness for money borrowed secured by any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind (hereinafter referred to as a “mortgage” or “mortgages”) on any principal property of Trane Parent or a restricted subsidiary or on any shares or funded indebtedness of a restricted subsidiary (whether such principal property, shares or funded indebtedness are now owned or hereafter acquired) without, in any such case, effectively providing concurrently with the creation, assumption or guaranteeing of such indebtedness that the debt securities (together, if Trane Parent shall so determine, with any other indebtedness then or thereafter existing, created, assumed or guaranteed by Trane Parent or such restricted subsidiary ranking equally with the debt securities) shall be secured equally and ratably with (or prior to) such indebtedness. The indenture excludes, however, from the foregoing any indebtedness secured by a mortgage (including any extension, renewal or replacement, or successive extensions, renewals or replacements, of any mortgage hereinafter specified or any indebtedness secured thereby, without increase of the principal of such indebtedness or expansion of the collateral securing such indebtedness):
| 1) | on property, shares or funded indebtedness of any Person existing at the time such Person becomes a restricted subsidiary; |
| 2) | on property existing at the time of acquisition of such property, or to secure indebtedness incurred for the purpose of financing the purchase price of such property or improvements or construction thereon, which indebtedness is incurred prior to, at the time of or within 360 days after the later of such acquisition, the completion of such construction or the commencement of commercial operation of such property; provided, however, that in the case of any such acquisition, construction or improvement the mortgage shall not apply to any property previously owned by Trane Parent or a restricted subsidiary, other than any previously unimproved real property on which the property is constructed or the improvement is located; |
| 3) | on property, shares or funded indebtedness of a Person existing at the time such Person is merged into or consolidated with Trane Parent or a restricted subsidiary, or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to Trane Parent or a restricted subsidiary; |
| 4) | on property of a restricted subsidiary to secure indebtedness of such restricted subsidiary to Trane Parent or another restricted subsidiary; |
| 5) | on property of Trane Parent or property of a restricted subsidiary in favor of the United States or any State thereof, Luxembourg or the jurisdiction of organization of Trane Parent, or any department, agency or instrumentality or political subdivision of the United States or any State thereof, Luxembourg or the jurisdiction of organization of Trane Parent, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such mortgage; or |
| 6) | existing at the date of the indenture; |
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provided, however, that any mortgage permitted by any of clauses (1), (2), (3) and (5) above shall not extend to or cover any property of Trane Parent or such restricted subsidiary, as the case may be, other than the property specified in such clauses and improvements to that property.
Notwithstanding the above, Trane Parent or any restricted subsidiary may create, assume or guarantee secured indebtedness for money borrowed which would otherwise be prohibited in an aggregate amount which, together with all other such indebtedness for money borrowed of Trane Parent and its restricted subsidiaries and the attributable debt of Trane Parent and its restricted subsidiaries in respect of sale and leaseback transactions (as defined below) existing at such time (other than sale and leaseback transactions entered into prior to the date of the indenture and sale and leaseback transactions the proceeds of which have been applied in accordance with the indenture), does not at the time exceed 10% of the shareholders’ equity in Trane Parent and its consolidated subsidiaries, as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of Trane Parent.
“attributable debt” means, as of any particular time, the lesser of (i) the fair value of the property subject to the applicable sale and leaseback transaction (as determined by the board of directors of Trane Parent) and (ii) the then present value (discounted at a rate equal to the weighted average of the rate of interest on all securities issued by the applicable Issuer then issued and outstanding under the indenture, compounded semi-annually) of the total net amount of rent required to be paid under such lease during the remaining term thereof (excluding any renewal term unless the renewal is at the option of the lessor) or, if earlier, until the earliest date on which the lessee may terminate such lease upon payment of a penalty (in which case the obligation of the lessee for rental payments shall include such penalty). The net amount of rent required to be paid for any such period shall be the aggregate amount of the rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of, or measured or determined by, any variable factor, including, without limitation, the cost-of-living index and costs of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges and after excluding any portion of rentals based on a percentage of sales made by the lessee. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated;
“mortgage” means, on any specified property, any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property;
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity; and
“shareholders’ equity in Trane Parent and its consolidated subsidiaries” means the share capital, share premium, contributed surplus and retained earnings of Trane Parent and its consolidated subsidiaries, excluding the cost of shares of Trane Parent held by its affiliates, all as determined in accordance with United States generally accepted accounting principles.
Limitation on Sale and Leaseback Transactions. Unless otherwise indicated in the prospectus supplement relating to a series of debt securities, Trane Parent will not, and will not permit any restricted subsidiary to, enter into any sale and leaseback transactions (which are defined in the indenture to exclude leases expiring within three years of making, leases between Trane Parent and a restricted subsidiary or between restricted subsidiaries and any lease of a part of a principal property which has been sold, for use in connection with the winding up or termination of the business conducted on such principal property), unless (a) Trane Parent or such restricted subsidiary would be entitled to incur indebtedness secured by a mortgage on such principal property without equally and ratably securing the debt securities or (b) an amount equal to the fair value of the principal property so leased (as determined by the board of directors of Trane Parent) is applied within 360 days (i) to the retirement (other than by payment at maturity or pursuant to mandatory sinking, purchase or analogous fund or prepayment
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provision) of (x) the debt securities or (y) other funded indebtedness of Trane Parent or any restricted subsidiary ranking on a parity with the debt securities, provided, however, that the amount to be applied to the retirement of any funded indebtedness as provided under this clause (i) shall be reduced by (A) the principal amount of any debt securities delivered within 360 days after such sale or transfer to the trustee for the debt securities of such series for retirement and cancellation and (B) the principal amount of other funded indebtedness ranking on parity with the debt securities voluntarily retired by Trane Parent within one year after such sale or transfer; or (ii) to purchase, improve or construct principal properties, provided that if only a portion of such proceeds is designated as a credit against such purchase, improvement or construction, Trane Parent shall apply an amount equal to the remainder as provided in (i) above.
Restrictions Upon Merger and Sales of Assets. The Issuer of any series of debt securities shall not consolidate, amalgamate or merge with or into any other Person (whether or not affiliated with such Issuer) and such Issuer or its successor or successors shall not be a party or parties to successive consolidations, amalgamations or mergers and such Issuer shall not sell, convey or lease all or substantially all of its property to any other Person (whether or not affiliated with such Issuer) authorized to acquire and operate the same, unless (i) upon any such consolidation, amalgamation, merger, sale, conveyance or lease, the due and punctual payment of the principal of (and premium, if any, on) and interest, if any, on all of the debt securities of such series, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the indenture to be performed by such Issuer shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the trustee for such series of the debt securities, executed and delivered to each such trustee by the Person (if other than such Issuer) formed by such consolidation or amalgamation, or into which such Issuer shall have been merged, or by the Person which shall have acquired or leased such property, and (ii) such Person shall be a solvent corporation, partnership, limited liability company, trust or any other entity organized under the laws of the United States of America or a State thereof or the District of Columbia, any Member State of the European Union (the “EU”), the United Kingdom, Cayman Islands, British Virgin Islands, Gibraltar, the British Crown Dependencies, any member country of the Organisation for Economic Co-operation and Development, or any political subdivision of any of the foregoing. Such Issuer will not so consolidate, amalgamate or merge, or make any such sale, lease or other conveyance, and such Issuer will not permit any other Person to merge into it, unless immediately after the proposed consolidation, amalgamation, merger, sale, lease or other conveyance, and after giving effect thereto, no default in the performance or observance by such Issuer or such successor Person, as the case may be, of any of the terms, covenants, agreements or conditions contained in the indenture with respect to the debt securities shall have occurred and be continuing.
If upon any such consolidation, amalgamation, merger, sale, conveyance or lease, any principal property or any shares or funded indebtedness of any restricted subsidiary would become subject to any mortgage (other than a mortgage to which such principal property or such shares of stock or funded indebtedness of such restricted subsidiary may become subject as provided under “—Limitations on Liens” without equally and ratably securing the notes) (the “Triggering Mortgage”), Trane Parent will secure the due and punctual payment of the principal of (and premium, if any, on) and interest, if any, on the debt securities (together with, if Trane Parent shall so determine, any other indebtedness of or guarantee by Trane Parent or such restricted subsidiary ranking equally with the debt securities) by a mortgage on such principal property or such shares of stock or funded indebtedness of such restricted subsidiary, the lien of which will rank prior to the lien of such Triggering Mortgage.
Each Guarantor, if any, of any series of debt securities shall not consolidate, amalgamate or merge with or into any other Person or corporations (whether or not affiliated with such Guarantor) and such Guarantor and its successor or successors shall not be a party or parties to successive consolidations, amalgamations or mergers and such Guarantor shall not sell, convey or lease all or substantially all of its property to any other Person (whether or not affiliated with such Guarantor) authorized to acquire and operate the same, unless (i) upon any such consolidation, amalgamation, merger, sale, conveyance or lease, the performance of the obligations under the guarantee of such Guarantor, and the due and punctual performance and observance of all of the covenants and conditions of the indenture to be performed by such Guarantor shall be expressly assumed, by supplemental
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indenture reasonably satisfactory in form to the trustee for each series of the debt securities, executed and delivered to each such trustee by the Person (if other than the Issuer or a Guarantor for such series) formed by such consolidation or amalgamation, or into which such Guarantor shall have been merged, or by the Person which shall have acquired or leased such property, and (ii) such Person shall be a solvent corporation, partnership, limited liability company, trust or any other entity organized under the laws of the United States of America or a State thereof or the District of Columbia, any Member State of the EU, the United Kingdom, Cayman Islands, British Virgin Islands, Gibraltar, the British Crown Dependencies, any member country of the Organisation for Economic Co-operation and Development, or any political subdivision of any of the foregoing. Furthermore, such Guarantor will not so consolidate, amalgamate or merge, or make any such sale, lease or other conveyance, and such Guarantor will not permit any other Person to merge into it, unless immediately after the proposed consolidation, amalgamation, merger, sale, lease or other conveyance, and after giving effect thereto, no default in the performance or observance by such Guarantor or such successor Person, as the case may be, of any of the terms, covenants, agreements or conditions in respect of the debt securities contained in the indenture or the guarantee of such Guarantor shall have occurred and be continuing.
Certain Definitions. The term “funded indebtedness” means indebtedness created, assumed or guaranteed by a person for money borrowed which matures by its terms, or is renewable by the borrower to a date, more than one year after the date of its original creation, assumption or guarantee.
The term “principal property” means any manufacturing plant or other manufacturing facility of Trane Parent or any restricted subsidiary, which plant or facility is located within the United States, except any such plant or facility which the board of directors of Trane Parent by resolution declares is not of material importance to the total business conducted by Trane Parent and its restricted subsidiaries.
The term “restricted subsidiary” means any subsidiary which owns a principal property excluding, however, any entity the greater part of the operating assets of which are located, or the principal business of which is carried on, outside the United States.
The term “subsidiary” means any corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust or any other entity of which at least a majority of the outstanding stock or equity interests having voting power under ordinary circumstances to elect a majority of the board of directors or similar body of said entity shall at the time be owned by Trane Parent or by Trane Parent and one or more subsidiaries or by one or more subsidiaries of Trane Parent.
Events of Default
As to each series of debt securities, an event of default is defined in the indenture as being any:
| • | default in payment of any interest on any debt security of such series when it becomes due and payable which continues for 30 days (subject to the deferral of any interest payment in the case of an extension period); |
| • | default in payment of any principal of (or premium, if any, on) any debt security of such series when due either at its stated maturity date, upon redemption, upon acceleration or otherwise; |
| • | default in payment of any sinking fund installment, when and as due by the terms of a note of such series, and continuance of such default for a period of 30 days; |
| • | default in performance of any other covenant of the Issuer or any Guarantor of such series in the indenture (other than a covenant included solely for the benefit of debt securities of another series) which continues for 90 days after receipt of written notice; |
| • | certain events of bankruptcy, insolvency or reorganization relating to the Issuer of such series and, if the debt securities of that series are guaranteed by one or more Guarantors, certain events of bankruptcy, insolvency or reorganization relating to any such Guarantors; |
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| • | if the debt securities of that series are guaranteed by one or more Guarantors, a guarantee of the debt securities of such series shall for any reason cease to be, or shall for any reason be asserted in writing by the Issuer or the Guarantors not to be, in full force and effect and enforceable in accordance with its terms except to the extent contemplated by the indenture and such guarantee; or |
| • | other events of default specified in or pursuant to a board resolution or officer’s certificate or in a supplemental indenture. |
The indenture provides that the trustee may withhold notice to the holders of debt securities of such series of any default (except in payment of principal, premium, if any, or interest, if any, on such series or in payment of any sinking fund installment on such series) if the trustee considers it is in the interest of such holders to do so.
Holders of the debt securities of any series may not enforce the indenture or the debt securities of such series except as provided in the indenture. In case an event of default (other than a default resulting from bankruptcy, insolvency or reorganization) shall occur and be continuing with respect to the debt securities of any series, the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities then outstanding of such series may declare the principal amount on all the debt securities of such series (or, if the debt securities of that series were issued at a discount, such portion of the principal as may be specified in the terms of that series) to be due and payable. If an event of default results from bankruptcy, insolvency or reorganization, the principal amount of all the debt securities of that series (or, if the debt securities of that series were issued at a discount, such portion of the principal as may be specified in the terms of that series) will automatically become due and payable. Any event of default with respect to the debt securities of any series (except defaults in payment of principal of (or premium, if any, on) or interest, if any, on the debt securities of such series or a default in respect of a covenant or provision that cannot be modified without the consent of the holder of each outstanding security of such series) may be waived by the holders of at least a majority in aggregate principal amount of the debt securities of that series then outstanding.
Subject to the provisions of the indenture relating to the duties of the trustee in case an event of default shall occur and be continuing, the trustee is under no obligation to exercise any of the rights or powers under such indenture at the request, order or direction of any of the holders of debt securities, unless such holders shall have offered to the trustee security or indemnity reasonably satisfactory to it. Subject to such provisions for the indemnification of the trustee and certain limitations contained in the indenture, the holders of a majority in principal amount of the debt securities of any series then outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of such series. In respect of each series of debt securities, Trane Parent is required annually to deliver to the trustee an officer’s certificate stating whether or not the signers have knowledge of any default in the performance by each of the Issuer and any Guarantors of the covenants of the indenture. In addition, promptly (and in any event within five business days) upon Trane Parent becoming aware of the occurrence of any default or event of default in respect of any series of debt securities, Trane Parent is required to deliver to the trustee an officer’s certificate setting forth the details of such default or event of default and the actions which Trane Parent, the Issuer and Guarantors, as applicable, propose to take with respect to such default or event of default.
Discharge
The indenture with respect to the debt securities of any series may be discharged (with the exception of specified provisions as provided in the indenture) when the Issuer requests such discharge in writing accompanied by an officer’s certificate and an opinion of counsel, in each case stating that all conditions precedent to discharge under the indenture have been satisfied and either:
| (A) | all debt securities, with the exceptions provided for in the indenture, of that series have been delivered to the trustee for cancellation; or |
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| (B) | all debt securities of that series not theretofore delivered to the trustee for cancellation (1) have become due and payable; (2) will become due and payable at their stated maturity within one year; (3) are to be called for redemption within one year; or (4) been deemed paid and discharged pursuant to the terms of the indenture; |
and the Issuer, in the case of clauses (B)(1), (B)(2) and (B)(3), has deposited or caused to be deposited with the trustee in trust an amount of (a) money, or (b) in the case of clauses (B)(2) and (B)(3), (I) United States government obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the stated maturity or redemption date, as the case may be, money in an amount or (II) a combination of money or United States government obligations as provided in (I) above, in each case sufficient (if United States government obligations, as certified in the opinion of a nationally recognized firm of independent certified public accountants) to pay and discharge the entire indebtedness on such debt securities not theretofore delivered to the trustee for cancellation, for principal, premium, if any, and interest, if any, to the date of such deposit in the case of debt securities which have become due and payable or to the stated maturity or redemption date, as the case may be.
Defeasance
The indenture provides that the Issuer may discharge the entire indebtedness of all outstanding debt securities of a series and the provisions of the indenture as they relate to such debt securities will no longer be in effect in respect of the Issuer and the Guarantors (with the exception of specified provisions as provided in the indenture) if the Issuer deposits or causes to be deposited with the trustee, in trust, money, or United States government obligations, or a combination thereof, which, through the payment of interest thereon and principal thereof in accordance with their terms, will provide money, in an amount sufficient, in the opinion of a nationally recognized firm of independent certified public accountants, to pay all the principal (including any mandatory sinking fund payments, if any) of, premium, if any, and interest, if any, on the debt securities of such series on the dates such payments are due in accordance with the terms of such debt securities to their stated maturities or to, but excluding, a redemption date which has been irrevocably designated by the Issuer for redemption of such debt securities. To exercise any such option, the Issuer is required to meet specified conditions, including delivering to the trustee an opinion of counsel to the effect that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (b) since the date of an offering, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, holders of the debt securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred and that no event of default or default shall have occurred and be continuing.
The indenture provides that, at the election of the Issuer, the Issuer and the Guarantors need not comply with certain restrictive covenants of the indenture as to any series of debt securities (in the case of debt securities as described above under “—Certain Covenants of the Debt Securities—Limitation on Liens,” “—Limitation on Sale and Leaseback Transactions” and the third paragraph of “—Restrictions Upon Merger and Sales of Assets”), upon the deposit by the Issuer with the trustee, in trust, of money, or United States government obligations, or a combination thereof, which, through the payment of interest thereon and principal thereof in accordance with their terms, will provide money, in an amount sufficient, in the opinion of a nationally recognized firm of independent certified public accountants, to pay all the principal (including any mandatory sinking fund payments, if any) of, premium, if any, and interest, if any, on the debt securities of such series on the dates such payments are due in accordance with the terms of such debt securities to their stated maturities or to, but excluding, a redemption date which has been irrevocably designated by us for redemption of such debt securities. To exercise any such option, the Issuer may be required to meet specified conditions, including delivering to the trustee an opinion of counsel to the effect that the deposit and related defeasance would not cause the holders of the debt securities to recognize income, gain or loss for federal income tax purposes.
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Modification of the Indenture
The indenture contains provisions permitting the Issuer, the Guarantors and the trustee, with the consent of the holders of not less than a majority in principal amount of the outstanding debt securities of all series affected by such modification (voting as one class), to modify such indenture or the rights of the holders of the debt securities, except that no such modification shall, without the consent of the holder of each debt security so affected:
| • | change the maturity of any debt security, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof (including, in the case of a discounted debt security, the amount payable thereon in the event of acceleration) or any redemption premium thereon, or change the place or medium or currency of payment of such debt security, or impair the right of any holder to institute suit for payment thereof, or release any Guarantor from any of its obligations under its guarantee otherwise than in accordance with the terms of the indenture; |
| • | reduce the percentage of debt securities, the consent of the holders of which is required for any such modification or for certain waivers or other modifications under such indenture; |
| • | make the debt securities of any series payable in currency other than that stated herein; |
| • | expressly subordinate in right of payment the debt securities of any series or a guarantee thereof; or |
| • | modify certain provisions of the indenture related to entry into a supplemental indenture with consent of holders, waiver of past defaults and waiver of certain covenants, except under certain circumstances specified in the indenture. |
The indenture contains provisions permitting the Issuer, the Guarantors and the trustee, without the consent of any holders, to modify the indenture for any of the following purposes:
| • | to evidence the succession of another corporation, partnership, limited liability company, trust or any other entity to the Issuer or any Guarantor and the assumption by any such successor of the Issuer’s covenants in the indenture and the debt securities or such Guarantor’s covenants in the indenture and the guarantee, as the case may be; |
| • | to add to the Issuer’s or any Guarantor’s covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon the Issuer or such Guarantor, as the case may be, in the indenture; |
| • | to add any additional events of defaults; |
| • | to add or change any provisions of the indenture to such extent as may be necessary to permit or facilitate the issuance of debt securities in bearer form registrable or not registrable as to principal, and with or without interest or coupons; |
| • | to change or eliminate any provision of the indenture, provided that any such change or elimination shall become effective only when there is no debt security outstanding of any series created prior to such modification which is entitled to the benefit of such provision; |
| • | to secure the debt securities; |
| • | to establish the form or terms of any debt securities of any series as permitted by the indenture; |
| • | to establish the form or terms of a related guarantee of any debt securities as permitted by the indenture; |
| • | to evidence and provide for the acceptance of appointment under the indenture by a successor trustee with respect to the debt securities of one or more series and to add or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee; |
| • | to evidence and provide for the acceptance of appointment of a trustee other than Wells Fargo Bank, National Association, as trustee for a series of debt securities and to add or change any of the |
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| provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee; |
| • | to provide for any rights of the holder of debt securities of any series to require the repurchase of debt securities of such series from the Issuer; |
| • | to cure any ambiguity, omission, mistake or defect, to correct or supplement any provision of the indenture which may be inconsistent with any other provision of the indenture, or to make any other provisions with respect to matters or questions arising under the indenture, provided such action shall not adversely affect the interests of the holders of debt securities of any series in any material respect; |
| • | to provide for the issuance of additional debt securities of any series in accordance with the indenture; |
| • | to add guarantees with respect to the debt securities; |
| • | to amend the provisions of the indenture relating to the transfer and legending of the debt securities of any series, including, without limitation, to facilitate the issuance and administration of the debt securities of any series; provided that compliance with the indenture as so amended would not result in the debt securities of such series being transferred in violation of the Securities Act or any applicable securities law; |
| • | to conform the text of the indenture, guarantee or debt securities of any series to any provision of the description thereof set forth in this prospectus or any prospectus supplement to the extent that such provision in this prospectus or any prospectus supplement was intended to be a verbatim recitation of a provision in the indenture, guarantee or debt securities of any series; |
| • | for any other reason specified in the board resolution, officer’s certificate or supplemental indenture establishing the applicable series of debt securities; |
| • | to continue its qualification under the Trust Indenture Act of 1939 or as may be necessary or desirable in accordance with amendments to that Act; or |
| • | for any other reason specified in the applicable prospectus supplement. |
Concerning the Trustee
We may from time to time maintain lines of credit and have other customary banking relationships with each trustee and its affiliated banks.
Governing Law
The indenture, the debt securities and the guarantees will be governed by, and construed in accordance with, the laws of the State of New York.
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The following description of warrants sets forth certain general terms and provisions of warrants. This summary does not contain all of the information that you may find useful. The particular terms of the warrants offered will be described in the prospectus supplement relating to those warrants. As used in this section only, “we”, “our” and “us” refers only to Trane Technologies.
General
We may issue warrants to purchase our securities or rights (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or any combination of the foregoing. Warrants may be issued independently or together with any securities and may be attached to or separate from such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent we select. Unless otherwise specified in the applicable prospectus supplement, the warrant agreements and the warrants will be governed by and construed in accordance with the laws of the State of New York.
You should review the applicable prospectus supplement for the specific terms of any warrants that may be offered, including:
| • | the title of the warrants; |
| • | the aggregate number of the warrants; |
| • | the price or prices at which the warrants will be issued; |
| • | the currency or currencies, including composite currencies, in which the price of the warrants may be payable; |
| • | our securities or rights (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or any combination of the foregoing purchasable upon exercise of such warrants; |
| • | the price at which and the currency or currencies, including composite currencies, in which the securities purchasable upon exercise of the warrants may be purchased; |
| • | the date on which the right to exercise the warrants will commence and the date on which that right will expire; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security; |
| • | if applicable, the date on and after which the warrants and the related securities will be separately transferable; |
| • | information with respect to book-entry procedures, if any; |
| • | if applicable, a discussion of certain United States federal income tax considerations; and |
| • | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
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DESCRIPTION OF TRANE TECHNOLOGIES SHARE CAPITAL
The following description of Trane Technologies’ share capital is a summary. This summary is not complete and is subject to the complete text of Trane Technologies’ memorandum and articles of association previously filed with the Commission and to the Irish Companies Act 2014 (the “Irish Companies Act”). We encourage you to read those documents and laws carefully.
Capital Structure
Authorized Share Capital. The authorized share capital of Trane Technologies is €40,000 and US$1,175,010,000 divided into 40,000 ordinary shares with a nominal value of €1 per share, 1,175,000,000 ordinary shares with a nominal value of US$1.00 per share and 10,000,000 preferred shares with a nominal value of US$0.001 per share.
Trane Technologies may issue shares subject to the maximum prescribed by its authorized share capital contained in its memorandum of association and subject to the maximum authorized by shareholders from time to time.
As a matter of Irish company law, the directors of a company may issue new ordinary or preferred shares without shareholder approval once authorized to do so by the articles of association of the company or by an ordinary resolution adopted by the shareholders at a general meeting. An ordinary resolution requires over 50% of the votes of a company’s shareholders cast at a general meeting. The authority conferred can be granted for a maximum period of five years, at which point it must be renewed by the shareholders of the company by an ordinary resolution. The shareholders of Trane Technologies adopted an ordinary resolution at the 2020 annual general meeting of the Company on June 4, 2020 authorizing the directors of Trane Technologies to issue up to an aggregate nominal amount of $87,021,475 (87,021,475 shares) (being equivalent to approximately 33% of the aggregate nominal value of the issued ordinary share capital of Trane Technologies as of April 8, 2020), for a period of 18 months from June 4, 2020.
The authorized share capital may be increased or reduced by way of an ordinary resolution of Trane Technologies’ shareholders. The shares comprising the authorized share capital of Trane Technologies may be divided into shares of such par value as the resolution shall prescribe.
The rights and restrictions to which the ordinary shares are subject are prescribed in Trane Technologies’ articles of association. Trane Technologies’ articles of association entitle the board of directors, without shareholder approval, to determine the terms of the preferred shares issued by Trane Technologies. The Trane Technologies board of directors is authorized, without obtaining any vote or consent of the holders of any class or series of shares (other than the authority to allot shares referred to above) unless expressly provided by the terms of that class or series or shares, to provide from time to time for the issuance of other classes or series of preferred shares and to establish the characteristics of each class or series, including the number of shares, designations, relative voting rights, dividend rights, liquidation and other rights, redemption, repurchase or exchange rights and any other preferences and relative, participating, optional or other rights and limitations not inconsistent with applicable law.
Irish law does not recognize fractional shares held on record; accordingly, Trane Technologies’ articles of association do not provide for the issuance of fractional shares of Trane Technologies, and the official Irish register of Trane Technologies will not reflect any fractional shares.
Pre-emption Rights, Share Warrants and Share Options
Certain statutory pre-emption rights apply automatically in favor of Trane Technologies’ shareholders where shares in Trane Technologies are to be issued for cash. However, Trane Technologies initially opted out of
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these pre-emption rights on its incorporation in its articles of association as permitted under Irish company law. Because Irish law requires this opt-out to be renewed every five years by a special resolution of the shareholders, Trane Technologies’ articles of association provide that this opt-out must be so renewed. A special resolution requires not less than 75% of the votes of Trane Technologies’ shareholders cast at a general meeting. If the opt-out is not renewed, shares issued for cash must be offered to pre-existing shareholders of Trane Technologies pro rata to their existing shareholding before the shares can be issued to any new shareholders. The statutory pre-emption rights do not apply where shares are issued for non-cash consideration and do not apply to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution). Shareholders of Trane Technologies passed a special resolution at the 2020 annual general meeting of the Company on June 4, 2020 authorizing the directors of Trane Technologies to opt out of pre-emption rights with respect to equity securities with up to an aggregate nominal value of $13,185,072 (13,185,072 shares) (being equivalent to approximately 5% of the aggregate nominal value of the issued ordinary share capital of Trane Technologies of April 8, 2020), for a period of 18 months from June 4, 2020.
The articles of association of Trane Technologies provide that, subject to any shareholder approval requirement under any laws, regulations or the rules of any stock exchange to which Trane Technologies is subject, the board is authorized, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the board deems advisable, options to purchase such number of shares of any class or classes or of any series of any class as the board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. The Irish Companies Act provides that directors may issue share warrants or options without shareholder approval once authorized to do so by the articles of association or an ordinary resolution of shareholders. The board may issue shares upon exercise of warrants or options without shareholder approval or authorization.
Trane Technologies is subject to the rules of the NYSE that require shareholder approval of certain share issuances.
Dividends
Under Irish law, dividends and distributions may only be made from distributable reserves. Distributable reserves, broadly, means the accumulated realized profits of Trane Technologies less accumulated realized losses of Trane Technologies. In addition, no distribution or dividend may be made unless the net assets of Trane Technologies are equal to, or in excess of, the aggregate of Trane Technologies’ called up share capital plus undistributable reserves and the distribution does not reduce Trane Technologies’ net assets below such aggregate. Undistributable reserves include the share premium account, the capital redemption reserve fund, the revaluation reserve, and the amount by which Trane Technologies’ accumulated unrealized profits, so far as not previously utilized by any capitalization, exceed Trane Technologies’ accumulated unrealized losses, so far as not previously written off in a reduction or reorganization of capital.
The determination as to whether or not Trane Technologies has sufficient distributable reserves to fund a dividend must be made by reference to “relevant financial statements” of Trane Technologies. The “relevant financial statements” will be either the last set of unconsolidated annual audited financial statements or unaudited financial statements prepared in accordance with the Irish Companies Act, which gives a “true and fair view” of Trane Technologies’ unconsolidated financial position and accord with accepted accounting practice. The relevant financial statements must be filed in the Companies Registration Office (the official public registry for companies in Ireland).
The mechanism as to who declares a dividend and when a dividend shall become payable is governed by the articles of association of Trane Technologies. Trane Technologies’ articles of association authorize the directors to declare such dividends as appear justified from the profits of Trane Technologies without the approval of the shareholders at a general meeting. The board of directors may also recommend a dividend to be approved and
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declared by the shareholders at a general meeting. Although the shareholders may direct that the payment be made by distribution of assets, shares or cash, no dividend issued may exceed the amount recommended by the directors. The dividends can be declared and paid in the form of cash or non-cash assets.
The directors of Trane Technologies may deduct from any dividend payable to any member all sums of money (if any) payable by such member to Trane Technologies in relation to the shares of Trane Technologies.
The directors of Trane Technologies are also entitled to issue shares with preferred rights to participate in dividends declared by Trane Technologies. The holders of such preferred shares may, depending on their terms, be entitled to claim arrears of a declared dividend out of subsequently declared dividends in priority to ordinary shareholders.
Share Repurchases, Redemptions and Conversions
Overview
Article 3(d) of Trane Technologies’ articles of association provides that any ordinary share which Trane Technologies has acquired or agreed to acquire shall be deemed to be a redeemable share. Accordingly, for Irish company law purposes, the repurchase of ordinary shares by Trane Technologies will technically be effected as a redemption of those shares as described below under “—Repurchases and Redemptions by Trane Technologies.” If the articles of association of Trane Technologies did not contain Article 3(d), repurchases by Trane Technologies would be subject to many of the same rules that apply to purchases of Trane Technologies shares by subsidiaries described below under “—Purchases by Subsidiaries of Trane Technologies,” including the shareholder approval requirements described below and the requirement that any on-market purchases be effected on a “recognized stock exchange.” Except where otherwise noted, when we refer elsewhere in this prospectus to repurchasing or buying back ordinary shares of Trane Technologies, we are referring to the redemption of ordinary shares by Trane Technologies pursuant to Article 3(d) of the articles of association or the purchase of ordinary shares of Trane Technologies by a subsidiary of Trane Technologies, in each case in accordance with the Trane Technologies articles of association and Irish company law as described below.
Repurchases and Redemptions by Trane Technologies
Under Irish law, a company can issue redeemable shares and redeem them out of distributable reserves (which are described above under “—Dividends”) or the proceeds of a new issue of shares for that purpose. Trane Technologies currently has distributable reserves which are calculated by reference to the relevant financial statements of Trane Technologies. Please see “—Dividends.” All redeemable shares must be fully paid and the terms of redemption of the shares must provide for payment on redemption. Redeemable shares may, upon redemption, be cancelled or held in treasury. Shareholder approval will not be required to redeem Trane Technologies shares.
The board of directors of Trane Technologies is also entitled to issue preferred shares which may be redeemed at the option of either Trane Technologies or the shareholder, depending on the terms of such preferred shares. Please see “—Capital Structure—Authorized Share Capital” above for additional information on redeemable shares.
Repurchased and redeemed shares may be cancelled or held as treasury shares. The nominal value of treasury shares held by Trane Technologies at any time must not exceed 10% of the nominal value of the issued share capital of Trane Technologies. While Trane Technologies holds shares as treasury shares, it cannot exercise any voting rights in respect of those shares. Treasury shares may be cancelled by Trane Technologies or re-issued subject to certain conditions.
Purchases by Subsidiaries of Trane Technologies
Under Irish law, it may be permissible for an Irish or non-Irish subsidiary to purchase shares of Trane Technologies either on-market or off-market. A general authority of the shareholders of Trane Technologies is
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required to allow a subsidiary of Trane Technologies to make on-market purchases of Trane Technologies shares; however, as long as this general authority has been granted, no specific shareholder authority for a particular on-market purchase by a subsidiary of Trane Technologies shares is required. Trane Technologies does not currently seek such authority from its shareholders but may seek such general authority from shareholders in the future. In order for a subsidiary of Trane Technologies to make an on-market purchase of Trane Technologies’ shares, such shares must be purchased on a “recognized stock exchange.” The NYSE, on which the shares of Trane Technologies are listed, is a “recognized stock exchange” for this purpose under the Irish Companies (Recognized Stock Exchanges) Regulations 2015. For an off-market purchase by a subsidiary of Trane Technologies, the proposed purchase contract must be authorized by special resolution of the shareholders of Trane Technologies before the contract is entered into. The person whose shares are to be bought back cannot vote in favor of the special resolution and, for at least 21 days prior to the special resolution, the purchase contract must be on display or must be available for inspection by shareholders at the registered office of Trane Technologies.
The number of shares held by the subsidiaries of Trane Technologies at any time will count as treasury shares and will be included in any calculation of the permitted treasury share threshold of 10% of the nominal value of the issued share capital of Trane Technologies. While a subsidiary holds shares of Trane Technologies, it cannot exercise any voting rights in respect of those shares. The acquisition of the shares of Trane Technologies by a subsidiary must be funded out of distributable reserves of the subsidiary.
Existing Share Repurchase Program
The board of directors of Trane Technologies has authorized a program to repurchase up to $2.0 billion of its ordinary shares to commence upon the completion of Trane Technologies’ current $1.5 billion program. Based on market conditions, share repurchases will be made from time to time in the open market and in privately negotiated transactions at the discretion of management. The repurchase program does not have a prescribed expiration date.
As noted above, because repurchases of Trane Technologies shares by Trane Technologies will technically be effected as a redemption of those shares pursuant to Article 3(d) of the articles of association, shareholder approval for such repurchases will not be required.
Bonus Shares
Under Trane Technologies’ articles of association, the board may resolve to capitalize any amount credited to any reserve or fund available for distribution or the share premium account of Trane Technologies for issuance and distribution to shareholders as fully paid up bonus shares on the same basis of entitlement as would apply in respect of a dividend distribution.
Consolidation and Division; Subdivision
Under its articles of association, Trane Technologies may by ordinary resolution consolidate and divide all or any of its share capital into shares of larger par value than its existing shares or subdivide its shares into smaller amounts than is fixed by its articles of association.
Reduction of Share Capital
Trane Technologies may, by ordinary resolution, reduce its authorized share capital in any way. Trane Technologies also may, by special resolution and subject to confirmation by the Irish High Court, reduce or cancel its issued share capital in any way.
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General Meetings of Shareholders
Trane Technologies is required to hold annual general meetings at intervals of no more than fifteen months, provided that an annual general meeting is held in each calendar year, no more than nine months after Trane Technologies’ fiscal year-end. Trane Technologies has held all of its annual general meetings in Ireland except for the years 2020 and 2021 when due to COVID-19 and based on governmental advice in the United States and Ireland on restricted travel its annual general meetings were held in Davidson, North Carolina with telephonic participation available in Ireland. However, any annual general meeting may be held outside Ireland if a resolution so authorizing is passed at the preceding annual general meeting. Because of the fifteen-month requirement described in this paragraph, Trane Technologies’ articles of association include a provision reflecting this requirement of Irish law. At any annual general meeting, only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the board or (b) by any member entitled to vote at such meeting who complies with the procedures set forth in the articles of association.
Extraordinary general meetings of Trane Technologies may be convened by (i) the chairman of the board of directors, (ii) the board of directors, (iii) on requisition of the shareholders holding not less than 10% of the paid up share capital of Trane Technologies carrying voting rights or (iv) on requisition of Trane Technologies’ auditors. Extraordinary general meetings are generally held for the purposes of approving shareholder resolutions of Trane Technologies as may be required from time to time. At any extraordinary general meeting only such business shall be conducted as is set forth in the notice thereof.
Notice of a general meeting must be given to all shareholders of Trane Technologies and to the auditors of Trane Technologies. The articles of association of Trane Technologies provide that the maximum notice period is 60 days. The minimum notice periods are 21 days’ notice in writing for an annual general meeting or an extraordinary general meeting to approve a special resolution and 14 days’ notice in writing for any other extraordinary general meeting. Because of the 21-day and 14-day requirements described in this paragraph, Trane Technologies’ articles of association include provisions reflecting these requirements of Irish law.
In the case of an extraordinary general meeting convened by shareholders of Trane Technologies, the proposed purpose of the meeting must be set out in the requisition notice. The requisition notice can contain any resolution. Upon receipt of this requisition notice, the board of directors has 21 days to convene a meeting of Trane Technologies’ shareholders to vote on the matters set out in the requisition notice. This meeting must be held within two months of the receipt of the requisition notice. If the board of directors does not convene the meeting within such 21-day period, the requisitioning shareholders, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, which meeting must be held within three months of the receipt of the requisition notice.
The only matters which must, as a matter of Irish company law, be transacted at an annual general meeting are the presentation of the annual financial statements, reports of the directors and auditors, the review by the members of the company’s affairs, the appointment of auditors and the approval of the auditor’s remuneration (or delegation of same), the declaration of dividends and the election of directors. If no resolution is made in respect of the reappointment of an auditor at an annual general meeting, the previous auditor will be deemed to have continued in office.
Directors are elected by the affirmative vote of a majority of the votes cast by shareholders at an annual general meeting and serve for one-year terms. Where there is a contested election and the number of nominees exceeds the number of directors to be elected, then a plurality voting standard shall apply and only those nominees receiving the most votes for the available seats will be elected. However, because Irish law requires a minimum of two directors at all times, in the event that an election results in no director being elected, each of the two nominees receiving the greatest number of votes in favor of his or her election shall hold office until his or her successor shall be elected. In the event that an election results in only one director being elected, that director shall be elected and shall serve for a one year term, and the nominee receiving the greatest number of votes in favor of their election shall hold office until his or her successor shall be elected.
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If the directors become aware that the net assets of Trane Technologies are half or less of the amount of Trane Technologies’ called-up share capital, the directors of Trane Technologies must convene an extraordinary general meeting of Trane Technologies’ shareholders not later than 28 days from the date that they learn of this fact. This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.
Voting
At a general meeting a resolution put to the vote is decided by a poll whereby every shareholder shall have one vote for each ordinary share that he or she holds as of the record date for the meeting. Voting rights may be exercised by shareholders registered in Trane Technologies’ share register as of the record date for the meeting or by a duly appointed proxy of such a registered shareholder, which proxy need not be a shareholder. Where interests in shares are held by a nominee trust company, this company may exercise the rights of the beneficial holders on their behalf as their proxy. All proxies must be appointed in the manner prescribed by Trane Technologies’ articles of association, by such time as is prescribed in the notice of the meeting, and if no time is specified, by no later than 48 hours before the commencement of the meeting. The articles of association of Trane Technologies permit the appointment of proxies by the shareholders to be notified to Trane Technologies electronically.
In accordance with the articles of association of Trane Technologies, the directors of Trane Technologies may from time to time cause Trane Technologies to issue preferred shares. These preferred shares may have such voting rights as may be specified in the terms of such preferred shares (e.g., they may carry more votes per share than ordinary shares or may entitle their holders to a class vote on such matters as may be specified in the terms of the preferred shares).
Treasury shares will not be entitled to vote at general meetings of shareholders.
Irish company law requires “special resolutions” of the shareholders at a general meeting to approve certain matters. A special resolution requires not less than 75% of the votes cast of Trane Technologies’ shareholders at a general meeting. This may be contrasted with “ordinary resolutions,” which require a simple majority of the votes of Trane Technologies’ shareholders cast at a general meeting. Examples of matters requiring special resolutions include:
| • | Amending the objects of Trane Technologies; |
| • | Amending the articles of association of Trane Technologies; |
| • | Approving the change of name of Trane Technologies; |
| • | Authorizing the entering into of a guarantee or provision of security in connection with a loan, quasi-loan or credit transaction to a director or connected person; |
| • | Opting out of pre-emption rights on the issuance of new shares; |
| • | Re-registration of Trane Technologies from a public limited company as a private company; |
| • | Variation of class rights attaching to classes of shares; |
| • | Purchase of own shares off-market; |
| • | The reduction of share capital; |
| • | Resolving that Trane Technologies be wound up by the Irish courts; |
| • | Resolving in favor of a shareholders’ voluntary winding-up; |
| • | Re-designation of shares into different share classes; and |
| • | Setting the re-issue price of treasury shares. |
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A scheme of arrangement with shareholders requires a court order from the Irish High Court and the approval of: (1) 75% of the voting shareholders by value; and (2) 50% in number of the voting shareholders, at a meeting called to approve the scheme.
Variation of Rights Attaching to a Class or Series of Shares
Variation of all or any special rights attached to any class or series of shares of Trane Technologies is addressed in the articles of association of Trane Technologies as well as the Irish Companies Act. Any variation of class rights attaching to the issued shares of Trane Technologies must be approved by a special resolution of the shareholders of the class or series affected.
Quorum for General Meetings
The presence, in person or by proxy, of the holders of a majority of the Trane Technologies ordinary shares outstanding constitutes a quorum for the conduct of business. No business may take place at a general meeting of Trane Technologies if a quorum is not present in person or by proxy. The board of directors has no authority to waive quorum requirements stipulated in the articles of association of Trane Technologies. Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum in respect of the proposals.
Inspection of Books and Records
Under Irish law, shareholders have the right to: (i) receive a copy of the memorandum and articles of association of Trane Technologies and any act of the Irish government which alters the memorandum of association of Trane Technologies; (ii) inspect and obtain copies of the minutes of general meetings and resolutions of Trane Technologies; (iii) inspect and receive a copy of the register of shareholders, register of directors and secretaries, register of directors’ interests and other statutory registers maintained by Trane Technologies; (iv) receive copies of balance sheets and directors’ and auditors’ reports which have previously been sent to shareholders prior to an annual general meeting; and (v) receive balance sheets of a subsidiary company of Trane Technologies which have previously been sent to shareholders prior to an annual general meeting for the preceding ten years. The auditors of Trane Technologies will also have the right to inspect all books, records and vouchers of Trane Technologies. The auditors’ report must be circulated to the shareholders with audited consolidated annual financial statements of Trane Technologies prepared in accordance with applicable accounting standards 21 days before the annual general meeting and must be read to the shareholders at Trane Technologies’ annual general meeting.
Acquisitions
There are a number of mechanisms for acquiring an Irish public limited company, including:
| (a) | a court-approved scheme of arrangement under the Irish Companies Act. A scheme of arrangement with shareholders requires a court order from the Irish High Court and the approval of: (1) 75% of the voting shareholders by value; and (2) 50% in number of the voting shareholders, at a meeting called to approve the scheme; |
| (b) | through a tender offer by a third party for all of the shares of Trane Technologies. Where the holders of 80% or more of Trane Technologies’ shares have accepted an offer for their shares in Trane Technologies, the remaining shareholders may be statutorily required to also transfer their shares. If the bidder does not exercise its “squeeze out” right, then the non-accepting shareholders also have a statutory right to require the bidder to acquire their shares on the same terms. If shares of Trane Technologies were listed on the Irish Stock Exchange or another regulated stock exchange in the EU, this threshold would be increased to 90%; |
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| (c) | it is possible for Trane Technologies to be acquired by way of a merger with an EU-incorporated public company under the EU Cross Border Merger Directive 2005/56. Such a merger must be approved by a special resolution. If Trane Technologies is being merged with another EU public company under the EU Cross Border Merger Directive 2005/56 and the consideration payable to Trane Technologies’ shareholders is not all in the form of cash, Trane Technologies’ shareholders may be entitled to require their shares to be acquired at fair value; and |
| (d) | it is also possible for Trane Technologies to be acquired by way of a merger with an Irish incorporated company under the Irish Companies Act. Such a merger must be implemented by a court order from the Irish High Court and be approved by a special resolution of Trane Technologies’ shareholders. |
Under Irish law, there is no requirement for a company’s shareholders to approve a sale, lease or exchange of all or substantially all of a company’s property and assets. However, Trane Technologies’ articles of association provide that the affirmative vote of the holders of a majority of the outstanding voting shares on the relevant record date is required to approve a sale, lease or exchange of all or substantially all of its property or assets.
Appraisal Rights
Generally, under Irish law, shareholders of an Irish company do not have appraisal rights. Under the EC (Cross-Border Mergers) Regulations 2008 (as amended by the European Communities (Mergers and Divisions of Companies) (Amendment) Regulations 2011) and Part 17 of the Irish Companies Act governing the merger of an Irish public limited company and a company incorporated in the European Economic Area, a shareholder (a) who voted against the special resolution approving the merger or (b) of a company in which 90% of the shares is held by the other company the party to the merger of the transferor company has the right to request that the company acquire its shares for cash.
Disclosure of Interests in Shares
Under the Irish Companies Act, there is a notification requirement for shareholders who acquire or cease to be interested in 3% of the shares of an Irish public limited company. A shareholder of Trane Technologies must therefore make such a notification to Trane Technologies if as a result of a transaction the shareholder will be interested in 3% or more of the shares of Trane Technologies; or if as a result of a transaction a shareholder who was interested in more than 3% of the shares of Trane Technologies ceases to be so interested. Where a shareholder is interested in more than 3% of the shares of Trane Technologies, any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction, must be notified to Trane Technologies. The relevant percentage figure is calculated by reference to the aggregate par value of the shares in which the shareholder is interested as a proportion of the entire par value of Trane Technologies’ share capital. Where the percentage level of the shareholder’s interest does not amount to a whole percentage this figure may be rounded down to the next whole number. All such disclosures should be notified to Trane Technologies within five business days of the transaction or alteration of the shareholder’s interests that gave rise to the requirement to notify. Where a person fails to comply with the notification requirements described above no right or interest of any kind whatsoever in respect of any shares in Trane Technologies concerned, held by such person, shall be enforceable by such person, whether directly or indirectly, by action or legal proceeding. However, such person may apply to the court to have the rights attaching to the shares concerned reinstated.
In addition to the above disclosure requirement, Trane Technologies, under the Irish Companies Act, may by notice in writing require a person whom Trane Technologies knows or has reasonable cause to believe to be, or at any time during the three years immediately preceding the date on which such notice is issued, to have been interested in shares comprised in Trane Technologies’ relevant share capital to: (a) indicate whether or not it is the case, and (b) where such person holds or has during that time held an interest in the shares of Trane
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Technologies, to give such further information as may be required by Trane Technologies including particulars of such person’s own past or present interests in shares of Trane Technologies. Any information given in response to the notice is required to be given in writing within such reasonable time as may be specified in the notice.
Where such a notice is served by Trane Technologies on a person who is or was interested in shares of Trane Technologies and that person fails to give Trane Technologies any information required within the reasonable time specified, Trane Technologies may apply to court for an order directing that the affected shares be subject to certain restrictions. Under the Irish Companies Act, the restrictions that may be placed on the shares by the court are as follows:
| (a) | any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued with shares and any issue of shares, shall be void; |
| (b) | no voting rights shall be exercisable in respect of those shares; |
| (c) | no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and |
| (d) | no payment shall be made of any sums due from Trane Technologies on those shares, whether in respect of capital or otherwise. |
Where the shares in Trane Technologies are subject to these restrictions, the court may order the shares to be sold and may also direct that the shares shall cease to be subject to these restrictions.
Anti-Takeover Provisions
Business Combinations with Interested Shareholders
As provided in Trane Technologies’ articles of association, the affirmative vote of the holders of 80% of the shares then in issue of all classes of shares entitled to vote considered for purposes of this provision as one class, is required for Trane Technologies to engage in any “business combination” with any interested shareholder (generally, a 10% or greater shareholder), provided that the above vote requirement does not apply to:
| • | any business combination with an interested shareholder that has been approved by the board of directors; or |
| • | any agreement for the amalgamation, merger or consolidation of any of Trane Technologies’ subsidiaries with Trane Technologies or with another of Trane Technologies’ subsidiaries if (1) the relevant provisions of Trane Technologies’ articles of association will not be changed or otherwise affected by or by virtue of the amalgamation, merger or consolidation and (2) the holders of greater than 50% of the voting power of Trane Technologies or the subsidiary, as appropriate, immediately prior to the amalgamation, merger or consolidation continue to hold greater than 50% of the voting power of the amalgamated company immediately following the amalgamation, merger or consolidation. |
Trane Technologies’ articles of association provide that “business combination” means:
| • | any amalgamation, merger or consolidation of Trane Technologies or one of Trane Technologies’ subsidiaries with an interested shareholder or with any person that is, or would be after such amalgamation, merger or consolidation, an affiliate or associate of an interested shareholder; |
| • | any transfer or other disposition to or with an interested shareholder or any affiliate or associate of an interested shareholder of all or any material part of the assets of Trane Technologies or one of Trane Technologies’ subsidiaries; and |
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| • | any issuance or transfer of Trane Technologies’ shares upon conversion of or in exchange for the securities or assets of any interested shareholder, or with any company that is, or would be after such merger or consolidation, an affiliate or associate of an interested shareholder. |
Irish Takeover Rules and Substantial Acquisition Rules
A transaction by virtue of which a third party is seeking to acquire 30% or more of the voting rights of Trane Technologies will be governed by the Irish Takeover Panel Act 1997 (as amended) and the Irish Takeover Rules made thereunder and will be regulated by the Irish Takeover Panel. The “General Principles” of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.
General Principles
The Irish Takeover Rules are built on the following General Principles which will apply to any transaction regulated by the Irish Takeover Panel:
| • | in the event of an offer, all classes of shareholders of the target company should be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; |
| • | the holders of securities in the target company must have sufficient time to allow them to make an informed decision regarding the offer; |
| • | the board of a company must act in the interests of the company as a whole. If the board of the target company advises the holders of securities as regards the offer it must advise on the effects of the implementation of the offer on employment, employment conditions and the locations of the target company’s place of business; |
| • | false markets in the securities of the target company or any other company concerned by the offer must not be created; |
| • | a bidder can only announce an offer after ensuring that he or she can fulfill in full the consideration offered; |
| • | a target company may not be hindered longer than is reasonable by an offer for its securities. This is a recognition that an offer will disrupt the day-to-day running of a target company particularly if the offer is hostile and the board of the target company must divert its attention to resist the offer; and |
| • | a “substantial acquisition” of securities (whether such acquisition is to be effected by one transaction or a series of transactions) will only be allowed to take place at an acceptable speed and shall be subject to adequate and timely disclosure. |
Mandatory Bid
If an acquisition of shares were to increase the aggregate holding of an acquirer and its concert parties to shares carrying 30% or more of the voting rights in Trane Technologies, the acquirer and, depending on the circumstances, its concert parties would be required (except with the consent of the Irish Takeover Panel) to make a cash offer for the outstanding shares at a price not less than the highest price paid for the shares by the acquirer or its concert parties during the previous 12 months. This requirement would also be triggered by an acquisition of shares by a person holding (together with its concert parties) shares carrying between 30% and 50% of the voting rights in Trane Technologies if the effect of such acquisition were to increase the percentage of the voting rights held by that person (together with its concert parties) by 0.05% within a twelve-month period. A single holder (that is, a holder excluding any parties acting in concert with the holder) holding more than 50% of the voting rights of a company is not subject to this rule.
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Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements
A voluntary offer is an offer that is not a mandatory offer. If a bidder or any of its concert parties acquire ordinary shares of Trane Technologies within the period of three months prior to the commencement of the offer period, the offer price must be not less than the highest price paid for Trane Technologies ordinary shares by the bidder or its concert parties during that period. The Irish Takeover Panel has the power to extend the “look back” period to 12 months if the Irish Takeover Panel, having regard to the General Principles, believes it is appropriate to do so.
If the bidder or any of its concert parties has acquired ordinary shares of Trane Technologies (i) during the period of 12 months prior to the commencement of the offer period which represent more than 10% of the total ordinary shares of Trane Technologies or (ii) at any time after the commencement of the offer period, the offer shall be in cash (or accompanied by a full cash alternative) and the price per Trane Technologies ordinary share shall be not less than the highest price paid by the bidder or its concert parties during, in the case of (i), the period of 12 months prior to the commencement of the offer period and, in the case of (ii), the offer period. The Irish Takeover Panel may apply this rule to a bidder who, together with its concert parties, has acquired less than 10% of the total ordinary shares of Trane Technologies in the 12 month period prior to the commencement of the offer period if the Panel, having regard to the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of Trane Technologies. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of Trane Technologies is prohibited, if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of Trane Technologies and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.
Frustrating Action
Under the Irish Takeover Rules, the board of directors of Trane Technologies is not permitted to take any action which might frustrate an offer for the shares of Trane Technologies once the board of directors has received an approach which may lead to an offer or has reason to believe an offer is imminent except as noted below. Potentially frustrating actions such as (i) the issue of shares, options or convertible securities, (ii) material disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any time during which the board has reason to believe an offer is imminent. Exceptions to this prohibition are available where:
| (a) | the action is approved by Trane Technologies’ shareholders at a general meeting; or |
| (b) | with the consent of the Irish Takeover Panel where: |
| (i) | the Irish Takeover Panel is satisfied the action would not constitute a frustrating action; |
| (ii) | the holders of 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; |
| (iii) | in accordance with a contract entered into prior to the announcement of the offer; or |
| (iv) | the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business. |
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For other provisions that could be considered to have an anti-takeover effect, please see above at “—Pre-emption Rights, Share Warrants and Share Options” and “—Disclosure of Interests in Shares,” in addition to “—Corporate Governance” below.
Corporate Governance
The articles of association of Trane Technologies allocate authority over the management of Trane Technologies to the board of directors. The board of directors may then delegate management of Trane Technologies to committees of the board, executives or to a management team, but regardless, the directors will remain responsible, as a matter of Irish law, for the proper management of the affairs of Trane Technologies. Trane Technologies currently has an Audit Committee, a Compensation Committee, a Sustainability, Corporate Governance and Nominating Committee, a Finance Committee, a Technology and Innovation Committee and an Executive Committee. Trane Technologies has also adopted Corporate Governance Guidelines that provide the corporate governance framework for Trane Technologies.
Legal Name; Formation; Fiscal Year; Registered Office
The legal and commercial name of Trane Technologies, an Irish public limited company, is Trane Technologies plc. Trane Technologies was incorporated in Ireland on April 1, 2009 with company registration number 469272. Trane Technologies’ fiscal year ends on December 31 and its registered address is 170/175 Lakeview Dr., Airside Business Park, Swords, Co. Dublin, Ireland.
Duration; Dissolution; Rights upon Liquidation
Trane Technologies’ duration will be unlimited. Trane Technologies may be dissolved at any time by way of either a shareholders’ voluntary winding up or a creditors’ voluntary winding up. In the case of a shareholders’ voluntary winding up, the consent of not less than 75% of the shareholders of Trane Technologies is required. Trane Technologies may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure where Trane Technologies has failed to file certain returns.
The rights of the shareholders to a return of Trane Technologies’ assets on dissolution or winding up, following the settlement of all claims of creditors, may be prescribed in Trane Technologies’ articles of association or the terms of any preferred shares issued by the directors of Trane Technologies from time to time. The holders of preferred shares in particular may have the right to priority in a dissolution or winding up of Trane Technologies. If the articles of association contain no specific provisions in respect of a dissolution or winding up then, subject to the priorities or any creditors, the assets will be distributed to shareholders in proportion to the paid-up par value of the shares held. Trane Technologies’ articles of association provide that the ordinary shareholders of Trane Technologies are entitled to participate pro rata in a winding up, but their right to do so may be subject to the rights of any preferred shareholders to participate under the terms of any series or class of preferred shares.
Uncertificated Shares
Holders of ordinary shares of Trane Technologies will not have the right to require Trane Technologies to issue certificates for their shares. Trane Technologies will only issue uncertificated ordinary shares.
Stock Exchange Listing
Trane Technologies’ ordinary shares are listed on the NYSE under the symbol “TT.”
No Sinking Fund
The ordinary shares have no sinking fund provisions.
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No Liability for Further Calls or Assessments
All of our issued ordinary shares are duly and validly issued and fully paid.
Transfer and Registration of Shares
Trane Technologies’ share register is maintained by its transfer agent. Registration in this share register will be determinative of membership in Trane Technologies. A shareholder of Trane Technologies who holds shares beneficially will not be the holder of record of such shares. Instead, the depository (for example, Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such shares. Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who also holds such shares beneficially through a depository or other nominee will not be registered in Trane Technologies’ official share register, as the depository or other nominee will remain the record holder of such shares.
A written instrument of transfer is required under Irish law in order to register on Trane Technologies’ official share register any transfer of shares (i) from a person who holds such shares directly to any other person, (ii) from a person who holds such shares beneficially to a person who holds such shares directly, or (iii) from a person who holds such shares beneficially to another person who holds such shares beneficially where the transfer involves a change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer also is required for a shareholder who directly holds shares to transfer those shares into his or her own broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid prior to registration of the transfer on Trane Technologies’ official Irish share register.
We currently intend to pay (or cause one of our affiliates to pay) stamp duty in connection with share transfers made in the ordinary course of trading by a seller who holds shares directly to a buyer who holds the acquired shares beneficially. In other cases Trane Technologies may, in its absolute discretion, pay (or cause one of its affiliates to pay) any stamp duty. Trane Technologies’ articles of association provide that, in the event of any such payment, Trane Technologies (i) may seek reimbursement from the transferor or transferee (at our discretion), (ii) may set-off the amount of the stamp duty against future dividends payable to the transferor or transferee (at our discretion), and (iii) will have a lien against the Trane Technologies shares on which we have paid stamp duty. Parties to a share transfer may assume that any stamp duty arising in respect of a transaction in Trane Technologies shares has been paid unless one or both of such parties is otherwise notified by us.
Trane Technologies’ articles of association delegate to Trane Technologies’ secretary or an assistant secretary the authority to execute an instrument of transfer on behalf of a transferring party. In order to help ensure that the official share register is regularly updated to reflect trading of Trane Technologies shares occurring through normal electronic systems, we intend to regularly produce any required instruments of transfer in connection with any transactions for which we pay stamp duty (subject to the reimbursement and set-off rights described above). In the event that we notify one or both of the parties to a share transfer that we believe stamp duty is required to be paid in connection with such transfer and that we will not pay such stamp duty, such parties may either themselves arrange for the execution of the required instrument of transfer (and may request a form of instrument of transfer from Trane Technologies for this purpose) or request that Trane Technologies execute an instrument of transfer on behalf of the transferring party in a form determined by Trane Technologies. In either event, if the parties to the share transfer have the instrument of transfer duly stamped (to the extent required) and then provide it to Trane Technologies’ transfer agent, the transferee will be registered as the legal owner of the relevant shares on Trane Technologies’ official Irish share register (subject to the matters described below).
The directors of Trane Technologies have general discretion to decline to register an instrument of transfer unless the transfer is in respect of one class of share only.
The registration of transfers may be suspended by the directors at such times and for such period, not exceeding in the whole 30 days in each year, as the directors may from time to time determine.
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DESCRIPTION OF DEPOSITARY SHARES
The following description of preferred shares represented by depositary shares sets forth certain general terms and provisions of depositary agreements, depositary shares and depositary receipts. This summary does not contain all of the information that you may find useful. The particular terms of the depositary shares and related agreements and receipts will be described in the prospectus supplement relating to those depositary shares. For more information, you should review the form of deposit agreement and form of depositary receipts relating to each series of the preferred shares, which will be filed with the SEC promptly after the offering of that series of preferred shares. As used in this section only, “we”, “our” and “us” refers only to Trane Technologies.
General
We may elect to have preferred shares represented by depositary shares. The preferred shares of any series underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or trust company we select. The prospectus supplement relating to a series of depositary shares will set forth the name and address of this preferred share depositary. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, proportionately, to all the rights, preferences and privileges of the preferred share represented by such depositary share (including dividend, voting, redemption, conversion, exchange and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement, each of which will represent the applicable interest in a number of shares of a particular series of the preferred shares described in the applicable prospectus supplement.
A holder of depositary shares will be entitled to receive the preferred shares (but only in whole preferred shares) underlying those depositary shares. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the whole number of preferred shares to be withdrawn, the depositary will deliver to that holder at the same time a new depositary receipt for the excess number of depositary shares.
Unless otherwise specified in the applicable prospectus supplement, the depositary agreement, the depositary shares and the depositary receipts will be governed by and construed in accordance with the laws of the State of New York.
Dividends and Other Distributions
The preferred share depositary will distribute all cash dividends or other cash distributions in respect of the preferred shares to the record holders of depositary receipts in proportion, insofar as possible, to the number of depositary shares owned by those holders.
If there is a distribution other than in cash in respect of the preferred shares, the preferred share depositary will distribute property received by it to the record holders of depositary receipts in proportion, insofar as possible, to the number of depositary shares owned by those holders, unless the preferred share depositary determines that it is not feasible to make such a distribution. In that case, the preferred share depositary may, with our approval, adopt any method that it deems equitable and practicable to effect the distribution, including a public or private sale of the property and distribution of the net proceeds from the sale to the holders.
The amount distributed in any of the above cases will be reduced by any amount we or the preferred share depositary are required to withhold on account of taxes.
Conversion and Exchange
If any preferred share underlying the depositary shares is subject to provisions relating to its conversion or exchange as set forth in an applicable prospectus supplement, each record holder of depositary shares will have the right or obligation to convert or exchange those depositary shares pursuant to those provisions.
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Redemption of Depositary Shares
Whenever we redeem a preferred share held by the preferred share depositary, the preferred share depositary will redeem as of the same redemption date a proportionate number of depositary shares representing the preferred shares that were redeemed. The redemption price per depositary share will be equal to the aggregate redemption price payable with respect to the number of preferred shares underlying the depositary shares. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or proportionately as we may determine.
After the date fixed for redemption, the depositary shares called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the redemption price.
Voting
Upon receipt of notice of any meeting at which the holders of any preferred shares underlying the depositary shares are entitled to vote, the preferred share depositary will mail the information contained in the notice to the record holders of the depositary receipts. Each record holder of the depositary receipts on the record date (which will be the same date as the record date for the preferred shares) may then instruct the preferred share depositary as to the exercise of the voting rights pertaining to the number of preferred shares underlying that holder’s depositary shares. The preferred share depositary will try to vote the number of preferred shares underlying the depositary shares in accordance with the instructions, and we will agree to take all reasonable action which the preferred share depositary deems necessary to enable the preferred share depositary to do so. The preferred share depositary will abstain from voting the preferred shares to the extent that it does not receive specific written instructions from holders of depositary receipts representing the preferred share.
Record Date
Whenever (i) any cash dividend or other cash distribution becomes payable, any distribution other than cash is made, or any rights, preferences or privileges are offered with respect to the preferred shares or (ii) the preferred share depositary receives notice of any meeting at which holders of preferred shares are entitled to vote or of which holders of preferred shares are entitled to notice, or of the mandatory conversion of or any election by us to call for the redemption of any preferred share, then the preferred share depositary will in each instance fix a record date (which will be the same as the record date for the preferred shares) for the determination of the holders of depositary receipts:
| • | who will be entitled to receive dividend, distribution, rights, preferences or privileges or the net proceeds of any sale; or |
| • | who will be entitled to give instructions for the exercise of voting rights at any such meeting or to receive notice of the meeting or the redemption or conversion, subject to the provisions of the deposit agreement. |
Amendment and Termination of the Deposit Agreement
We and the preferred share depositary may at any time agree to amend the form of depositary receipt and any provision of the deposit agreement. However, any amendment that materially and adversely alters the rights of holders of depositary shares will not be effective unless the amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The deposit agreement may be terminated by us or by the preferred share depositary only if all outstanding shares have been redeemed or if a final distribution in respect of the underlying preferred shares has been made to the holders of the depositary shares in connection with the liquidation, dissolution or winding up of us.
Charges of Preferred Share Depositary
We will pay all charges of the preferred share depositary including charges in connection with the initial deposit of the preferred shares, the initial issuance of the depositary receipts, the distribution of information to
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the holders of depositary receipts with respect to matters on which the preferred share is entitled to vote, withdrawals of the preferred share by the holders of depositary receipts or redemption or conversion of the preferred share, except for taxes (including transfer taxes, if any) and other governmental charges and any other charges expressly provided in the deposit agreement to be at the expense of holders of depositary receipts or persons depositing preferred shares.
Miscellaneous
Neither we nor the preferred share depositary will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing any obligations under the deposit agreement. The obligations of the preferred share depositary under the deposit agreement are limited to performing its duties under the agreement without negligence or bad faith. Our obligations under the deposit agreement are limited to performing our duties in good faith. Neither we nor the preferred share depositary is obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred shares unless satisfactory indemnity is furnished. We and the preferred share depositary may rely on advice of or information from counsel, accountants or other persons that they believe to be competent and on documents that they believe to be genuine.
The preferred share depositary may resign at any time or be removed by us, effective upon the acceptance by its successor of its appointment. If we have not appointed a successor preferred share depositary and the successor depositary has not accepted its appointment within 60 days after the preferred share depositary delivered a resignation notice to us, the preferred share depositary may terminate the deposit agreement. See “—Amendment and Termination of the Deposit Agreement” above.
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DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
The following description of share purchase contracts and share purchase units sets forth certain general terms and provisions of share purchase contracts and share purchase units. This summary does not contain all of the information that you may find useful. The particular terms of the share purchase contracts, the share purchase units and, if applicable, the prepaid securities will be described in the prospectus supplement relating to those securities. For more information, you should review the share purchase contracts, the collateral arrangements and any depositary arrangements relating to such share purchase contracts or share purchase units and, if applicable, the prepaid securities and the document pursuant to which the prepaid securities will be issued, each of which will be filed with the SEC promptly after the offering of the securities. As used in this section only, “we”, “our” and “us” refers to only Trane Technologies.
We may issue share purchase contracts representing contracts obligating holders to purchase from us and us to sell to the holders a specified number of ordinary shares or preferred shares at a future date or dates. The price per share of ordinary share or preferred share may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific formula set forth in the share purchase contracts.
The share purchase contracts may be issued separately or as a part of units, often known as share purchase units, consisting of a share purchase contract and either:
| • | debt securities; or |
| • | debt obligations of third parties, including United States Treasury securities, securing the holder’s obligations to purchase the ordinary shares or preferred shares under the share purchase contracts. The share purchase contracts may require us to make periodic payments to the holders of the share purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The share purchase contracts may require holders to secure their obligations in a specified manner and in certain circumstances we may deliver newly issued prepaid share purchase contracts, often known as prepaid securities, upon release to a holder of any collateral securing each holder’s obligations under the original share purchase contract. |
Unless otherwise specified in the applicable prospectus supplement, the share purchase contracts, the share purchase units and the unit agreements pursuant to which the share purchase units will be issued will be governed by and construed in accordance with the laws of the State of New York.
We may sell the securities offered in this prospectus in any of, or any combination of, the following ways:
| • | directly to purchasers; |
| • | through agents; |
| • | through underwriters; and |
| • | through dealers. |
We or any of our agents may directly solicit offers to purchase these securities. If required, the applicable prospectus supplement will name any agent, who may be deemed to be an underwriter as that term is defined in the Securities Act, involved in the offer or sale of the securities in respect of which this prospectus is delivered, and will set forth any commissions payable by us to that agent. Unless otherwise indicated in the prospectus supplement, any such agent will be acting in a best efforts basis for the period of its appointment (ordinarily five business days or less). Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
If we utilize an underwriter or underwriters in the sale, we will execute an underwriting agreement with such underwriters at the time of sale to them. If required, we will set forth in the applicable prospectus
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supplement the names of the underwriters and the terms of the transaction. The underwriters will use the prospectus supplement to make releases of the securities in respect of which this prospectus is delivered to the public.
If we utilize a dealer or agent in the sale of the securities in respect of which this prospectus is delivered, we will sell the securities to the dealer or agent, as principal. The dealer or agent may then resell the securities to the public at varying prices to be determined by the dealer or agent at the time of resale. If required, the prospectus supplement will set forth the name of the dealer or agent and the terms of the transaction.
Agents, underwriters, and dealers may be entitled under the relevant agreements to indemnification by us against certain liabilities, including liabilities under the Securities Act.
If required, the applicable prospectus supplement will set forth the place and time of delivery for the securities in respect of which this prospectus is delivered.
The validity of the debt securities, guarantees, depositary shares, share purchase contracts, share purchase units and warrants that may be issued under this prospectus will be passed upon by King & Spalding LLP, Houston, Texas. The validity of the ordinary shares and preferred shares that may be issued by Trane Technologies under this prospectus and particular matters concerning the laws of Ireland will be passed upon by Arthur Cox LLP, Ireland. Particular matters concerning the laws of Luxembourg will be passed upon by Loyens & Loeff Luxembourg SARL.
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2020 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
SERVICE OF PROCESS AND ENFORCEMENT OF LIABILITIES
Trane Technologies has been advised by its Irish counsel, Arthur Cox LLP, that a judgment for the payment of money rendered by a court in the United States based on civil liability would not automatically be enforceable in Ireland. There is no treaty between Ireland and the United States providing for the reciprocal enforcement of foreign judgments. The following requirements must be met before the foreign judgment will be deemed to be enforceable in Ireland:
| • | the judgment must be for a definite sum; |
| • | the judgment must be final and conclusive; and |
| • | the judgment must be provided by a court of competent jurisdiction. |
An Irish court will also exercise its right to refuse judgment if the foreign judgment was obtained by fraud, if the judgment violated Irish public policy, if the judgment is in breach of natural justice or if it is irreconcilable with an earlier foreign judgment.
Lux International has been advised by its Luxembourg counsel, Loyens & Loeff, that a judgment for the payment of money rendered by a court in the United States based on civil liability would not automatically be enforceable in Luxembourg. There is no treaty between Luxembourg and the United States providing for the reciprocal enforcement of foreign judgment. Enforcement of a judgment obtained against a Luxembourg
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company in a court in the United States by Luxembourg courts will be subject to the applicable enforcement procedure (exequatur). Pursuant to Luxembourg case law, the granting of exequatur is subject to the following requirements:
| • | the foreign court order must be final and duly enforceable (executoire) in the country of origin; |
| • | the court of origin must have had jurisdiction both according to its own laws and to the Luxembourg conflict of jurisdictions rules; |
| • | the foreign procedure must have been regular according to the laws of the country of origin; |
| • | the foreign decision must not violate the rights of defense; |
| • | the foreign court must have applied the law which is designated by Luxembourg conflict of law rules, or, at least, the order must not contravene the principles underlying these rules; |
| • | the considerations of the foreign order as well as the judgment as such must not contravene Luxembourg international public order; and |
| • | the foreign order must not have been rendered subsequent to an evasion of Luxembourg law (fraude à la loi). |
It may be difficult for a securityholder to effect service of process within the United States or to enforce judgments obtained against any of Trane Technologies, TTFL, Lux International or Irish Holdings in United States courts. Each of Trane Technologies, TTFL, Lux International and Irish Holdings has agreed that it may be served with process with respect to actions based on offers and sales of securities made in the United States and other violations of United States securities laws by having TTC, a Delaware limited liability company and wholly owned subsidiary of Trane Technologies, be its United States agent appointed for that purpose. TTC is located at 800-E Beaty Street, Davidson, North Carolina 28036. A judgment obtained against any of Trane Technologies, TTFL, Lux International or Irish Holdings in a United States court would be enforceable in the United States but could be executed upon only to the extent such company has assets in the United States. An Irish court may impose civil liability on Trane Technologies, TTFL or Irish Holdings, or their respective directors or officers, and a Luxembourg court may impose civil liability on Lux International, or its directors or officers in a suit brought against Lux International or its directors or officers, with respect to a violation of United States federal securities laws, provided that the facts surrounding such violation would constitute or give rise to a cause of action under Irish law or Luxembourg law, as the case may be.
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Trane Technologies plc
Trane Technologies HoldCo Inc.
Trane Technologies Financing Limited
Trane Technologies Lux International Holding Company S.à r.l.
Trane Technologies Global Holding Company Limited
Trane Technologies Irish Holdings Unlimited Company
Trane Technologies Company LLC
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| ITEM 14. | Other Expenses of Issuance and Distribution |
The expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, are as follows:
| Amount to be paid |
||||
| SEC registration fee |
$ | (1 | ) | |
| Printing expenses |
(2 | ) | ||
| Accounting fees and expenses |
(2 | ) | ||
| Legal fees and expenses |
(2 | ) | ||
| Transfer agent, registrar and trustee fees and expenses |
(2 | ) | ||
| Fees of rating agencies |
(2 | ) | ||
| Miscellaneous |
(2 | ) | ||
|
|
|
|||
| Total |
$ | (2 | ) | |
| (1) | To be determined. The registrant is deferring payment of the registration fee in reliance on Rule 456(b) and Rule 457(r) under the Securities Act. |
| (2) | These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. |
| ITEM 15. | Indemnification of Directors and Officers |
The Irish Entities
Trane Technologies
Subject to the provisions of and so far as may be admitted by Irish law, Trane Technologies’ articles of association provide that every director and the secretary of Trane Technologies shall be entitled to be indemnified by Trane Technologies against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of Trane Technologies and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court.
Trane Technologies will also indemnify any person who was, is or is threatened to be made a party to a Proceeding (as defined below) by reason of the fact that he or she is or was an “officer” of Trane Technologies as such term is defined under the Exchange Act (excluding any director or secretary) to the fullest extent permitted under Irish law, as the same exists or may hereafter be amended. Such right shall include the right to be paid by Trane Technologies expenses incurred in defending any such Proceeding in advance of its final disposition to the maximum extent permitted under Irish law, as the same exists or may hereafter be amended; provided that to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the officer or other covered person is not entitled to be indemnified under this article or otherwise.
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Trane Technologies has entered into a deed poll indemnity as to each of Trane Technologies’ directors, secretary and officers and senior executives (as may be determined by the board of directors of Trane Technologies from time to time) as well as with individuals serving as a director, officer or some other function of Trane Technologies’ subsidiaries, providing for the indemnification of, and advancement of expenses to, such persons, to the fullest extent permitted by law.
“Proceeding,” as used herein, means any threatened, pending or completed action, suit, claim or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit, claim or proceeding, and any inquiry or investigation that could lead to such an action, suit, claim or proceeding.
Trane Technologies has taken out directors and officers liability insurance, as well as other types of insurance, for its directors, secretary and officers and senior executives.
Trane Technologies has a liability insurance policy in effect that covers certain claims against any of its officers or directors by reason of certain breaches of duty, neglect, errors or omissions committed by such person in his or her capacity as an officer or director. This liability insurance policy also covers the officers and directors (or equivalent) of Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings and TTC.
TTFL
TTFL articles of association provide that every director and the secretary of TTFL shall be entitled to be indemnified by TTFL against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of TTFL and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court.
Irish Holdings
Irish Holdings’ articles of association provide that every director and the secretary of Irish Holdings shall be entitled to be indemnified by Irish Holdings against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of Irish Holdings and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court.
The Delaware Corporations
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. No such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective.
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Section 145 of the DGCL generally provides that all directors and officers (as well as other employees and individuals) may be indemnified against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such individuals if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of derivative actions, except that the DGCL requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. Section 145 of the DGCL permits a corporation to advance expenses to or on behalf of a person entitled to be indemnified upon receipt of an undertaking to repay the amounts advanced if it is determined that the person is not entitled to be indemnified and provides that the right to indemnification and advancement conferred thereby is not exclusive of any other right to which any person may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise. Section 145 of the DGCL also authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as such at any other enterprise against any liability asserted against and incurred by such person in such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person under the DGCL.
Trane Holdco
Certificate of Incorporation. The Certificate of Incorporation of Trane Holdco provides that no director of the registrant shall be liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.
Bylaws. The Bylaws of Trane Holdco provides that Trane Holdco is authorized to indemnify any person who is or was a directors, officer, employees or agent of Trane Holdco (and any other persons to which the DGCL permits Trane Holdco to provide indemnification) to the fullest extent permitted by applicable law. The right of indemnification is not exclusive of any other rights to which a person seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
TTGH
Certificate of Incorporation. The Certificate of Incorporation of TTGH provides that no director of the registrant shall be liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.
By-Laws. The Certificate of Incorporation of TTGH provides that TTGH is authorized to indemnify (and advance expenses to) its directors, officers, employees and agents (and any other persons to which the DGCL permits TTGH to provide indemnification) to the fullest extent permitted by applicable law. The by-laws of TTGH provide that TTGH shall indemnify, and reimburse for reasonable expenses, its officers, directors, employees and agents to the extent permitted by applicable law.
TTC
Section 18-108 of the Delaware Limited Liability Company Act provides that, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a Delaware limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. The Limited Liability Company Agreement of TTC provides that every person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative or
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investigative (other than an action by or in the right of TTC) by reason of the fact that such person is, or was at the time of the alleged event giving rise to a claim for indemnity, (i) a member, manager or officer, (ii) an affiliate of a member, (iii) an employee, agent, fiduciary or trustee of TTC, (iv) an officer, director, manager, employee, agent, fiduciary, or trustee of a member or (v) serving at the request of TTC or a person it controls (directly or indirectly) as an officer, director, manager, employee, agent, fiduciary or trustee of another person (each a “Covered Person”), shall be indemnified by TTC against any and all reasonable costs and expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the Covered Person in connection with such action, suit or proceeding if the Covered Person acted in good faith and in a manner the Covered Person reasonably believed to be in or not opposed to the best interests of TTC, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Covered Person’s conduct was unlawful. TTC may, in the sole discretion of the board of managers, advance expenses to or on behalf of a Covered Person entitled to be indemnified upon receipt of an undertaking to repay the amounts advanced if it is determined that the person is not entitled to be indemnified. TTC may also purchase and maintain insurance on behalf of any Covered Person against any liability that may be asserted against or expense that may be incurred in connection with the TTC’s activities or activities on behalf of TTC, regardless of whether TTC would have the power to indemnify the person against such liability or expense.
Lux International
The articles of association of Lux International provide that the managers act as representatives of the company and are only responsible for the execution of their respective mandate. The law of August 10, 1915, on commercial companies, as amended (the “Lux Companies Law”) provides that the managers shall be liable to the company in accordance with general law for the execution of the mandate given to them and for any misconduct in the management of the company’s affairs. They shall be jointly and severally liable both towards the company and any third parties for damages resulting from the violation of the Lux Companies Law or the articles of association of the company. They shall be discharged from such liability in a case of violation to which they were not a party provided no misconduct is attributable to them and they have reported such violation to the first general meeting after they had acquired knowledge thereof. In addition, managers may under specific circumstances also be subject to criminal liability, such as in the case of an abuse of assets. In the event of bankruptcy managers may be subject to specific criminal and civil liabilities, including the extension of the bankruptcy to the managers.
As indicated above, Trane Technologies has a liability insurance policy in effect that covers certain claims against any of its officers or directors by reason of certain breaches of duty, neglect, errors or omissions committed by such person in his or her capacity as an officer or director. This liability insurance policy also covers the officers and directors (or equivalent) of Lux International. However, under Luxembourg law, such liability insurance cannot extend to cover (i) civil liability caused by intentional fault, willful misconduct or fraud and (ii) criminal liability, and, as a consequence, may not be enforceable in Luxembourg courts.
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| ITEM 16. | Exhibits |
EXHIBIT INDEX
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| * | To be filed by amendment or pursuant to a report filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 and incorporated herein by reference. |
| ITEM 17. | Undertakings |
The undersigned registrants hereby undertake:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering price range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrants pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
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| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
| (i) | Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) (a) That, | for the purpose of determining liability of the registrants under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, each of the undersigned registrants offering securities will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of the undersigned registrants; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser. |
| (b) | The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act, each filing of Trane Technologies’ annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | The undersigned registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the appropriate registrants will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question as to whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Davidson, North Carolina, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES PLC | ||
| By: |
/s/ Michael W. Lamach | |
| (Michael W. Lamach) | ||
| Chairman, Chief Executive Officer and Director | ||
Each person whose signature appears below in their capacity as director or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities listed on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Michael W. Lamach | Chairman, Chief Executive Officer and Director (Principal Executive Officer) | |
| (Michael W. Lamach) | ||
| /s/ Christopher J. Kuehn | Senior Vice President and Chief Financial Officer (Principal Financial Officer) | |
| (Christopher J. Kuehn) | ||
| /s/ Heather R. Howlett | Vice President and Chief Accounting Officer (Principal Accounting Officer) | |
| (Heather R. Howlett) | ||
| /s/ Kirk E. Arnold | Director | |
| (Kirk E. Arnold) | ||
| /s/ Ann C. Berzin | Director | |
| (Ann C. Berzin) | ||
[Signature Page to Registration Statement on Form S-3]
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| Signature |
Title | |
| /s/ John Bruton | Director | |
| (John Bruton) | ||
| /s/ Jared L. Cohon | Director | |
| (Jared L. Cohon) | ||
| /s/ Gary D. Forsee | Director | |
| (Gary D. Forsee) | ||
| /s/ Linda P. Hudson | Director | |
| (Linda P. Hudson) | ||
| /s/ Myles P. Lee | Director | |
| (Myles P. Lee) | ||
| /s/ April Miller Boise | Director | |
| (April Miller Boise) | ||
| /s/ Karen B. Peetz | Director | |
| (Karen B. Peetz) | ||
| /s/ John P. Surma | Director | |
| (John P. Surma) | ||
| /s/ Richard J. Swift | Director | |
| (Richard J. Swift) | ||
| /s/ Tony L. White | Director | |
| (Tony L. White) | ||
| /s/ Evan M. Turtz | Authorized U.S. Representative | |
| (Evan M. Turtz) | ||
[Signature Page to Registration Statement on Form S-3]
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies HoldCo Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Davidson, North Carolina, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES HOLDCO INC. | ||
| By: |
/s/ Evan M. Turtz | |
| (Evan M. Turtz) | ||
| President, Secretary and Director | ||
Each person whose signature appears below in their capacity as director or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities listed on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Evan M. Turtz | President, Secretary and Director | |
| (Evan M. Turtz) | ||
| /s/ Christopher J. Kuehn | Senior Vice President and Chief Financial Officer | |
| (Christopher J. Kuehn) | ||
| /s/ Richard E. Daudelin | Director | |
| (Richard E. Daudelin) | ||
| /s/ Kumar Paul | Director | |
| (Kumar Paul) | ||
[Signature Page to Registration Statement on Form S-3]
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies Financing Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Swords, Ireland, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES FINANCING LIMITED | ||
| By: |
/s/ Christopher Donohoe | |
| (Christopher Donohoe) | ||
| Director | ||
Each person whose signature appears below in their capacity as director or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities listed on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Christopher Donohoe | Director | |
| (Christopher Donohoe) | ||
| /s/ Sighle Flynn | Director | |
| (Sighle Flynn) | ||
| /s/ Evan M. Turtz | Authorized U.S. Representative | |
| (Evan M. Turtz) | ||
[Signature Page to Registration Statement on Form S-3]
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies Lux International Holding Company S.à r.l. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Davidson, North Carolina, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES LUX INTERNATIONAL HOLDING COMPANY S.À R.L. | ||
| By: |
/s/ Bruno Jean-Etienne | |
| (Bruno Jean-Etienne) | ||
| Class A Manager | ||
Each person whose signature appears below in their capacity as manager or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities indicated on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Bruno Jean-Etienne | Class A Manager | |
| (Bruno Jean-Etienne) | ||
| /s/ Stephan Linhardt | Class A Manager | |
| (Stephan Linhardt) | ||
| /s/ Helena Brogan | Class B Manager | |
| (Helena Brogan) | ||
| /s/ Mark Lee | Class B Manager | |
| (Mark Lee) | ||
| /s/ Timea Orosz | Class B Manager | |
| (Timea Orosz) | ||
| /s/ Evan M. Turtz | Authorized U.S. Representative | |
| (Evan M. Turtz) | ||
[Signature Page to Registration Statement on Form S-3]
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies Global Holding Company Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Davidson, North Carolina, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES GLOBAL HOLDING COMPANY LIMITED | ||
| By: |
/s/ Michael W. Lamach | |
| (Michael W. Lamach) | ||
| Chairman, Chief Executive Officer and Director | ||
Each person whose signature appears below in their capacity as director or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities listed on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Michael W. Lamach | Chairman, Chief Executive Officer and Director | |
| (Michael W. Lamach) | ||
| /s/ Christopher J. Kuehn | Senior Vice President, Chief Financial Officer and Director | |
| (Christopher J. Kuehn) | ||
| /s/ Heather R. Howlett | Vice President and Chief Accounting Officer | |
| (Heather R. Howlett) | ||
| /s/ Evan M. Turtz | Director | |
| (Evan M. Turtz) | ||
[Signature Page to Registration Statement on Form S-3]
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies Irish Holdings Unlimited Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Swords, Ireland, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES IRISH HOLDINGS UNLIMITED COMPANY | ||
| By: |
/s/ Christopher Donohoe | |
| (Christopher Donohoe) | ||
| Director | ||
Each person whose signature appears below in their capacity as director or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
******
Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities listed on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Christopher Donohoe | Director | |
| (Christopher Donohoe) | ||
| /s/ Sighle Flynn | Director | |
| (Sighle Flynn) | ||
| /s/ Bruno Jean-Etienne | Director | |
| (Bruno Jean-Etienne) | ||
| /s/ Evan M. Turtz | Authorized U.S. Representative | |
| (Evan M. Turtz) | ||
[Signature Page to Registration Statement on Form S-3]
Table of Contents
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Trane Technologies Company LLC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Davidson, North Carolina, on the 7th day of May, 2021.
| TRANE TECHNOLOGIES COMPANY LLC | ||
| By: |
/s/ Michael W. Lamach | |
| (Michael W. Lamach) | ||
| Chairman, Chief Executive Officer and Manager | ||
Each person whose signature appears below in their capacity as manager or officer hereby appoints Michael W. Lamach, Christopher J. Kuehn and Evan M. Turtz, and each of them (with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her in his or her name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
******
Pursuant to the requirements of the Securities Act of 1933, this registration statement and power of attorney have been signed below by the following persons in the capacities listed on the 7th day of May, 2021.
| Signature |
Title | |
| /s/ Michael W. Lamach | Chairman, Chief Executive Officer and Manager | |
| (Michael W. Lamach) | ||
| /s/ Christopher J. Kuehn | Senior Vice President, Chief Financial Officer and Manager | |
| (Christopher J. Kuehn) | ||
| /s/ Heather R. Howlett | Vice President and Chief Accounting Officer | |
| (Heather R. Howlett) | ||
| /s/ Evan M. Turtz | Manager | |
| (Evan M. Turtz) | ||
[Signature Page to Registration Statement on Form S-3]
Exhibit 4.1
Companies Act 2014
A PUBLIC COMPANY LIMITED BY SHARES
CONSTITUTION
of
TRANE TECHNOLOGIES PUBLIC LIMITED
COMPANY
Incorporated the 1st day of April 2009
ARTHUR COX
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Cert. No.: 469272
Companies Act 2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
- of-
TRANE TECHNOLOGIES PUBLIC LIMITED COMPANY
(As amended by special resolution on 4 February 2020)
| 1. | The name of the Company is Trane Technologies public limited company. |
| 2. | The Company is a public limited company, registered under Part 17 of the Companies Act 2014. |
| 3. | The objects for which the Company is established are: |
| (1) | (a) | To carry on the business of a diversified, global company that provides products, services and solutions and increases productivity and efficiency through the design, manufacture, sale and service of industrial and commercial products, and to do all things usually dealt in by persons carrying on the above mentioned businesses or any of them or likely to be required in connection with any of the said businesses. | ||||
| (b) | To carry on the business of a holding company and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company’s board of directors and to exercise its powers as a shareholder of other companies. | |||||
| (2) | To acquire shares, stocks, debentures, debenture stock, bonds, obligations and securities by original subscription, tender, purchase, exchange or otherwise and to subscribe for the same either conditionally or otherwise, and to guarantee the subscription thereof and to exercise and enforce all rights and powers conferred by or incidental to the ownership thereof. |
| (3) | To facilitate and encourage the creation, issue or conversion of and to offer for public subscription debentures, debenture stocks, bonds, obligations, shares, stocks, and securities and to act as trustees in connection with any such securities and to take part in the conversion of business concerns and undertakings into companies. |
| (4) | To purchase or by any other means acquire any freehold, leasehold or other property and in particular lands, tenements and hereditaments of any tenure, whether subject or not to any charges or incumbrances, for any estate or interest whatever, and any rights, privileges or easements over or in respect of any property, and any buildings, factories, mills, works, wharves, roads, machinery, engines, plant, live and dead stock, barges, vessels or things, and any real or personal property or rights whatsoever which may be necessary for, or may conveniently be used with, or may enhance the value or property of the Company, and to hold or to sell, let, alienate, mortgage, charge or otherwise deal with all or any such freehold, leasehold, or other property, lands, tenements or hereditaments, rights, privileges or easements. |
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| (5) | To sell or otherwise dispose of any of the property or investments of the Company. |
| (6) | To establish and contribute to any scheme for the purchase of shares in the Company to be held for the benefit of the Company’s employees and to lend or otherwise provide money to such schemes or the Company’s employees or the employees of any of its subsidiary or associated companies to enable them to purchase shares of the Company. |
| (7) | To grant, convey, transfer or otherwise dispose of any property or asset of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value thereof and whether by way of gift or otherwise as the Directors shall deem fit and to grant any fee, farm grant or lease or to enter into any agreement for letting or hire of any such property or asset for a rent or return equal to or less than the market or rack rent therefor or at no rent and subject to or free from covenants and restrictions as the Directors shall deem appropriate. |
| (8) | To acquire and undertake the whole or any part of the business, good-will and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which this Company is authorised to carry on, and as part of the consideration for such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into any arrangement for sharing profits, or for cooperation, or for limiting competition or for mutual assistance with any such person, firm or company and to give or accept by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain or sell, mortgage or deal with any shares, debentures, debenture stock or securities so received. |
| (9) | To apply for, purchase or otherwise acquire any patents, brevets d’invention, licences, concessions and the like conferring any exclusive or non-exclusive or limited rights to use or any secret or other information as to any invention which may seem capable of being used for any of the purposes of the Company or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop or grant licences in respect of or otherwise turn to account the property, rights or information so acquired. |
| (10) | To enter into partnership or into any arrangement for sharing profits, union of interests, cooperation, joint venture, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction which the Company is authorised to carry on or engage in or any business or transaction capable of being conducted so as directly to benefit this Company. |
| (11) | To invest and deal with the moneys of the Company not immediately required upon such securities and in such manner as may from time to time be determined. |
| (12) | To lend money to and guarantee the performance of the contracts or obligations of any company, firm or person, and the repayment of the capital and principal of, and dividends, interest or premiums payable on, any stock, shares and securities of any company, whether having objects similar to those of this Company or not, and to give all kinds of indemnities. |
| (13) | To engage in currency exchange and interest rate transactions including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars and any other foreign exchange or interest rate hedging arrangements and such other instruments as are similar to, or derived from, any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency or interest rate exposure or any other exposure or for any other purpose. |
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| (14) | To guarantee, support or secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (both present and future) and uncalled capital of the Company, or by both such methods, the performance of the obligations of, and the repayment or payment of the principal amounts of and premiums, interest and dividends on any securities of, any person, firm or company including (without prejudice to the generality of the foregoing) any company which is for the time being the Company’s holding company as defined by the Companies Act 2014 or a subsidiary as therein defined of any such holding company or otherwise associated with the Company in business. |
| (15) | To borrow or secure the payment of money in such manner as the Company shall think fit, and in particular by the issue of debentures, debenture stocks, bonds, obligations and securities of all kinds, either perpetual or terminable and either redeemable or otherwise and to secure the repayment of any money borrowed, raised or owing by trust deed, mortgage, charge, or lien upon the whole or any part of the Company’s property or assets (whether present or future) including its uncalled capital, and also by a similar trust deed, mortgage, charge or lien to secure and guarantee the performance by the Company of any obligation or liability it may undertake. |
| (16) | To draw, make, accept, endorse, discount, execute, negotiate and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments. |
| (17) | To subscribe for, take, purchase or otherwise acquire and hold shares or other interests in, or securities of any other company having objects altogether or in part similar to those of this Company, or carrying on any business capable of being conducted so as directly or indirectly to benefit this Company. |
| (18) | To hold in trust as trustees or as nominees and to deal with, manage and turn to account, any real or personal property of any kind, and in particular shares, stocks, debentures, securities, policies, book debts, claims and choses in actions, lands, buildings, hereditaments, business concerns and undertakings, mortgages, charges, annuities, patents, licences, and any interest in real or personal property, and any claims against such property or against any person or company. |
| (19) | To constitute any trusts with a view to the issue of preferred and deferred or other special stocks or securities based on or representing any shares, stocks and other assets specifically appropriated for the purpose of any such trust and to settle and regulate and if thought fit to undertake and execute any such trusts and to issue dispose of or hold any such preferred, deferred or other special stocks or securities. |
| (20) | To give any guarantee in relation to the payment of any debentures, debenture stock, bonds, obligations or securities and to guarantee the payment of interest thereon or of dividends on any stocks or shares of any company. |
| (21) | To construct, erect and maintain buildings, houses, flats, shops and all other works, erections, and things of any description whatsoever either upon the lands acquired by the Company or upon other lands and to hold, retain as investments or to sell, let, alienate, mortgage, charge or deal with all or any of the same and generally to alter, develop and improve the lands and other property of the Company. |
| (22) | To provide for the welfare of persons in the employment of or holding office under or formerly in the employment of or holding office under the Company including Directors and ex-Directors of the Company and the spouses, civil partners, widows and families, dependants or connections of such persons by grants of money, pensions or other payments and by forming and contributing to pension, provident or benefit funds or profit sharing or co-partnership schemes for the benefit of such persons and to form, subscribe to or otherwise aid charitable, benevolent, religious, scientific, national or other institutions, exhibitions or objects which shall have any moral or other claims to support or aid by the Company by reason of the locality of its operation or otherwise. |
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| (23) | To remunerate by cash payments or allotment of shares or securities of the Company credited as fully paid up or otherwise any person or company for services rendered or to be rendered to the Company whether in the conduct or management of its business, or in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital, or any debentures or other securities of the Company or in or about the formation or promotion of the Company. |
| (24) | To enter into and carry into effect any arrangement for joint working in business or for sharing of profits or for amalgamation with any other company or association or any partnership or person carrying on any business within the objects of the Company. |
| (25) | To distribute in specie or otherwise as may be resolved, any assets of the Company among its members and in particular the shares, debentures or other securities of any other company belonging to this Company or of which this Company may have the power of disposing. |
| (26) | To vest any real or personal property, rights or interest acquired or belonging to the Company in any person or company on behalf of or for the benefit of the Company, and with or without any declared trust in favour of the Company. |
| (27) | To transact or carry on any business which may seem to be capable of being conveniently carried on in connection with any of these objects or calculated directly or indirectly to enhance the value of or facilitate the realisation of or render profitable any of the Company’s property or rights. |
| (28) | To accept stock or shares in or debentures, mortgages or securities of any other company in payment or part payment for any services rendered or for any sale made to or debt owing from any such company, whether such shares shall be wholly or partly paid up. |
| (29) | To pay all costs, charges and expenses incurred or sustained in or about the promotion and establishment of the Company or which the Company shall consider to be preliminary thereto and to issue shares as fully or in part paid up, and to pay out of the funds of the Company all brokerage and charges incidental thereto. |
| (30) | To procure the Company to be registered or recognised in any foreign country or in any colony or dependency of any such foreign country. |
| (31) | To do all or any of the matters hereby authorised in any part of the world or in conjunction with or as trustee or agent for any other company or person or by or through any factors, trustees or agents. |
| (32) | To make gifts or grant bonuses to the Directors or any other persons who are or have been in the employment of the Company including substitute and alternate directors. |
| (33) | To do all such other things that the Company may consider incidental or conducive to the attainment of the above objects or as are usually carried on in connection therewith. |
| (34) | To carry on any business which the Company may lawfully engage in and to do all such things incidental or conducive to the business of the Company. |
| (35) | To make or receive gifts by way of capital contribution or otherwise. |
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The objects set forth in any sub-clause of this clause shall be regarded as independent objects and shall not, except, where the context expressly so requires, be in any way limited or restricted by reference to or inference from the terms of any other sub-clause, or by the name of the Company. None of such sub-clauses or the objects therein specified or the powers thereby conferred shall be deemed subsidiary or auxiliary merely to the objects mentioned in the first sub-clause of this clause, but the Company shall have full power to exercise all or any of the powers conferred by any part of this clause in any part of the world notwithstanding that the business, property or acts proposed to be transacted, acquired or performed do not fall within the objects of the first sub-clause of this clause.
| NOTE: | It is hereby declared that the word “company” in this clause, except where used in reference to this Company shall be deemed to include any partnership or other body of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere and the intention is that the objects specified in each paragraph of this clause shall except where otherwise expressed in such paragraph be in no way limited or restricted by reference to or inference from the terms of any other paragraph. |
| 4. | The liability of the members is limited. |
| 5. | The share capital of the Company is €40,000 and US$1,175,010,000 divided into 40,000 ordinary shares of €1 each, 1,175,000,000 ordinary shares of US$1.00 each and 10,000,000 preferred shares of US$0,001 each. |
| 6. | The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being. |
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COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
-of-
TRANE TECHNOLOGIES PUBLIC LIMITED COMPANY
PRELIMINARY
(As amended by special resolution on 4 February 2020)
| 1. | The provisions set out in these articles of association shall constitute the whole of the regulations applicable to the Company and no “optional provision” as defined by Section 1007(2) of the Companies Act 2014 (with the exception of Sections 83 and 84 of the Companies Act 2014) shall apply to the Company. |
| 2. | (a) In these articles: |
| “Act” | Means the Companies Act 2014 and every statutory modification and re-enactment thereof and all statutes and statutory instruments which are to be read as one with, or construed or read together as one with, the aforementioned enactments and every statutory modification and re-enactment thereof for the time being in force. | |
| “address” | includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication. | |
| “Assistant Secretary” | means any person appointed by the Secretary from time to time to assist the Secretary. | |
| “Clear Days” | in relation to the period of notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect. | |
| “Company” | means the company whose name appears in the heading to these articles. | |
| “Directors” or “Board” | means the directors from time to time and for the time being of the Company or the directors present at a meeting of the board of directors and includes any person occupying the position of director by whatever name called. | |
| “electronic communication” | has the meaning given to those words in the Electronic Commerce Act 2000. | |
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| “electronic signature” | has the meaning given to those words in the Electronic Commerce Act 2000. | |
| “Group” | means the Company and its subsidiaries from time to time and for the time being. | |
| “Holder” | in relation to any share, the member whose name is entered in the Register as the holder of the share or, where the context. | |
| “IAS Regulation” | means Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards. | |
| “Office” | means the registered office from time to time and for the time being of the Company. | |
| “Ordinary Resolution” | means an ordinary resolution of the Company’s members within the meaning of the Act | |
| “Redeemable Shares” | means redeemable shares in accordance with the Act. | |
| “Register” | means the register of members to be kept as required in accordance with the Act. | |
| “Special Resolution” | means a special resolution of the Company’s members within the meaning of the Act. | |
| “seal” | means the common seal of the Company. | |
| “Secretary” | means any person appointed to perform the duties of the secretary of the Company. | |
| “these articles” | means the articles of association of which this article 2 forms part, as the same may be amended and may be from time to time and for the time being in force. | |
| (b) | Expressions in these articles referring to writing shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes of representing or reproducing words in a visible form except as provided in these articles and/or, where it constitutes writing in electronic form sent to the Company, the Company has agreed to its receipt in such form. Expressions in these articles referring to execution of any document shall include any mode of execution whether under seal or under hand or any mode of electronic signature as shall be approved by the Directors. Expressions in these articles referring to receipt of any electronic communications shall, unless the contrary intention appears, be limited to receipt in such manner as the Company has approved. |
| (c) | Unless the contrary intention appears, words or expressions contained in these articles shall bear the same meaning as in the Act or in any statutory modification thereof in force at the date at which these articles become binding on the Company. |
| (d) | References herein to any enactment shall mean such enactment as the same may be amended and may be from time to time and for the time being in force. |
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| (e) | The masculine gender shall include the feminine and neuter, and vice versa, and the singular number shall include the plural, and vice versa, and words importing persons shall include firms or companies |
| (f) | Reference to US$, USD, or dollars shall mean the currency of the United States of America and to €, euro, EUR or cent shall mean the currency of Ireland. |
SHARE CAPITAL AND VARIATION OF RIGHTS
| 3. | (a) | The share capital of the Company is €40,000 and US$1,175,010,000 divided into 40,00 ordinary shares of €1 each, 1,175,000,000 ordinary shares of US$1.00 each and 10,000,000 preferred shares of US$0,001 each. |
| (b) | The rights and restrictions attaching to the ordinary shares shall be as follows: |
| (i) | subject to the right of the Company to set record dates for the purposes of determining the identity of members entitled to notice of and/or to vote at a general meeting and the authority of the Board and chairman of the meeting to maintain order and security, the right to attend any general meeting of the Company and to exercise one vote per ordinary share held at any general meeting of the Company; |
| (ii) | the right to participate pro rata in all dividends declared by the Company; and |
| (iii) | the right, in the event of the Company’s winding up, to participate pro rata in the total assets of the Company. |
The rights attaching to the ordinary shares may be subject to the terms of issue of any series or class of preferred shares allotted by the Directors from time to time in accordance with article 3(c).
| (c) | The Board is empowered to cause the preferred shares to be issued from time to time as shares of one or more series of preferred shares, and in the resolution or resolutions providing for the issue of shares of each particular series, before issuance, the Board is expressly authorised to fix: |
| (i) | the distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased (except as otherwise provided by the Board in creating such series) or decreased (but not below the number of shares thereof then in issue) from time to time by resolution of the Board; |
| (ii) | the rate of dividends payable on shares of such series, whether or not and upon what conditions dividends on shares of such series shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate; |
| (iii) | the terms, if any, on which shares of such series may be redeemed, including without limitation, the redemption price or prices for such series, which may consist of a redemption price or scale of redemption prices applicable only to redemption in connection with a sinking fund (which term as used herein shall include any fund or requirement for the periodic purchase or redemption of shares), and the same or a different redemption price or scale of redemption prices applicable to any other redemption; |
| (iv) | the terms and amount of any sinking fund provided for the purchase or redemption of shares of such series; |
| (v) | the amount or amounts which shall be paid to the holders of shares of such series in case of liquidation, dissolution or winding up of the Company, whether voluntary or involuntary; |
| (vi) | the terms, if any, upon which the holders of shares of such series may convert shares thereof into shares of any other class or classes or of any one or more series of the same class or of another class or classes; |
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| (vii) | the voting rights, full or limited, if any, of the shares of such series; and whether or not and under what conditions the shares of such series (alone or together with the shares of one or more other series having similar provisions) shall be entitled to vote separately as a single class, for the election of one or more additional Directors of the Company in case of dividend arrears or other specified events, or upon other matters; |
| (viii) | whether or not the holders of shares of such series, as such, shall have any preemptive or preferential rights to subscribe for or purchase shares of any class or series of shares of the Company, now or hereafter authorised, or any securities convertible into, or warrants or other evidences of optional rights to purchase or subscribe for, shares of any class or series of the Company, now or hereafter authorised; |
| (ix) | whether or not the issuance of additional shares of such series, or of any shares of any other series, shall be subject to restrictions as to issuance, or as to the preferences, rights and qualifications of any such other series; and |
| (x) | Such other rights, preferences and limitations as may be permitted to be fixed by the Board of the Company under the laws of Ireland as in effect at the time of the creation of such series. |
The Board is authorised to change the designations, rights, preferences and limitations of any series of preferred shares theretofore established, no shares of which have been issued.
The rights conferred upon the Holder of any pre-existing shares in the share capital of the Company shall be deemed not to be varied by the creation, issue and allotment of preferred shares in accordance with this article 3.
| (d) | An ordinary share shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any third party pursuant to which the Company acquires or will acquire ordinary shares, or an interest in ordinary shares, from the relevant third party. In these circumstances, the acquisition of such shares, or an interest in such shares, by the Company shall constitute the redemption of a Redeemable Share in accordance with the Act. |
| 4. | Subject to the provisions of the Act and the other provisions of this article, the Company may: |
| (a) | pursuant to the Act, issue any shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the member on such terms and in such manner as may be determined by the Company in general meeting (by Special Resolution) on the recommendation of the Directors; or |
| (b) | Subject to and in accordance with the provisions of the Act and without prejudice to any relevant special rights attached to any class of shares pursuant to the Act, purchase any of its own shares (including any Redeemable Shares and without any obligation to purchase on any pro rata basis as between members or members of the same class) and may cancel any shares so purchased or hold them as treasury shares (as defined in the Act) and may reissue any such shares as shares of any class or classes. |
| 5. | Without prejudice to any special rights previously conferred on the Holders of any existing shares or class of shares or to the authority conferred on the Directors pursuant to article 3 to issue the preferred shares, any share in the Company may be issued with such preferred or deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the Company may from time to time by Ordinary Resolution determine |
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| 6. (a) | Without prejudice to the authority conferred on the Directors pursuant to article 3 to issue shares in the capital of the Company, if at any time the share capital is divided into different classes of shares the rights attached to any class or series may, whether or not the Company is being wound up, be varied or abrogated with the consent in writing of the Holders of 75% of the shares then in issue of that class, or with the sanction of a Special Resolution passed at a separate general meeting of the Holders of the shares of that class or series. To every such meeting the provisions of article 31 shall apply. |
| (b) | The redemption or purchase of preferred shares or any class or series of preferred shares shall not constitute a variation of rights of the preferred Holders. |
| (c) | The issue, redemption or purchase of any of the 10,000,000 preferred shares of US$0,001 shall not constitute a variation of the rights of the Holders of ordinary shares. |
| (d) | The issue of preferred shares or any class or series of preferred shares which rank pari passu with, or junior to, any existing preferred shares or class of preferred shares shall not constitute a variation of the existing preferred shares or class of preferred shares. |
| 7. | The rights conferred upon the Holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith. |
| 8. | (a) Subject to the provisions of these articles relating to new shares, the shares shall be at the |
disposal of the Directors, and they may (subject to the provisions of the Acts) allot, grant options over or otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its members.
| (b) | Subject to any requirement to obtain the approval of members under any laws, regulations or the rules of any stock exchange to which the Company is subject, the Board is authorised, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the Board deems advisable, options to purchase or subscribe for such number of shares of any class or classes or of any series of any class as the Board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. |
| (c) | Nothing in these articles shall preclude the Directors from recognising a renunciation of the allotment of any shares by any allottee in favour of some other person. |
| 9. | The Company may pay commission to any person in consideration of a person subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the Company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the Company on such terms and subject to such conditions as the Directors may determine, including, without limitation, by paying cash or allotting and issuing fully or partly paid shares or any combination of the two. The Company may also, on any issue of shares, pay such brokerage as may be lawful. |
| 10. | Except as required by law, no person shall be recognised by the Company as holding any share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share or (except only as by these articles or by law otherwise provided) any other rights in respect of any share except an absolute right to the entirety thereof in the Holder. |
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| 11. | No person shall be entitled to a share certificate in respect of any ordinary share held by them in the share capital of the Company, whether such ordinary share was allotted or transferred to them, and the Company shall not be bound to issue a share certificate to any such person entered in the Register. |
| 12. | The Company shall not give, whether directly or indirectly and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of an acquisition made or to be made by any person of or for any shares in the Company or in its holding company, except as permitted by the Act. |
TRANSFER OF SHARES
| 13. | (a) The instrument of transfer of any share may be executed for and on behalf of the transferor |
by the Secretary, an Assistant Secretary or more person(s) (whether an individual, body corporate, officeholder or firm) that the Secretary or Assistant Secretary nominates for that purpose from time to time (whether in respect of specific transfers or pursuant to a general standing authorisation), and the Secretary, Assistant Secretary or a relevant nominee shall be deemed to have been irrevocably appointed agent for the transferor of such share or shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such share or shares all such transfers of shares held by the members in the share capital of the Company. Any document which records the name of the transferor, the name of the transferee, the class and number of shares agreed to be transferred and the date of the agreement to transfer shares, shall, once executed by the transferor or the Secretary, Assistant Secretary or a relevant nominee as agent for the transferor, be deemed to be a proper instrument of transfer for the purposes of the Act. The transferor shall be deemed to remain the Holder of the share until the name of the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor shall be affected by any irregularity or invalidity in the proceedings in reference to the sale should the Directors so determine.
| (b) | The Company, at its absolute discretion, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of shares on behalf of the transferee of such shares of the Company. If stamp duty resulting, from the transfer of shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) seek reimbursement of the stamp duty from the transferor or transferee (at its discretion), (ii) set-off the stamp duty against any dividends payable to the transferor or transferee (at its discretion) and (iii) to claim a first and permanent lien on the shares on which stamp duty has been paid by the Company or its subsidiary for the amount of stamp duty paid. The Company’s lien shall extend to all dividends paid on those shares. |
| (c) | Notwithstanding the provisions of these articles and subject to any regulations or amending regulations made under the Act, title to any shares in the Company may also be evidenced and transferred without a written instrument in accordance with the Act or any regulations or amending regulations made thereunder. The Directors shall have power to permit any class of shares to be held in uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these articles with respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations. |
14. Subject to such of the restrictions of these articles, the Act, and to such of the conditions of issue of any share warrants as may be applicable, the shares of any member and any share warrant may be transferred by instrument in writing in any usual or common form or any other form which the Directors may approve.
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15. The Directors may decline to recognise any instrument of transfer unless the instrument of transfer is in respect of one class of share only.
16. If the Directors refuse to register a transfer they shall, within two months after the date on which the transfer was lodged with the Company, send to the transferee notice of the refusal.
| 17. | (a) The Directors may from time to time fix any date as the record date for the purposes of determining the rights of members to notice of and/or to vote at any general meeting of the Company, provided that such record shall not be more than sixty days before the date of such general meeting. If no record date is fixed by the Directors, the record date for determining members entitled to notice of or to vote at a meeting of the members shall be the close of business on the day next preceding the day on which notice is given. Unless the Directors determine otherwise, a determination of members of record entitled to notice of or to vote at a meeting of members shall apply to any adjournment or postponement of the meeting. |
| (b) | In order that the Directors may determine the members entitled to receive payment of any dividend or other distribution or allotment of any rights or the members entitled to exercise any rights in respect of any change, conversion or exchange of shares, or for the purpose of any other lawful action, the Board may fix any date as the record date, provided that such record date shall not be more than sixty days before the date of such action. If no record date is fixed, the record date for determining members for such purpose shall be at the close of business on the day on which the Directors adopt the resolution relating thereto. |
| 18. | Registration of transfers may be suspended at such times and for such period, not exceeding in the whole 30 days in each year, as the Directors may from time to time determine subject to the requirements of the Act. |
| 19. | All instruments of transfer shall upon their being lodged with the Company remain the property of the Company and the Company shall be entitled to retain them. |
TRANSMISSION OF SHARES
| 20. | In the case of the death of a member, the survivor or survivors where the deceased was a joint Holder, and the personal representatives of the deceased where he was a sole Holder, shall be the only persons recognised by the Company as having any title to his interest in the shares: but nothing herein contained shall release the estate of a deceased joint Holder from any liability in respect of any share which had been jointly held by him with other persons. |
| 21. | Any person becoming entitled to a share in consequence of the death or bankruptcy of a member may, upon such evidence being produced as may from time to time properly be required by the Directors and subject as herein provided, elect either to be registered himself as Holder of the share or to have some person nominated by him registered as the transferee thereof, but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the shares by that member before his death or bankruptcy, as the case may be. |
| 22. | If the person so becoming entitled elects to be registered himself, he shall deliver or send to the Company a notice in writing signed by him stating that he so elects. If he elects to have another person registered, he shall testify his election by executing to that person a transfer of the share. All the limitations, restrictions and provisions of these regulations relating to the right to transfer and the registration of transfers of shares shall be applicable to any such notice or transfer as aforesaid as if the death or bankruptcy of the member had not occurred and the notice of transfer were a transfer signed by that member. |
| 23. | A person becoming entitled to a share by reason of the death or bankruptcy of the Holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered Holder of the share, except that he shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to the meetings of the Company, so, however, that the Directors may at any time give notice requiring such person to elect either to be registered himself or to transfer the share, and if the notice is not complied with within 90 days, the Directors may thereupon withhold payment of all dividends, bonuses or other moneys payable in respect of the share until the requirements of the notice have been complied with. |
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ALTERATION OF CAPITAL
| 24. | The Company may from time to time by Ordinary Resolution increase the authorised share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe. |
| 25. | The Company may by Ordinary Resolution: |
| (a) | consolidate and divide all or any of its share capital into shares of larger amount than its existing shares; |
| (b) | subdivide its existing shares, or any of them, into shares of smaller amount than is fixed by the memorandum of association subject, nevertheless, to the provisions of the Act; |
| (c) | increase the nominal value of any of its shares by the addition to them of any undenominated capital; |
| (d) | reduce the nominal value of any of its shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account; or |
| (e) | cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and reduce the amount of its authorised share capital by the amount of the shares so cancelled. |
| 26. | The Company may by Special Resolution reduce its share capital, any capital redemption reserve fund, share premium account or undenominated capital in any manner and with and subject to any incident authorised, and consent required, by law and any reserve arising from such reduction of capital shall be treated as a realised profit in accordance with the Act. |
| 27. | Whenever as a result of an alternation or reorganisation of the share capital of the Company any members would become entitled to fractions of a share, the Directors may, on behalf of those members, sell the shares representing the fractions for the best price reasonably obtainable to any person and distribute the proceeds of sale (subject to any applicable tax, abandoned property laws and the reasonable expenses of sale) in due proportion among those members, and the Directors may authorise any person to execute an instrument of transfer of the shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale. |
GENERAL MEETINGS
| 28. | The Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the notices calling it. Not more than fifteen months shall elapse between the date of one annual general meeting of the Company and that of the next. Subject to the Act, all general meetings of the Company may be held outside of Ireland. |
| 29. | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
| 30. | (a) The Chairman or the Board by vote of a majority of the Board may convene an |
extraordinary general meeting.
| (b) | Extraordinary general meetings shall also be convened on such requisition, or in default by such requisitionists, as provided in Section 178(3) to (7) of the Companies Act 2014. |
| 31. | All provisions of these articles relating to general meetings of the Company shall, mutatis mutandis, apply to every separate general meeting of the Holders of any class or series of shares in the capital of the Company, except that: |
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| (a) | the necessary quorum shall be two or more persons holding or representing by proxy (whether or not such Holder actually exercises his voting rights in whole, in part or at all at the relevant general meeting) at least one-third in nominal value of the issued shares of the class or series or, at any adjourned meeting of such Holders, one Holder present in person or by proxy, whatever the amount of his holding, shall be deemed to constitute a meeting; |
| (b) | any Holder of shares of the class or series present in person or by proxy may demand a poll; and |
| (c) | on a poll, each Holder of shares of the class or series shall have one vote in respect of every share of the class held by him. |
| 32. | A Director shall be entitled, notwithstanding that he is not a member, to attend and speak at any general meeting and at any separate meeting of the Holders of any class of shares in the Company. |
| 33. | (a) The Board may, in its absolute discretion, authorise the Secretary to postpone any general meeting called in accordance with the provisions of these articles (other than a meeting requisitioned under article 30(b) of these articles or the postponement of which would be contrary to the Act or a court order pursuant to the Act) if the Board considers that, for any reason, it is impractical or unreasonable to hold the general meeting, provided that notice of postponement is given to each member before the time for such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each member in accordance with the provisions of these articles. |
| (b) | The Board may, in its absolute discretion, authorise the Secretary to cancel any general meeting called in accordance with the provisions of these articles (other than a meeting requisitioned under article 30(b) of these articles or the cancellation of which would be contrary to the Act or a court order pursuant to the Act) if the Board considers that, for any reason, it is impractical or unreasonable to hold the general meeting, provided that notice of cancellation is given to each member before the time for such meeting. |
NOTICE OF GENERAL MEETINGS
| 34. | (a) Subject to the provisions of the Act allowing a general meeting to be called by shorter notice, an annual general meeting, and an extraordinary general meeting called for the passing of a Special Resolution, shall be called by not more than sixty Clear Days’ notice and not less than twenty-one Clear Days’ notice and all other extraordinary general meetings shall be called by not more than sixty Clear Days’ notice and not less than fourteen Clear Days’ notice. |
| (b) | Any notice convening a general meeting shall specify the time and place of the meeting and, in the case of special business, the general nature of that business and, in reasonable prominence, that a member entitled to attend and vote is entitled to appoint a proxy to attend, speak and vote in his place and that a proxy need not be a member of the Company. It shall also give particulars of any Directors who are to retire at the meeting and of any persons who are recommended by the Directors for appointment or re-appointment as Directors at the meeting or in respect of whom notice has been duly given to the Company of the intention to propose them for appointment or re-appointment as Directors at the meeting. Notwithstanding the foregoing, the latter requirement shall only apply where the intention to propose the person has been received by the Company in accordance with the provisions of these articles. Subject to any restrictions imposed on any shares, the notice of the meeting shall be given to all the members of the Company as of the record date set by the Directors and to the Directors and the statutory auditors. |
| (c) | The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting. |
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PROCEEDINGS AT GENERAL MEETINGS
| 35. | All business shall be deemed special that is transacted at an extraordinary general meeting, and also that is transacted at an annual general meeting with the exception of: |
| (a) | the consideration of the Company’s statutory financial statements and the report of the Director and the report of the statutory auditors on those statements and that report; |
| (b) | the review by the members of the Company’s affairs; |
| (c) | the declaration of a dividend (if any) of an amount not exceeding the amount recommended by the Directors; |
| (d) | the appointment and re-appointment of statutory auditors; |
| (e) | the authorisation of the Directors to approve the remuneration of the statutory auditors; and |
| (f) | the election and re-election of Directors, |
or otherwise as provided for by the Act.
| 36. | (a) At any annual general meeting only such business shall be conducted as shall have been brought before the meeting (i) by or at the direction of the Board or (ii) by any member entitled to vote at such meeting who complies with the procedures set forth in this article or article 84, as applicable. |
| (b) | Any member entitled to vote at any annual general meeting may propose business to be included in the agenda of such meeting only if written notice of such member’s intent is given to the Secretary of the Company, either by personal delivery or mail or by facsimile, not later than 90 days in advance of the anniversary of the immediately preceding annual general meeting or if the date of the annual general meeting of members occurs more than 30 days before or 60 days after the anniversary of such immediately preceding annual general meeting, not later than the close of business on the seventh day following the date on which notice of such meeting is given to members. A member’s notice to the Secretary shall set forth in writing as to each matter such member proposes to bring before the annual general meeting (i) a brief description of the business desired to be brought before the annual general meeting and the reasons for conducting such business at the annual general meeting, (ii) the name and address, as they appear on the Company’s books, of the members proposing such business, (iii) the class and number of shares of the Company which are beneficially owned by the member and (iv) any material interest of the member in such business. Notwithstanding anything in these articles to the contrary, no business shall be conducted at an annual general meeting except in accordance with the procedures set forth in this article. The Chairman or other person presiding at the annual general meeting shall, if the facts so warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this subparagraph, and, if such Chairman or other person should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. |
| (c) | Any member entitled to vote for the election of Directors at a meeting or to express a consent in writing without a meeting may nominate a person or persons for election as a Director only if written notice of such member’s intent to make such nomination is given to the Secretary of the Company, either by personal delivery, mail or facsimile not later than (i) with respect to an election to be held at an annual general meeting of members, 90 days in advance of the anniversary of the immediately preceding annual general meeting or if the date of the annual general meeting of members occurs more than 30 days before or 60 days after the anniversary of such immediately preceding annual general meeting, not later than the close of business on the seventh day following the date on which notice of such meeting is given to members provided, however, that if such member wishes to have their nominee or nominees for Director included in the Company’s proxy materials for the applicable annual general meeting, then such member shall comply with the notice requirements set forth in article 84; and (ii) in the case of any member who wishes to nominate a person or persons for election as a Director pursuant to consents in |
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writing by members without a meeting (to the extent election by such consents is permitted under applicable law and these articles), 60 days in advance of the date on which materials soliciting such consents are first mailed to members or, if no such materials are required to be mailed under applicable law, 60 days in advance of the date on which the first such consent in writing is executed. Each such notice shall set forth the name and address of the member who intends to make the nomination and of the person or persons to be nominated for election as a Director, a representation that the member is a holder of record of shares of the Company entitled to vote at such meeting or to express such consent in writing and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice or to execute such a consent in writing to elect such person or persons as a Director, a description of all arrangements or understandings between the member and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations for election as a Director are to be made by the member, such other information regarding each nominee proposed by such member as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the United States Securities and Exchange Commission if such nominee had been nominated, or was intended to be nominated, for election as a Director by the Board, and the consent of each nominee to serve as a Director if so elected. The Board may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedures.
| 37. | Except as otherwise provided by law, at any extraordinary general meeting only such business shall be conducted as is set forth in the notice thereof or otherwise properly brought before the meeting by or at the direction of the Board. |
| 38. | Except as otherwise provided by law, the memorandum of association or these articles, the chairman of the meeting shall have the power to determine whether a nomination or any other business proposed to be brought before a general meeting was made or proposed, as the case may be, in accordance with these articles and, if any proposed nomination or other business is not in compliance with these articles, to declare that no action shall be taken on such nomination or other proposal and such nomination or other proposal shall be disregarded. |
| 39. | No business shall be transacted at any general meeting unless a quorum is present at the time when the meeting proceeds to business. The Holders of shares, present in person or by proxy (whether or not such Holder actually exercises his voting rights in whole, in part or at all at the relevant general meeting), entitling them to exercise a majority of the voting power of the Company on the relevant record date shall constitute a quorum. |
| 40. | If the holders of the number of shares necessary to constitute a quorum shall fail to attend in person or by proxy at the time and place fixed by these articles for a general meeting, a majority in interest of the members present, in person or by proxy, may adjourn from time to time without notice other than announcement at the meeting until the holders of the amount of shares requisite to constitute a quorum shall attend. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified. |
| 41. | The Chairman, if any, of the Board, shall preside as chairman at every general meeting of the Company, or if there is no such Chairman, or if he is not present within fifteen minutes after the time appointed for the holding of the meeting or is unwilling to act, the Directors present shall elect one of their number to be chairman of the meeting. |
| 42. | If at any meeting no Director is willing to act as Chairman or if no Director is present within fifteen minutes after the time appointed for holding the meeting, the members present shall choose one of their number to be chairman of the meeting. |
| 43. | The Chairman of the meeting may, with the consent of a majority of the members, in any general meeting at which a quorum is present (and shall if so directed), adjourn the meeting. Unless the meeting is adjourned to a specific date and time, fresh notice of the date, time and place for the resumption of the adjourned meeting shall be given to each member in accordance with the provisions of these articles. |
| 44. | At any general meeting a resolution put to the vote of the meeting shall be decided by poll. |
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| 45. | A poll shall be taken in such manner as the Chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was taken. |
| 46. | [RESERVED] |
| 47. | Subject to the provisions of the Act, a resolution in writing signed by all of the members for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly authorised representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the Company duly convened and held, and may consist of several documents in like form each signed by one or more persons, and if described as a special resolution shall be deemed to be a special resolution within the meaning of the Act. Any such resolution shall be served on the Company. |
| 48. | The Board may, and at any general meeting, the chairman of such meeting may make any arrangement and impose any requirement or restriction it or he considers appropriate to ensure the security of a general meeting including, without limitation, requirements for evidence of identity to be produced by those attending the meeting, the searching of their personal property and the restriction of items that may be taken into the meeting place. The Board and, at any general meeting, the chairman of such meeting are entitled to refuse entry to a person who refuses to comply with any such arrangements, requirements or restrictions. |
| 49. | (a) The Board may make such arrangements as it considers appropriate to enable the members to participate in any general meeting by means of electronic or other communication facilities, so as to permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting. |
| (b) | The Board may, and at any general meeting, the chairman of such meeting may make any arrangement and impose any requirement as may be reasonable for the purpose of verifying the identity of members participating by way of electronic or other communication facilities, as described in sub-paragraph (a) of this article. |
VOTES OF MEMBERS
| 50. | Subject to any special rights or restrictions as to voting for the time being attached by or in accordance with these articles to any class of shares, every member who is present in person or by proxy shall have one vote for each share of which he is the Holder. |
| 51. | When there are joint Holders, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint Holders, and for this purpose, seniority shall be determined by the order in which the names stand in the Register. |
| 52. | A member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction (whether in Ireland or elsewhere) in matters concerning mental disorder, may vote, by his committee, receiver, guardian or other person appointed by that court and any such committee, receiver, guardian or other person may vote by proxy. Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote shall be received at the Office or at such other address as is specified in accordance with these articles for the receipt of appointments of proxy, not less than 48 hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised and in default the right to vote shall not be exercisable. |
| 53. | No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered, and every vote not disallowed at such meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the chairman of the meeting, whose decision shall be final and conclusive. |
| 54. | Votes may be given either personally or by proxy. |
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| 55. | (a) Every member entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his behalf and may appoint more than one proxy to attend, speak and vote at the same meeting. The appointment of a proxy shall be in any form which the Directors may approve and, if required by the Company, shall be signed by or on behalf of the appointor. In relation to written proxies, a body corporate may sign a form of proxy under its common seal or under the hand of a duly authorised officer thereof or in such other manner as the Directors may approve. A proxy need not be a member of the Company. The appointment of a proxy in electronic or other form shall only be effective in such manner as the Directors may approve. |
| (b) | Without limiting the foregoing, the Directors may from time to time permit appointments of a proxy to be made by means of a telephonic, electronic or internet communication or facility and may in a similar manner permit supplements to, or amendments or revocations of, any such telephonic, electronic or internet communication or facility to be made. The Directors may in addition prescribe the method of determining the time at which any such telephonic, electronic or Internet communication or facility is to be treated as received by the Company. The Directors may treat any such telephonic, electronic or Internet communication or facility which purports to be or is expressed to be sent on behalf of a Holder of a share as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that Holder. |
| (c) | A proxy must be submitted in accordance with the procedures permitted in these Articles by such time as is prescribed in the notice of meeting, and if no time is specified, by no later than 48 hours before the commencement of the meeting. |
| 56. | Any body corporate which is a member of the Company may authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of members of the Company and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he represents as that body corporate could exercise if it were an individual member of the Company. The Company may require evidence from the body corporate of the due authorisation of such person to act as the representative of the relevant body corporate. |
| 57. | An appointment of proxy relating to more than one meeting (including any adjournment thereof) having once been received by the Company for the purposes of any meeting shall not require to be delivered, deposited or received again by the Company for the purposes of any subsequent meeting to which it relates. |
| 58. | Receipt by the Company of an appointment of proxy in respect of a meeting shall not preclude a member from attending and voting at the meeting or at any adjournment thereof. An appointment proxy shall be valid, unless the contrary is stated therein, as well for any adjournment of the meeting as for the meeting to which it relates. |
| 59. | (a) A vote given in accordance with the terms of an appointment of proxy or a resolution authorising |
a representative to act on behalf of a body corporate shall be valid notwithstanding the death or insanity of the principal, or the revocation of the appointment of proxy or of the authority under which the proxy was appointed or of the resolution authorising the representative to act or transfer of the share in respect of which the proxy was appointed or the authorisation of the representative to act was given, provided that no intimation in writing (whether in electronic form or otherwise) of such death, insanity, revocation or transfer shall have been received by the Company at the Office before the commencement of the meeting or adjourned meeting at which the appointment of proxy is used or at which the representative acts.
| (b) | The Directors may send, at the expense of the Company, by post, electronic mail or otherwise, to the members forms for the appointment of a proxy (with or without stamped envelopes for their return) for use at any general meeting or at any class meeting, either in blank or nominating any one or more of the Directors or any other persons in the alternative. |
| 60. | [RESERVED], |
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DIRECTORS
| 61. | The continuing Directors may act notwithstanding any vacancy in their body, provided that if the number of the Directors is reduced below the minimum prescribed in accordance with article 81 the remaining Director or Directors shall appoint forthwith an additional Director or additional Directors to make up such minimum or shall convene a general meeting of the Company for the purpose of making such appointment. If, at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum due to the failure of any Directors to be re-elected, then in those circumstances, the two Directors which receive the highest number of votes in favour of re-election shall be re-elected and shall remain Directors until such time as additional Directors have been appointed to replace them as Directors. If, at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum in any circumstances where one Director is re-elected, then that Director shall hold office until the next annual general meeting and the Director which (excluding the re-elected Director) receives the highest number of votes in favour of re-election shall be re-elected and shall remain a Director until such time as one or more additional Directors have been appointed to replace him or her. If there be no Director or Directors able or willing to act then any two members may summon a general meeting for the purpose of appointing Directors. Any additional Director so appointed shall hold office (subject to the provisions of the Act and these articles) only until the conclusion of the annual general meeting of the Company next following such appointment unless he is re-elected during such meeting. |
| 62. | Each Director shall be paid a fee for the services at such rate as may from time to time be determined by the Board. The Directors may also be paid all traveling, hotel and other expenses properly incurred by them in attending and returning from meetings of the Directors or any committee of the Directors or general meetings of the Company or in connection with the business of the Company. |
| 63. | If any Director shall be called upon to perform extra services which in the opinion of the Directors are outside the scope of the ordinary duties of a Director, the Company may remunerate such Director either by a fixed sum or by a percentage of profits or otherwise as may be determined by a resolution passed at a meeting of the Directors and such remuneration may be either in addition to or in substitution for any other remuneration to which he may be entitled as a Director. |
| 64. | No shareholding qualification for Directors shall be required. A Director who is not a member of the Company shall nevertheless be entitled to attend and speak at general meetings. |
| 65. | Unless the Company otherwise directs, a Director of the Company may be or become a Director or other officer of, or otherwise interested in, any company promoted by the Company or in which the Company may be interested as Holder or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him as a Director or officer of, or from his interest in, such other company. |
BORROWING POWERS
| 66. | Subject to the Act, the Directors may exercise all the powers of the Company to borrow or raise money, and to mortgage or charge its undertaking, property, assets and uncalled capital or any part thereof and to issue debentures, debenture stock and other securities whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party, without any limitation as to amount. |
POWERS AND DUTIES OF THE DIRECTORS
| 67. | The business of the Company shall be managed by the Directors, who may pay all expenses incurred in promoting and registering the Company and may exercise all such powers of the Company as are not, by the Act or by these articles, required to be exercised by the Company in general meeting, subject, nevertheless, to any of these articles and to the provisions of the Act. |
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| 68. | The Directors may from time to time and at any time by power of attorney appoint any company, firm or person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these articles) and for such period and subject to such conditions as they may think fit, and any such power of attorney may contain such provisions for the protection of persons dealing with any such attorney as the Directors may think fit, and may also authorise any such attorney to delegate all or any of the powers, authorities and discretions vested in him. |
| 69. | The Company may exercise the powers conferred by the Act with regard to having an official seal for use abroad and such powers shall be vested in the Directors. |
| 70. | (a) A Director shall be entitled (in the absence of some other material interest than is indicated below) to vote (and be counted in the quorum) in respect of any resolutions concerning any of the following matters, namely: |
| (i) | the giving of any security, guarantee or indemnity to him in respect of money lent by him to the Company or any of its subsidiary or associated companies or obligations incurred by him or by any other person at the request of or for the benefit of the Company or any of its subsidiary or associated companies; |
| (ii) | the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary or associated companies for which he himself has assumed responsibility in whole or in part and whether alone or jointly with others under a guarantee or indemnity or by the giving of security; |
| (iii) | any proposal concerning any offer of shares or debentures or other securities of or by the Company or any of its subsidiary or associated companies for subscription, purchase or exchange in which offer he is or is to be interested as a participant in the underwriting or sub-underwriting thereof; |
| (iv) | any proposal concerning any other company in which he is interested, directly or indirectly and whether as an officer or member or otherwise howsoever, provided that he is not the Holder of or beneficially interested in 1% or more of the issued shares of any class of such company or of the voting rights available to members of such company (or of a third company through which his interest is derived) (any such interest being deemed for the purposes of this article to be a material interest in all circumstances); |
| (v) | any proposal concerning the adoption, modification or operation of a superannuation fund or retirement benefits scheme under which he may benefit and which has been approved by or is subject to and conditional upon approval for taxation purposes by the appropriate Revenue authorities; |
| (vi) | any proposal concerning the adoption, modification or operation of any scheme for enabling employees (including full time executive Directors) of the Company and/or any subsidiary thereof to acquire shares in the Company or any arrangement for the benefit of employees of the Company or any of its subsidiaries under which the Director benefits or may benefit; or |
| (vii) | any proposal concerning the giving of any indemnity pursuant to article 117 or the discharge of the cost of any insurance coverage purchased or maintained pursuant to article 76 and article 117(c). |
| (b) | Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments with the Company or any company in which the Company is interested, such proposals may be divided and considered in relation to each Director separately and in such case each of the Directors concerned (if not debarred from voting under sub-paragraph (a) (iv) of this article) shall be entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment. |
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| (c) | If a question arises at a meeting of Directors or of a committee of Directors as to the materiality of a Director’s interest or as to the right of any Director to vote and such question is not resolved by his voluntarily agreeing to abstain from voting, such question may be referred, before the conclusion of the meeting, to the chairman of the meeting and his ruling in relation to any Director other than himself shall be final and conclusive. In relation to the Chairman, such question may be resolved by a resolution of a majority of the Directors (other than the Chairman) present at the meeting at which the question first arises. |
| (d) | For the purposes of this article, an interest of a person who is the spouse or a minor child of a Director shall be treated as an interest of the Director. |
| (e) | The Company by Ordinary Resolution may suspend or relax the provisions of this article to any extent or ratify any transaction not duly authorised by reason of a contravention of this article. |
| 71. | (a) A Director may hold and be remunerated in respect of any other office or place of profit under the Company or any other company in which the Company may be interested (other than the office of statutory auditor of the Company or any subsidiary thereof) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine, and no Director or intending Director shall be disqualified by his office from contracting or being interested, directly or indirectly, in any contract or arrangement with the Company or any such other company either with regard to his tenure of any such other office or place of profit or as vendor, purchaser or otherwise nor shall any Director so contracting or being so interested be liable to account to the Company for any profits and advantages accruing to him from any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established. |
| (b) | A Director is expressly permitted (for the purposes of Section 228(1 )(d) of the Act) to use the Company’s property subject to such conditions as may be or have been approved by the Board or pursuant to any delegation by the Board in accordance with these Articles or as permitted by their terms of employment or appointment. |
| (c) | Nothing in the Acts shall restrict a Director from entering into any commitment which has been approved by the Board or has been approved pursuant to such authority as may be delegated by the Board or is otherwise in accordance with these Articles. |
| 72. | The Directors may exercise the voting powers conferred by shares of any other company held or owned by the Company in such manner in all respects as they think fit and in particular they may exercise their voting powers in favour of any resolution appointing the Directors or any of them as Directors or officers of such other company or providing for the payment of remuneration or pensions to the Directors or officers of such other company. |
| 73. | Any Director may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director, but nothing herein contained shall authorise a Director or his firm to act as auditor to the Company. |
| 74. | All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by such person or persons and in such manner as the Directors shall from time to time by resolution determine. |
| 75. | The Directors shall cause minutes to be made in books provided for the purpose: |
| (a) | of all appointments of officers made by the Directors; |
| (b) | of the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and |
| (c) | of all resolutions and proceedings at all meetings of the Company and of the Directors and of committees of Directors. |
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| 76. | The Directors may procure the establishment and maintenance of or participate in, or contribute to any non-contributory or contributory pension or superannuation fund, scheme or arrangement or life assurance scheme or arrangement for the benefit of, and pay, provide for or procure the grant of donations, gratuities, pensions, allowances, benefits or emoluments to any persons (including Directors or other officers) who are or shall have been at any time in the employment or service of the Company or of any company which is or was a subsidiary of the Company or of the predecessor in business of the Company or any such subsidiary or holding Company and the spouses, civil partners, widows, families, relatives or dependants of any such persons. The Directors may also procure the establishment and subsidy of or subscription to and support of any institutions, associations, clubs, funds or trusts calculated to be for the benefit of any such persons as aforesaid or otherwise to advance the interests and well being of the Company or of any such other Company as aforesaid, or its members, and payments for or towards the insurance of any such persons as aforesaid and subscriptions or guarantees of money for charitable or benevolent objects or for any exhibition or for any public, general or useful object. Provided that any Director shall be entitled to retain any benefit received by him under this article, subject only, where the Act require, to disclosure to the members and the approval of the Company in general meeting. |
DISQUALIFICATION OF DIRECTORS
| 77. | The office of a Director shall be vacated ipso facto if the Director: |
| (a) | is restricted or disqualified to act as a Director under the provisions of the Act; or |
| (b) | resigns his office by notice in writing to the Company or in writing offers to resign and the Directors resolve to accept such offer; or |
| (c) | is or becomes bankrupt or makes any arrangement or composition with his or her creditors generally; or |
| (d) | is or becomes of unsound mind or dies; or |
| (e) | is removed from office under article 82. |
APPOINTMENT, ROTATION AND REMOVAL OF DIRECTORS
| 78. | At every annual general meeting of the Company, all of the Directors shall retire from office unless re-elected by Ordinary Resolution or plurality vote in accordance with article 84(a) at the annual general meeting. A Director retiring at a meeting shall retain office until the close or adjournment of the meeting. |
| 79. | Every Director nominated for re-election by the Board shall be eligible to stand for re- election at an annual general meeting. |
| 80. | If a Director nominated for re-election by the Board offers himself for re-election, he shall be deemed to have been re-elected unless at such meeting the Ordinary Resolution for the re- election of such Director has been defeated or the Director fails to be elected by a plurality, as applicable. |
| 81. | The number of Directors from time to time shall be not less than two (2) nor more than twenty (20), with the exact number of Directors determined from time to time solely by the Board by a resolution of the Directors passed in accordance with these articles. |
| 82. | The Company may, by Ordinary Resolution, of which notice has been given in accordance with the Act, remove any Director before the expiration of his period of office notwithstanding anything in these regulations or in any agreement between the Company and such Director. Such removal shall be without prejudice to any claim such Director may have for damages for breach of any contract of service between him and the Company. |
| 83. | The Company may, by Ordinary Resolution, appoint another person in place of a Director removed from office under article 82 and without prejudice to the powers of the Directors under article 61 the Company in general meeting by Ordinary Resolution may appoint any person to be a Director either to fill a casual vacancy or as an additional Director, subject to the maximum number of Directors set out in article 81. |
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| 84. | The Directors shall be individuals appointed as follows: |
| (a) | The Company at the annual general meeting in each year or the Company at any extraordinary general meeting called for the purpose may appoint any eligible person as a Director. Each Director shall be elected by an Ordinary Resolution at such meeting, provided that if, as of, or at any time prior to, 90 days in advance of the anniversary of the immediately preceding annual general meeting, the number of Director nominees exceeds the number of Directors determined by the board in accordance with article 81 (a “contested election”), each of those nominees shall be voted upon as a separate resolution and the Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at any such meeting and entitled to vote on the election of Directors. |
For the purposes of this article 84(a), “elected by a plurality” means the election of those Director nominees, equal in number to the number of positions to be filled at the relevant general meeting, that received the highest number of votes in the contested election.
| (b) | The Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with these articles as the maximum number of Directors. A Director so appointed shall hold office only until the next following annual general meeting. If not re-appointed at such annual general meeting, such Director shall vacate office at the conclusion thereof. |
| (c) (i) | Whenever the Board solicits proxies with respect to the election of Directors at an annual general meeting, in addition to any persons nominated for election to the Board by or at the direction of the Board or any committee thereof, subject to the provisions of this article 84(c), the Company shall (i) include in its notice of meeting and proxy materials, as applicable, for any annual general meeting of shareholders (1) the name of any person nominated for election (the “Shareholder Nominee”) by an owner (as defined below) as of the date that the Notice of Proxy Access Nomination (as defined below) is received by the Company in accordance with this article 84(c) who is entitled to vote at the annual general meeting and who satisfies the notice, ownership and other requirements of this article 84(c) (a “Nominator”) or by a group of no more than 20 such owners (a “Nominator Group”) that, collectively as a Nominator Group, satisfies the notice, ownership and other requirements of this article 84(c) applicable to a Nominator Group; provided that, in the case of a Nominator Group, each member thereof (each a “Group Member”) shall have satisfied the notice, ownership and other requirements of this article 84(c) applicable to Group Members, and (2) subject to sub-paragraph (x) of this article 84(c), if the Nominator or the Nominator Group, as applicable, so elects, the Nomination Statement (as defined below) furnished by such Nominator or Nominator Group; and (ii) include such Shareholder Nominee’s name on any ballot distributed at such annual general meeting and on the Company’s proxy card (or any other format through which the Company permits proxies to be submitted) distributed in connection with such annual general meeting. Nothing in this article 84(c) shall limit the Company’s ability to solicit against, and include in its proxy materials its own statements relating to, any Shareholder Nominee, Nominator or Nominator Group, or to include such Shareholder Nominee as a nominee of the Board. |
| (ii) | At each annual general meeting, a Nominator or Nominator Group may nominate one or more Shareholder Nominees for election at such meeting pursuant to this article 84(c); provided that the maximum number of Shareholder Nominees nominated by all Nominators and Nominator Groups (including Shareholder Nominees that were submitted by a Nominator or Nominator Group for inclusion in the |
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Company’s proxy materials pursuant to this article 84(c) but either are subsequently withdrawn, disregarded, declared invalid or ineligible pursuant to this article 84(c) or that the Board determines to nominate as Board nominees) appearing in the Company’s proxy materials with respect to an annual general meeting shall not exceed the greater of (i) two nominees and (ii) 20% of the total number of Directors in office as of the Final Proxy Access Deadline (as defined below), or if such number is not a whole number, the closest whole number below 20% (the “Maximum Number”). The Maximum Number shall be reduced, but not below zero, by the sum of (x) the number of Director candidates that are included in the Company’s proxy materials with respect to such annual general meeting as an unopposed (by the Company) nominee pursuant to an agreement, arrangement or other understanding with one or more owners, as the case may be (other than any such agreement, arrangement or other understanding entered into in connection with an acquisition of capital stock of the Company by such owner from the Company); (y) the number of Directors that the Board decides to nominate for re-election who were previously elected to the Board based on a nomination made pursuant to article 36(c) or this article 84(c), in each case, at one of the previous two annual general meetings; and (z) the number of Directors that the Board decides to nominate for re-election who were previously included in the Company’s proxy materials as an unopposed (by the Company) nominee pursuant to an agreement, arrangement or other understanding with one or more owners, as the case may be (other than any such agreement, arrangement or other understanding entered into in connection with an acquisition of capital stock of the Company by such owner from the Company), in each case, at one of the previous two annual general meetings. If one or more vacancies for any reason occurs on the Board at any time after the Final Proxy Access Deadline but before the date of the applicable annual general meeting and the Board resolves to reduce the size of the Board in connection therewith, the Maximum Number shall be calculated based on the number of Directors in office as so reduced. Any Nominator or Nominator Group submitting more than one Shareholder Nominee for inclusion in the Company’s proxy materials pursuant to this article 84(c) shall rank in its Notice of Proxy Access Nomination such Shareholder Nominees based on the order that the Nominator or Nominator Group desires such Shareholder Nominees to be selected for inclusion in the Company’s proxy materials in the event that the total number of Shareholder Nominees submitted by Nominators or Nominator Groups pursuant to this article 84(c) exceeds the Maximum Number. In the event that the number of Shareholder Nominees submitted by Nominators or Nominator Groups pursuant to this article 84(c) exceeds the Maximum Number, the highest ranking Shareholder Nominee who meets the requirements of this article 84(c) from each Nominator and Nominator Group will be selected for inclusion in the Company’s proxy materials until the Maximum Number is reached, beginning with the Nominator or Nominator Group with the largest number of shares disclosed as owned (as defined below) in its respective Notice of Proxy Access Nomination submitted to the Company and proceeding through each Nominator or Nominator Group in descending order of ownership. If the Maximum Number is not reached after the highest ranking Shareholder Nominee who meets the requirements of this article 84(c) from each Nominator and Nominator Group has been selected, this process will continue as many times as necessary, following the same order each time, until the Maximum Number is reached.
| (iii) | To be timely, the Notice of Proxy Access Nomination must be addressed to an received by the Secretary not less than 120 nor more than 150 days prior to the first anniversary of the date on which the Company’s definitive proxy statement was released to shareholders in connection with the prior year’s annual general meeting; provided, however, that if the annual general meeting is convened more than 30 days prior to or delayed by more than 60 days after the first anniversary of the preceding year’s annual general meeting, or if no annual general meeting was held in the preceding year, the Notice of Proxy Access Nomination must be so received not earlier than 120 days prior to such annual general |
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| meeting and not later than the close of business on the later of (x) the 90th day prior to such annual general meeting or (y) the 10th day following the day on which a public announcement of the date of the annual general meeting is first made (the last day on which a Notice of Proxy Access Nomination may be delivered pursuant to and in accordance with this article 84(c), the “Final Proxy Access Deadline”); provided further that in no event shall any adjournment or postponement of an annual general meeting, or the public announcement thereof, commence a new time period or extend any time period as provided in this article 84(c). The written notice required by this article 84(c) (the “Notice of Proxy Access Nomination”) shall include: |
(1) a written notice of the nomination by such Nominator or Nominator Group expressly electing to have its Shareholder Nominee included in the Company’s proxy materials pursuant to this article 84(c) that includes, with respect to the Shareholder Nominee and the Nominator (and any owner on whose behalf the nomination is made) or, in the case of a Nominator Group, with respect to each Group Member (and any owner on whose behalf the nomination is made), all of the representations, agreements and other information required by article 36(c);
(2) if the Nominator or Nominator Group so elects, a written statement of the Nominator or Nominator Group for inclusion in the Company’s proxy statement in support of the election of the Shareholder Nominee(s) to the Board, which statement shall not exceed 500 words with respect to each Shareholder Nominee (the “Nomination Statement”);
(3) in the case of a nomination by a Nominator Group, the designation by all Group Members of one specified Group Member that is authorized to act on behalf of all Group Members with respect to the nomination and matters related thereto, including withdrawal of the nomination;
(4) a representation by the Shareholder Nominee and the Nominator or, in the case of a Nominator Group, each Group Member, that such person has provided and will provide facts, statements and other information in all communications with the Company and its shareholders, including without limitation the Notice of Proxy Access Nomination and the Nomination Statement, that are or will be true and correct in all material respects and will not omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading;
(5) a statement of the Nominator (and any owner on whose behalf the nomination is made), or, in the case of a Nominator Group, each Group Member (and any owner on whose behalf the nomination is made), setting forth and certifying the number of shares such Nominator or Nominator Group is deemed to own (as determined in accordance with sub-paragraph (iv) of this article 84(c)) continuously for at least three years as of the date of the Notice of Proxy Access Nomination and one or more written statements from the owner of the Required Shares (as defined below), and from each intermediary through which such shares are or have been held during the requisite three-year holding period, verifying that, as of a date within seven days prior to the date that the Notice of Proxy Access Nomination is received by the Secretary, the Nominator or the Nominator Group, as the case may be, owns, and has owned continuously for the preceding three years, the Required Shares, and the Nominator’s or, in the case of a Nominator Group, each Group Member’s, agreement to provide (1) within seven days after the record date for the applicable annual general meeting, written statements from the owner and intermediaries verifying the Nominator’s or the Nominator Group’s, as the case may be, continuous ownership of the Required Shares through the record date; provided that if and to the extent that an owner is acting on behalf of one or more owners who hold shares beneficially, such written statements shall also be submitted by any such owners who hold shares beneficially, and (2) immediate notice if the Nominator or the Nominator Group, as the case may be, ceases to own any of the Required Shares prior to the date of the applicable annual general meeting;
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(6) a copy of the Schedule 14N that has been filed with the U.S. Securities and Exchange Commission as required by Rule 14a-18 under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(7) a representation by the Nominator (and any owner on whose behalf the nomination is made), or, in the case of a Nominator Group, each Group Member (and any owner on whose behalf the nomination is made): (1) that the Required Shares were acquired in the ordinary course of business and not with intent to change or influence control of the Company, and each such person does not presently have such intent, (2) that each such person will maintain ownership (as defined in this article 84(c)) of the Required Shares through the date of the applicable annual general meeting, (3) that each such person has not nominated, and will not nominate, for election to the Board at the applicable annual general meeting any person other than its Shareholder Nominee(s) pursuant to this article 84(c), (4) that each such person has not distributed, and will not distribute, to any shareholders any form of proxy for the applicable annual general meeting other than the form distributed by the Company, (5) that each such person has not engaged and will not directly or indirectly engage in, and has not been and will not be a participant (as defined in Schedule 14A of the Exchange Act) in, another person’s “solicitation” within the meaning of Rule 14a-1(1) under the Exchange Act in support of the election of any individual as a Director at the applicable annual general meeting other than its Shareholder Nominee(s) or a nominee of the Board and (6) that each such person consents to the public disclosure of the information provided pursuant to this article 84(c); and
(8) an executed agreement, in a form deemed satisfactory by the Board, pursuant to which the Nominator and any owner on whose behalf the nomination is made or, in the case of a Nominator Group, each Group Member (and any owner on whose behalf the nomination is made) agrees to (1) comply with all applicable laws, rules and regulations arising out of or relating to the nomination of each Shareholder Nominee pursuant to this article 84(c), (2) assume all liability stemming from any legal or regulatory violation arising out of the communications and information provided by such person(s) to the Company and its shareholders, including without limitation the Notice of Proxy Access Nomination, (3) indemnify and hold harmless the Company and each of its Directors, officers, employees, agents and affiliates individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its Directors, officers, employees, agents and affiliates arising out of or relating to any nomination submitted by such person(s) pursuant to this article 84(c), (4) file with the U.S. Securities and Exchange Commission any solicitation or other communication with the Company’s shareholders relating to the meeting at which the Shareholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Exchange Act, (5) furnish to the Company all updated information required by this article 84(c), including, without limitation, the information required by sub-paragraph (vi) of this article 84(c); and
| (iv) | To nominate any such Shareholder Nominee pursuant to this article 84(c), the Nominator shall have owned or, in the case of a Nominator Group, collectively as a Nominator Group owned shares representing 3% or more of the voting power entitled to vote generally in the election of Directors (the “Required Shares”) continuously for at least |
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| three years as of both the date the Notice of Proxy Access Nomination is submitted to the Company and the record date for determining owners eligible to vote at the annual general meeting and must continue to own the Required Shares at all times between the date the Notice of Proxy Access Nomination is submitted to the Company and the date of the applicable annual general meeting; provided that if and to the extent an owner is acting on behalf of one or more owners who hold shares beneficially (i) only the shares owned by such owner or owners who hold shares beneficially, and not any other shares owned by any such owner acting on behalf of such beneficial owner, shall be counted for purposes of satisfying the foregoing ownership requirement and (ii) the aggregate number of owners whose share ownership is counted for the purposes of satisfying the foregoing ownership requirement shall not exceed 20. Two or more funds that are (i) under common management and investment control, (ii) under common management and funded primarily by the same employer or (iii) a “family of investment companies” or “group of investment companies,” as such terms are defined in the Investment Company Act of 1940, as amended, shall be treated as one owner, as the case may be, for the purpose of satisfying the foregoing ownership requirements; provided that each fund otherwise meets the requirements set forth in this article 84(c); and provided further that any such funds whose shares are aggregated for the purpose of satisfying the foregoing ownership requirements provide documentation reasonably satisfactory to the Company that demonstrates that the funds satisfy the conditions set forth in this article 84(c)(iv) to be treated as one owner within seven days after the Notice of Proxy Access Nomination is delivered to the Company. No owner may be a member of more than one Nominator Group for the purposes of this article 84(c). |
For purposes of this article 84(c), “ownership” shall be deemed to consist of and include only the outstanding shares as to which a person possesses both (i) the full voting and investment rights pertaining to such shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the ownership of shares calculated in accordance with clauses (i) and (ii) above shall not include any shares (1) that a person or any of its affiliates has sold in any transaction that has not been settled or closed, including any short sale, (2) that a person or any of its affiliates has borrowed for any purposes or purchased pursuant to an agreement to resell or (3) that are subject to any Derivative Instrument (as defined below) or similar agreement entered into by a person or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares, in any such case which instrument or agreement has, or is intended to have, or if exercised by either party would have, the purpose or effect of (x) reducing in any manner, to any extent or at any time in the future, the person’s or such person’s affiliates’ full right to vote or direct the voting of any such shares, and/or (y) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such person’s or such person’s affiliates’ shares. “Ownership” shall include shares held in the name of a nominee or other intermediary so long as the person claiming ownership of such shares retains the right to instruct how the shares are voted with respect to the election of Directors and possesses the full economic interest in the shares. A person’s ownership of shares shall be deemed to continue during any period in which the person has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the person. A person’s ownership of shares shall be deemed to continue during any period in which the person has loaned such shares provided that the person both has the power to recall such loaned shares on three U.S. business days’ notice. The determination of whether the requirements of “ownership” of shares for purposes of this article 84(c) are met shall be made by the Board, which determination shall be conclusive and binding on the Company, its shareholders and all other parties. For the purposes of this article 84(c), the terms “own” “owned,” “owner” and “owning” and other variations of the word “own” shall have correlative meanings. For the purposes of this article 84(c), the term “affiliate” or “affiliates” shall have the meaning ascribed thereto under the rules and regulations of the Exchange Act.
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| (v) | In addition to the representations, agreements and other information required to be furnished by the Nominator and Shareholder Nominee pursuant to this article 84(c), the Notice of Proxy Access Nomination shall set forth: |
| (1) | with respect to the Nominator (and any owner on whose behalf the nomination is made) or, in the case of a Nominator Group, with respect to each Group Member (and any owner on whose behalf the nomination is made) |
| (a) | (a) the name and address of each such person; |
| (b) | (aa) the class, series and number of shares of the Company that are owned, directly or indirectly, beneficially and of record by each such person; (bb) any option, warrant, convertible security, stock appreciation right or other right, in each case with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Company or with a value derived in whole or in part from the value of any class or series of shares of the Company, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Company or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by each such person, and any other direct or indirect opportunity of such person to profit or share in any profit derived from any increase or decrease in the value of shares of the Company; (cc) any proxy, contract, arrangement understanding or relationship pursuant to which any person is a party and has a right to vote, directly or indirectly, any shares of any security of the Company; (dd) any short interest in any security of the Company held by any person (for purposes of this article 84(c), a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security); (ee) any rights to dividends on the shares of the Company owned beneficially directly or indirectly by any person that are separated or separable from the underlying shares of the Company; (ff) any proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which any person is a general partner or, directly or indirectly, beneficially owns an in a general partner; (gg) any agreement, arrangement or understanding with respect to performance- related fees (other than an asset-based fee) that any person may directly or indirectly be entitled to based on the election of the proposed nominee or any increase or decrease in the value of shares of the Company or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of each such person’s immediate family sharing the same household; and (hh) any personal or other direct or indirect material interest of any person in the nomination to be submitted; |
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| (c) | any other information relating to each such person and the nomination that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the election of directors at an annual general meeting in a contested election pursuant to Section 14 of the Exchange Act, including the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act, regardless of whether such solicitation is subject to such provision) in such solicitation; |
| (d) | all other information relating to each such person and the nomination which may be required to be disclosed under the Act or applicable listing standards of the primary exchange on which the Company’s shares are listed; and |
| (2) | with respect to the Shareholder Nominee: |
| (a) | all of the representations, agreements and other information required to be furnished by the Nominator pursuant to article 84(c)(v)(l); |
| (b) | the age, business address and residence address of such person; |
| (c) | the principal occupation or employment of such person; and |
| (d) | particulars which would, if such person were so appointed, be required to be included in the Company’s register of Directors and Secretary. |
| (vi) | For the avoidance of doubt, with respect to any nomination submitted by a Nominator Group pursuant to this article 84(c), the information required by sub- paragraphs (iii) and (v) of this article 84(c) to be included in the Notice of Proxy Access Nomination shall be provided by each Group Member (and any owner on whose behalf the nomination is made) and each such Group Member (and any owner on whose behalf the nomination is made) shall execute and deliver to the Secretary the representations and agreements required under sub-paragraph (iii) of this article 84(c) at the time the Notice of Proxy Access Nomination is submitted to the Company (or, in the case of any person who becomes a Group Member after such date, within 5 days of becoming a Group Member). In the event that the Nominator, Nominator Group or any Group Member shall have breached any of their agreements with the Company or any information included in the Nomination Statement, or any other communications by the Nominator, Nominator Group or any Group Member (and any owner on whose behalf the nomination is made) with the Company or its shareholders, ceases to be true and correct in all material respects (or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made and as of such later date, not misleading), each Nominator, Nominator Group or Group Member (and any owner on whose behalf the nomination is made), as the case may be, shall promptly (and in any event within 5 days of discovering such breach or that such information has ceased to be true and correct in all material respects (or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made and as of such later date, not misleading)) notify the Secretary of any such breach, inaccuracy or omission in such |
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| previously provided information and shall provide the information that is required to correct any such defect, if applicable. All such information required to be included in the Notice of Proxy Access Nomination shall be true and correct (a) as of the record date for determining the shareholders entitled to notice of the meeting and (b) as of the date that is 15 days prior to the meeting or any adjournment or postponement thereof, provided that if the record date for determining the shareholders entitled to vote at the meeting is less than 15 days prior to the meeting or any adjournment or postponement thereof, the information shall be supplemented and updated as of the date that is 15 days prior to the meeting or any adjournment or postponement thereof. Any such update and supplement shall be delivered in writing to the Secretary at the principal executive offices of the Company not later than five days after the record date for determining the shareholders entitled to notice of the meeting (in the case of any update and supplement required to be made as of the record date for determining the shareholders entitled to notice of the meeting), not later than ten days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of 15 days prior to the meeting or adjournment or postponement thereof) and not later than five days after the record date for determining the shareholders entitled to vote at the meeting, but no later than the date prior to the meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of a date less than 15 days prior the date of the meeting or any adjournment or postponement thereof). Notwithstanding anything to the contrary set forth herein, if any Nominator, Nominator Group or Group Member (and any owner on whose behalf the nomination is made) has failed to comply with the requirements of this article 84(c), the Board or the chairman of the meeting shall declare the nomination by such Nominator or Nominator Group to be invalid, and such nomination shall be disregarded. |
| (vii) | Shareholder Nominee Requirements. |
| (1) | Within the time period specified in this article 84(c) for delivering the Notice of Proxy Access Nomination, each Shareholder Nominee must deliver to the Secretary a written representation and agreement, which shall be deemed a part of the Notice of Proxy Access Nomination for purposes of this article 84(c), that such person: (1) consents to be named in the proxy statement as a nominee, to serve as a Director if elected and to the public disclosure of the information provided pursuant to this article 84(c); (2) understands his or her duties as a Director under the Act and agrees to act in accordance with those duties while serving as a Director; (3) is not and will not become a party to (x) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such nominee, if elected as a Director of the Company, will act or vote on any issue or question to be decided by the Board (a “Voting Commitment”) or that relates to the Company or the Shareholder Nominee’s service on the Board, (4) is not and will not become a party to any compensatory payment or other financial agreement, arrangement or understanding with any person other than with the Company that has not been disclosed to the Company including any agreement to indemnify such Shareholder Nominee for obligations arising as a result of his or her service as a Director of the Company, and has not and will not receive any such compensation or other payment from any person other than the Company that has not been disclosed to the Company in each case in connection with such nominee’s nomination, service or action as a Director of the Company; (5) if elected as a Director of the Company, will comply with all applicable laws and stock exchange listing standards and the Company’s policies, guidelines and principles applicable to Directors, including, without limitation, the Company’s Corporate Governance |
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| Guidelines, Code of Conduct, confidentiality, share ownership and trading policies and guidelines, and any other codes, policies and guidelines or any rules, regulations and listing standards, in each case as applicable to Directors; and (6) will provide facts, statements and other information in all communications with the Company and its shareholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. |
| (2) | At the request of the Company, each Shareholder Nominee must promptly submit (but in no event later than seven days after receipt of the request) to the Secretary all completed and signed questionnaires required of Directors. The Company may request such additional information as necessary to permit the Board to determine if each nominee is independent under the listing standards of each principal securities exchange upon which the shares are listed, any applicable rules of the U.S. Securities and Exchange Commission and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Company’s Directors and to determine whether the nominee otherwise meets all other publicly disclosed standards applicable to Directors. |
| (3) | In the event that the Shareholder Nominee shall have breached any of their agreements with the Company or any information or communications provided by a Shareholder Nominee to the Company or its shareholders ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, such nominee shall promptly (and in any event within 5 days of discovering such breach or that such information has ceased to be true and correct in all material respects (or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made and as of such later date, not misleading)) notify the Secretary of any such breach, inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct, if applicable. |
| (viii) | In the event any Nominator or Nominator Group (or any owner on whose behalf the nomination is made) submits a nomination at an annual general meeting and either (a) such Nominator or any Group Member of such Nominator Group (or any owner on whose behalf the nomination is made) had nominated (or been a Group Member (or an owner on whose behalf the nomination is made) of a nominator group that had nominated) a nominee for election to the Board pursuant to this article 84(c) at any of the previous two annual general meetings and such nominee shall not have received at least 10% of the votes cast in favor of such nominee’s election or such nominee withdrew from or became ineligible or unavailable for election to the Board, or (b) such Shareholder Nominee shall have been nominated for election pursuant to article 36(c) or this article 84(c), in each case, at any of the previous two annual general meetings and such Shareholder Nominee shall not have received at least 25% of the votes cast in favor of such nominee’s election or such nominee withdrew from or became ineligible or unavailable for election to the Board, then such nomination shall be disregarded. |
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| (ix) | Notwithstanding anything to the contrary contained in this article 84(c), the Company shall not be required to include, pursuant to this article 84(c), a Shareholder Nominee in its proxy materials for any annual general meeting, or, if the proxy statement already has been filed, to submit the nomination of a Shareholder Nominee to a vote at the annual general meeting, notwithstanding that proxies in respect of such vote may have been received by the Company: |
| (1) | for any meeting for which the Secretary receives notice that any owner, as the case may be, intends to nominate one or more persons for election to the Board pursuant to article 36(c); |
| (2) | if any Director then in office was previously nominated pursuant to article 36(c) or pursuant to an agreement or other arrangement with one or more owners, as the case may be, in lieu of such person being formally proposed as a nominee for election to the Board pursuant to article 36(c), in each case, at one of the previous two annual general meetings; |
| (3) | who is not independent under the listing standards of each principal securities exchange upon which the shares of the Company are listed, any applicable rules of the U.S. Securities and Exchange Commission and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Company’s Directors; |
| (4) | who is not determined by the Board to meet the audit committee independence requirements under the rules of any securities exchange upon which the shares of the Company are listed or to quality as a “non-employee Director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule) or as an “outside Director” for the purposes of Section 162(m) of the Internal Revenue Code of 1986; |
| (5) | whose election as a member of the Board would cause the Company to be in violation of these articles, the Company’s memorandum of association, the rules and listing standards of the principal securities exchanges upon which the shares of the Company are listed, or any applicable law, rule or regulation or of any publicly disclosed standards of the Company applicable to Directors, in each case as determined by the Board in its sole discretion; |
| (6) | who is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914; |
| (7) | whose then-current or within the preceding ten years’ business or personal interests place such Shareholder Nominee in a conflict of interest with the Company or any of its subsidiaries that would cause such Shareholder Nominee to violate any fiduciary duties of Directors established pursuant to the Act, including but not limited to, the duty to act in good faith in the best interests of the Company and the duty to exercise care, skill and diligence, as determined by the Board; |
| (8) | who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten years; |
| (9) | who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended; |
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| (10) | if the Shareholder Nominee or Nominator (or any owner on whose behalf the nomination is made), or, in the case of a Nominator Group, any Group Member (or any owner on whose behalf the nomination is made) shall have provided information to the Company in connection with such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make any statement made, in light of the circumstances under which it was made, not misleading, as determined by the Board in its sole discretion; |
| (11) | to the extent permitted under applicable law, the Nominator (or a qualified representative thereof) or, in the case of a Nominator Group, the representative designated by the Nominator Group in accordance with sub-paragraph (iii)(3) of this article 84(c) (or a qualified representative thereof), or the Shareholder Nominee does not appear at the applicable annual general meeting to present theShareholder Nominee for election; or |
| (12) | the Nominator or, in the case of a Nominator Group, any Group Member, or applicable Shareholder Nominee otherwise breaches or fails to comply with its representations or obligations pursuant to these articles, including, without limitation, this article 84(c). |
For the purpose of this sub-paragraph (ix), clauses (3) through (12) will result in the exclusion from the proxy materials pursuant to this article 84(c) of the specific Shareholder Nominee to whom the ineligibility applies, or, if the proxy statement already has been filed, the ineligibility of the Shareholder Nominee and, in either case, the inability of the Nominator or Nominator Group that nominated such Shareholder Nominee to substitute another Shareholder Nominee therefor; however, clauses (1) and (2) will result in the exclusion from the proxy materials pursuant to this article 84(c) of all Shareholder Nominees for the applicable annual general meeting, or, if the proxy statement already has been filed, the ineligibility of all Shareholder Nominees.
| (x) | Notwithstanding anything to the contrary contained in this article 84(c), the Company may omit from its proxy materials any information, including all or any portion of the Nomination Statement, if the Board determines that the disclosure of such information would violate any applicable law or regulation or that such information is not true and correct in all material respects or omits to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. |
PROCEEDINGS OF DIRECTORS
| 85. (a) | The quorum necessary for the transaction of business at all meetings of the Board shall be a majority of the Directors then in office. If at any meeting of the Board there be less than a quorum present, a majority of those present or any Director solely present may adjourn the meeting from time to time without further notice. |
| (b) | Regular meetings of the Board shall be held at such times and intervals as the Board may from time to time determine. |
| (c) | Special meetings of the Board shall be held on the requisition of the Chairman, if there is one, or if not, by 331/3% of the Directors then in office. |
| (d) | Directors may participate in any meeting of the Board by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting. |
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| (e) | Unless a greater number is expressly required by law or these articles, the affirmative votes of a majority of the votes cast by the Directors present at a meeting at which a quorum is in attendance shall be the act of the Board or a committee thereof, as appropriate. At any time that these articles provide that Directors elected by the holders of a class or series of shares shall have more or less than one vote per Director on any matter, every reference in these articles to a majority or other proportion of Directors shall refer to a majority or other proportion of the votes of such Directors. |
| 86. | The continuing Directors may act notwithstanding any vacancy in their number but, if and so long as their number is reduced below the number fixed by or pursuant to these articles as the necessary quorum of Directors, the continuing Directors or Director may act for the purpose of increasing the number of Directors to that number or of summoning a general meeting of the Company but for no other purpose. |
| 87. | Unless otherwise agreed by a majority of those attending and entitled to attend and vote thereat, the Chairman, if there be one, shall act as chairman at all meetings of the Board, or in the absence of the Chairman, a chairman shall be appointed or elected by those present at the meeting and entitled to vote. |
| 88. | The Board may from time to time designate committees of the Board, with such powers and duties as the Board may decide to confer on such committees, and shall, for those committees and any others provided for herein, elect a Director or Directors to serve as the member or members, designating, if it desires, other Directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. Adequate provision shall be made for notice to members of all meetings: a majority of the members shall constitute a quorum unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committees. |
| 89. | A committee may elect a chairman of its meeting. If no such Chairman is elected, or if at any meeting the Chairman is not present within five minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting. |
| 90. | All acts done by any meeting of the Directors or of a committee of Directors or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director. |
| 91. (a) | Notice of a regular meeting of the Board shall be deemed to be duly given to a Director if it is given to such Director verbally in person or by telephone or otherwise communicated or sent to such Director by mail, courier service, telecopier, facsimile, printing, computer generated email or other mode of representing words in a legible and non-transitory form at such Director’s last known address or any other address given by such Director to the Company for this purpose before the proposed date of the meeting, but a failure of the Secretary to send such notice shall not invalidate any proceedings of the Board at such meeting. |
| (b) | Notice of a special meeting of the Board shall be deemed to be duly given to a Director if it is sent to such Director by mail before the proposed date of the meeting, or given to such Director verbally in person or by telephone or otherwise communicated or sent to such Director by mail, courier service, telecopier facsimile, printing, computer generated email or other mode of representing words in a legible and non-transitory form, at such Director’s last known address or any other address given by such Director to the Company for this purpose at least one day before the proposed date of the meeting, but such notice may be waived by any Director. At any special meeting at which every Director shall be present, even without notice, any business may be transacted. |
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| 92. | A resolution or other document in writing (in electronic form or otherwise) signed (whether by electronic signature, advanced electronic signature or otherwise as approved by the Directors) by all the Directors entitled to receive notice of a meeting of Directors or of a committee of Directors shall be as valid as if it had been passed at a meeting of Directors or (as the case may be) a committee of Directors duly convened and held and may consist of several documents in the like form each signed by one or more Directors, and such resolution or other document or documents when duly signed may be delivered or transmitted (unless the Directors shall otherwise determine either generally or in any specific case) by facsimile transmission, electronic mail or some other similar means of transmitting the contents of documents. |
EXECUTIVES
93. (a) The executives of the Company shall consist of a Chief Executive Officer and a Secretary (who may or may not be Directors) and the Board and, if so authorized by the Board, the Chief Executive Officer, may appoint such other executives (who may or may not be Directors) as the Board may from time to time determine, including, without limitation, presidents, chief operating officers, chief financial officers, senior vice-presidents, vice- presidents, treasurers, controllers, assistant treasurers and assistant secretaries. A Person may hold any number of positions simultaneously.
(b) The executives shall have the powers typically exercised by persons holding such positions or such powers as may be delegated to them by the Board from time to time and will perform the usual duties pertaining to such positions as well as perform such duties in the management, business and affairs of the Company as may be delegated to them by the Board from time to time.
THE SEAL
94. (a) The Directors shall ensure that the Seal (including any official securities seal kept pursuant to the Acts) shall be used only by the authority of the Directors or of a committee authorised by the Directors.
| (b) | The Company may exercise the powers conferred by the Act with regard to having an official seal for use abroad and such powers shall be vested in the Directors. |
DIVIDENDS AND RESERVES
| 95. | The Company in general meeting may declare dividends, but no dividends shall exceed the amount recommended by the Directors. |
| 96. | The Directors may from time to time pay to the members such interim dividends as appear to the Directors to be justified by the profits of the Company. |
| 97. | No dividend or interim dividend shall be paid otherwise than in accordance with the provisions of the Act. |
| 98. | The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose to which the profits of the Company may be properly applied and pending such application may at the like discretion either be employed in the business of the Company or be invested in such investments as the Directors may lawfully determine. The Directors may also, without placing the same to reserve, carry forward any profits which they may think it prudent not to divide. |
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| 99. | Subject to the rights of persons, if any, entitled to shares with special rights as to dividend, all dividends shall be declared and paid according to the amounts paid or credited as paid on the shares in respect whereof the dividend is paid; All dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid: but if any share is issued on terms providing that it shall rank for dividend as from a particular date, such share shall rank for dividend accordingly. |
| 100. | The Directors may deduct from any dividend payable to any member all sums of money (if any) immediately payable by him to the Company in relation to the shares of the Company. |
| 101. | Any general meeting declaring a dividend or bonus and any resolution of the Directors declaring an interim dividend may direct payment of such dividend or bonus or interim dividend wholly or partly by the distribution of specific assets and in particular of paid up shares, debentures or debenture stocks of any other company or in any one or more of such ways, and the Directors shall give effect to such resolution, and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient, and in particular may issue fractional certificates and fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any members upon the footing of the value so fixed, in order to adjust the rights of all the parties, and may vest any such specific assets in trustees as may seem expedient to the Directors. |
| 102. | Any dividend or other moneys payable in respect of any share may be paid by cheque or warrant sent by post, at the risk of the person or persons entitled thereto, to the registered address of the Holder or, where there are joint Holders, to the registered address of that one of the joint Holders who is first named on the members Register or to such person and to such address as the Holder or joint Holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any joint Holder or other person jointly entitled to a share as aforesaid may give receipts for any dividend or other moneys payable in respect of the share. Any such dividend or other distribution may also be paid by any other method (including payment in a currency other than US$, electronic funds transfer, direct debit, bank transfer or by means of a relevant system) which the Directors consider appropriate and any member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. The debiting of the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods. |
| 103. | No dividend shall bear interest against the Company. |
| 104. | If the Directors so resolve, any dividend which has remained unclaimed for twelve years from the date of its declaration shall be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend or other moneys payable in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof. |
ACCOUNTING RECORDS
| 105. (a) | The Directors shall cause to be kept adequate accounting records whether in the form of documents, electronic form or otherwise, that: |
| (i) | correctly record and explain the transactions of the Company; |
| (ii) | will at any time enable the assets, liabilities, financial position and profit and loss of the Company to be determined with reasonable accuracy; |
| (iii) | will enable the Directors to ensure that any statutory financial statements of the Company and any directors’ report, required to be prepared under the Act, comply with the requirements of the Act where applicable, Article 4 of the IAS Regulation; and |
| (iv) | enable those financial statements of the Company so prepared to be audited. |
The accounting records shall be kept on a continuous and consistent basis, in that entries therein shall be made in a timely manner and be consistent from year to year. Adequate accounting records shall be deemed to have been maintained if they comply with the provisions of Chapter 2 of Part 6 of the Act and explain the Company’s transactions and facilitate the preparation of financial statements that give a true and fair view of the assets, liabilities, financial position and profit or loss of the Company, and if relevant, the Group and include any information and returns referred to in Section 282(3) of the Act.
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The Company may send by post, electronic mail or any other means of electronic communication a summary financial statement to its members or persons nominated by any member. The Company may meet, but shall be under no obligation to meet, any request from any of its members to be sent additional copies of its full report and accounts or summary financial statement or other communications with its members.
| (b) | The accounting records shall be kept at the Office or, subject to the provisions of the Acts, at such other place as the Directors think fit and shall be open at all reasonable times to the inspection of the Directors. |
| (c) | In accordance with the provisions of the Acts, the Directors shall cause to be prepared and to be laid before the annual general meeting of the Company from time to time such statutory financial statements of the Company and reports as are required by the Act to be prepared and laid before such meeting. |
| (d) | A copy of the statutory financial statements of the Company (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors’ report and statutory auditors’ report, or summary financial statements prepared in accordance with the Act, shall be sent by post, electronic mail or any other means of communication (electronic or otherwise) including being made available on the Company’s website, not less than twenty- one Clear Days before the date of the annual general meeting, to every person entitled under the provisions of the Act to receive them: provided that in the case of those documents sent by electronic mail or any other means of electronic communication, such documents shall be sent with the consent of the recipient, to the address of the recipient notified to the Company by the recipient for such purposes; and provided, where the Directors elect to send summary financial statements to the members, a member may request that he be sent a copy of the statutory financial statements of the Company. |
CAPITALISATION OF PROFITS
| 106. | Without prejudice to any powers conferred on the Directors as aforesaid, and subject to the Directors’ authority to issue and allot shares pursuant to these articles and the Act, the Directors may resolve to capitalise any part of the amount for the time being standing to the credit of any of the Company’s reserve accounts (including any capital redemption reserve fund, share premium account or any undenominated capital) or to the credit of the profit and loss account which is not available for distribution by applying such sum in paying up in full unissued shares to be allotted as fully paid bonus shares to those members of the Company who would have been entitled to that sum if it were distributable and had been distributed by way of dividend (and in the same proportions) and the Directors shall give effect to such resolution. Whenever such a resolution is passed in pursuance of this article, the Directors shall make all appropriations and applications of the undivided profits resolved to be capitalised thereby and all allotments and issues of fully paid shares or debentures, if any, and generally shall do all acts and things required to give effect thereto with full power to the Directors to make such provisions as they shall think fit for the case of shares or debentures becoming distributable in fractions (and, in particular, without prejudice to the generality of the foregoing, either to disregard such fractions or to sell the shares or debentures represented by such fractions and distribute the net proceeds of such sale to and for the benefit of the Company or to and for the benefit of the members otherwise entitled to such fractions in due proportions) and to authorise any person to enter on behalf of all the members concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid up, of any further shares or debentures to which they may become entitled on such capitalisation or, as the case may require, for the payment up by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts remaining unpaid on their existing shares and any agreement made under such authority shall be binding on all such members. |
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STATUTORY AUDITORS
| 107. | Statutory auditors shall be appointed and their duties regulated in accordance with the Act. |
NOTICES
| 108. | Any notice to be given, served, sent or delivered pursuant to these articles shall be in writing (whether in electronic form or otherwise). |
| 109. | (a) A notice or document to be given, served, sent or delivered in pursuance of these articles may be given to, served on or delivered to any member by the Company: |
| (i) | by handing same to him or his authorised agent; |
| (ii) | by leaving the same at his registered address; |
| (iii) | by sending the same by the post in a pre-paid cover addressed to him at his registered address; or |
| (iv) | by sending, with the consent of the member to the extent required by law, the same by means of electronic mail or other means of electronic communication approved by the Directors, with the consent of the member, to the address of the member notified to the Company by the member for such purpose (or if not so notified, then to the address of the member last known to the Company). |
| (b) | For the purposes of these articles and the Act, a document shall be deemed to have been sent to a member if a notice is given, served, sent or delivered to the member and the notice specifies the website or hotlink or other electronic link at or through which the member may obtain a copy of the relevant document. |
| (c) | Where a notice or document is given, served or delivered pursuant to sub-paragraph (a)(i) or (ii) of this article, the giving, service or delivery thereof shall be deemed to have been effected at the time the same was handed to the member or his authorised agent, or left at his registered address (as the case may be). |
| (d) | Where a notice or document is given, served or delivered pursuant to sub-paragraph (a)(iii) of this article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four hours after the cover containing it was posted. In proving service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted. |
| (e) | Where a notice or document is given, served or delivered pursuant to sub-paragraph (a)(iv) of this article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of 48 hours after despatch. |
| (f) | Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy, examiner or liquidator of a member shall be bound by a notice given as aforesaid if sent to the last registered address of such member, or, in the event of notice given or delivered pursuant to sub-paragraph (a)(iv), if sent to the address notified to the Company by the member for such purpose notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such member. |
| (g) | Notwithstanding anything contained in this article the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than Ireland. |
| (h) | Any requirement in these articles for the consent of a member in regard to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, including the receipt of the Company’s audited accounts and the Directors’ and auditor’s reports thereon, shall be deemed to have been satisfied where the Company has written to the member informing him/her of its intention to use electronic communications for such |
39
| purposes and the member has not, within four weeks of the issue of such notice, served an objection in writing on the Company to such proposal. Where a member has given, or is deemed to have given, his/her consent to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, he/she may revoke such consent at any time by requesting the Company to communicate with him/her in documented form PROVIDED HOWEVER that such revocation shall not take effect until five days after written notice of the revocation is received by the Company. |
| (i) | Without prejudice to the provisions of sub-paragraphs (a)(i) and (ii) of this article, if at any time by reason of the suspension or curtailment of postal services in any territory, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a public announcement and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day on which the said public announcement is made. In any such case the Company shall put a full copy of the notice of the general meeting on its website. For purposes of this sub- paragraph (i), “public announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Company with the U.S. Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. |
| 110. | A notice may be given by the Company to the joint Holders of a share by giving the notice to the joint Holder whose name stands first in the Register in respect of the share and notice so given shall be sufficient notice to all the joint Holders. |
| 111. | (a) Every person who becomes entitled to a share shall before his name is entered in the Register in respect of the share, be bound by any notice in respect of that share which has been duly given to a person from whom he derives his title. |
| (b) | A notice may be given by the Company to the persons entitled to a share in consequence of the death or bankruptcy of a member by sending or delivering it, in any manner authorised by these articles for the giving of notice to a member, addressed to them at the address, if any, supplied by them for that purpose. Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred. |
| 112. | The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed. |
| 113. | A member present, either in person or by proxy, at any meeting of the Company or the Holders of any class of shares in the Company shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called. |
WINDING UP
| 114. | If the Company shall be wound up and the assets available for distribution among the members as such shall be insufficient to repay the whole of the paid up or credited as paid up share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the members in proportion to the capital paid up or credited as paid up at the commencement of the winding up on the shares held by them respectively. And if in a winding up the assets available for distribution among the members shall be more than sufficient to repay the whole of the share capital paid up or credited as paid up at the commencement of the winding up, the excess shall be distributed among the members in proportion to the capital at the commencement of the winding up paid up or credited as paid up on the said shares held by them respectively. Notwithstanding the foregoing, this article shall not affect the rights of the Holders of shares issued upon special terms and conditions. |
| 115. | (a) In case of a sale by the liquidator under the Act, the liquidator may by the contract of sale agree so as to bind all the members for the allotment to the members directly of the proceeds of sale in proportion to their respective interests in the Company and may further by the contract limit a time at the expiration of which obligations or shares not accepted or required to be sold shall be deemed to have been irrevocably refused and be at the disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting members conferred by the Act. |
40
| (b) | The power of sale of the liquidator shall include a power to sell wholly or partially for debentures, debenture stock, or other obligations of another company, either then already constituted or about to be constituted for the purpose of carrying out the sale. |
| 116. | If the Company is wound up, the liquidator, with the sanction of a Special Resolution and any other sanction required by the Acts, may divide among the members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not), and, for such purpose, may value any assets and determine how the division shall be carried out as between the members or different classes of members. The liquidator, with the like sanction, may vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories as, with the like sanction, he determines, but so that no member shall be compelled to accept any assets upon which there is a liability. |
INDEMNITY
| 117. | (a) Subject to the provisions of and so far as may be permitted by the Act, every Director and the Secretary of the Company shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him in the execution and discharge of his duties or in relation thereto including any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him as an officer or employee of the Company and in which judgement is given in his favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part) or in which he is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him by the Court. |
| (b) | The Company shall indemnify any person who was, is or is threatened to be made a party to a Proceeding (as hereinafter defined) by reason of the fact that he or she (a) is or was an “officer” of the Company as such term is defined in the rules of the U.S. Securities and Exchange Commission promulgated under the U.S. Securities Exchange Act of 1934, as amended (excluding any Director or Secretary) or (b) is or was serving at the request of the Company as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, general or limited partnership, firm, association, trust, estate, company (including a limited liability company) or any other entity or organisation or employee benefit plan or other enterprise (any such person in clause (a) or clause (b) above, a “covered person”), to the fullest extent permitted under Irish law, as the same exists or may hereafter be amended. Such right shall be a contract right and as such shall run to the benefit of any officer who is elected and accepts the position of officer or elects to continue to serve as an officer and of any other covered person who is or continues to serve in any of the aforementioned capacities while this article is in effect. Any repeal or amendment of this article shall be prospective only and shall not limit the rights of any such officer or other covered person or the obligations of the Company with respect to any claim arising from or related to the services of such officer or other covered person in any of the aforementioned capacities prior to any such repeal or amendment to this article. Such right shall include the right to be paid by the Company expenses incurred in defending any such Proceeding in advance of its final disposition to the maximum extent permitted under Irish law, as the same exists or may hereafter be amended; provided that to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the officer or other covered person is not entitled to be indemnified under this article or otherwise. If a claim for indemnification or advancement of expenses hereunder is not paid in full by the Company within 60 days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against |
41
| the Company to recover the unpaid amount of the claim, and if successful in whole or in part, the claimant shall also be entitled to be paid the expenses of prosecuting such claim. It shall be a defense to any such action that such indemnification or advancement of costs of defense are not permitted under Irish law, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including the Board or any committee thereof, independent legal counsel or members) to have made its determination prior to the commencement of such action that indemnification of, or advancement of costs of defense to, the claimant is permissible in the circumstances nor an actual determination by the Company (including the Board or any committee thereof, independent legal counsel or members) that such indemnification or advancement is not permissible shall be a defense to the action or create a presumption that such indemnification or advancement is not permissible. In the event of the death of any person having a right of indemnification under the foregoing provisions, such right shall inure to the benefit of his or her heirs, executors, administrators and personal representatives. Except as otherwise provided in this subparagraph (b), the Company shall be required to indemnify an officer or other covered person of the Company in connection with a Proceeding (or part thereof) commenced by such person only if the commencement of such Proceeding (or part thereof) by the person was authorised by the Board. |
| (c) | The Directors shall have power to purchase and maintain for any Director, the Secretary or other employees of the Company or any director, officer, employee or agent of any of its subsidiaries insurance against any such liability as referred to in the Act or otherwise. |
| (d) | The Company may additionally indemnify any employee or agent of the Company or any director, officer, employee or agent of any of its subsidiaries to the fullest extent permitted by law. |
| (e) | The rights conferred on any person indemnified by this article shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Memorandum of Association of the Company, these articles, agreement, vote of the members or disinterested Directors or otherwise. |
| (f) | The Company’s obligation, if any, to indemnify or to advance expenses to any person indemnified who was or is serving at its request as a Director or Officer or otherwise of another person described in subparagraph (a) or subparagraph (b) shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other person. |
| (g) | This article shall not limit the right of the Company, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than persons authorised for indemnification under this article when and as authorised by appropriate corporate action. |
| (h) | The indemnity provided by this article shall not extend to any matter in respect of any fraud or dishonesty which may attach to any of said persons. |
| (i) | “Proceeding” for purposes of this article, means any threatened, pending or completed action, suit, claim or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit, claim or proceeding, and any inquiry or investigation that could lead to such an action, suit, claim or proceeding. |
UNTRACED HOLDERS
| 118. | (a) The Company shall be entitled to sell at the best price reasonably obtainable any share or stock of a member or any share or stock to which a person is entitled by transmission if and provided that: |
| (i) | for a period of twelve years (not less than three dividends having been declared and paid) no cheque or warrant sent by the Company through the post in a prepaid letter addressed to the member or to the person entitled by transmission to the share or stock at his address on the Register or the last known address given by the member or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the member or the person entitled by transmission; and |
42
| (ii) | at the expiration of the said period of twelve years the Company has given notice by advertisement in a leading Dublin newspaper and a newspaper circulating in the area in which the address referred to in paragraph (a) of this article is located of its intention to sell such share or stock; and |
| (iii) | the Company has not during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the member or person entitled by transmission. |
| (b) | To give effect to any such sale the Company may appoint any person to execute as transferor an instrument of transfer of such share or stock and such instrument of transfer shall be as effective as if it had been executed by the registered Holder of or person entitled by transmission to such share or stock. The Company shall account to the member or other person entitled to such share or stock for the net proceeds of such sale by carrying all monies in respect thereof to a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such member or other person. Monies carried to such separate account may either be employed in the business of the Company or invested in such investments (other than shares of the Company or its holding company if any) as the Directors may from time to time think fit. |
| (c) | To the extent necessary in order to comply with any laws or regulations to which the Company is subject in relation to escheatment, abandonment of property or other similar or analogous laws or regulations (“Applicable Escheatment Laws”), the Company may deal with any share of any member and any unclaimed cash payments relating to such share in any manner which it sees fit, including (but not limited to) transferring or selling such share and transferring to third parties any unclaimed cash payments relating to such share. |
| (d) | The Company may only exercise the powers granted to it in sub-paragraph (a) above in circumstances where it has complied with, or procured compliance with, the required procedures (as set out in the Applicable Escheatment Laws) with respect to attempting to identify and locate the relevant member of the Company. |
| (e) | Any stock transfer form to be executed by the Company in order to sell or transfer a share pursuant to sub-paragraph (a) may be executed in accordance with article 13(a). |
DESTRUCTION OF DOCUMENTS
| 119. | The Company may destroy: |
| (a) | any dividend mandate or any variation or cancellation thereof or any notification of change of name or address, at any time after the expiry of two years from the date such mandate variation, cancellation or notification was recorded by the Company; |
| (b) | any instrument of transfer of shares which has been registered, at any time after the expiry of six years from the date of registration; and |
| (c) | any other document on the basis of which any entry in the Register was made, at any time after the expiry of six years from the date an entry in the Register was first made in respect of it, |
and it shall be presumed conclusively in favour of the Company that every share certificate (if any) so destroyed was a valid certificate duly and properly sealed and that every instrument of transfer so destroyed was a valid and effective instrument duly and properly registered and that every other document destroyed hereunder was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company provided always that:
43
| (i) | the foregoing provisions of this article shall apply only to the destruction of a document in good faith and without express notice to the Company that the preservation of such document was relevant to a claim; |
| (ii) | nothing contained in this article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than as aforesaid or in any case where the conditions of proviso (a) above are not fulfilled; and |
| (iii) | references in this article to the destruction of any document include references to its disposal in any manner. |
SALE, LEASE OR EXCHANGE OF ASSETS
| 120. | Without limiting the generality of the foregoing, the sale, lease or exchange of all or substantially all of the assets of the Company shall, except as otherwise expressly provided in these articles, require the approval of members by way of an affirmative vote of a majority of the votes cast by the members in person or by proxy appointed by instrument in writing subscribed by such member or by his or her duly authorised attorney and delivered to the chairman of the meeting. Prior to any votes being cast in connection with such resolutions, the chairman of the meeting may demand a poll which shall be by way of ballot. |
TRANSACTIONS WITH INTERESTED MEMBERS
| 121. | (a) The Company may not engage, at any time, in any Business Combination with any Interested Member unless the Business Combination receives the affirmative vote of the holders of 80% of the shares then in issue of all classes of shares of the Company entitled to vote, considered for the purposes of this provision as one class. |
| (b) | Interested Member status of a member is determined as of the date of any action taken by the Board with respect to such transaction or as of any record date for the determination of members entitled to notice and to vote with respect thereto or immediately prior to the consummation of such transaction. Any determination made in good faith by the Board, on the basis of information at the time available to it, as to whether any person is an Interested Member, shall be conclusive and binding for all purposes of these articles. |
| (c) | The provisions of subparagraph (a) of this article shall not apply to (i) any Business Combination with an Interested Member that has been approved by the Board or (ii) any agreement for the amalgamation, merger or consolidation of any subsidiary of the Company with the Company or with another subsidiary of the Company if (A) the provisions of this subparagraph shall not be changed or otherwise affected by or by virtue of the amalgamation, merger or consolidation and (B) the holders of greater than 50% of the voting power of the Company or the subsidiary, as appropriate, immediately prior to the amalgamation, merger or consolidation continue to hold greater than 50% of the voting power of the amalgamated company immediately following the amalgamation, merger or consolidation. |
| (d) | For the purposes of this article, “Business Combination” means: |
| (i) | any amalgamation, merger or consolidation of the Company or one of its subsidiaries with an Interested Member or with any person that is, or would be after such amalgamation, merger or consolidation, an affiliate or associate of an Interested Member; |
| (ii) | any transfer or other disposition to or with an Interested Member or any affiliate or associate of an Interested Member of all or any material part of the assets of the Company or one of its subsidiaries; and |
| (iii) | any issuance or transfer of shares of the Company upon conversion of or in exchange for the securities or assets of any Interested Member, or with any person that is, or would be after such amalgamation, merger or consolidation, an affiliate or associate of an Interested Member. |
44
| (e) | For the purposes of this article, “Interested Member” means any member that: |
| (i) | is the beneficial owner, directly or indirectly, of 10% or more of the voting power of the voting shares of the Company then in issue; or |
| (ii) | is an affiliate or associate of the Company and at any time within the five-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the shares then in issue of the Company. For the purpose of determining whether a member is an Interested Member, the number of voting shares of the Company then in issue shall include shares deemed to be beneficially owned by such member, but shall not include any other unissued voting shares of the Company which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. |
45
We, the several persons whose names and addresses are subscribed, wish to be formed into a company in pursuance of this memorandum of association and we agree to take the number of shares in the capital of the company set opposite our respective names.
| Names, addresses and descriptions of subscribers |
Number of shares taken by each subscriber | |
| For and on behalf of Ingersoll-Rand Company Limited Clarendon House 2 Church Street Hamilton, HM 11 Bermuda |
Thirty Nine thousand, Nine Hundred and Ninety Four Ordinary Shares | |
| For and on behalf of Ingersoll-Rand (Gibraltar) International Holding Limited 57/63 Line Wall Road, Gibraltar |
One Ordinary Share | |
| For and on behalf of Ingersoll-Rand (Gibraltar) International United Limited 57/63 Line Wall Road, Gibraltar For and on behalf of Ingersoll-Rand International Holding Limited Clarendon House 2 Church Street Hamilton, HM 11 Bermuda |
One Ordinary Share
One Ordinary Share | |
| For and on behalf of Ingersoll-Rand Holdings & Finance International S.a.r.l 16, Avenue Pasteur Grand Duchy of Luxembourg, L231 |
One Ordinary Share | |
| For and on behalf of Ingersoll-Rand Treasury Ltd. Clarendon House 2 Church Street Hamilton, HM 11 Bermuda |
One Ordinary Share | |
| For and on behalf of Ingersoll Rand Global Holding Company Limited Clarendon House 2 Church Street Hamilton, HM 11 Bermuda |
One Ordinary Share | |
| Dated: 20th March 2009 |
||
46
Exhibit 4.4
INDENTURE
Dated as of , 20
Among
TRANE TECHNOLOGIES PLC,
TRANE TECHNOLOGIES HOLDCO INC.,
TRANE TECHNOLOGIES FINANCING LIMITED,
TRANE TECHNOLOGIES LUX INTERNATIONAL HOLDING COMPANY S.À R.L.,
TRANE TECHNOLOGIES GLOBAL HOLDING COMPANY LIMITED,
TRANE TECHNOLOGIES IRISH HOLDINGS UNLIMITED COMPANY,
TRANE TECHNOLOGIES COMPANY LLC
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
Debt Securities
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
2 | |||||
| SECTION 101. |
Definitions |
2 | ||||
| SECTION 102. |
Compliance Certificates and Opinions |
10 | ||||
| SECTION 103. |
Form of Documents Delivered to Trustee |
11 | ||||
| SECTION 104. |
Acts of Holders |
11 | ||||
| SECTION 105. |
Notices, Etc., to Trustee, Issuer and Guarantors |
12 | ||||
| SECTION 106. |
Notice to Holders; Waiver |
13 | ||||
| SECTION 107. |
Conflict with Trust Indenture Act |
13 | ||||
| SECTION 108. |
Effect of Headings and Table of Contents |
13 | ||||
| SECTION 109. |
Successors and Assigns |
13 | ||||
| SECTION 110. |
Separability Clause |
13 | ||||
| SECTION 111. |
Benefits of Indenture |
14 | ||||
| SECTION 112. |
Governing Law |
14 | ||||
| SECTION 113. |
Legal Holidays |
14 | ||||
| SECTION 114. |
Incorporators, Shareholders, Officers and Directors of the Issuer and the Guarantors Exempt from Individual Liability |
14 | ||||
| SECTION 115. |
Counterparts |
14 | ||||
| SECTION 116. |
Currency Exchange |
15 | ||||
| SECTION 117. |
Judgment Currency; Consent to Jurisdiction and Service |
15 | ||||
| SECTION 118. |
Force Majeure |
16 | ||||
| SECTION 119. |
U.S.A. Patriot Act |
17 | ||||
| SECTION 120. |
FATCA |
17 | ||||
| SECTION 121. |
Reduction in Capital |
17 | ||||
| ARTICLE TWO SECURITY FORMS |
17 | |||||
| SECTION 201. |
Forms Generally |
17 | ||||
| SECTION 202. |
Form of Face of Security |
17 | ||||
| SECTION 203. |
Form of Reverse of Security |
20 | ||||
| SECTION 204. |
Form of Trustee’s Certificate of Authentication |
25 | ||||
| SECTION 205. |
Securities in Global Form |
25 | ||||
| SECTION 206. |
Guarantee; Form of Guarantee |
26 | ||||
| ARTICLE THREE THE SECURITIES |
27 | |||||
| SECTION 301. |
Amount Unlimited; Issuable in Series |
27 | ||||
i
| SECTION 302. |
Denominations |
30 | ||||
| SECTION 303. |
Execution, Authentication, Delivery and Dating |
30 | ||||
| SECTION 304. |
Temporary Securities |
32 | ||||
| SECTION 305. |
Registration, Registration of Transfer and Exchange |
32 | ||||
| SECTION 306. |
Mutilated, Destroyed, Lost and Stolen Securities |
35 | ||||
| SECTION 307. |
Payment of Interest; Interest Rights Preserved |
36 | ||||
| SECTION 308. |
Persons Deemed Owners |
37 | ||||
| SECTION 309. |
Cancellation |
38 | ||||
| SECTION 310. |
Computation of Interest |
38 | ||||
| SECTION 311. |
CUSIP Numbers |
38 | ||||
| ARTICLE FOUR SATISFACTION AND DISCHARGE |
38 | |||||
| SECTION 401. |
Satisfaction and Discharge of Indenture |
38 | ||||
| SECTION 402. |
Application of Trust Money |
40 | ||||
| SECTION 403. |
Satisfaction, Discharge and Defeasance of Securities of any Series |
40 | ||||
| SECTION 404. |
Reinstatement |
42 | ||||
| ARTICLE FIVE REMEDIES |
42 | |||||
| SECTION 501. |
Events of Default |
42 | ||||
| SECTION 502. |
Acceleration of Maturity; Rescission and Annulment |
44 | ||||
| SECTION 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
45 | ||||
| SECTION 504. |
Trustee May File Proofs of Claim |
46 | ||||
| SECTION 505. |
Trustee May Enforce Claims Without Possession of Securities |
47 | ||||
| SECTION 506. |
Application of Money Collected |
47 | ||||
| SECTION 507. |
Limitation on Suits |
48 | ||||
| SECTION 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
48 | ||||
| SECTION 509. |
Restoration of Rights and Remedies |
48 | ||||
| SECTION 510. |
Rights and Remedies Cumulative |
49 | ||||
| SECTION 511. |
Delay or Omission Not Waiver |
49 | ||||
| SECTION 512. |
Control by Holders |
49 | ||||
| SECTION 513. |
Waiver of Past Defaults |
49 | ||||
| SECTION 514. |
Undertaking for Costs |
50 | ||||
| SECTION 515. |
Waiver of Stay or Extension Laws |
50 | ||||
| ARTICLE SIX THE TRUSTEE |
50 | |||||
| SECTION 601. |
Certain Duties and Responsibilities |
50 | ||||
| SECTION 602. |
Notice of Defaults |
51 | ||||
ii
| SECTION 603. |
Certain Rights of Trustee |
52 | ||||
| SECTION 604. |
Not Responsible for Recitals or Issuance of Securities |
54 | ||||
| SECTION 605. |
May Hold Securities |
54 | ||||
| SECTION 606. |
Money Held in Trust |
54 | ||||
| SECTION 607. |
Compensation and Reimbursement |
54 | ||||
| SECTION 608. |
Disqualification; Conflicting Interests. |
55 | ||||
| SECTION 609. |
Corporate Trustee Required; Different Trustees for Different Series; Eligibility |
55 | ||||
| SECTION 610. |
Resignation and Removal; Appointment of Successor |
56 | ||||
| SECTION 611. |
Acceptance of Appointment by Successor |
57 | ||||
| SECTION 612. |
Merger, Conversion, Consolidation or Succession to Business |
58 | ||||
| SECTION 613. |
Preferential Collection of Claims Against the Issuer or a Guarantor |
59 | ||||
| SECTION 614. |
Authenticating Agents |
59 | ||||
| ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND ISSUER |
61 | |||||
| SECTION 701. |
Issuer to Furnish Trustee Names and Addresses of Holders |
61 | ||||
| SECTION 702. |
Preservation of Information; Communications to Holders |
61 | ||||
| SECTION 703. |
Reports by Trustee |
62 | ||||
| SECTION 704. |
Reports by Trane Parent |
63 | ||||
| ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE |
63 | |||||
| SECTION 801. |
Issuer and Guarantors May Consolidate, Etc., on Certain Terms |
63 | ||||
| SECTION 802. |
Securities to be Secured in Certain Events |
65 | ||||
| SECTION 803. |
Successor Corporation to be Substituted |
65 | ||||
| SECTION 804. |
Opinion of Counsel and Officer’s Certificate to be Given to Trustee |
66 | ||||
| ARTICLE NINE SUPPLEMENTAL INDENTURES |
66 | |||||
| SECTION 901. |
Supplemental Indentures without Consent of Holders |
66 | ||||
| SECTION 902. |
Supplemental Indentures with Consent of Holders |
67 | ||||
| SECTION 903. |
Execution of Supplemental Indentures |
68 | ||||
| SECTION 904. |
Effect of Supplemental Indentures |
69 | ||||
| SECTION 905. |
Conformity with Trust Indenture Act |
69 | ||||
| SECTION 906. |
Reference in Securities to Supplemental Indentures |
69 | ||||
| ARTICLE TEN COVENANTS |
69 | |||||
| SECTION 1001. |
Payment of Principal, Premium and Interest |
69 | ||||
| SECTION 1002. |
Maintenance of Office or Agency |
69 | ||||
| SECTION 1003. |
Money for Securities Payments to Be Held in Trust |
70 | ||||
iii
| SECTION 1004. |
Limitation on Liens |
71 | ||||
| SECTION 1005. |
Limitation on Sale and Leaseback Transactions |
73 | ||||
| SECTION 1006. |
Defeasance of Certain Obligations |
74 | ||||
| SECTION 1007. |
Statement by Officer as to Default |
75 | ||||
| SECTION 1008. |
Waiver of Certain Covenants |
76 | ||||
| SECTION 1009. |
Calculation of Original Issue Discount |
76 | ||||
| ARTICLE ELEVEN REDEMPTION OF SECURITIES |
76 | |||||
| SECTION 1101. |
Applicability of Article |
76 | ||||
| SECTION 1102. |
Election to Redeem; Notice to Trustee |
76 | ||||
| SECTION 1103. |
Selection of Securities to Be Redeemed |
77 | ||||
| SECTION 1104. |
Notice of Redemption |
77 | ||||
| SECTION 1105. |
Deposit of Redemption Price |
78 | ||||
| SECTION 1106. |
Securities Payable on Redemption Date |
78 | ||||
| SECTION 1107. |
Securities Redeemed in Part |
79 | ||||
| ARTICLE TWELVE SINKING FUNDS |
79 | |||||
| SECTION 1201. |
Applicability of Article |
79 | ||||
| SECTION 1202. |
Satisfaction of Sinking Fund Payments with Securities |
79 | ||||
| SECTION 1203. |
Redemption of Securities for Sinking Fund |
79 | ||||
| ARTICLE THIRTEEN GUARANTEE |
81 | |||||
| SECTION 1301. |
Guarantee |
81 | ||||
| SECTION 1302. |
Execution and Delivery of Guarantee |
82 | ||||
| SECTION 1303. |
Notice to Trustee |
82 | ||||
| SECTION 1304. |
This Article Not to Prevent Events of Default |
82 | ||||
| SECTION 1305. |
Amendment, Etc. |
82 | ||||
| SECTION 1306. |
Limitation on Liability. |
82 | ||||
iv
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture.
| Trust Indenture Act Section |
Indenture Section | |
| § 310(a)(1) | 609 | |
| (a)(2) | 609 | |
| (a)(3) | Not | |
| (a)(4) | Applicable | |
| (b) | Not | |
| Applicable | ||
| 608, 610 | ||
| § 311(a) | 613 | |
| (b) | 613 | |
| (b)(2) | 703(a) | |
| § 312(a) | 701, 702(a) | |
| (b) | 702(b) | |
| (c) | 702(c) | |
| § 313(a) | 703(a) | |
| (b)(1) | Not | |
| (b)(2) | Applicable | |
| (c) | 703(a) | |
| (d) | 703(a) | |
| 703(b) | ||
| § 314(a) | 704 | |
| (b) | Not | |
| (c)(1) | Applicable | |
| (c)(2) | 102 | |
| (c)(3) | 102 | |
| (d) | Not | |
| (e) | Applicable | |
| Not | ||
| Applicable | ||
| 102 | ||
| § 315(a) | 601(a) | |
| (b) | 602 | |
| (c) | 601(b) | |
| (d) | 601(c) | |
| (d)(1) | 601(c)(1) | |
| (d)(2) | 601(c)(2) | |
| (d)(3) | 601(c)(3) | |
| (e) | 514 | |
| § 316(a)(1)(A) | 502, 512 | |
| (a)(1)(B) | 513 | |
| (a)(2) | Not | |
| (b) | Applicable | |
| 508 |
v
| § 317(a)(1) | 503 | |
| (a)(2) | 504 | |
| (b) | 1003 | |
| § 318(a) | 107 |
| Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture. |
vi
INDENTURE, dated as of , 20 , among TRANE TECHNOLOGIES PLC, a public limited company duly organized and existing under the laws of Ireland (“Trane Parent”), TRANE TECHNOLOGIES HOLDCO INC., a corporation incorporated in Delaware (“Trane Holdco”), TRANE TECHNOLOGIES FINANCING LIMITED, a private limited company duly organized and existing under the laws of Ireland (“TTFL”), TRANE TECHNOLOGIES LUX INTERNATIONAL HOLDING COMPANY S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) (“Lux International”), TRANE TECHNOLOGIES GLOBAL HOLDING COMPANY LIMITED, a corporation incorporated in Delaware (“TTGH”), TRANE TECHNOLOGIES IRISH HOLDINGS UNLIMITED COMPANY, a private unlimited company duly organized and existing under the laws of Ireland (“Irish Holdings”), TRANE TECHNOLOGIES COMPANY LLC, a limited liability company organized in Delaware (“TTC”), and Wells Fargo Bank, National Association, a national banking association, as Trustee (herein called the “Trustee”).
RECITALS
Trane Parent directly or indirectly beneficially owns 100% of the issued share capital of, or other ownership interests in, each of Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings and TTC.
Each of the Trane Parent, Trane Holdco, TTFL, Lux International and TTGH has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of debt securities (herein called the “Securities”) of Trane Parent, Trane Holdco, TTFL, Lux International or TTGH, as the case may be, to be issued in one or more series as in this Indenture provided. In respect of any series of Securities, either Trane Parent, Trane Holdco, TTFL, Lux International or TTGH shall be the issuer of such series of Securities.
Each series of Securities issued by Trane Parent may be guaranteed by certain of its Subsidiaries (as defined herein), including Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in a supplemental indenture hereto or a Board Resolution (as defined herein) or an Officer’s Certificate (as defined herein) of the Issuer (as defined herein) in accordance with the terms hereof. Each series of Securities issued by the Trane Holdco will be guaranteed by Trane Parent and may also be guaranteed by certain other Subsidiaries of Trane Parent, including TTFL, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms hereof. Each series of Securities issued by TTFL will be guaranteed by Trane Parent and may also be guaranteed by certain other Subsidiaries of Trane Parent, including Trane Holdco, Lux International, TTGH, Irish Holdings and/or TTC, as may be specified in a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms hereof. Each series of Securities issued by Lux International will be guaranteed by Trane Parent and may also be guaranteed by certain other Subsidiaries of Trane Parent, including Trane Holdco, TTFL, TTGH, Irish Holdings and/or TTC, as may be specified in a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms hereof. Each series of Securities issued by TTGH will be guaranteed by Trane Parent and may also be guaranteed by certain other Subsidiaries of Trane Parent, including Trane Holdco, TTFL, Lux International, Irish Holdings and/or TTC, as may be specified in a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms hereof.
All things necessary to make this Indenture a valid agreement of each of the Issuer and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to them in this Article One and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;
(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(6) “including” means including without limitation;
(7) when used with respect to any Security, the words “convert,” “converted” and “conversion” are intended to refer to the right of the Holder, the Issuer or, to the extent not the Issuer, Trane Parent to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 301, and these words are not intended to refer to any right of the Holder, the Issuer or, to the extent not the Issuer, Trane Parent to exchange such Security for other Securities of the same series and like tenor pursuant to Section 304, 305, 306, 906 or 1107 or another similar provisions of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 301; and
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(8) unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements and instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture.
Certain terms, used principally in Article Six, are defined in that Article.
“Act,” when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Attributable Debt” has the meaning specified in Section 1004(c)(1).
“Authenticating Agent” means any person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614.
“Board of Directors” means, as to any Person, the board of directors or managers, as applicable, of such Person (or, if such Person is a partnership, the board of directors or other governing body of the general partner of such Person), or an executive committee of such Board of Directors or any duly authorized committee of that Board of Directors or any director(s), manager(s) and/or officer(s), as the case may be, to whom that Board of Directors or committee shall have duly delegated its authority.
“Board Resolution” means a copy of one or more resolutions adopted by the Board of Directors of a Person, certified by the Secretary or an Assistant Secretary (or Persons performing similar functions) of such Person (or if such Person does not have a Secretary or Assistant Secretary, a director or manager of such Person) to have been duly adopted by such Board of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each day which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close.
“Calculation Agent” means any person authorized by the Issuer to determine the floating rate interest rate of any series of Securities bearing a floating rate of interest. Initially, Wells Fargo Bank, National Association shall act as calculation agent in connection with the Securities. The Calculation Agent shall serve as the calculation agent hereunder unless and until a successor calculation agent is appointed by the Issuer of such Securities.
“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
3
“Company Request” or “Company Order” means a written request or order signed in the name of the Issuer by an Officer of the Issuer and delivered to the Trustee for the Securities of any series.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business with respect to this Indenture shall be administered, which office at the date hereof is located at 1 Independent Drive, Suite 620, Jacksonville, Florida 32202 Attention: Account Manager-Trane Technologies, and for Agent services such office shall also mean the office or agency of the Trustee located at CSTO Mail Operations, MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Issuer and the Holders).
“Defaulted Interest” has the meaning specified in Section 307.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
“Event of Default” unless otherwise specified in the supplemental indenture, Board Resolution or Officer’s Certificate establishing a series of Securities, has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Funded Indebtedness” means indebtedness created, assumed or guaranteed by a Person for money borrowed which matures by its terms, or is renewable by the borrower to a date, more than one year after the date of its original creation, assumption or guarantee.
“GAAP” means generally accepted accounting principles in the United States (including, if applicable, International Financial Reporting Standards) as in effect from time to time.
“Global Security” means a Security evidencing all or part of a series of Securities, including, without limitation, any temporary or permanent Global Securities.
“Guarantee” means the guarantee by each Guarantor as endorsed on each Security and authenticated and delivered pursuant to this Indenture, which guarantee shall include the provisions set forth in Article Thirteen of this Indenture. “Guaranteed” shall have a meaning correlative to the foregoing.
“Guarantors” means, (a) in respect of a series of Securities issued by Trane Parent, (i) each Person, if any, named as a “Guarantor” pursuant to a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms of this Indenture (until such Person ceases to be a Guarantor pursuant to the terms of this Indenture) and (ii) any successor company thereof that shall have become a Guarantor pursuant to the applicable provisions of this Indenture, (b) in respect of a series of Securities issued by Trane Holdco, (i) Trane Parent, (ii) each other Person, if any, named as a “Guarantor” pursuant to a
4
supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms of this Indenture (until such Person ceases to be a Guarantor pursuant to the terms of this Indenture) and (iii) any successor company thereof that shall have become a Guarantor pursuant to the applicable provisions of this Indenture, (c) in respect of a series of Securities issued by TTFL, (i) Trane Parent, (ii) each other Person, if any, named as a “Guarantor” pursuant to a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms of this Indenture (until such Person ceases to be a Guarantor pursuant to the terms of this Indenture) and (iii) any successor company thereof that shall have become a Guarantor pursuant to the applicable provisions of this Indenture, (d) in respect of a series of Securities issued by Lux International, (i) Trane Parent, (ii) each other Person, if any, named as a “Guarantor” pursuant to a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms of this Indenture (until such Person ceases to be a Guarantor pursuant to the terms of this Indenture) and (iii) any successor company thereof that shall have become a Guarantor pursuant to the applicable provisions of this Indenture and (e) in respect of a series of Securities issued by TTGH, (i) Trane Parent, (ii) each other Person, if any, named as a “Guarantor” pursuant to a supplemental indenture hereto or a Board Resolution or an Officer’s Certificate of the Issuer in accordance with the terms of this Indenture (until such Person ceases to be a Guarantor pursuant to the terms of this Indenture) and (iii) any successor company thereof that shall have become a Guarantor pursuant to the applicable provisions of this Indenture.
“Holder” means a person in whose name a Security is registered in the Security Register.
“Indenture” means this Indenture as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this Indenture and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Indenture and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Irish Holdings” means the Person named as “Irish Holdings” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Irish Holdings” shall mean such successor Person.
“Issuer” means, (i) Trane Parent, in the case of Securities issued by Trane Parent, (ii) Trane Holdco, in the case of Securities issued by Trane Holdco, (iii) TTFL, in the case of Securities issued by TTFL, (iv) Lux International, in the case of Securities issued by Lux International and (v) TTGH, in the case of Securities issued by TTGH.
“Judgment Currency” has the meaning specified in Section 117.
5
“Lux International” means the Person named as “Lux International” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Lux International” shall mean such successor Person.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Mortgage” has the meaning specified in Section 1004(c)(3).
“Officer” means the Chairman of the Board, any Vice Chairman, any other director or manager, the Chief Executive Officer, the President, any Vice President, the Chief Operating Officer, the Principal Accounting Officer, the Treasurer, any Assistant Treasurer, the Principal Financial Officer, the Controller, the General Counsel, the Secretary or any Assistant Secretary of the Issuer or any of the Guarantors, as the case may be.
“Officer’s Certificate” means a certificate signed by an Officer of the Issuer or any of the Guarantors, as applicable, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or regular counsel for the Issuer or a Guarantor, or for both, as the case may be, or may be other counsel reasonably satisfactory to the Trustee. Each such opinion shall include the statements provided for in Section 102 if and to the extent required by this Indenture. Opinions of Counsel required to be delivered under this Indenture may have qualifications customary for opinions of the type required and counsel delivering such Opinions of Counsel may rely as to factual matters on certificates of the Issuer, the Guarantors or governmental or other officials customary for opinions of the type required.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee for such Securities or delivered to such Trustee for cancellation;
(ii) Securities or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee for such Securities or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to such Trustee has been made;
6
(iii) Securities as to which defeasance has been effected pursuant to Section 403;
(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee for such Securities proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer; and
(v) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made available), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 301;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (a) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (b) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (c) the principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in clause (a) or (b) above, of the amount determined as provided in such clause), and (d) Securities owned by the Issuer, the Guarantors or any other obligor upon the Securities or any Affiliate of the Issuer, the Guarantors or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, any Guarantor or such other obligor.
“Paying Agent” when used with respect to the Securities of any series means any person authorized by the Issuer to pay the principal of (and premium, if any, on) or interest, if any, on any Securities on behalf of the Issuer.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
7
“Place of Payment” when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any, on) and interest, if any, on the Securities of that series are payable as specified in or as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Principal Property” means any manufacturing plant or other manufacturing facility of Trane Parent or any Restricted Subsidiary, which plant or facility is located within the United States of America, except any such plant or facility which the Board of Directors of Trane Parent by resolution declares is not of material importance to the total business conducted by Trane Parent and its Restricted Subsidiaries.
“Process Agent” has the meaning specified in Section 117.
“Redemption Date” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid interest.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
“Required Currency” has the meaning specified in Section 117.
“Responsible Officer” when used with respect to the Trustee for the Securities of any series, means any officer within the corporate trust department of such Trustee or any other officer of such Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Subsidiary” means any Subsidiary which owns a Principal Property excluding however, any entity the greater part of the operating assets of which are located, or the principal business of which is carried on, outside the United States of America.
“Sale and Leaseback Transaction” has the meaning specified in Section 1005.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
8
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Shareholders’ equity in Trane Parent and its consolidated Subsidiaries” has the meaning specified in Section 1004(c)(2).
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee for such series pursuant to Section 307.
“Stated Maturity” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust or any other entity of which at least a majority of the outstanding stock or equity interests having voting power under ordinary circumstances to elect a majority of the Board of Directors or similar body of said entity shall at the time be owned by Trane Parent or by Trane Parent and one or more Subsidiaries or by one or more Subsidiaries of Trane Parent.
“Trane Holdco” means the Person named as “Trane Holdco” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trane Holdco” shall mean such successor Person.
“Trane Parent” means the Person named as “Trane Parent” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trane Parent” shall mean such successor Person.
“Trustee” means the person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any series shall mean each such Trustee with respect to those series of Securities with respect to which it is serving as Trustee.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905.
“TTC” means the Person named as “TTC” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “TTC” shall mean such successor Person.
“TTFL” means the Person named as “TTFL” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “TTFL” shall mean such successor Person.
9
“TTGH” means the Person named as “TTGH” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “TTGH” shall mean such successor Person.
“U.S. Depositary” means a clearing agency registered under the Exchange Act, or any successor thereto, which shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “U.S. Depositary” shall mean or include each Person who is then a U.S. Depositary hereunder, and if at any time there is more than one such Person, “U.S. Depositary” as used with respect to the Securities of any series shall mean the U.S. Depositary with respect to the Securities of that series.
“U.S. Government Obligations” means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed by the United States.
“Vice President”, when used with respect to the Issuer, the Guarantors or the Trustee for any series of Securities, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or any Guarantor to the Trustee for any series of Securities to take any action under any provision of this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to such Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
10
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such person, or that they may be so certified or covered by only one document, but one such person may certify or give an opinion with respect to some matters and one or more other such persons as to other matters, and any such person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer or a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of such Issuer or such Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of such Issuer or such Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instructions under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Issuer or the Guarantors. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of such Trustee, the Guarantors and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Trustee for such Securities deems sufficient.
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(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee for such Securities, the Guarantors or the Issuer in reliance thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee, Issuer and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee for a series of Securities by any Holder or by the Issuer or a Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including telecopy) to or with such Trustee at its Corporate Trust Office,
(2) the Issuer by such Trustee, or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including telecopy) and sent by registered or certified mail or overnight courier, prepaid, to the Issuer addressed to it care of Trane Technologies Company LLC, 800-E Beaty Street, Davidson, NC 28036, Attention: General Counsel or at any other address previously furnished in writing to such Trustee by the Issuer, or
(3) a Guarantor by such Trustee, or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including telecopy) and sent by registered or certified mail or overnight courier, prepaid, to such Guarantor addressed to it care of Trane Technologies Company LLC, 800-E Beaty Street, Davidson, NC 28036, Attention: General Counsel or at any other address previously furnished in writing to such Trustee by the Guarantors.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer or Guarantors elect to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method), the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s taking or refraining from taking action in reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with written instruction received subsequently to the Trustee taking or refraining from taking action in reliance upon the prior instructions. The Issuer and the Guarantors agree to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the
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Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties, provided, however, that the Trustee shall not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and delivered electronically or mailed, first-class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register or otherwise in accordance with the procedures of the U.S. Depositary, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is delivered or mailed, neither the failure to deliver or mail such notice, nor any defect in any notice so delivered or mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waiver of notice by Holders shall be filed with the Trustee for such Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee for such Securities shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the Guarantors, as the case may be, shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities or the Guarantees shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the Guarantees, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities or the Guarantees) payment of principal (and premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. Incorporators, Shareholders, Officers and Directors of the Issuer and the Guarantors Exempt from Individual Liability.
No recourse for the payment of the principal of (and premium, if any, on) or interest, if any, on any Security or any Guarantee, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of any Issuer or any Guarantor in this Indenture or in any supplemental indenture, or in any Security or in any Guarantee, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of any Issuer or any Guarantor or of any successor corporation, either directly or through any Issuer or any Guarantor or any successor corporation, 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 all such liability is hereby waived and released as a condition of and as a consideration for, the execution of this Indenture and the issue of the Securities and any Guarantee.
SECTION 115. Counterparts.
This Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”), (ii) an original manual signature or (iii) a faxed, scanned or photocopied manual signature. Each electronic signature or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
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SECTION 116. Currency Exchange.
If, in determining whether the Holders of the requisite principal amount of Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, it becomes necessary to determine the principal amount of Securities of any series denominated in any coin or currency other than that of the United States of America, such principal amount shall be computed by converting such coin or currency into coin or currency of the United States of America based upon the rate of exchange in effect at the office of the Trustee for such Securities in New York, New York at 10:00 A.M., New York City time, or as close to such time as is reasonably practicable, on the date of initial issuance of such series of Securities.
SECTION 117. Judgment Currency; Consent to Jurisdiction and Service.
(a) In respect of each series of Securities, each of the Issuer and the Guarantors agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of such series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee for such Securities could purchase in The City of New York the Required Currency with the Judgment Currency at 10:00 A.M. New York City time, or as close to such time as is reasonably practicable, on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures such Trustee could purchase in The City of New York the Required Currency with the Judgment Currency at 10:00 A.M. New York City time, or as close to such time as is reasonably practicable, on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with this subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
(b) In respect of each series of Securities, to the fullest extent permitted by applicable law, each of the Issuer and the Guarantors hereby irrevocably submits to the jurisdiction of any federal or state court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any such Securities or Guarantee and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. Each of the Issuer and the Guarantors irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the
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laying of the venue of any such suit, action or proceeding brought in an inconvenient forum. Each of the Issuer and the Guarantors agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Issuer and/or the Guarantors, as applicable, and may be enforced in the courts of Luxembourg or Ireland (or any other courts to the jurisdiction of which the Issuer or the Guarantors, as applicable, is subject) by a suit upon such judgment, provided, that service of process is effected upon the Issuer and/or the Guarantors, as applicable, in the manner specified herein or as otherwise permitted by law. Each of the Issuer and the Guarantors hereby irrevocably designates and appoints Trane Technologies Company LLC, 800-E Beaty Street, Davidson, NC 28036 (the “Process Agent”) as their authorized agent for purposes of this Section 117(b), it being understood that the designation and appointment of the Process Agent as such authorized agent shall become effective immediately without any further action on the part of the Issuer or the Guarantors. Each of the Issuer and the Guarantors further agrees that service of process upon the Process Agent and written notice of said service to the Issuer and/or the Guarantors, as applicable, mailed by prepaid registered first class mail or delivered to the Process Agent at its principal office, shall be deemed in every respect effective service of process upon the Issuer and/or the Guarantors, as applicable, in any such suit or proceeding. Each of the Issuer and the Guarantors further agrees to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary, to continue such designation and appointment of the Process Agent in full force and effect so long as the Issuer and/or the Guarantors, as applicable, has any outstanding obligations under this Indenture. To the extent the Issuer and/or the Guarantors, as applicable, has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, each of the Issuer and the Guarantors hereby irrevocably waives such immunity in respect of its obligations under this Indenture to the extent permitted by law.
(c) EACH OF THE ISSUER, GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING SOLELY AMONG SUCH PARTIES ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
SECTION 118. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, (i) any act or provision of any present or future law or regulation or governmental authority, (ii) any act of God, (iii) natural disaster, (iv) war, (v) terrorism, (vi) civil unrest, (vii) accidents, (viii) labor dispute, (ix) disease, (x) epidemic or pandemic, (xi) quarantine, (xii) national emergency, (xiii) loss or malfunction of utility or computer software or hardware, (xiv) communications system failure, (xv) malware or ransomware or (xvi) unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer systems, or (xvii) unavailability of any securities clearing system, it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
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SECTION 119. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
SECTION 120. FATCA.
In order to comply with applicable tax laws, rules and regulations (including directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”), each of the Issuer and Guarantors agree to provide to the Trustee tax-information about holders or the transactions contemplated hereby (including any modification to the terms of such transactions), to the extent such information is directly available to each of the Issuer and Guarantors, so that the Trustee can determine whether it has tax-related obligations under Applicable Law and each of the Issuer and Guarantors acknowledges that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.
SECTION 121. Reduction in Capital.
Each Holder hereby consents to the Issuer or any Guarantor applying to a court of competent jurisdiction for an order sanctioning, approving, consenting to or confirming a reduction in any of its share capital accounts including, without limitation, by re-characterizing any sum standing to the credit of an undenominated capital account as a distributable reserve.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article Two, or in such other form as shall be established by or pursuant to a Board Resolution of the Issuer, including an Officer’s Certificate of the Issuer delivered pursuant to authority granted by a Board Resolution, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officer executing such Securities, as evidenced by his or her execution of such Securities.
The certificate of authentication of the Trustee for any series of Securities shall be in substantially the form set forth in this Article Two.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officer executing such Securities, as evidenced by their execution of such Securities.
Each definitive Guarantee shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Guarantee, as evidenced by their execution of such Guarantee.
SECTION 202. Form of Face of Security.
[ISSUER]
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[Title of the Security]
| No. | CUSIP No. _____ | |
| $ _____ |
[ISSUER], a company duly organized and existing under the laws of [COUNTRY] (herein called the “Issuer”, which term includes any successor company under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______________, or registered assigns, the principal sum of _______________ Dollars on _______________ [If the Security is to bear interest prior to Maturity, insert — , and to pay interest thereon from _______________ __, ___________ (the “Original Issue Date”),] or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [semiannually on _______________ and _______________] [quarterly on _______________, _______________, _______________ and _______________] in each year, commencing _______________ __, ____, at [If the Security is to bear interest at a fixed rate insert-the rate per annum provided in the title hereof] [If the Security is to bear interest at a floating rate, insert— [a rate of [insert Floating Rate] per annum], until the principal hereof is paid or made available for payment. [If applicable insert — , and, subject to the terms of the Indenture, at [the rate per annum provided in the title hereof] [such rate] on any overdue principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest].
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the [__________ or __________] [__________, __________, __________ or __________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is to bear interest at a fixed rate prior to Maturity, insert — Interest shall be computed on the basis of a year of twelve 30-day months.] [If the Security is to bear interest at a floating rate prior to Maturity, insert — Interest shall be computed on the basis of the actual number of days in the relevant interest period and a 360-day year.]
[If the Security is to bear interest at a floating rate prior to Maturity, insert — The [insert Floating Rate] will be reset [insert period time as set forth in a Board Resolution of the Issuer] on each Interest Payment Date (each an “Interest Reset Date”), beginning on __________ __, ____. The interest rate for the period from and including the Original Issue Date to and excluding the
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first Interest Payment Date shall be _____ per annum (the “Initial Interest Rate”). The __________ Business Day preceding an Interest Reset Date will be the “Interest Determination Date” for that Interest Reset Date. The interest rate in effect on each day that is not an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to the immediately preceding Interest Reset Date or the Initial Interest Rate, as the case may be. The interest rate in effect on any day that is an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to that Interest Reset Date.
The Trustee shall act as calculation agent (together with its successors in that capacity, the “Calculation Agent”) in connection with the Securities. The Calculation Agent shall serve as the calculation agent hereunder unless and until a successor calculation agent is appointed by the Issuer. The following definitions shall be used by the Calculation Agent in its determination of the interest rate: [insert definitions for floating rate determination].]
[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of [yield to maturity]% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of [yield to maturity]% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Issuer maintained for that purpose in [the Borough of Manhattan, The City of New York], in [coin or currency], provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of or funds transferred to the person entitled thereto as such address shall appear in the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed and delivered on the date first written above.
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| [ISSUER] | ||
| By | ||
| Name: | ||
| Title: | ||
| [By | ||
| Name: | ||
| Title:] | ||
SECTION 203. Form of Reverse of Security.
[ISSUER]
[Title of the Security]
This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of __________ (herein called the “Indenture”), among the Issuer, [GUARANTORS] (herein called the “Guarantors”, which term includes any successor guarantor under the Indenture) and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to __________.
[If applicable, insert – The Securities of this series are subject to redemption upon not less than 15 or more than 60 days’ notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, [if applicable, insert – (1) on __________ in any year commencing with the year ____ and ending with the year ____ through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [on or after __________, 20__], as a whole or in part, at the election of the Issuer, at the following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before __________, ____% and if redeemed] during the 12-month period beginning __________________:
| Year |
Redemption Price |
Year |
Redemption Price | |||
and thereafter at a Redemption Price equal to ____% of the principal amount, together in the case of any such redemption [if applicable, insert – (whether through operation of the sinking fund or otherwise)] with accrued and unpaid interest to, but excluding, the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
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[If applicable, insert – The Securities of this series are subject to redemption upon not less than 15 or more than 60 days’ notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, (1) on __________ in any year commencing with the year ____ and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after __________], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning ___________________:
| Year |
Redemption Price For Redemption Through Operation of the Sinking Fund |
Redemption Price For Redemption Otherwise Than Through Operation of the Sinking Fund | ||
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued and unpaid interest to, but excluding, the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities or one or more Predecessor Securities of record at the close of business on the relevant Record Dates referred to on the face hereof all as provided in the Indenture.]
[If applicable, insert – The Securities of this series are subject to redemption upon not less than 15 or more than 60 days’ notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, at any time, as a whole or in part, at the election of the Issuer, at a Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Securities to be redeemed, or
(b) as determined by the Quotation Agent (as defined below), the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed that would be due if such series of notes matured on the Par Call Date (except that, if the redemption date is not an interest payment date, the amount of the next succeeding scheduled interest payment will be reduced (solely for the purpose of this calculation) by the amount of interest accrued thereon to the redemption date), discounted to the redemption date on a semi-annual basis at a discount rate equal to the Adjusted Treasury Rate plus basis points in the case of the notes and basis points in the case of the notes.
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Interest will cease to accrue on the Securities or portions of the Securities called for redemption on and after the Redemption Date.
“Adjusted Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities (assuming, for purposes of this definition, in the case of the notes, that such Securities matured on the maturity date and, in the case of the and notes, that such Securities matured on the Par Call Date of such Securities).
“Comparable Treasury Price” means, with respect to any Redemption Date, (i) the average of the Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations, or (ii) if the Quotation Agent obtains fewer than four Reference Treasury Dealer Quotations, the average of the Reference Treasury Dealer Quotations so received.
“Par Call Date” means, with respect to the notes, the date that is months prior to the maturity date of the notes and, with respect to the notes, the date that is months prior to the maturity date of the notes.
“Quotation Agent” means _______________________.
“Reference Treasury Dealer” means (i) each of ________________, ________________ and ________________, and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), in which case the Issuer shall substitute another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealers selected by the Quotation Agent.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.]
[Notwithstanding the foregoing, the Issuer may not prior to __________ redeem any Securities of this series as contemplated by [clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than ____% per annum.]
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[The sinking fund for this series provides for the redemption on __________ in each year beginning with the year ____ and ending with the year ____ of [not less than] __________ [(“mandatory sinking fund”) and, at the option of the Issuer, not more than _________] aggregate principal amount of Securities of this series. [Securities of this series acquired or redeemed by the Issuer otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made in the order in which they become due.]
[In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Issuer with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, insert – If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert – If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series (the “Acceleration Amount”) may be declared due and payable in the manner and with the effect provided in the Indenture. In case of a declaration of acceleration on or before __________, __________ or on __________ in any year, the Acceleration Amount per principal amount at Stated Maturity of the Securities shall be equal to the amount set forth in respect of such date below:
| Date of declaration |
Acceleration Amount per principal amount at Stated Maturity | |
and in case of a declaration of acceleration on any other date, the Acceleration Amount shall be equal to the Acceleration Amount as of the next preceding date set forth in the table above, plus accrued original issue discount (computed in accordance with generally accepted accounting principles in effect on __________) from such next preceding date to the date of declaration at the yield to maturity. For the purpose of this computation the yield to maturity is ____%. Upon payment (i) of the Acceleration Amount so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuer’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If applicable, insert— Each Holder hereby consents to the Issuer or any Guarantor (or any additional or successor Guarantor) applying to a court of competent jurisdiction for an order sanctioning, approving, consenting to or confirming a reduction in any of its share capital
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accounts including, without limitation, by re-characterizing any sum standing to the credit of an undenominated capital account as a distributable reserve.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantors and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding of all series to be affected, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuer and/or the Guarantors with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. The Holders shall provide the Trustee with written notice of any waiver pursuant to the Indenture.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of (and premium, if any, on) and interest, if any, on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of __________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the Guarantors or the Trustee may treat the person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Issuer, the Guarantors, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal of (and premium, if any, on) or interest, if any, on this Security or any Guarantee endorsed hereon, or for any claim based hereon or thereon or otherwise in respect hereof or thereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or any Guarantor in the Indenture or in any indenture supplemental thereto, or in any Security or in any Guarantee, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or any Guarantor or of any successor corporation, either directly or through the Issuer or any Guarantor or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. In the event that a provision of this Security conflicts with the Indenture, the terms of the Indenture will govern.
SECTION 204. Form of Trustee’s Certificate of Authentication.
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Dated: |
||||||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||||
| By | ||||||
| Authorized Signatory | ||||||
SECTION 205. Securities in Global Form.
If any Security of a series is issuable in global form, such Global Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee of such series of Securities and in such manner as shall be specified in such Global Security. Any instructions by the Issuer with respect to a Global Security, after its initial issuance, shall be in writing but need not comply with Section 102.
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None of the Issuer, the Guarantors, the Trustee of such series of Securities, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
SECTION 206. Guarantee; Form of Guarantee.
Each Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security of each series authenticated and delivered by the Trustee of such series of Securities and with such Trustee on behalf of each such Holder, to be unconditionally bound by the terms and provisions of the Guarantee set forth below and authorizes such Trustee to confirm such Guarantee to the Holder of each such Security by its execution and delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by such Trustee.
The Guarantee of each Guarantor to be endorsed on the Security shall, subject to Section 201, be in substantially the form set forth below:
GUARANTEE
OF
[GUARANTOR]
For value received, [GUARANTOR], a company duly organized and existing under the laws of [COUNTRY] (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby irrevocably and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee for itself and on behalf of each such Holder the due and punctual payment of the principal of (and premium, if any, on) and interest on such Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein, and all other amounts owed under the Indenture, all in accordance with and subject to the terms and limitations of the Security on which this Guarantee is endorsed and Article Thirteen of the Indenture. In case of the failure of [ISSUER], a company duly organized under the laws of [COUNTRY] (herein called the “Issuer”, which term includes any successor Person under such Indenture), promptly to make any such payment of principal (and premium, if any) or interest or any such sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer, subject to the terms and limitations of Article Thirteen of the Indenture.
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This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Executed and delivered on this __________ day of _________, 20___.
| [GUARANTOR] | ||
| By | ||
| Name: | ||
| Title: | ||
| [By | ||
| Name: | ||
| Title:] | ||
Reference is made to Article Thirteen for further provisions with respect to the Guarantees.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of each series of Securities shall be established either by a Board Resolution of the Issuer or by an Officer’s Certificate of the Issuer delivered pursuant to authority granted by a Board Resolution or by a supplemental indenture. If any of the terms of the series, including the form of Security of such series, are established by action taken pursuant to a Board Resolution of the Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary (or Persons performing similar functions) of the Issuer (or if the Issuer does not have a Secretary or Assistant Secretary, a director or manager of the Issuer) and delivered to the Trustee for the Securities of such series at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such series of Securities. If the terms of a series of Securities are to be established pursuant to an Officer’s Certificate, one or more duly appointed officers of the Issuer shall execute and deliver to the Trustee such Officer’s Certificate, acting pursuant to authority granted to such officers by the Board of Directors of the Issuer. If the terms of a series of Securities are to be established pursuant to a supplemental indenture, such supplemental indenture shall be entered into in accordance with the provisions of Section 901 hereof.
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Such Board Resolution or Officer’s Certificate or supplemental indenture (including any exhibits thereto) shall establish:
(1) the title of the Securities of that series (which shall distinguish the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Sections 304, 305, 306, 906, or 1107);
(3) whether the Securities of that series rank as senior Securities or subordinated Securities and the terms of any such subordination;
(4) the date or dates on which the principal of the Securities of that series is payable;
(5) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places where the principal of (and premium, if any, on) and interest, if any, on Securities of that series shall be payable and where such Securities may be registered or transferred;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Issuer;
(8) the obligation, if any, of the Issuer to redeem or purchase Securities of that series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the right, if any, of the Issuer to redeem or purchase Securities of that series and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such right;
(10) if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the denominations in which Securities of that series shall be issuable;
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(11) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(12) if other than such coin or currency of the United States of America, the currency or currency unit in which payment of the principal of (or premium, if any, on) or interest, if any, on the Securities of that series shall be payable or in which the Securities of that series shall be denominated and the particular provisions applicable thereto;
(13) if the principal of (and premium, if any, on) or interest, if any, on the Securities of that series are to be payable, at the election of the Issuer, the Guarantors or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of (and premium, if any, on) or interest, if any, on the Securities of that series may be determined with reference to an index based on a coin or currency other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(15) any provisions permitted by this Indenture relating to Events of Default or covenants of the Issuer or any Guarantor with respect to such series of Securities (including deletions therefrom, modifications thereof or additions thereto, whether or not consistent with the Events of Default or covenants set forth herein);
(16) if the Securities of that series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the U.S. Depositary for such Global Security or Securities; the manner in which and the circumstances under which Global Securities representing Securities of that series may be exchanged for Securities in definitive form, if other than, or in addition to, the manner and circumstances specified in Section 305;
(17) whether the Securities of that series will be convertible into Common Shares of the Issuer and/or exchangeable for other Securities, including ordinary shares of Trane Parent, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof;
(18) the applicability of any guarantees other than the Guarantee of Trane Parent in the case of Securities issued by Trane Holdco, TTFL, Lux International or TTGH as set forth herein;
(19) whether the Securities of that series will be secured by any collateral and, if so, the terms and conditions upon which such Securities shall be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of the Issuer or any Guarantor of such Securities;
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(20) if a Person other than Wells Fargo Bank, National Association is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee;
(21) the Issuer of such series of Securities;
(22) any provisions for the transfer and legending of the Securities of that series; and
(23) any other terms of that series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any particular series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution of the Issuer or set forth in such Officer’s Certificate or in any such indenture supplemental hereto.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed, manually or by facsimile, on behalf of the Issuer by an Officer of the Issuer, and need not be attested.
Each Guarantee endorsed on any of the Securities shall be executed, manually or by facsimile, on behalf of the applicable Guarantor by an Officer of such Guarantor, and need not be attested.
Any Security or Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper Officers of the Issuer or the applicable Guarantor, as the case may be, shall bind the Issuer or such Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or Guarantee or did not hold such offices at the date of such Security or Guarantee.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series, together with the Guarantees of the Guarantors endorsed thereon, executed by the Issuer and such Guarantors to the Trustee for the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions of the Issuer, as permitted by Sections 201 and 301, in authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, such Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel of the Issuer, as the case may be, stating:
(a) if the form of such Securities has been established by or pursuant to Board Resolution of the Issuer as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;
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(b) if the terms of such Securities have been established by or pursuant to Board Resolution of the Issuer, as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture;
(c) that such Securities and the Guarantees endorsed thereon, when authenticated and delivered by such Trustee and issued by the Issuer and such Guarantors, as the case may be, in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer and such Guarantors, as the case may be, respectively, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and
(d) that all laws and requirements in respect of the execution and delivery by the Issuer of such Securities and by such Guarantors of their respective Guarantees have been complied with.
If such form or terms have been so established, the Trustee for the Securities of such series shall not be required to authenticate such Securities if such Trustee, being advised by counsel, determines that the issue of such Securities pursuant to this Indenture will affect such Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to such Trustee.
Notwithstanding the foregoing, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to the foregoing or the Company Order and Opinion of Counsel otherwise required pursuant to the foregoing prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series; provided, however, that the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel covering the provisions set forth in Section 102 of the Indenture.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee for the Securities of such series by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with Guarantees, if any, endorsed thereon, is entitled to the benefits of this Indenture.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any particular series, the Issuer may execute, and upon delivery of the Company Order the Trustee for the Securities of such series shall authenticate and deliver temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and having endorsed thereon Guarantees executed by the Guarantors of the tenor of the definitive Guarantees, and with such appropriate insertions, omissions, substitutions and other variations as the officer executing such Securities may determine, as evidenced by his or her execution of such Securities.
If temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Issuer shall execute and the Trustee for the Securities of such series shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and having endorsed thereon the Guarantees by the Guarantors. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained at such office and in any other office or agency of the Issuer in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities and of transfers of Securities. The Trustee for the Securities of each series is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Issuer shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount, and having endorsed thereon the Guarantees executed by the Guarantors.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee for the Securities of such series shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon the Guarantees executed by the Guarantors.
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All Securities and the Guarantees endorsed thereon issued upon any registration of transfer or exchange of Securities and such Guarantees endorsed thereon, shall be the valid obligations of the Issuer and the Guarantors, respectively evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and such Guarantees endorsed thereon surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee for the Securities of such series) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed, by the Holder thereof or his or her attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
The Issuer shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
If the Issuer shall establish pursuant to Section 301 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Issuer shall execute (along with the Guarantees executed by the Guarantors endorsed thereon) and the Trustee for the Securities of such series shall, in accordance with Section 303 and the Company Order with respect to such series, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the U.S. Depositary for such Global Security or Securities or the nominee of such depositary, and (iii) shall bear a legend substantially to the following effect: “This Security (and the related Guarantees) 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 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 and until this Security is exchanged in whole or in part for Securities in definitive form” and such other legend as may be required by the U.S. Depositary.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive form, a Global Security (and the related Guarantees) representing all or a portion of the Securities of a series may not be transferred except as a whole by the U.S. Depositary for such series to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor U.S. Depositary for such series or a nominee of such successor depositary.
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If at any time the U.S. Depositary for the Securities of a series notifies the Issuer that it is unwilling or unable to continue as U.S. Depositary for the Securities of such series or if any time the U.S. Depositary for Securities of a series shall no longer be a clearing agency registered and in good standing under the Exchange Act, or other applicable statute or regulation, the Issuer shall appoint a successor U.S. Depositary with respect to the Securities of such series. If a successor U.S. Depositary for the Securities of such series is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, the Issuer will execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and having endorsed thereon the Guarantees executed by the Guarantors.
The Issuer may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Issuer will execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such Series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and having endorsed thereon the Guarantees executed by the Guarantors.
If the Securities of any series shall have been issued in the form of one or more Global Securities and if an Event of Default with respect to the Securities of such series shall have occurred and be continuing, the Issuer will promptly execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and having endorsed thereon the Guarantees executed by the Guarantors.
If specified by the Issuer pursuant to Section 301 with respect to Securities of a series, the U.S. Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as are acceptable to the Issuer and such depositary. Thereupon, the Issuer shall execute and the Trustee for the Securities of such series shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new registered Security or Securities of the same series, of an authorized denomination as requested by such Person in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security and having endorsed thereon the Guarantees executed by the Guarantors; and
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(ii) to the U.S. Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof and having endorsed thereon the Guarantees executed by the Guarantors.
Upon the exchange of a Global Security in whole for Securities in definitive form, such Global Security shall be canceled by the Trustee for the Securities of such series. Securities issued in exchange for a Global Security shall be registered in such names and in such authorized denominations as the U.S. Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee for the Securities of such series. Such Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
The transferor of any Security shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary Participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee for the series of such Securities, the Issuer shall execute and such Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, and having endorsed thereon the Guarantees executed by the Guarantors.
If there shall be delivered to the Issuer and the Trustee for the series of such Securities (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or such Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, and having endorsed thereon the Guarantees executed by the Guarantors.
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In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee for the series of such Securities) connected therewith.
Every new Security of any series and the Guarantees endorsed thereon, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer and the Guarantors, respectively, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee for the Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with such Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to such Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment
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of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his or her address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee for the Securities of such series of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, the Guarantors, the Trustee for such Security and any agent of the Issuer, such Guarantors or such Trustee may treat the person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any, on) and (subject to Section 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Issuer, such Guarantors, such Trustee or any agent of the Issuer, such Guarantors or such Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Issuer, the Guarantors, the Trustee for such Security, or any agent of any of the foregoing, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Security or impair, as between such depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any person other than the Trustee for such Securities, be delivered to such Trustee and shall be promptly cancelled by it. The Issuer or the Guarantors may at any time deliver to such Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or such Guarantors may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by such Trustee shall be disposed of in accordance with such Trustee’s customary practices.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest, if any, on the Securities of each series shall be computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Issuer in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee for such Securities shall use “CUSIP” numbers in notices of redemption as a convenience to Holders of such Securities; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities specified therein (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee for the Securities of such series, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(1) either:
(A) all Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for the Securities of such series for cancellation; or
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(B) all such Securities not theretofore delivered to the Trustee for the Securities of such series for cancellation:
(i) have become due and payable; or
(ii) will become due and payable at their Stated Maturity within one year; or
(iii) are to be called for redemption within one year under arrangements reasonably satisfactory to such Trustee for the giving of notice of redemption by such Trustee in the name, and at the expense, of the Issuer; or
(iv) are deemed paid and discharged pursuant to Section 403, as applicable,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee for the Securities of such series as trust funds in trust for the purpose an amount of (a) money, or (b) in the case of (ii) or (iii) above and (except as provided in an indenture supplemental hereto) if no Securities of any series Outstanding are subject to repurchase at the option of Holders, (I) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the Stated Maturity or Redemption Date, as the case may be, money in an amount, or (II) a combination of money or U.S. Government Obligations as provided in (I) above, in each case sufficient (if U.S. Government Obligations, as certified in the opinion of a nationally recognized firm of independent certified public accountants) to pay and discharge the entire indebtedness on such Securities not theretofore delivered to such Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee for the Securities of such series an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee of the Securities of each series under Section 607, the obligations of the Issuer to any Authenticating Agent under Section 614 and, if money or U.S. Government Obligations shall have been deposited with the Trustee of the Securities of any series pursuant to subclause (B) of clause (1) of this Section or if money or U.S. Government Obligations shall have been deposited with or received by the Trustee of the Securities of any series pursuant to Section 403, the obligations of such Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section 1003, all money or U.S. Government Obligations deposited with the Trustee of a particular series of Securities pursuant to Section 401, 403 or 1006 and all money received by the Trustee of a particular series of Securities in respect of U.S. Government Obligations deposited with the Trustee of that series of Securities pursuant to Section 401, 403 or 1006, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with or received by such Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Section 401, 403 or 1006.
(b) The Issuer shall pay and shall indemnify the Trustee of each series of Securities against any tax, fee, or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 401, 403 or 1006 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The Trustee of each series of Securities shall deliver or pay to the Issuer from time to time upon Company Request any U.S. Government Obligations or money held by it as provided in Section 401, 403 or 1006 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money was deposited or received. This provision shall not authorize the sale by such Trustee of any U.S. Government Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series.
The Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of any series and the Guarantees, respectively, on the 91st day after the date of the deposit referred to in subparagraph (a) to the proviso hereof, and the provisions of this Indenture, as it relates to such Outstanding Securities of such series and the Guarantees, respectively, shall no longer be in effect (and the Trustee for the Securities of such series, at the expense of the Issuer or the Guarantors, shall at Company Request execute proper instruments acknowledging the same), except as to:
(1) the rights of Holders of Securities of such series to receive, from the trust funds described in subparagraph (a) to the proviso hereof, (i) payment of the principal of (and premium, if any, on) and each installment of principal of (and premium, if any, on) or interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to, but excluding, the Redemption Date irrevocably designated by the Issuer pursuant to subparagraph (e) to the proviso hereof and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such series;
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(2) the Issuer’s obligations with respect to such Securities of such series under Sections 305, 306, and 1002 and, if the Issuer shall have irrevocably designated a Redemption Date pursuant to subparagraph (e) to the proviso hereof, Sections 1101, 1104 and 1106 as they apply to such Redemption Date;
(3) the Issuer’s obligations with respect to the Trustee for Securities of such series under Section 607; and
(4) the rights, powers, trust and immunities of such Trustee hereunder and the duties of such Trustee under Section 402 and, if the Issuer shall have irrevocably designated a Redemption Date pursuant to subparagraph (e) to the proviso hereof, Article Eleven and the duty of such Trustee to authenticate Securities of such series on registration of transfer or exchange;
provided, that the following conditions shall have been satisfied:
(a) the Issuer has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with such Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) (except as provided in a supplemental indenture with respect to such series) if Securities of such series are not subject to repurchase at the option of Holders, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in clause (x) or (y) of this subparagraph (a) money in an amount or (B) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, to pay and discharge (x) the principal of (and premium, if any, on) and each installment of principal of (and premium, if any, on) and interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to, but excluding, the Redemption Date irrevocably designated by the Issuer pursuant to subparagraph (e) hereof and (y) any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture and of the Securities of such series;
(b) the Issuer has delivered to such Trustee an Opinion of Counsel to the effect that such provision would not cause any Outstanding Securities of such series then listed on any national securities exchange to be delisted as a result thereof;
(c) no Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
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(d) the Issuer has delivered to such Trustee an Opinion of Counsel in the U.S. to the effect that (i) the Issuer has received from, or there has been published by the Internal Revenue Service a ruling, or (ii) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case, to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. federal income tax law on the same amounts, in the same manner and at the same time as would have been the case if such deposit, defeasance and discharge had not occurred and that no event of default or default shall have occurred and be continuing; and
(e) if the Issuer has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any, on) and interest, if any, on the Outstanding Securities of a series to, but excluding, a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution of the Issuer delivered to such Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that such Trustee give notice of such redemption in the name and at the expense of the Issuer and not less than 15 nor more than 60 days prior to such Redemption Date in accordance with Section 1104.
SECTION 404. Reinstatement.
If the Trustee of the Securities of any series or any Paying Agent is unable to apply any money in accordance with Section 402 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer and the Guarantors under this Indenture and such Securities and any related coupons and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 403 or Section 1006, as the case may be, until such time as such Trustee or Paying Agent is permitted to apply all such money in accordance with Section 402; provided, however, that if the Issuer makes any payment of principal of (or premium, if any, on) or interest, if any, on any such Security or any related coupon following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities and any related coupons to receive such payment from the money held by such Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that series when it becomes due and payable and continuance of such default for a period of 30 days (subject to the deferral of any interest payment in the case of an extension period); or
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(2) default in the payment of the principal of (or premium, if any, on) any Security of that series when due either at its Maturity, upon redemption, upon acceleration or otherwise; or
(3) default in the payment of any sinking fund installment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty of the Issuer or any Guarantor of the Securities of such series in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer or such Guarantor by the Trustee for the Securities of such series or to the Issuer or such Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Issuer or any Guarantor of the Securities of such series in an involuntary case or proceeding under any applicable United States federal or state, Luxembourg or Irish bankruptcy, insolvency, reorganization, examinership or other similar law or (B) a decree or order adjudging the Issuer or any Guarantor of the Securities of such series as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, examinership or composition of or in respect of the Issuer or any such Guarantor under any applicable United States federal or state, Luxembourg or Irish law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or any such Guarantor or of any substantial part of their respective properties, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Issuer or any Guarantor of the Securities of such series of a voluntary case or proceeding under any applicable United States federal or state, Luxembourg or Irish bankruptcy, insolvency, reorganization, examinership or other similar law or of any other case or proceeding to be adjudicated as bankrupt or insolvent, or the consent by such Issuer or such Guarantor to the entry of a decree or order for relief in respect of such Issuer or such Guarantor, respectively, in an involuntary
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case or proceeding under any applicable United States federal or state, Luxembourg or Irish bankruptcy, insolvency, reorganization, examinership or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against such Issuer or such Guarantor, or the filing by such Issuer or such Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable United States federal or state, Luxembourg or Irish law, or the consent by such Issuer or such Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Issuer or such Guarantor or of any substantial part of their respective properties, or the making by such Issuer or such Guarantor of an assignment for the benefit of creditors, or the admission by such Issuer or such Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by such Issuer or such Guarantor in furtherance of any such action; or
(7) a guarantee of the Securities of that series shall for any reason cease to be, or shall for any reason be asserted in writing by the Issuer or any Guarantor of the Securities of such series not to be, in full force and effect and enforceable in accordance with its terms except to the extent contemplated by this Indenture and such Guarantee; or
(8) any other Event of Default provided in the supplemental indenture or provided in or pursuant to a Board Resolution or Officer’s Certificate of the Issuer, under which such series of Securities is issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee for the Securities of such series or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Issuer (and to such Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 501(5) or 501(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of such Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of such series as hereinafter in this Article Five provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the Issuer and such Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer has paid or deposited with such Trustee a sum sufficient to pay,
(A) all overdue interest, if any, on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities, of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of and accrued interest on Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Issuer covenants that if:
(1) default is made in the payment of any interest on any Security of a series when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of a series at the Maturity thereof,
the Issuer will, upon demand of the Trustee for the Securities of such series, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.
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If the Issuer fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer, the Guarantors or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer, the Guarantors or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee for the Securities of such series may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In any case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer, any of the Guarantors or any other obligor upon the Securities a series or the property of the Issuer, such Guarantors or such other obligor or their creditors, the Trustee for the Securities of such series (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Issuer or the Guarantors for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of such Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel) and of the Holders of such Securities allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of such Securities to make such payments to such Trustee and, in the event that such Trustee shall consent to the making of such payments directly to such Holders, to pay to such Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities, the Guarantees or the rights of any Holder thereof or to authorize such Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee for any series of Securities without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee for any series of Securities pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due such Trustee under Section 607;
SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by such Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate prescribed therefor in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, if any, with interest upon the overdue principal, and (to the extent that such interest has been collected by such Trustee and to the extent permitted by law) upon overdue installments of interest at the rate prescribed therefor in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or as a court of competent jurisdiction may direct.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee for the Securities of such series of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to such Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series,
it being understood and intended that no one or more of such Holders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any, on) and (subject to Section 307) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such
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Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Guarantors, such Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of such Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to any Holder is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to such Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series, or exercising any trust or power conferred on such Trustee, with respect to the Securities of such series; provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture; and
(2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all of the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of such series; or
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(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for the Securities of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee for the Securities of any series, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any, on) or interest, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
Each of the Issuer and the Guarantors of each series of Securities covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Issuer and the Guarantors of each series of Securities (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for the Securities of any such series, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such:
(1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and
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(2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to such Trustee, such Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee for the Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the effect of subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that such Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder of which a Responsible Officer of the Trustee has actual written knowledge with respect to the Securities of any particular series, the Trustee for the Securities of such series shall deliver electronically or
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transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register for that series or otherwise in accordance with the procedures of the U.S. Depositary, notice of such default hereunder known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of that series or in the payment of any sinking fund installment with respect to Securities of that series, such Trustee shall be protected in withholding such notice if and so long as it in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of that series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series.
Promptly (and in any event within 5 Business Days) upon the Issuer or any of the Guarantors becoming aware of any default hereunder with respect to the Securities of any particular series, such party is required to deliver to the Trustee a statement specifying such default hereunder and the actions which the Issuer or such Guarantors, as the case may be, propose to take with respect to such default hereunder.
SECTION 603. Certain Rights of Trustee. Subject to the provisions of Section 601:
(a) the Trustee for any series of Securities may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, electronic instruction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer or any Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or Company Order of the Issuer or such Guarantor and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution of the Issuer or such Guarantor;
(c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate;
(d) such Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity, reasonably satisfactory to it, against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
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(f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document and the delivery of such information shall not constitute actual or constructive knowledge or notice on the part of the Trustee, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable request to examine the books, records and premises of the Issuer, personally or by agent or attorney, at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) such Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and such Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual written knowledge of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(k) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(l) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and
(m) the Trustee may request that any of the Issuer or Guarantors deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Guarantors, and neither the Trustee for any series of Securities nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the Guarantees. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent, any Paying Agent, any Calculation Agent, any Security Registrar or any other agent of the Issuer, the Guarantors or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Issuer or the Guarantors with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Calculation Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer or the Guarantors.
SECTION 607. Compensation and Reimbursement. The Issuer and Guarantors, jointly and severally, agree:
(1) to pay to the Trustee for any series of Securities from time to time such compensation for all services rendered by it hereunder as shall be agreed upon in writing from time to time by the Issuer and such Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee for any series of Securities upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligence or willful misconduct or the negligence or willful misconduct of its officers, directors, employees or agents as adjudicated by a court of competent jurisdiction; and
(3) to indemnify such Trustee (which for purposes of this Section 607(3) shall include its officers, directors, employees and agents) for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including taxes other than taxes based on the income of the Trustee) incurred without negligence or willful misconduct on its part or on the part of its officers, directors, employees or agents, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Issuer, the Guarantors, a Holder or any other Person) and enforcement of this Indenture (including this Section) or liability in connection with the exercise or performance of any of its powers or duties hereunder.
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The Trustee for any series of Securities shall have a lien prior to the Securities as to all property and funds held by such Trustee hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of such particular Securities.
When the Trustee for any series of Securities incurs expenses or renders services in connection with an Event of Default specified in Section 501(5) or Section 501(6), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee for any series of Securities has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, such Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. In determining whether such Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series.
SECTION 609. Corporate Trustee Required; Different Trustees for Different Series; Eligibility.
There shall at all times be a Trustee hereunder for each series of Securities which shall be a corporation or bank organized and doing business under the laws of the United States of America, any State thereof, or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 subject to supervision or examination by federal or state authority. If such corporation or bank publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time such Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six.
A different Trustee may be appointed by the Issuer for each series of Securities prior to the issuance of such Securities. If the initial Trustee for any series of Securities is to be other than Wells Fargo Bank, National Association, the Issuer and such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Securities of such series and shall
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add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees to be co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee pursuant to this Article Six shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee for the Securities of any series may resign at any time with respect to the Securities of such series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Securities of such series within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply with Section 608 after written request thereof by the Issuer or by any Holder who has been a bona fide Holder of a Security of such series for at least six months; or
(2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Issuer or by any such Holder; or
(3) such Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Issuer by a Board Resolution may remove such Trustee and appoint a successor Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee or Trustees. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Securities of such series within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series
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(e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Issuer, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such series and shall comply with the applicable requirements of Section 611. If, within 30 days after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of such series shall not have been appointed by the Issuer pursuant to this Section 610, then a successor Trustee may be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer and the retiring Trustee. If no successor Trustee for the Securities of such series shall have been so appointed by the Issuer or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee to be replaced is still incapable of acting, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by delivering electronically or mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register or otherwise in accordance with the procedures of the U.S. Depositary. Each notice shall include the name of the successor Trustee with respect to the Securities of that series and the address of its Corporate Trust Office. The Trustee shall have no liability for the actions or inactions of the successor Trustee.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Issuer, the Guarantors and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer, any Guarantor or the successor Trustee, such retiring Trustee shall, upon receipt of payment of its charges, execute, and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the applicable Issuer, the applicable Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver one or more indentures supplemental hereto wherein each successor
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Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indentures the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the applicable Issuer, the applicable Guarantors or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer and the Guarantors of each applicable series of Securities shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers, and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Securities of any series shall be qualified and eligible under this Article Six.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
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SECTION 613. Preferential Collection of Claims Against the Issuer or a Guarantor.
If and when the Trustee of any series of Securities shall be or become a creditor of the Issuer or any Guarantor (or any other obligor upon the Securities), such Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Issuer or any such Guarantor (or any such other obligor).
SECTION 614. Authenticating Agents.
From time to time the Trustee of any series of Securities, in its sole discretion, may appoint one or more Authenticating Agents with respect to the Securities of such series, which may include the Issuer, any of the Guarantors or any Affiliate of the Issuer or the Guarantors, with power to act on the Trustee’s behalf and subject to its discretion in the authentication and delivery of Securities of such series or in connection with transfers and exchanges under Sections 304, 305, 306 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities “by the Trustee” for the Securities of such series. Any such Authenticating Agent shall be acceptable to the Issuer and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $25,000,000 and, if other than the Issuer, any of the Guarantors or any Affiliate of the Issuer or the Guarantors, subject to supervision or examination by federal, state or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation or to which any Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Issuer. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent for such series by giving written notice of termination to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Securities shall cease to be eligible under this Section,
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the Trustee for such series may appoint a successor Authenticating Agent, which shall be acceptable to the Issuer, shall give written notice of such appointment to the Issuer and shall give written notice of such appointment to all Holders of Securities of such series with respect to which such Authenticating Agent will serve, as the names and addresses of such Holders appear on the Security Register. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation for its services under this Section 614.
If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Date: _______________ | WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | |||||
| By | ||||||
| Authorized Signatory | ||||||
| As Authenticating Agent | ||||||
| By | ||||||
| Authorized Signatory | ||||||
The provisions of Sections 309, 604 and 605 shall be applicable to any Authenticating Agent.
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Issuer will furnish or cause to be furnished to the Trustee for the Securities of such series:
(a) semi-annually, not later than 15 days after each Regular Record Date, or, in the case of any series of Securities on which semi-annual interest is not payable, not more than 15 days after such semi-annual dates as may be specified by such Trustee, a list, in such form as such Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or semi-annual date, as the case may be; and
(b) at such other times as such Trustee may request in writing, within 30 days after the receipt by the Issuer of any such request, a list of similar form and content as specified in clause (a) above as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as such Trustee is Security Registrar for any series of Securities, no such list shall be required to be furnished with respect to any such series.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to such Trustee as provided in Section 701 and the names and addresses of Holders received by such Trustee in its capacity as Security Registrar. Such Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of any particular series (herein referred to as “applicants”) apply in writing to the Trustee for the Securities of such series, and furnish to such Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five business days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the time by such Trustee in accordance with Section 702(a); or
(ii) inform such applicants as to the approximate number of Holders of Securities of such series whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If any such Trustee shall elect not to afford such applicants access to such information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of such series whose name and address appear in the information preserved at the time by such Trustee in accordance with Section 702(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of
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the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender, otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities of each series, by receiving and holding the same, agrees with the Issuer, the Guarantors and the Trustee for the Securities of such series that none of the Issuer, the Guarantors or such Trustee nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that such Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
(d) The U.S. Depositary may grant proxies and otherwise authorize its participants which own the Global Securities to give or take any Act which a Holder is entitled to take under the Indenture; provided, however, that the U.S. Depositary has delivered a list of such participants to the Trustee for the Securities of such series.
SECTION 703. Reports by Trustee.
(a) The Trustee for the Securities of each series shall transmit to Holders of Securities of each series for which such Trustee serves such reports concerning such Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee for the Securities of each series shall, within sixty days after each May 15 following the date of this Indenture deliver to Holders of Securities of each series for which such Trustee serves a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to Holders of Securities of each particular series be filed by each particular Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Issuer. The Issuer will promptly notify the Trustee in writing when any Securities are listed on any stock exchange or of any delisting thereof.
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SECTION 704. Reports by Trane Parent.
Trane Parent shall:
(1) file with the Trustee for the Securities of each series, within 15 days after Trane Parent is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which Trane Parent may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or if Trane Parent is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee for the Securities of such series and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by Trane Parent with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by Trane Parent pursuant to paragraphs (1) and (2) hereof as may be required by rules and regulations prescribed from time to time by the Commission.
Trane Parent shall be deemed to have complied with the previous sentence to the extent that such information, documents and reports are filed with the Commission via the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system (or any successor electronic delivery procedure).
Delivery of such reports, information and documents to the Trustee for the Securities of each series is for informational purposes only and such Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s and the Guarantors’ compliance with any of their respective covenants hereunder (as to which such Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no responsibility to determine if any information has been filed.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Issuer and Guarantors May Consolidate, Etc., on Certain Terms.
(a) The Issuer of any series of Securities shall not consolidate, amalgamate or merge with or into any other Person (whether or not affiliated with such Issuer) and such Issuer or its successor or successors shall not be a party or parties to successive consolidations, amalgamations or mergers and such Issuer shall not sell, convey or lease all or substantially all
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of its property to any other Person (whether or not affiliated with such Issuer) authorized to acquire and operate the same, unless (i) upon any such consolidation, amalgamation, merger, sale, conveyance or lease, the due and punctual payment of the principal of (and premium, if any, on) and interest, if any, on all of the Securities of such series, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by such Issuer shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the Trustee for such series of Securities, executed and delivered to each such Trustee by the Person (if other than such Issuer) formed by such consolidation or amalgamation, or into which such Issuer shall have been merged, or by the Person which shall have acquired or leased such property, and (ii) such Person shall be a solvent corporation, partnership, limited liability company, trust or any other entity organized under the laws of the United States of America or a State thereof or the District of Columbia, any Member State of the European Union, the United Kingdom, Cayman Islands, British Virgin Islands, Gibraltar, the British Crown Dependencies, any member country of the Organisation for Economic Co-operation and Development, or any political subdivision of any of the foregoing. Such Issuer will not so consolidate, amalgamate or merge, or make any such sale, lease or other disposition, and such Issuer will not permit any other Person to merge into such Issuer, unless immediately after the proposed consolidation, amalgamation, merger, sale, lease or other conveyance, and after giving effect thereto, no default in the performance or observance by such Issuer or such successor Person, as the case may be, of any of the terms, covenants, agreements or conditions in respect of such series of Securities contained in this Indenture shall have occurred and be continuing.
(b) Each Guarantor, if any, of any series of Securities shall not consolidate, amalgamate or merge with or into any other Person (whether or not affiliated with such Guarantor) and such Guarantor and its successor or successors shall not be a party or parties to successive consolidations, amalgamations or mergers and such Guarantor shall not sell, convey or lease all or substantially all of the property of such Guarantor to any other Person (whether or not affiliated with such Guarantor) authorized to acquire and operate the same, unless (i) upon any such consolidation, amalgamation, merger, sale, conveyance or lease, the performance of the obligations under the Guarantee of such Guarantor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by such Guarantor shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the Trustee for each series of Securities, executed and delivered to each such Trustee by the Person (if other than the Issuer or a Guarantor for such series) formed by such consolidation or amalgamation, or into which such Guarantor shall have been merged, or by the Person which shall have acquired or leased such property, and (ii) such Person shall be a solvent corporation, partnership, limited liability company, trust or any other entity organized under the laws of the United States of America or a State thereof or the District of Columbia, any Member State of the European Union, the United Kingdom, Cayman Islands, British Virgin Islands, Gibraltar, the British Crown Dependencies, any member country of the Organisation for Economic Co-operation and Development, or any political subdivision of any of the foregoing. Furthermore, such Guarantor will not so consolidate, amalgamate or merge, or make any such sale, lease or other conveyance, and such Guarantor will not permit any other Person to merge into it, unless immediately after the proposed consolidation, amalgamation, merger, sale, lease or other conveyance, and after giving effect thereto, no default in the performance or observance by such Guarantor or such successor Person, as the case may be, of any of the terms, covenants, agreements or conditions in respect of such series of Securities contained in this Indenture or the Guarantee of such Guarantor to be performed by such Guarantor shall have occurred and be continuing.
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SECTION 802. Securities to be Secured in Certain Events.
Notwithstanding anything to the contrary contained in Section 801, if upon any such consolidation, amalgamation or merger, or upon any such sale, conveyance or lease, any Principal Property or any shares of stock or Funded Indebtedness of any Restricted Subsidiary owned immediately prior thereto would thereupon become subject to any Mortgage (other than a Mortgage to which such Principal Property or such shares of stock or Funded Indebtedness of such Restricted Subsidiary may become subject pursuant to Section 1004 hereof without equally and ratably securing the Securities) (the “Triggering Mortgage”), Trane Parent, prior to such consolidation, amalgamation, merger, sale, conveyance or lease, will by indenture supplemental hereto secure, or cause to be secured, the due and punctual payment of the principal of (and premium, if any, on) and interest, if any, on the Securities (together with, if Trane Parent shall so determine, any other indebtedness of or guarantee by Trane Parent or such Restricted Subsidiary ranking equally with the Securities and then existing or thereafter created) by a Mortgage on such Principal Property or such shares of stock or Funded Indebtedness of such Restricted Subsidiary, the lien of which, upon completion of said merger, consolidation, amalgamation, sale, conveyance or lease, will rank prior to the lien of such Triggering Mortgage.
SECTION 803. Successor Corporation to be Substituted.
(a) In respect of each series of Securities, upon any consolidation, amalgamation or merger of the Issuer with or into any other corporation or corporations or any sale, conveyance or lease of all or substantially all of the property of the Issuer to any other corporation or corporations in accordance with this Article Eight, the successor shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture and such Securities with the same effect as if such successor had been named as the Issuer herein and therein, and thereafter, except in the case of a lease, the Issuer as the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities and the Issuer as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated.
(b) In respect of each series of Securities, subject to Section 801(b), upon any consolidation, amalgamation or merger of any Guarantor with or into any other corporation or corporations or any sale, conveyance or lease of all or substantially all of the property of such Guarantor to any other corporation or corporations in accordance with this Article Eight, the successor shall succeed to, and be substituted for, and may exercise every right and power of, such Guarantor under this Indenture, the Securities and the Guarantee of such Guarantor with the same effect as if such successor had been named as a Guarantor herein and therein, and thereafter, except in the case of a lease, such Guarantor as predecessor corporation shall be relieved of all obligations and covenants under this Indenture and its Guarantee, and such Guarantor as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated.
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SECTION 804. Opinion of Counsel and Officer’s Certificate to be Given to Trustee.
The Trustee for each series of Securities, subject to Section 601, shall receive an Officer’s Certificate and Opinion of Counsel as conclusive evidence that any such consolidation, amalgamation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Issuer, the Guarantors and the Trustee for the Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the purposes set forth below in this Section 901. The terms of such supplemental indenture may be established by one or more duly appointed officers of the Issuer and one or more duly appointed officers of the Guarantors acting pursuant to authority granted to such officers by the Board of Directors of the Issuer and by the Board of Directors of the Guarantors. A supplemental indenture, in form reasonably satisfactory to the Trustee, may be entered into pursuant to this Section 901 for any of the following purposes:
(1) to evidence the succession of another corporation, partnership, limited liability company, trust or any other entity to the Issuer or any Guarantor and the assumption by any such successor of the covenants of the Issuer herein and in the Securities or the assumption by any such successor of the covenants of such Guarantor herein and in the Guarantee; or
(2) to add to the covenants of the Issuer or the Guarantors for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantors, as applicable; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture; provided, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provisions; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or
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(8) to establish the form or terms of a related Guarantee as permitted by Sections 201 and 206; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(10) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than Wells Fargo Bank, National Association as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or
(11) to provide for any rights of the Holders of Securities of any series to require the repurchase of Securities of such series from the Issuer; or
(12) to cure any ambiguity, omission, mistake or defect to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(13) to provide for the issuance of additional Securities of any series in accordance with this Indenture; or
(14) to provide for or add Guarantees with respect to the Securities of any series; or
(15) to amend the provisions of this Indenture relating to the transfer and legending of any Securities, including, without limitation, to facilitate the issuance and administration of such Securities; provided that compliance with this Indenture as so amended would not result in the Securities being transferred in violation of the Securities Act of 1933, as amended, or any applicable securities law; or
(16) to continue its qualification under the Trust Indenture Act or as may be necessary or desirable in accordance with amendments to the Trust Indenture Act; or
(17) to conform the text of this Indenture, the Securities or any related Guarantee to any provision of the description thereof set forth in any applicable prospectus or prospectus supplement to the extent that such provision in such prospectus or prospectus supplement was intended to be a verbatim recitation of a provision in this Indenture, the Securities or any related Guarantee; or
(18) for any other reason specified pursuant to Section 301 with respect to the Securities of such series.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of any or all series affected by such supplemental indenture (voting as one class), by Act of said Holders delivered to the Issuer, the Guarantors and the Trustee of each such series of Securities, the Issuer, when authorized by or pursuant to a Board Resolution of its Board of Directors, the Guarantors, when authorized by or pursuant to a Board Resolution by the Guarantors’ Board of Directors, and each such Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner
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or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or release any Guarantor from any of its obligations under its Guarantee or modify such obligations otherwise than in accordance with the terms of this Indenture;
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture;
(3) make the Outstanding Securities of any series payable in currency other than that stated herein;
(4) expressly subordinate in right of payment the Outstanding Securities of any series or a Guarantee thereof; or
(5) modify any of the provisions of this Section, Section 513 or Section 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(9) and 901(10).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of any series of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, and supplemental indenture permitted by this Article Nine or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall receive, and (subject to Section 601) shall be fully protected in conclusively relying upon, an Officer’s Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and is the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes, and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Issuer and the Guarantors shall so determine, new forms of the Securities of any series and the Guarantees endorsed thereon modified as to conform, in the opinion of the Trustee for the Securities of such series, the Issuer and the Guarantors, to any supplemental indenture may be prepared and executed by the Issuer and the Guarantors and authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of each series of Securities for which it is the Issuer that it will duly and punctually pay the principal of (and premium, if any, on) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Issuer will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where
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notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served. The Issuer will give prompt written notice to the Trustee for Securities of that series of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Issuer hereby appoints such Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Issuer will give prompt written notice to the Trustee for the Securities of each series of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any, on) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the persons entitled thereto a sum sufficient to pay the principal (and premium, if any, on) or interest, if any, so becoming due until such sums shall be paid to such persons or otherwise disposed of as herein provided and will promptly notify the Trustee for the Securities of such series of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any, on) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any, on) or interest so becoming due, such sum to be held in trust for the benefit of the persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee for the Securities of such series) the Issuer will promptly notify such Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent for any series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any, on) or interest, if any, on Securities of that series in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed of as herein provided;
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(2) give such Trustee notice of any default by the Issuer (or any other obligor upon the Securities of that series) in the making of any payment of principal of (and premium, if any, on) or interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of any series all sums held in trust by the Issuer or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent for the Securities of any series, or then held by the Issuer or the Guarantors, in trust for the payment of the principal of (and premium, if any, on) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Issuer or the Guarantors on Company Request, or, if then held by the Issuer or the Guarantors, shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer or the Guarantors, as the case may be, for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer or the Guarantors, as the case may be, as trustee thereof, shall thereupon cease.
SECTION 1004. Limitation on Liens.
(a) Trane Parent covenants and agrees for the benefit of each series of Securities, other than any series established by or pursuant to a Board Resolution or an Officer’s Certificate of the Issuer of such series or in one or more supplemental indentures hereto which specifically provides otherwise, that Trane Parent will not, and will not permit any Restricted Subsidiary to, create, assume or guarantee any indebtedness for money borrowed secured by a Mortgage (i) on any Principal Property of Trane Parent or of a Restricted Subsidiary or (ii) on any shares or Funded Indebtedness of a Restricted Subsidiary (whether such Principal Property, shares or Funded Indebtedness are now owned or hereafter acquired) without, in any such case, effectively providing concurrently with the creation, assumption or guaranteeing of such indebtedness that the Securities (together, if Trane Parent shall so determine, with any other indebtedness then or thereafter existing, created, assumed or guaranteed by Trane Parent or such Restricted Subsidiary ranking equally with the Securities) shall be secured equally and ratably with (or prior to) such indebtedness; excluding, however, from the foregoing any indebtedness secured by a Mortgage (including any extension, renewal or replacement, or successive extensions, renewals or replacements, of any Mortgage hereinafter specified or any indebtedness secured thereby, without increase of the principal of such indebtedness or expansion of the collateral securing such indebtedness):
(1) on property, shares or Funded Indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary; or
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(2) on property existing at the time of acquisition thereof by Trane Parent or a Restricted Subsidiary, or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price thereof or construction or improvements thereon, which indebtedness is incurred by Trane Parent or a Restricted Subsidiary prior to, at the time of or within 360 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) and the commencement of commercial operation of such property; provided, however, that in the case of any such acquisition, construction or improvement the Mortgage shall not apply to any property theretofore owned by Trane Parent or a Restricted Subsidiary, other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located; or
(3) on property, shares or Funded Indebtedness of a Person existing at the time such Person is merged into or consolidated with Trane Parent or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to Trane Parent or a Restricted Subsidiary; or
(4) on property of a Restricted Subsidiary to secure indebtedness of such Restricted Subsidiary to Trane Parent or another Restricted Subsidiary; or
(5) on property of Trane Parent or a Restricted Subsidiary in favor of the United States of America or any State thereof or Luxembourg or the jurisdiction of organization of Trane Parent, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, Luxembourg or the jurisdiction of organization of Trane Parent, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Mortgage; or
(6) existing at the date of this Indenture;
provided, however, that any Mortgage permitted by any of the foregoing clauses (1), (2), (3) and (5) of this Section 1004(a) shall not extend to or cover any property of Trane Parent or such Restricted Subsidiary, as the case may be, other than the property specified in such clauses and improvements thereto.
(b) Notwithstanding the provisions of subsection (a) of this Section 1004, Trane Parent or any Restricted Subsidiary may create, assume or guarantee secured indebtedness for money borrowed which would otherwise be prohibited in said subsection (a) in an aggregate amount which, together with all other such indebtedness for money borrowed of Trane Parent and its Restricted Subsidiaries and the Attributable Debt of Trane Parent and its Restricted Subsidiaries in respect of Sale and Leaseback Transactions (as defined in Section 1005) existing at such time (other than Sale and Leaseback Transactions entered into prior to the date of this Indenture and Sale and Leaseback Transactions the proceeds of which have been applied in accordance with clause (b) of Section 1005), does not at the time exceed 10% of the shareholders’ equity in Trane Parent and its consolidated Subsidiaries, as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of Trane Parent.
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(c) For the purposes of this Article Ten,
(1) the term “Attributable Debt” shall mean, as of any particular time, the lesser of (i) the fair value of the property subject to the applicable sale and leaseback transaction (as determined by the board of directors of Trane Parent) and (ii) the then present value (discounted at a rate equal to the weighted average of the rate of interest on all securities issued by the Issuer then issued and outstanding under this Indenture, compounded semi-annually) of the total net amount of rent required to be paid under such lease during the remaining term thereof (excluding any renewal term unless the renewal is at the option of the lessor) or, if earlier, until the earliest date on which the lessee may terminate such lease upon payment of a penalty (in which case the obligation of the lessee for rental payments shall include such penalty). The net amount of rent required to be paid for any such period shall be the aggregate amount of the rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of, or measured or determined by, any variable factor, including, without limitation, the cost-of-living index and costs of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges and after excluding any portion of rentals based on a percentage of sales made by the lessee. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated;
(2) the term “shareholders’ equity in Trane Parent and its consolidated Subsidiaries” shall mean the share capital, share premium, contributed surplus and retained earnings of Trane Parent and its consolidated Subsidiaries, excluding the cost of shares of Trane Parent held by its Affiliates, all as determined in accordance with GAAP; and
(3) the term “Mortgage” on any specified property shall mean any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property.
SECTION 1005. Limitation on Sale and Leaseback Transactions.
Trane Parent covenants and agrees for the benefit of each series of Securities, other than any series established by or pursuant to a Board Resolution or an Officer’s Certificate of the Issuer of such series or in one or more supplemental indentures hereto which specifically provides otherwise, that Trane Parent will not, and will not permit any Restricted Subsidiary to, enter into any arrangement with any person for the leasing by Trane Parent or a Restricted Subsidiary (except for leases for a term of not more than three years and for leases of a part of a Principal Property which has been sold, for use in connection with the winding up or termination of the business conducted on such Principal Property, and except, in the case of a Restricted Subsidiary, a lease to Trane Parent or another Restricted Subsidiary) of any Principal Property
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(whether now owned or hereafter acquired), which Principal Property has been or is intended to be sold or transferred by Trane Parent or such Restricted Subsidiary to such person (herein referred to as a “Sale and Leaseback Transaction”), unless (a) Trane Parent or such Restricted Subsidiary would be entitled, pursuant to the provisions of Section 1004, to incur indebtedness secured by a Mortgage on such Principal Property without equally and ratably securing the Securities, or (b) Trane Parent shall (and in any such case Trane Parent covenants that it will) apply within 360 days of the effective date of any such Sale and Leaseback Transaction an amount equal to the fair value (as determined by its Board of Directors) of such Principal Property so leased (i) to the retirement (other than by payment at maturity or to satisfy the mandatory requirements of any sinking, purchase or analogous fund or prepayment provision) of the Securities or other Funded Indebtedness of Trane Parent or any Restricted Subsidiary ranking on a parity with the Securities, provided, however, that the amount to be applied to the retirement of any Funded Indebtedness as provided under this clause (i) shall be reduced by (x) the principal amount of any Securities delivered within 360 days after such sale or transfer to the Trustee for the Securities of such series for retirement and cancellation and (y) the principal amount of other Funded Indebtedness ranking on a parity with the Securities voluntarily retired by Trane Parent within 360 days after such sale or transfer; or (ii) to the purchase, improvement or construction of properties which are Principal Properties, provided, that if only a portion of such proceeds is designated as a credit against such purchase, improvement or construction, Trane Parent shall apply an amount equal to the remainder as provided in clause (i); and promptly after the expiration of such 360-day period Trane Parent shall have delivered to the Trustee for the Securities of such series an Officer’s Certificate setting forth in reasonable detail all material facts necessary to show compliance with this subsection.
SECTION 1006. Defeasance of Certain Obligations.
Upon the Issuer’s exercise of its option, if any, to have this Section 1006 applied to any Securities or any series of Securities issued by such Issuer, or if this Section 1006 shall otherwise apply to any Securities or any series of Securities issued by such Issuer, each of the Issuer and the Guarantors may omit to comply with, and shall have no liability in respect of, any term, provision or condition set forth in Sections 802, 1004 and 1005 (and each of the Issuer and the Guarantors may omit to comply with, and shall have no liability in respect of any other provision or condition specified pursuant to Section 301(14) for such Securities) with respect to the Securities of any series whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant, to any other provision herein or in any other document and such omission to comply shall not constitute a Default or Event of Default under Section 501(4) or otherwise, as the case may be; provided that the following conditions shall have been satisfied:
(1) The Issuer has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with the Trustee for the Securities of such series (specifying that each deposit is pursuant to this Section 1006) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) (except as provided in a supplemental indenture with respect to such series) if Securities of such series are not subject to repurchase at the option of such Holders, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due
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date of any payment referred to in clause (x) or (y) of this subparagraph (1) money in an amount, or (B) a combination of the foregoing, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, to pay and discharge (x) the principal of (and premium, if any, on) and each installment of principal of (and premium, if any, on) and interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to, but excluding, the Redemption Date irrevocably designated by the Issuer pursuant to subparagraph (4) of this Section and (y) any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture and of the Securities of such series;
(2) No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default (including by reason of such deposit) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(3) The Issuer shall have delivered to such Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance of certain obligations and that no Event of Default or default shall have occurred and be continuing; and
(4) If the Issuer has deposited or caused to be deposited money or U.S. Government Obligations or a combination thereof (if U.S. Government Obligations, as certified in the opinion of a nationally recognized firm of independent certified public accountants) to pay or discharge the principal of (and premium, if any, on) and interest, if any, on the Outstanding Securities of a series to, but excluding, a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution of the Issuer or delivered to such Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that such Trustee give notice of such redemption in the name and at the expense of the Issuer and not less than 15 nor more than 60 days prior to such Redemption Date in accordance with Section 1104.
SECTION 1007. Statement by Officer as to Default.
Trane Parent will deliver to the Trustee for each series of Securities, on or before May 15 in each year ending after the date hereof, an Officer’s Certificate (one of the signatories of which shall be the principal executive officer, principal accounting officer or principal financial officer of Trane Parent) stating that in the course of the performance by such signer of his or her duties as an officer of Trane Parent, he would normally have knowledge of any default (without regard to periods of grace or notice requirements) by the Issuer or the Guarantors in the performance and observance of any of their respective covenants contained in this Indenture, and stating whether or not he has knowledge of any such default and, if so, specifying each such default of which such signer has knowledge and the nature thereof.
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Trane Parent covenants to deliver to the Trustee, for each series of Securities, as soon as possible and in any event within five Business Days after Trane Parent becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or default and the action which Trane Parent, the Issuer and the Guarantors, as applicable, propose to take with respect thereto.
SECTION 1008. Waiver of Certain Covenants.
Each of the Issuer and the Guarantors may omit in any particular instance to comply with any term, provision or condition set forth in Sections 802, 1004 and 1005 (and each of the Issuer and the Guarantors may omit in any particular instance to comply with any term, provision or condition specified pursuant to Section 301(14) for such Securities) if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of all series affected by such omission (voting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and the Guarantors, as the case may be, and the duties of the Trustee for the Securities of each series in respect of any such term, provision or condition shall remain in full force and effect.
SECTION 1009. Calculation of Original Issue Discount.
The Issuer shall file with the Trustee for the Original Issue Discount Securities of each series promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on the Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities of any series shall be evidenced by an Officer’s Certificate. In case of any redemption at the election of the Issuer of the Securities of any series, the Issuer shall, at least five Business Days prior to the date notice of redemption is required to be sent or caused to be sent pursuant to Section 1104 (unless a shorter notice shall be reasonably satisfactory to the Trustee for the Securities of such series), notify such Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed,
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such notice to be accompanied by a written statement signed by an authorized officer of the Issuer stating that no defaults in the payment of interest or Events of Default with respect to the Securities of that series have occurred (which have not been waived or cured). In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee for the Securities of such series with an Officer’s Certificate evidencing compliance with such restriction.
SECTION 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the Securities of that series to be redeemed shall be selected by lot, on a pro rata basis or by any other method the Trustee deems to be fair and appropriate (or, in the case of Global Securities, based on the method required by the U.S. Depositary or, if it is not so required, a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate), unless otherwise required by law or applicable stock exchange or depositary requirements, not more than 60 days prior to the Redemption Date by the U.S. Depositary or the Trustee, as applicable, for the Securities of such series, from the Outstanding Securities of such series not previously called for redemption.
Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee for the Securities of such series at least 60 days prior to the Redemption Date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or the Guarantors or (b) an entity specifically identified in such written statement that is an Affiliate of the Issuer or the Guarantors.
The Trustee for the Securities of such series shall promptly notify the Issuer and the Guarantors in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by electronic delivery or first-class mail, postage prepaid, delivered or mailed not less than 15 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his or her address appearing in the Security Register or otherwise in accordance with the procedures of the U.S. Depositary.
All notices of redemption shall identify the Securities (including CUSIP numbers) to be redeemed and shall state:
(1) the Redemption Date;
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(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case; and
(7) any conditions precedent for the redemption or notice of redemption.
Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s written request and expense, by the Trustee for such Securities in the name and at the expense of the Issuer. Any redemption or notice of redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent.
SECTION 1105. Deposit of Redemption Price.
By no later than 11:00 A.M. New York City time on any Redemption Date, the Issuer shall deposit with the Trustee for the Securities to be redeemed or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date (to the extent that such amounts are not already on deposit at such time in accordance with the provisions of Section 401, 403 or 1006).
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and accrued and unpaid interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuer at the Redemption Price, together with accrued and unpaid interest to, but excluding, the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Issuer or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and such Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Issuer shall execute, and such Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, and having endorsed thereon the Guarantees executed by the Guarantors of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article Twelve shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee for such Securities, Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to such Trustee for cancellation pursuant to Section 309, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by such Trustee at the sinking fund redemption price specified in such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Issuer will deliver to the Trustee for the Securities of such series an Officer’s Certificate (which need not contain the statements required by Section 102) stating that no defaults in the
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payment of interest, if any, with respect to Securities of that series and no Events of Default with respect to Securities of that series have occurred (which in either case have not been waived or cured) and (a) specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, (b) whether or not the Issuer intends to exercise its right, if any, to make an optional sinking fund payment with respect to such series on the next ensuing sinking fund payment date and, if so, the amount of such optional sinking fund payment, and (c) the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and will also deliver to such Trustee any Securities to be so delivered. Such written statement shall be irrevocable and upon its receipt by such Trustee the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect therefor and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section.
Not less than 30 days before each such sinking fund payment date the Securities of such series to be redeemed upon such sinking fund payment date shall be redeemed in the manner specified in Section 1103 and the Trustee shall cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
The Trustee for any series of Securities shall not redeem or cause to be redeemed any Security of such series with sinking fund moneys or deliver or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest with respect to Securities of that series or an Event of Default with respect to the Securities of that series except that, where the delivery or mailing of notice of redemption of any Securities shall theretofore have been made, such Trustee shall redeem or cause to be redeemed such Securities; provided, that it shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default, shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 513 or the default or Event of Default cured on or before the 60th day preceding the sinking fund payment date, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
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ARTICLE THIRTEEN
GUARANTEE
SECTION 1301. Guarantee.
(a) Subject to the provisions of this Article Thirteen and for good and valuable consideration, the receipt of which is hereby acknowledged, each of the Guarantors hereby jointly and severally, fully and unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee for such Securities hereunder and to such Trustee for itself and on behalf of each such Holder, the due and punctual payment of principal of (and premium, if any, on) and interest on the Securities when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and all other amounts owed under this Indenture, according to the terms thereof and of this Indenture. In case of the failure of the Issuer promptly to make any such payment of principal (and premium, if any, on) or interest, the Guarantors hereby agree to make any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer.
(b) The Guarantors hereby agree that their obligations hereunder shall be as if they were principal debtor and not merely surety, and shall be absolute and unconditional, joint and several, irrespective of, and shall be unaffected by any failure to enforce the provisions of such Security or this Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or the Trustee for the Securities of such series or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantors increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to Article Five of this Indenture. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that the Guarantee of such Guarantor will not be discharged except by payment in full of the principal of (and premium, if any, on) and interest on such Security or as otherwise set forth in this Indenture; provided, that if any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors any amount paid either to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(c) The Guarantors shall be subrogated to all rights of the Holder of such Security and the Trustee for the Securities of such series against the Issuer in respect of any amounts paid to such Holder by the Guarantors pursuant to the provisions of this Guarantee; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of (and premium, if any, on) and interest on all Securities of the same series issued under the Indenture shall have been paid in full.
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SECTION 1302. Execution and Delivery of Guarantee.
Each Guarantee to be endorsed on the Securities of each series shall include the terms of the Guarantee set forth in Section 1301 and any other terms that may be set forth in the form established pursuant to Section 206 with respect to such series. Each Guarantor hereby agrees to execute a Guarantee, in a form established pursuant to Section 206, to be endorsed on each Security authenticated and delivered by the Trustee for the Securities of such series.
Each Guarantee shall be executed in accordance with Section 303. The delivery of any Security by the Trustee for the Securities of such series, after the authentication thereof hereunder, shall constitute due delivery of the Guarantees endorsed thereon on behalf of the Guarantors. Each Guarantor hereby agrees that its Guarantee set forth in Section 1301 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Security.
SECTION 1303. Notice to Trustee.
Each Guarantor shall give prompt written notice to the Trustee for the Securities of such series of any fact known to such Guarantor which prohibits the making of any payment to or by such Trustee in respect of the Guarantee pursuant to the provisions of this Article Thirteen other than any agreement in effect on the date hereof.
SECTION 1304. This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of (and premium, if any, on) or interest on the Securities by reason of any provision of this Article Thirteen will not be construed as preventing the occurrence of an Event of Default.
SECTION 1305. Amendment, Etc.
No amendment, modification or waiver of any provision of this Indenture relating to the Guarantors or consent to any departure by a Guarantor or any other Person from any such provision will in any event be effective unless it is signed by such Guarantor and the Trustee for the Securities of such series.
SECTION 1306. Limitation on Liability.
With respect to each Guarantor, the obligations of such Guarantor hereunder will be limited to the maximum amount, as will not result in the obligations of such Guarantor under its Guarantee constituting a fraudulent conveyance or fraudulent transfer, after giving effect to all other relevant liabilities of such Guarantor.
[Remainder of page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| TRANE TECHNOLOGIES PLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| TRANE TECHNOLOGIES HOLDCO INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| TRANE TECHNOLOGIES FINANCING LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
| TRANE TECHNOLOGIES LUX INTERNATIONAL HOLDING COMPANY S.À R.L. | ||
| By: | ||
| Name: | ||
| Title: | ||
| TRANE TECHNOLOGIES GLOBAL HOLDING COMPANY LIMITED | ||
| By: | ||
| Name: | ||
| TRANE TECHNOLOGIES IRISH HOLDINGS UNLIMITED COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
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| TRANE TECHNOLOGIES COMPANY LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
84
Exhibit 5.1
|
|
King & Spalding LLP 1100 Louisiana Suite 4100 Houston, TX 77002 www.kslaw.com |
May 7, 2021
Trane Technologies plc
170/175 Lakeview Dr.
Airside Business Park
Swords, Co. Dublin
Ireland
Ladies and Gentlemen:
We have acted as United States counsel to Trane Technologies plc, an Irish public limited company (“Trane Technologies”), Trane Technologies HoldCo Inc., a Delaware corporation (“Trane Holdco”), Trane Technologies Financing Limited, an Irish private limited company (“TTFL”), Trane Technologies Lux International Holding Company S.à r.l., a Luxembourg private limited liability company (société à responsabilité limitée) (“Lux International”), Trane Technologies Global Holding Company Limited, a Delaware corporation (“TTGH”), Trane Technologies Irish Holdings Unlimited Company, an Irish private unlimited company (“Irish Holdings”), and Trane Technologies Company LLC, a Delaware limited liability company (“TTC” and, together with Trane Technologies, Trane Holdco, TTFL, Lux International, TTGH and Irish Holdings, the “Trane Entities”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”) being filed by the Trane Entities with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to (i) ordinary shares of Trane Technologies with a nominal value of U.S. $1.00 per share (the “Ordinary Shares”); (ii) warrants to purchase Ordinary Shares (the “Ordinary Share Warrants”); (iii) preferred shares of Trane Technologies with a nominal value of U.S. $0.001 per share (the “Preferred Shares”); (iv) warrants to purchase Preferred Shares (the “Preferred Share Warrants”); (v) debt securities (the “Debt Securities”) issued by any of Trane Technologies, Trane Holdco, TTFL, Lux International and/or TTGH (as applicable, the “Issuer”); (vi) warrants to purchase Debt Securities (the “Debt Security Warrants”); (vii) guarantees of Trane Technologies, Trane Holdco, TTFL, Lux International, TTGH, Irish Holdings and TTC, as the case may be (the “Guarantors”), to be issued in connection with the Debt Securities (the “Guarantees”); (viii) contracts for the purchase and sale of Ordinary Shares or Preferred Shares (the “Share Purchase Contracts”); (ix) share purchase units of Trane Technologies (the “Share Purchase Units”), consisting of a Share Purchase Contract and Debt Securities (which may include Guarantees thereof) or debt obligations of third parties, including U.S. Treasury securities; (x) depositary shares (the “Depositary Shares”) representing fractional interests in the Preferred Shares and which may be represented by depositary receipts (the “Depositary Receipts”); and (xi) Ordinary Shares, Preferred Shares, Debt Securities and Guarantees that may be issued upon exercise, exchange or conversion of Warrants (as defined below), Share Purchase Contracts or Depositary Shares, whichever is applicable. The Ordinary Shares, the Preferred Shares, the Debt Securities, the Guarantees, the Share Purchase Contracts, the Depositary Shares, the Warrants and the Share Purchase Units are hereinafter referred to collectively as the “Securities” and the Debt Securities, the Guarantees, the Share Purchase Contracts, the Depositary Shares, the Warrants and the Share Purchase Units are hereinafter referred to collectively as the “Covered Securities.” The Securities may be issued and sold or delivered from time to time as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the “Prospectus”) and supplements to the Prospectus pursuant to Rule 415 under the Securities Act for an indeterminate number of securities and/or aggregate offering price.
The Debt Securities and any Guarantees thereof will be issued under an Indenture (the “Indenture”) among the Trane Entities and Wells Fargo Bank, National Association, as Trustee (the “Trustee”).
The Share Purchase Contracts will be issued pursuant to one or more purchase contract agreements (each, a “Purchase Contract Agreement”) between Trane Technologies and a purchase contract agent to be named therein (the “Purchase Contract Agent”).
The Ordinary Share Warrants and the Preferred Share Warrants are referred to collectively as the “Share Warrants” and the Share Warrants and the Debt Security Warrants are referred to collectively as the “Warrants.” The Share Warrants will be issued under one or more warrant agreements (each, a “Share Warrant Agreement”) between Trane Technologies and a warrant agent to be named therein. The Debt Security Warrants will be issued under one or more warrant agreements (each, a “Debt Security Warrant Agreement”) among the Issuer party thereto, the Guarantors party thereto, a warrant agent to be named therein and the Trustee. The Share Warrant Agreements and the Debt Security Warrant Agreements are referred to collectively as the “Warrant Agreements.” The warrant agent to a Warrant Agreement is referred to hereinafter as a “Warrant Agent.”
The Depositary Shares will be issued pursuant to one or more deposit agreements (each, a “Deposit Agreement”) between Trane Technologies and such depositary as shall be named therein (the “Depositary”).
The Share Purchase Units will be issued pursuant to a unit agreement (each, a “Unit Agreement”), among the Issuer party thereto, any Guarantors party thereto and a unit agent to be named therein. The unit agent to a Unit Agreement is referred to hereinafter as a “Unit Agent.” The Indenture, the Purchase Contract Agreements, the Warrant Agreements, the Deposit Agreements and the Unit Agreements are hereinafter referred to collectively as the “Transaction Agreements.”
We have examined the Registration Statement and the form of Indenture, which is being filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Trane Entities.
In rendering the opinions 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: (1) at the time of execution, authentication, issuance and delivery of the Debt Securities, the Indenture will be the valid and legally binding obligation of the Trustee and any other parties thereto (other than the Trane Entities); (2) at the time of execution, issuance and delivery of the Share Purchase Contracts, the related Purchase Contract Agreement will be the valid and legally binding obligation of the Purchase Contract Agent and any other parties thereto (other than the Trane Entities); (3) at the time of execution, countersignature, issuance and delivery of any Warrants, the related Warrant Agreement will be the valid and legally binding obligation of each Warrant Agent and any other parties thereto (other than the Trane Entities); (4) at the time of execution, issuance and delivery of the Depositary Shares, the related Deposit Agreement will be the valid and legally binding obligation of the Depositary and any other parties thereto (other than the Trane Entities); and (5) at the time of execution, countersignature, issuance and delivery of the Share Purchase Units, the related Unit Agreement will be the valid and legally binding obligation of the Unit Agent and any other parties thereto (other than the Trane Entities).
We have assumed further that (1) at the time of execution, countersignature, issuance and delivery by them of any applicable Transaction Agreements and the issuance by them of any Securities, each Trane Entity will be validly existing and in good standing under the law of its jurisdiction of organization, (2) at the time of execution, authentication, countersignature, issuance and/or delivery of the Covered Securities, the applicable Transaction Agreements will have been duly authorized, executed and delivered by each Trane Entity party thereto in accordance with its organizational documents and the law of its jurisdiction of organization, (3) execution, delivery, issuance and performance by each Trane Entity of the Covered Securities and the applicable Transaction Agreements (including any supplements or amendments thereto) do not and will not constitute a breach or violation of its organizational documents or the law of its jurisdiction of organization or any other applicable laws or regulation or any judgement, injunction order or decree, (4) execution, delivery, issuance and performance by each Trane Entity of the Covered Securities and the applicable Transaction Agreements do not and will not constitute a breach or violation of, or require any consent to be obtained under, any agreement or instrument that is binding upon any Trane Entity and (5) any Securities issuable upon exercise, exchange or conversion of any Security being offered or issued will be duly authorized, created and, if appropriate, reserved for issuance upon such exercise, exchange or conversion.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
| 1. | With respect to the Debt Securities, assuming (a) the taking of all necessary corporate or company action to approve the issuance and terms of any Debt Securities, the terms of the offering thereof and related matters by the Board of Directors (or equivalent governing body) of the applicable Issuer, a duly constituted and acting committee of such Board of Directors (or equivalent governing body) or duly authorized officers of such Issuer (such Board of Directors (or equivalent governing body), committee or authorized officers being referred to herein as the “Issuer Board”) and (b) the due execution, authentication, issuance and delivery of such Debt Securities, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by such Issuer Board and otherwise in accordance with the provisions of the Indenture and such agreement, such Debt Securities will constitute valid and legally binding obligations of such Issuer, enforceable against such Issuer in accordance with their terms. |
| 2. | With respect to the Guarantees, assuming (a) the taking of all necessary corporate or company action to approve the issuance and terms of the Guarantees and related matters by the Board of Directors (or equivalent governing body) of such applicable Guarantor, a duly constituted and acting committee of such Board of Directors (or equivalent governing body) or duly authorized officers of each applicable Guarantor (such Board of Directors (or equivalent governing body), committee or authorized officers being referred to herein as the “Guarantor Board”), (b) the due execution, authentication, issuance and delivery of the Debt Securities underlying such Guarantees, upon payment of the consideration for such Debt Securities provided for in the applicable definitive purchase, underwriting or similar agreement approved by the applicable Guarantor Board and otherwise in accordance with the provisions of the Indenture and such agreement and (c) the due execution, issuance and delivery of such Guarantees, such Guarantees will constitute valid and legally binding obligations of such Guarantors, enforceable against such Guarantors in accordance with their terms. |
| 3. | With respect to the Share Purchase Contracts, assuming (a) the taking of all necessary corporate action by the Board of Directors of Trane Technologies, a duly constituted and acting committee |
| of such Board of Directors or duly authorized officers of Trane Technologies (such Board of Directors, committee or authorized officers being referred to herein as the “Trane Technologies Board”) to approve the issuance and terms of the Share Purchase Contracts, the terms of the offering thereof and related matters and the execution and delivery of the related Purchase Contract Agreement and (b) the due execution, issuance and delivery of such Share Purchase Contracts, upon payment of the consideration for such Share Purchase Contracts provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Trane Technologies Board and otherwise in accordance with the provisions of the applicable Purchase Contract Agreement and such agreement, the Share Purchase Contracts will constitute valid and legally binding obligations of Trane Technologies, enforceable against Trane Technologies in accordance with their terms. |
| 4. | With respect to the Share Warrants, assuming (a) the taking of all necessary corporate action by the Trane Technologies Board to approve the issuance and terms of the Share Warrants, the terms of the offering thereof and related matters and the execution and delivery of the related Share Warrant Agreement and (b) the due execution, countersignature, issuance and delivery of such Share Warrants, upon payment of the consideration for such Share Warrants provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Trane Technologies Board and otherwise in accordance with the provisions of the applicable Share Warrant Agreement and such agreement, such Share Warrants will constitute valid and legally binding obligations of Trane Technologies, enforceable against Trane Technologies in accordance with their terms. The Share Warrants covered by the opinion in this paragraph include any Share Warrants that may be issued pursuant to the terms of any other Securities. |
| 5. | With respect to the Debt Security Warrants, assuming (a) the taking of all necessary corporate action by each applicable Issuer Board and Guarantor Board to approve the issuance and terms of the Debt Security Warrants, the terms of the offering thereof and related matters and the execution and delivery of the related Debt Security Warrant Agreement and (b) the due execution, countersignature, issuance and delivery of such Debt Security Warrants, upon payment of the consideration for such Debt Security Warrants provided for in the applicable definitive purchase, underwriting or similar agreement approved by each applicable Issuer Board and Guarantor Board and otherwise in accordance with the provisions of the applicable Debt Security Warrant Agreement and such agreement, such Debt Security Warrants will constitute valid and legally binding obligations of each such Issuer and Guarantor, enforceable against each such Issuer and Guarantor in accordance with their terms. The Debt Security Warrants covered by the opinion in this paragraph include any Share Warrants that may be issued pursuant to the terms of any other Securities. |
| 6. | With respect to the Share Purchase Units, assuming (a) the taking of all necessary corporate or company action by the Board of Directors (or equivalent governing body) of each of the applicable Trane Entities, a duly constituted and acting committee of such Board of Directors (or equivalent governing body) or duly authorized officers of such Trane Entity (such Board of Directors (or equivalent governing body), committee or authorized officers being referred to herein as the “Trane Entity Board”) to authorize and approve (1) the issuance and terms of the Share Purchase Units, the terms of the offering thereof and related matters, (2) the due execution and delivery of the Purchase Contract Agreement with respect to the Share Purchase Contracts that are a component of the Share Purchase Units and (3) the issuance and terms of the Debt Securities (and the Guarantees thereof) that are a component of the Share Purchase Units and (b) the due execution, authentication, in the case of such Debt Securities (and the Guarantees thereof), issuance and delivery of (1) the Share Purchase Units, (2) such Share Purchase Contracts and (3) such Debt Securities (and the Guarantees thereof), in each case upon the payment of the consideration therefor |
| provided for in the applicable definitive purchase, underwriting or similar agreement approved by each applicable Trane Entity Board and in accordance with the provisions of the applicable Purchase Contract Agreement, in the case of such Share Purchase Contracts, and the Indenture, in the case of Debt Securities, such Share Purchase Units will constitute valid and legally binding obligations of each of the applicable Trane Entities, enforceable against such Trane Entities in accordance with their terms. |
| 7. | With respect to the Depositary Receipts, assuming (a) the taking of all necessary corporate action by the Trane Technologies Board to authorize and approve the issuance of the Preferred Shares represented by such Depositary Shares, the issuance and terms of the Depositary Shares, the terms of the offering thereof and related matters and the execution and delivery of the related Deposit Agreement, (b) the Preferred Shares represented by the Depositary Shares have been validly issued, fully paid and nonassessable and delivered to the depositary under the Deposit Agreement and (c) the due execution, issuance and delivery of Depositary Shares and Depositary Receipts evidencing the Depositary Shares against deposit of the Preferred Shares in accordance with the related Deposit Agreement, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Trane Technologies Board and otherwise in accordance with the provisions of the related Deposit Agreement and such agreement, the Depositary Receipts evidencing the Depositary Shares will constitute valid evidence of interest in the related Preferred Shares and will entitle the holders thereof to the rights specified in the Depositary Shares and the Deposit Agreement. |
Our opinions set forth in paragraphs 1 through 7 above are subject to the effects of (i) 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.
We do not express any opinion herein concerning any law other than the law of the State of New York and the federal laws of the United States, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This opinion is being rendered for the benefit of the Trane Entities in connection with the matters addressed herein.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus included in the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ King & Spalding LLP
KING & SPALDING LLP
Exhibit 5.2
[LETTERHEAD OF ARTHUR COX LLP]
7 May 2021
| To: | Board of Directors |
Trane Technologies plc
170/175 Lakeview Drive,
Airside Business Park,
Swords,
Co. Dublin
Board of Directors
Trane Technologies Irish Holdings Unlimited Company
170/175 Lakeview Drive,
Airside Business Park,
Swords,
Co. Dublin
Board of Directors
Trane Technologies Financing Limited
170/175 Lakeview Drive,
Airside Business Park,
Swords,
Co. Dublin
| Re: | Trane Technologies plc, Trane Technologies Irish Holdings Unlimited Company and Trane Technologies Financing Limited Form S-3 Registration Statement dated 7 May 2021 |
Dear Sirs,
| 1. | Basis of Opinion |
| 1.1 | We are acting as Irish counsel to Trane Technologies plc, a public company limited by shares, incorporated under the laws of Ireland, with its registered office at 170/175 Lakeview Drive, Airside Business Park, Swords, Co. Dublin (“Trane Technologies”), Trane Technologies Irish Holdings Unlimited Company, a private unlimited company, incorporated under the laws of Ireland, with its registered office at 170/175 Lakeview Drive, Airside Business Park, Swords, Co. Dublin (“Irish Holdings”) and Trane Technologies Financing Limited, a private limited company incorporated under the laws of Ireland, with its registered office at 170/175 Lakeview Drive, Airside Business Park, Swords, Co. Dublin (“TTFL”) in connection with the Form S-3 registration statement to be filed with the United States Securities and Exchange Commission under the Securities Act of 1933 on 7 May 2021 (the “Registration Statement”). We refer in particular to the ordinary shares with nominal value of US$1.00 and the preferred shares with nominal value of US$0.001 of Trane Technologies that may be issued pursuant to the Registration Statement (the “Shares”). Together, Trane Technologies, Irish Holdings and TTFL are referred to in this Opinion as the “Companies” and each a “Company”. |
| 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 investigation of and we express no opinion as to the laws of any other jurisdiction or the effect thereof. |
| 1.3 | 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; |
| (b) | the documents listed in the schedule to this Opinion (the “Documents”); and |
| (c) | the searches listed at 1.5 below. |
We express no opinion, and make no representation or warranty, as to any matter of fact or in respect of any documents which may exist in relation to the Shares, other than the Documents.
| 1.4 | For the purpose of giving this Opinion, we have examined copies sent to us by email in pdf or other electronic format of the Documents. |
| 1.5 | For the purpose of giving this Opinion, we have caused to be made the following legal searches against each of Trane Technologies, Irish Holdings, TTFL on 7 May 2021 (together the “Searches”): |
| (a) | on the file of Trane Technologies maintained by the Irish Registrar of Companies in Dublin for returns of allotments, special resolutions amending the memorandum and articles of association of Trane Technologies and notice of the appointment of directors and secretary of Trane Technologies and for the appointment of any receiver, examiner or liquidator; |
| (b) | on the file of Irish Holdings maintained by the Irish Registrar of Companies in Dublin for returns of allotments, special resolutions amending the memorandum and articles of association of Irish Holdings and notice of the appointment of directors and secretary of Irish Holdings and for the appointment of any receiver, examiner or liquidator; |
| (c) | on the file of TTFL maintained by the Irish Registrar of Companies in Dublin for returns of allotments, special resolutions amending the memorandum and articles of association of TTFL and notice of the appointment of directors and secretary of TTFL and for the appointment of any receiver, examiner or liquidator; |
| (d) | 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 in respect of each Company; and |
| (e) | in the Central Office of the High Court in Dublin for any proceedings and petitions filed in the last two years in respect of each Company. |
| 1.6 | 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. |
Page 2
| 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 | Trane Technologies is a public company limited by shares, duly incorporated and validly existing under the laws of Ireland and has the requisite corporate authority to (i) issue the Shares and (ii) enter into the Indenture (as defined in the schedule hereto) and to perform its obligations thereunder. |
| 2.2 | When the Shares are issued and allotted pursuant to duly adopted resolutions of the board of directors of Trane Technologies, the Shares shall be validly issued, fully paid up and non-assessable (which term means that no further sums are required to be paid by the holders thereof in connection with the issue of such Shares). |
| 2.3 | Irish Holdings is a private unlimited company, is duly incorporated and validly existing under the laws of Ireland and has the requisite corporate authority to enter into the Indenture (as defined in the schedule hereto) and to perform its obligations thereunder. |
| 2.4 | TTFL is a private limited company, is duly incorporated and validly existing under the laws of Ireland and has the requisite corporate authority to enter into the Indenture (as defined in the schedule hereto) and to perform its obligations thereunder. |
| 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 the Shares
| 3.1 | that when filed with the SEC, the Registration Statement will not differ in any material respect from the drafts that we have examined; |
| 3.2 | that any Shares issued under the Registration Statement will be in consideration of the receipt by Trane Technologies prior to the issue of the Shares pursuant thereto of either cash or the release of a liability of Trane Technologies for a liquidated sum, at least equal to the nominal value of such Shares and any premium required to be paid up on the Shares pursuant to their terms of issue; |
| 3.3 | that the filing of the Registration Statement with the SEC has been authorized by all necessary actions under all applicable laws other than Irish law; |
| 3.4 | with respect to Shares issued on or before 4 December 2021 (the date of expiry of Trane Technologies’ existing authority to issue Shares), that, at the time of issue of the Shares, the authority of Trane Technologies and the directors of Trane Technologies to issue the Shares, as granted by shareholders at Trane Technologies’ 2020 annual general meeting on 4 June 2020 in accordance with the terms and conditions set out in the articles of association of Trane Technologies (the “Articles of Association”) and the Companies Act 2014 of Ireland (the “Companies Act”), is in full force and effect; |
Page 3
| 3.5 | with respect to Shares which are relevant securities (as defined in section 1021 of the Companies Act) that will have not been authorised for issue prior to 4 December 2021 but are issued and/or authorised for issue on or after 4 December 2021 (the date of expiry of Trane Technologies’ existing authority to issue Shares), that Trane Technologies will, at each subsequent annual general meeting, have renewed its authority to issue the Shares in accordance with the terms and conditions set out in the Articles of Association and the Companies Act for the remainder of the period that the Registration Statement will continue in effect; |
| 3.6 | that the issue of the Shares upon the conversion, exchange and exercise of any securities issued under the Registration Statement will be conducted in accordance with the terms and the procedures described in the Articles of Association, the Companies Act and the terms of issue of such securities; |
| 3.7 | that, at the time of issue of the Shares, Trane Technologies will have sufficient authorised but unissued share capital to issue the required number of Shares and Trane Technologies will not have prior to, or by virtue of, the issuance, exceeded or exceed the maximum number of Shares permitted by Trane Technologies’ shareholders to be issued pursuant to the authorities referred to in paragraphs 3.4 and 3.5 above; |
| 3.8 | that any issue of Shares will be in compliance with the Companies Act, the Irish Takeover Panel Act, 1997, Takeover Rules 2013 and all other applicable Irish company, takeover, securities, market abuse, insider dealing laws and other rules and regulations; |
| 3.9 | that as at the time of the issuance of the Shares, such issuance shall not be in contravention or breach of any agreement, undertaking, arrangement, deed or covenant affecting Trane Technologies or to which Trane Technologies is a party or otherwise bound or subject; |
| 3.10 | that any power of attorney granted by Trane Technologies in respect of the issue and allotment of the Shares shall have been duly granted, approved and executed in accordance with Trane Technologies’ Articles of Association, the Companies Act, the Powers of Attorney Act 1996 of Ireland and all other applicable laws, rules and regulations; |
Authenticity and bona fides
| 3.11 | the completeness and authenticity of all documents submitted to us as originals or copies of originals and (in the case of copies) conformity to the originals of copy documents and the genuineness of all signatories, stamps and seals thereon; |
| 3.12 | where incomplete 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 Documents correspond in all respects with the last draft of the complete Documents submitted to us; |
| 3.13 | that the Documents have been executed in a form and content having no material difference to the drafts provided to us, will be delivered by the parties thereto, and that the terms thereof will be observed and performed by the parties thereto; |
| 3.14 | 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, that those present at any such meetings were entitled to attend and vote at the meeting and acted bona fide throughout and that no further resolutions have been passed or other action taken which would or might alter the effectiveness thereof; |
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| 3.15 | that each of the Documents is up-to-date and current and has not been amended, varied or terminated in any respect and no resolution contained in any of the Documents has been amended, varied, revoked or superseded in any respect; |
| 3.16 | The absence of fraud, coercion, duress or undue influence and lack of bad faith on the part of the parties to the Indenture and their respective officers, employees, agents and (with the exception of Arthur Cox LLP) advisers; |
Accuracy of searches and warranties
| 3.17 | the accuracy and completeness of the information disclosed in the Searches referred to in paragraph 1.5 above and that such information has not since the time of such search or enquiry been altered. It should be noted that Searches at the Companies Registration Office, Dublin, 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 a Company; |
| 3.18 | there has been no alteration in the status or condition of Trane Technologies, Irish Holdings and/or TTFL as disclosed by the Searches; |
| 3.19 | the truth, completeness and accuracy of all representations and statements as to factual matters contained in the Documents; |
Solvency and Insolvency
| 3.20 | that (i) Trane Technologies, Irish Holdings and TTFL are as at the date of this Opinion able to pay their debts as they fall due within the meaning of section 509 (3) of the Companies Act or any analogous provision under any application laws; (ii) no receiver, liquidator or examiner or other similar officer has been appointed in relation to Trane Technologies and/or Irish Holdings and/or TTFL or any “related company” (within the meaning of the Companies Act, “Related Company”) or any of their assets or undertakings; (iii) no petition for the making of a winding-up order or the appointment of an examiner or any similar officer has been presented in relation to Trane Technologies, Irish Holdings and/or TTFL or any Related Company; and (iv) no insolvency proceedings have been opened or been requested to be opened in relation to Trane Technologies, Irish Holdings and/or TTFL or any Related Company in Ireland or elsewhere; |
| 3.21 | that no proceedings have been instituted or injunction granted against Trane Technologies to restrain it from issuing the Shares and the issue of any Shares 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
| 3.22 | that the 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 interest and for their respective corporate benefit; |
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Financial Assistance
| 3.23 | that neither Company, is by entering into the Indenture 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. |
| 4. | Disclosure |
This Opinion is addressed to you in connection with the registration of the Shares with the SEC. We hereby consent to the inclusion of this Opinion as an exhibit to the Registration Statement to be filed with the SEC. 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.
| 5. | 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 faithfully
/s/ Arthur Cox LLP
ARTHUR COX LLP
Page 6
SCHEDULE
Documents
| 1. | A copy of the form of the Registration Statement on Form S-3 to be filed by among others, the Companies with the SEC; |
| 2. | Draft indenture form between, among others, Trane Technologies, Irish Holdings, TTFL and Wells Fargo Bank, National Association, as trustee (the “Indenture”); |
| 3. | Copies of the shareholders resolutions of Trane Technologies authorising the directors of Trane Technologies (i) to issue Shares out of Trane Technologies’ authorised share capital; and (ii) to issue Shares for cash without regard to statutory pre-emption rights, each dated 4 June 2020; and |
| 4. | An omnibus secretary’s certificate dated 7 May 2021 of an officer of Trane Technologies (the “Corporate Certificate”) attaching and certifying, amongst other documents, copies of the following: |
| 5.1 | in respect of Irish Holdings; |
| (a) | the Certificate of Incorporation of Irish Holdings dated and executed 17 November 1998; |
| (b) | the up to date Memorandum and Articles of Association of Irish Holdings; and |
| (c) | the resolutions of the board of directors of Irish Holdings dated 28 April 2021 authorising the execution and delivery by it of the Indenture, and |
| 5.2 | in respect of TTFL; |
| (a) | the Certificate of Incorporation of TTFL dated and executed 17 April 1998; |
| (b) | the up to date Memorandum and Articles of Association of TTFL; and |
| (c) | the resolutions of the board of directors of TTFL dated 28 April 2021 authorising the execution and delivery by it of the Indenture, |
| 5.3 | in respect of Trane Technologies; |
| (a) | the Certificate of Incorporation of Trane Technologies dated and executed 1 April 2009; |
| (b) | the Memorandum and Articles of Association of Trane Technologies in the form as amended by resolution of the shareholders of Trane Technologies on 2 February 2020; and |
| (c) | the resolutions of the board of directors of Trane Technologies dated 3 February 2021 approving, inter alia, the Registration Statement. |
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Exhibit 5.3
|
OFFICE ADDRESS TELEPHONE
FAX
INTERNET |
18-20, rue Edward Steichen +352 466 230 +352 466 234 www.loyensloeff.lu |
Trane Technologies plc
170/175 Lakeview Drive
Airside Business Park
Swords, Co. DUBLIN
Ireland
May 7, 2021
Dear Sirs,
Trane Technologies plc – Form S-3 Registration Statement
| 1 | Introduction |
| 1.1 | We have acted as Luxembourg counsel for Trane Technologies Lux International Holding Company S.à r.l., a Luxembourg private limited liability company (société à responsabilité limitée) with registered office at 1 avenue du Bois, L-1251 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (RCS) under number B 182971 (the Company). |
| 1.2 | This legal opinion (the Opinion) is furnished to you in connection with the Form S-3 registration statement filed with the United States Securities and Exchange Commission under the Securities Act of 1933 (as amended, the Securities Act) on the date of this Opinion and to which this Opinion is attached (the Registration Statement) for the registration of debt securities (the Debt Securities) and/or the guarantees (the Guarantees) that may be offered by the Company under the Registration Statement. |
| 2 | Scope of Inquiry |
| 2.1 | For the purpose of this Opinion, we have examined an executed copy of the Registration Statement. |
| 2.2 | We have also examined an electronic copy of the following documents: |
| (a) | the consolidated articles of association of the Company as at December 15, 2020, as drawn up by Maître Danielle Kolbach, Notary residing in Junglinster, Grand Duchy of Luxembourg (the Articles); |
| (b) | the resolutions of the managers of the Company, as set out in the minutes of the meeting of the board of managers of the Company held on April 28, 2021, pertaining to the Registration Statement (the Board Resolutions); |
All services are provided by Loyens & Loeff Luxembourg S.à r.l., a private limited liability company (société à responsabilité limitée) having its registered office at 18-20, rue Edward Steichen, L-2540 Luxembourg, Luxembourg, registered with the Luxembourg Register of Commerce and Companies Luxembourg (Registre de Commerce et des Sociétés, Luxembourg) under number B 174.248.
| AMSTERDAM | • | BRUSSELS | • | HONG KONG | • | LONDON | • | LUXEMBOURG |
| NEW YORK | • | PARIS | • | ROTTERDAM | • | SINGAPORE | • | TOKYO | • | ZURICH |
| (c) | the secretary’s certificate pertaining to inter alia the Company delivered by Trane Technologies plc and dated May 7, 2021 (the Secretary Certificate); |
| (d) | an excerpt pertaining to the Company delivered by the RCS (the Excerpts); and |
| (e) | a certificate of absence of judicial decisions (certificat de non-inscription d’une décision judiciaire) pertaining to the Company, delivered by the RCS on the date of this Opinion with respect to the situation of the Company as at one day prior to date of this Opinion (the RCS Certificates). |
| 3 | Assumptions |
We have assumed the following:
| 3.1 | the genuineness of all signatures, stamps and seals of the persons purported to have signed the relevant documents and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies; |
| 3.2 | all factual matters and statements relied upon or assumed in this Opinion are and were true and complete on the date of execution of the Registration Statement (and any documents in connection therewith); |
| 3.3 | the Articles, the Board Resolutions and the Secretary Certificate are in full force and effect, have not been amended, rescinded, revoked or declared null and void; |
| 3.4 | the information contained in the Secretary Certificate, the Excerpt and the RCS Certificate is true and accurate at the date of this Opinion, save for the description of the managers and directors in the Excerpts; |
| 3.5 | the due compliance with all requirements (including, without limitation, the obtaining of the necessary consents, licences, approvals and authorisations, the making of the necessary filings, registrations and notifications and the payment of stamp duties and other taxes) under any laws (other than Luxembourg law) in connection with the valid issuance of the Debt Securities and the Guarantees (and any documents in connection therewith); and |
| 3.6 | there are no provisions in the laws of any jurisdiction outside Luxembourg, which would adversely affect, or otherwise have any negative impact on this Opinion. |
| 4 | Opinion |
Based upon the assumptions made above and subject to the qualifications set out below and any factual matter not disclosed to us, we are of the following opinion:
| 4.1 | the Company is a private limited liability company (société à responsabilité limitée), incorporated and validly existing under Luxembourg law for an unlimited duration. |
2/4
| 4.2 | The Company has the corporate power to issue the Debt Securities and the Guarantees and to perform the obligations expressed to be assumed by it thereunder as set out in the Registration Statement and, when the Debt Securities and/or the Guarantees are issued pursuant to duly adopted resolutions of the board of managers of the Company , and in accordance with duly authorised and executed and legally valid, binding and enforceable documentation, the Debt Securities and/or the Guarantees, as applicable, shall be validly issued. |
| 5 | Qualifications |
This Opinion is subject to the following qualifications:
| 5.1 | Our Opinion is subject to all limitations resulting from the application of Luxembourg public policy rules, overriding statutes and mandatory laws as well as to all limitations by reasons of bankruptcy (faillite), composition with creditors (concordat), suspension of payments (sursis de paiement), controlled management (gestion contrôlée), or the appointment of a temporary administrator (administrateur provisoire) and any similar Luxembourg or foreign proceedings affecting the rights of creditors generally (Insolvency Proceedings). |
| 5.2 | Our opinion that the Company validly exists is based on the Articles, the Excerpt and the RCS Certificate (which confirms in particular that no judicial decisions in respect of bankruptcy (faillite), composition with creditors (concordat), suspension of payments (sursis de paiement), controlled management (gestion contrôlée), or the appointment of a temporary administrator (administrateur provisoire) pertaining to the Company has been registered with the RCS). The Articles, the Excerpt and the RCS Certificats are, however, not capable of revealing conclusively whether or not the Company is subject to any Insolvency Proceedings. |
| 6 | Miscellaneous |
| 6.1 | This Opinion is as of this date and is given on the basis of Luxembourg laws in effect and as published, construed and applied by Luxembourg courts, as of such date. We undertake no obligation to update it or to advise of any changes in such laws or their construction or application. We express no opinion, nor do we imply any opinion, as to any laws other than Luxembourg laws. |
| 6.2 | This Opinion is strictly limited to the Registration Statement and the matters expressly set forth therein. No other opinion is, or may be, implied or inferred therefrom. |
| 6.3 | This Opinion is given on the express condition, accepted by each person entitled to rely on it, that this Opinion and all rights, obligations, issues of interpretation and liabilities in relation to it are governed by, and shall be construed in accordance with, Luxembourg law and any action or claim in relation to it can be brought exclusively before the Luxembourg courts. |
3/4
| 6.4 | This Opinion is issued by Loyens & Loeff Luxembourg SARL. Individuals or legal entities that are involved in the services provided by or on behalf of Loyens & Loeff Luxembourg SARL cannot be held liable in any manner whatsoever. |
| 6.5 | This Opinion is given to you solely for your benefit in connection with the Registration Statement. It may be disclosed to your legal advisers but for information purposes only. This Opinion may not be relied upon by anyone else and it may not be quoted or referred to in any public document, or filed with any authority or other person without our written consent. |
| 6.6 | Notwithstanding the above, we consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the captions “Service of Process and Enforcement of Liabilities” and “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof. 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. |
| 6.7 | Notwithstanding the above, this Opinion may be disclosed to rating agencies, insofar as they wish to know that an opinion has been given and to be made aware of its terms, provided that they may not rely on this Opinion for their own benefit or that of any other person. |
| Yours faithfully, |
| Loyens & Loeff Luxembourg SARL |
| /s/ Thierry Lohest |
| Thierry Lohest |
| Avocat à la Cour |
4/4
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of Trane Technologies plc of our report dated February 9, 2021 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Trane Technologies plc’s Annual Report on Form 10-K for the year ended December 31, 2020. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Charlotte, North Carolina
May 7, 2021
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2) |
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
| A National Banking Association | 94-1347393 | |
| (Jurisdiction of incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification No.) | |
| 101 North Phillips Avenue | ||
| Sioux Falls, South Dakota | 57104 | |
| (Address of principal executive offices) | (Zip code) | |
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
Trane Technologies plc
(Exact name of obligor as specified in its charter)
| Ireland | 98-0626632 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Trane Technologies HoldCo Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 85-0886257 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Trane Technologies Financing Limited
(Exact name of obligor as specified in its charter)
| Ireland | N/A | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Trane Technologies Lux International Holding Company S.à r.l.
(Exact name of obligor as specified in its charter)
| Luxembourg | N/A | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Trane Technologies Global Holding Company Limited
(Exact name of obligor as specified in its charter)
| Delaware | 46-4716676 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Trane Technologies Irish Holdings Unlimited Company
(Exact name of obligor as specified in its charter)
| Ireland | N/A | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Trane Technologies Company LLC
(Exact name of obligor as specified in its charter)
| Delaware | 13-5156640 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| c/o Trane Technologies plc 170/175 Lakeview Dr. |
||
| Airside Business Park | ||
| Swords, Co. Dublin Ireland | ||
| (Address of principal executive offices) | (Zip code) |
Debt Securities
(Title of the indenture securities)
Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.
| Exhibit 1. | A copy of the Articles of Association of the trustee now in effect.* |
| Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.* |
| Exhibit 3. | A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.* |
| Exhibit 4. | Copy of By-laws of the trustee as now in effect.* |
| Exhibit 5. | Not applicable. |
| Exhibit 6. | The consent of the trustee required by Section 321(b) of the Act. |
| Exhibit 7. | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
| Exhibit 8. | Not applicable. |
| Exhibit 9. | Not applicable. |
| * | Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number 333-190926. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta and State of Georgia on the 3rd day of May, 2021.
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
| /s/ Stefan Victory |
| Stefan Victory |
| Vice President |
EXHIBIT 6
May 3, 2021
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
| Very truly yours, |
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
| /s/ Stefan Victory |
| Stefan Victory |
| Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business December 31, 2020, filed in accordance with 12 U.S.C. §161 for National Banks.
| Dollar Amounts In Millions |
||||||||
| ASSETS |
||||||||
| Cash and balances due from depository institutions: |
||||||||
| Noninterest-bearing balances and currency and coin |
$ | 27,565 | ||||||
| Interest-bearing balances |
218,658 | |||||||
| Securities: |
||||||||
| Held-to-maturity securities |
205,668 | |||||||
| Available-for-sale securities |
211,554 | |||||||
| Equity Securities with readily determinable fair value not held for trading |
11 | |||||||
| Federal funds sold and securities purchased under agreements to resell: |
||||||||
| Federal funds sold in domestic offices |
48 | |||||||
| Securities purchased under agreements to resell |
58,356 | |||||||
| Loans and lease financing receivables: |
||||||||
| Loans and leases held for sale |
34,944 | |||||||
| Loans and leases, net of unearned income |
855,301 | |||||||
| LESS: Allowance for loan and lease losses |
18,220 | |||||||
| Loans and leases, net of unearned income and allowance |
837,081 | |||||||
| Trading Assets |
69,659 | |||||||
| Premises and fixed assets (including capitalized leases) |
11,262 | |||||||
| Other real estate owned |
173 | |||||||
| Investments in unconsolidated subsidiaries and associated companies |
13,592 | |||||||
| Direct and indirect investments in real estate ventures |
54 | |||||||
| Intangible assets |
30,307 | |||||||
| Other assets |
48,876 | |||||||
|
|
|
|||||||
| Total assets |
$ | 1,767,808 | ||||||
| LIABILITIES |
||||||||
| Deposits: |
||||||||
| In domestic offices |
$ | 1,443,370 | ||||||
| Noninterest-bearing |
543,901 | |||||||
| Interest-bearing |
899,469 | |||||||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
36,129 | |||||||
| Noninterest-bearing |
423 | |||||||
| Interest-bearing |
35,706 | |||||||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||||||
| Federal funds purchased in domestic offices |
1,253 | |||||||
| Securities sold under agreements to repurchase |
6,971 | |||||||
| Dollar Amounts In Millions |
||||||||
| Trading liabilities |
15,639 | |||||||
| Other borrowed money |
||||||||
| (Includes mortgage indebtedness and obligations under capitalized leases) |
48,157 | |||||||
| Subordinated notes and debentures |
12,350 | |||||||
| Other liabilities |
33,011 | |||||||
|
|
|
|||||||
| Total liabilities |
$ | 1,596,880 | ||||||
| EQUITY CAPITAL |
||||||||
| Perpetual preferred stock and related surplus |
0 | |||||||
| Common stock |
519 | |||||||
| Surplus (exclude all surplus related to preferred stock) |
114,820 | |||||||
| Retained earnings |
52,938 | |||||||
| Accumulated other comprehensive income |
2,617 | |||||||
| Other equity capital components |
0 | |||||||
|
|
|
|||||||
| Total bank equity capital |
170,894 | |||||||
| Noncontrolling (minority) interests in consolidated subsidiaries |
34 | |||||||
| Total equity capital |
170,928 | |||||||
|
|
|
|||||||
| Total liabilities, and equity capital |
$ | 1,767,808 | ||||||
I, Michael P. Santomassimo, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge
and belief.
Michael P. Santomassimo
Sr. EVP & CFO
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us
and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
Directors
Maria R. Morris
Theodore F. Craver, Jr.
Juan A. Pujadas