Delaware | | | 3585 | | | 83-4051582 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (IRS Employer Identification Number) |
Large accelerated filer ☒ | | | Accelerated filer ☐ |
Non-accelerated filer ☐ | | | Smaller reporting company ☐ |
| | Emerging growth company ☐ |
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) | | | ☐ |
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) | | | ☐ |
| New Notes | | | Old Notes | |
| €750,000,000 4.375% NOTES DUE 2025 (COMMON CODE 275168874) | | | €750,000,000 4.375% NOTES DUE 2025 (144A XS2723571530 / RegS XS2723569559) (COMMON CODE 272357153 AND 272356955) | |
| €750,000,000 4.125% NOTES DUE 2028 (COMMON CODE 275168882) | | | €750,000,000 4.125% NOTES DUE 2028 (144A XS2723576687 / RegS XS2723575879) (COMMON CODE 272357668 AND 272357587) | |
| €850,000,000 4.500% NOTES DUE 2032 (COMMON CODE 275168904) | | | €850,000,000 4.500% NOTES DUE 2032 (144A XS2723577818 / RegS XS2723577149) (COMMON CODE 272357781 AND 272357714) | |
| $1,000,000,000 5.800% NOTES DUE 2025 (CUSIP 14448C BB9) | | | $1,000,000,000 5.800% NOTES DUE 2025 (CUSIP 14448C AT1 AND U1453P AH4) | |
| $1,000,000,000 5.900% NOTES DUE 2034 (CUSIP 14448C BC7) | | | $1,000,000,000 5.900% NOTES DUE 2034 (CUSIP 14448C AY0 AND U1453P AN1) | |
| $1,000,000,000 6.200% NOTES DUE 2054 (CUSIP 14448C BD5) | | | $1,000,000,000 6.200% NOTES DUE 2054 (CUSIP 14448C BA1 AND U1453P AQ4) | |
(1) | up to €750,000,000 4.375% Notes due 2025 (the “Old Euro 2025 Notes”) for a like principal amount of 4.375% Notes due 2025, the offer of which has been registered under the Securities Act of 1933, as amended (the “Securities Act”) (the “Exchange 2025 Euro Notes”); |
(2) | up to €750,000,000 4.125% Notes due 2028 (the “Old 2028 Notes”) for a like principal amount of 4.125% Notes due 2028, the offer of which has been registered under the Securities Act (the “Exchange 2028 Notes”); |
(3) | up to €850,000,000 4.500% Notes due 2032 (the “Old 2032 Notes,” and together with the Old Euro 2025 Notes and the Old 2028 Notes, the “Old Euro Notes”) for a like principal amount of 4.500% Notes due 2032, the offer of which has been registered under the Securities Act (the “Exchange 2032 Notes,” and together with the Exchange 2025 Euro Notes and the Exchange 2028 Notes, the “Exchange Euro Notes”); |
(4) | up to $1,000,000,000 5.800% Notes due 2025 (the “Old USD 2025 Notes”) for a like principal amount of 5.800% Notes due 2025, the offer of which has been registered under the Securities Act (the “Exchange 2025 USD Notes”); |
(5) | up to $1,000,000,000 5.900% Notes due 2034 (the “Old 2034 Notes”) for a like principal amount of 5.900% Notes due 2034, the offer of which has been registered under the Securities Act (the “Exchange 2034 Notes”); and |
(6) | up to $1,000,000,000 6.200% Notes due 2054 (the “Old 2054 Notes,” and together with the Old USD 2025 Notes and the Old 2034 Notes, the “Old USD Notes,” and together with the Old Euro Notes, the “Old Notes”) for a like principal amount of 6.200% Notes due 2054, the offer of which has been registered under the Securities Act (the “Exchange 2054 Notes,” and together with the Exchange 2025 USD Notes and Exchange 2034 Notes, the “Exchange USD Notes,” and together with the Exchange Euro Notes, the “Exchange Notes,” and the Exchange Notes together with the Old Notes and any additional notes that Carrier may issue from time to time under the Indenture (as defined below), the “Notes”). |
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• | the unregistered Old Euro 2025 Notes for a like principal amount of the Exchange 2025 Euro Notes; |
• | the unregistered Old 2028 Notes for a like principal amount of the Exchange 2028 Notes; |
• | the unregistered Old 2032 Notes for a like principal amount of the Exchange 2032 Notes; |
• | the unregistered Old USD 2025 Notes for a like principal amount of the Exchange 2025 USD Notes; |
• | the unregistered Old 2034 Notes for a like principal amount of the Exchange 2034 Notes; and |
• | the unregistered Old 2054 Notes for a like principal amount of the Exchange 2054 Notes. |
• | are acquiring the Exchange Notes in the ordinary course of business; |
• | have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in a distribution of the Exchange Notes; and |
• | are not an “affiliate” of Carrier, as defined in Rule 405 of the Securities Act. |
• | is an affiliate of Carrier; |
• | does not acquire the Exchange Notes in the ordinary course of its business; or |
• | cannot rely on the position of the staff of the SEC expressed in Exxon Capital Holdings Corporation, Morgan Stanley & Co. Incorporated or similar no-action letters; |
• | the exchange offers do not violate applicable law or applicable interpretations of the staff of the SEC; and |
• | there is no action or proceeding instituted or threatened in any court or by any governmental agency with respect to the exchange offers, which, in Carrier’s judgment, could reasonably be expected to impair Carrier’s ability to proceed with the exchange offers. |
• | rank equally in right of payment with all of our existing and future unsecured and unsubordinated indebtedness, liabilities and other obligations; |
• | rank senior in right of payment to all of our future indebtedness that is subordinated to the Exchange Notes; |
• | be effectively subordinated in right of payment to all of our future secured indebtedness, to the extent of the value of the assets securing such indebtedness; and |
• | be structurally subordinated in right of payment to all existing and future indebtedness, liabilities and other obligations of each of our subsidiaries. |
• | make it more difficult and/or costly for us to pay or refinance our debts as they become due, particularly during adverse economic and industry conditions, because a decrease in revenues or increase in costs could cause our cash flow from operations to be insufficient to make scheduled debt service payments; |
• | limit our flexibility to pursue strategic opportunities or react to changes in our business and the industry sectors in which we operate and, consequently, put us at a competitive disadvantage to our competitors that have less debt; |
• | require a substantial portion of our available cash to be used for debt service payments, thereby reducing the availability of our cash to fund working capital, capital expenditures, development projects, acquisitions, dividend payments and other general corporate purposes, which could harm our prospects for growth and the market price of our Common Stock and debt securities (including the Exchange Notes offered hereby), among other things; and |
• | result in higher interest expense, which could be further increased in the event of increases in interest rates on our current or future borrowings subject to variable rates of interest. |
• | Carrier’s historical unaudited consolidated financial statements and accompanying notes as of and for the nine months ended September 30, 2023 and the audited consolidated financial statements and accompanying notes for the twelve months ended December 31, 2022, included in the 2023 Quarterly Report on Form 10-Q and the 2022 Annual Report on Form 10-K; and |
• | The VCS Business’s unaudited combined financial statements as of and for the nine months ended September 30, 2023 and the audited combined financial statements for the twelve months ended December 31, 2022 prepared specifically for the purpose of the Acquisition, and which are incorporated herein by reference. |
• | Conversion adjustments to convert the VCS Business’s combined financial statements from German GAAP to Carrier’s accounting policies in accordance with U.S. GAAP; |
• | Application of the acquisition method of accounting under the provisions of ASC 805 and to reflect estimated consideration of approximately $ 14.2 billion (€ 12.9 billion); |
• | The proceeds and uses of the financing arrangements entered into in connection with the Acquisition; and |
• | Non-recurring costs incurred and expected to be incurred in connection with the Acquisition. |
| | Carrier Global Corporation (Historical) | | | VCS Business Adjusted (Note 2) | | | Transaction Accounting Adjustments (Note 3) | | | | | Financing Adjustments (Note 3) | | | | | Pro Forma Combined | |||
Assets | | | | | | | | | | | | | | | |||||||
Cash and cash equivalents | | | 3,902 | | | 189 | | | (11,165) | | | 3A | | | 8,451 | | | 3H | | | 1,373 |
| | | | | | (46) | | | 3E | | | — | | | | | |||||
| | | | | | 42 | | | 3F | | | — | | | | | |||||
Accounts receivable, net | | | 3,030 | | | 608 | | | — | | | | | — | | | | | 3,638 | ||
Contract assets, current | | | 605 | | | — | | | — | | | | | — | | | | | 605 | ||
Inventories, net | | | 2,562 | | | 1,018 | | | 180 | | | 3D | | | — | | | | | 3,760 | |
Other assets, current | | | 412 | | | 222 | | | (111) | | | 3F | | | — | | | | | 523 | |
Total current assets | | | 10,511 | | | 2,037 | | | (11,100) | | | | | 8,451 | | | | | 9,899 | ||
Future income tax benefits | | | 712 | | | 117 | | | (117) | | | 3G | | | — | | | | | 712 | |
Fixed assets, net | | | 2,210 | | | 555 | | | 203 | | | 3B | | | — | | | | | 2,968 | |
Operating lease right-of-use assets | | | 577 | | | 98 | | | — | | | | | — | | | | | 675 | ||
Intangible assets, net | | | 1,100 | | | 8 | | | 4,619 | | | 3C | | | — | | | | | 5,727 | |
Goodwill | | | 9,825 | | | 3 | | | 14,171 | | | 3A | | | — | | | | | 18,942 | |
| | | | | | (203) | | | 3B | | | — | | | | | |||||
| | | | | | (4,619) | | | 3C | | | — | | | | | |||||
| | | | | | (180) | | | 3D | | | — | | | | | |||||
| | | | | | 1,407 | | | 3G | | | — | | | | | |||||
| | | | | | (1,462) | | | 3I | | | — | | | | | |||||
Pension and post-retirement assets | | | 29 | | | — | | | — | | | | | — | | | | | 29 | ||
Equity method investments | | | 1,166 | | | — | | | — | | | | | — | | | | | 1,166 | ||
Other assets | | | 414 | | | 28 | | | — | | | | | — | | | | | 442 | ||
Total Assets | | | 26,544 | | | 2,846 | | | 2,719 | | | | | 8,451 | | | | | 40,560 | ||
Liabilities and Equity | | | | | | | | | | | | | | | |||||||
Accounts payable | | | 2,887 | | | 251 | | | — | | | | | — | | | | | 3,138 | ||
Accrued liabilities | | | 2,832 | | | 689 | | | (69) | | | 3F | | | — | | | | | 3,452 | |
Contract liabilities, current | | | 496 | | | 94 | | | — | | | | | — | | | | | 590 | ||
Current portion of long-term debt | | | 134 | | | 10 | | | — | | | | | 475 | | | 3H | | | 619 | |
Total current liabilities | | | 6,349 | | | 1,044 | | | (69) | | | | | 475 | | | | | 7,799 | ||
Long-term debt | | | 8,651 | | | 20 | | | — | | | | | 7,995 | | | 3H | | | 16,666 | |
Future pension and post-retirement obligations | | | 337 | | | 74 | | | — | | | | | — | | | | | 411 | ||
Future income tax obligations | | | 553 | | | 161 | | | 1,290 | | | 3G | | | — | | | | | 2,004 | |
Operating lease liabilities | | | 465 | | | 74 | | | — | | | | | — | | | | | 539 | ||
Other long-term liabilities | | | 1,687 | | | 11 | | | — | | | | | — | | | | | 1,698 | ||
Total Liabilities | | | 18,042 | | | 1,384 | | | 1,221 | | | | | 8,470 | | | | | 29,117 | ||
Equity | | | | | | | | | | | | | | | |||||||
Common stock | | | 9 | | | — | | | 1 | | | 3A | | | — | | | | | 10 | |
Treasury stock | | | (1,972) | | | — | | | — | | | | | — | | | | | (1,972) | ||
Additional paid-in capital | | | 5,517 | | | 1,462 | | | 3,005 | | | 3A | | | — | | | | | 8,522 | |
| | | | | | (1,462) | | | 3I | | | — | | | | | |||||
Retained earnings | | | 6,486 | | | — | | | (46) | | | 3E | | | (19) | | | 3H | | | 6,421 |
Accumulated other comprehensive income (loss) | | | (1,856) | | | — | | | — | | | | | — | | | | | (1,856) | ||
Non-controlling interest | | | 318 | | | — | | | — | | | | | — | | | | | 318 | ||
Total Equity | | | 8,502 | | | 1,462 | | | 1,498 | | | | | (19) | | | | | 11,443 | ||
Total Liabilities and Equity | | | 26,544 | | | 2,846 | | | 2,719 | | | | | 8,451 | | | | | 40,560 |
| | Carrier Global Corporation (Historical) | | | VCS Business Adjusted (Note 2) | | | Transaction Accounting Adjustments (Note 3) | | | | | Financing Adjustments (Note 3) | | | | | Pro Forma Combined | |||
Net sales | | | | | | | | | | | | | | | |||||||
Product sales | | | 15,122 | | | 2,870 | | | — | | | | | — | | | | | 17,992 | ||
Service sales | | | 1,874 | | | 333 | | | — | | | | | — | | | | | 2,207 | ||
| | 16,996 | | | 3,203 | | | — | | | | | — | | | | | 20,199 | |||
Costs and expenses | | | | | | | | | | | | | | | |||||||
Cost of products sold | | | (10,655) | | | (1,576) | | | (6) | | | 3AA | | | — | | | | | (12,569) | |
| | | | | | (332) | | | 3BB | | | — | | | | | |||||
Cost of services sold | | | (1,392) | | | (178) | | | (37) | | | 3BB | | | — | | | | | (1,607) | |
Research and development | | | (447) | | | (140) | | | — | | | | | — | | | | | (587) | ||
Selling, general and administrative | | | (2,336) | | | (816) | | | (2) | | | 3AA | | | — | | | | | (3,124) | |
| | | | | | 40 | | | 3FF | | | — | | | | | |||||
| | | | | | (10) | | | 3GG | | | — | | | | | |||||
| | (14,830) | | | (2,710) | | | (347) | | | | | — | | | | | (17,887) | |||
Equity method investment net earnings | | | 171 | | | — | | | — | | | | | — | | | | | 171 | ||
Other income (expense), net | | | (648) | | | (16) | | | — | | | | | — | | | | | (664) | ||
Operating profit | | | 1,689 | | | 477 | | | (347) | | | | | — | | | | | 1,819 | ||
Non-service pension benefit (expense) | | | — | | | (1) | | | — | | | | | — | | | | | (1) | ||
Interest (expense) income, net | | | (164) | | | (8) | | | 9 | | | 3EE | | | (319) | | | 3HH | | | (482) |
Income from operations before income taxes | | | 1,525 | | | 468 | | | (338) | | | | | (319) | | | | | 1,336 | ||
Income tax (expense) benefit | | | (524) | | | (140) | | | 95 | | | 3II | | | 65 | | | 3KK | | | (504) |
Net income from operations | | | 1,001 | | | 328 | | | (243) | | | | | (254) | | | | | 832 | ||
Less: Non-controlling interest in subsidiaries’ earnings from operations | | | 72 | | | — | | | — | | | | | — | | | | | 72 | ||
Net income attributable to common shareowners | | | 929 | | | 328 | | | (243) | | | | | (254) | | | | | 760 | ||
Earnings per share | | | | | | | | | | | | | | | |||||||
Basic | | | $1.11 | | | | | — | | | | | — | | | | | $0.85 | |||
Diluted | | | $1.09 | | | | | | | | | | | | | $0.83 | |||||
Weighted-average number of shares outstanding | | | | | | | | | | | | | | | |||||||
Basic | | | 837 | | | | | | | | | | | | | 896 | |||||
Diluted | | | 853 | | | | | | | | | | | | | 912 |
| | Carrier Global Corporation (Historical) | | | VCS Business Adjusted (Note 2) | | | Transaction Accounting Adjustments (Note 3) | | | | | Financing Adjustments (Note 3) | | | | | Pro Forma Combined | |||
Net sales | | | | | | | | | | | | | | | |||||||
Product sales | | | 18,250 | | | 3,161 | | | — | | | | | — | | | | | 21,411 | ||
Service sales | | | 2,171 | | | 419 | | | — | | | | | — | | | | | 2,590 | ||
| | 20,421 | | | 3,580 | | | — | | | | | — | | | | | 24,001 | |||
Costs and expenses | | | | | | | | | | | | | | | |||||||
Cost of products sold | | | (13,337) | | | (2,013) | | | (8) | | | 3AA | | | — | | | | | (16,029) | |
| | | | | | (493) | | | 3BB | | | — | | | | | |||||
| | | | | | (178) | | | 3CC | | | — | | | | | |||||
Cost of services sold | | | (1,620) | | | (173) | | | (39) | | | 3BB | | | — | | | | | (1,832) | |
Research and development | | | (539) | | | (165) | | | — | | | | | — | | | | | (704) | ||
Selling, general and administrative | | | (2,512) | | | (794) | | | (3) | | | 3AA | | | (19) | | | 3JJ | | | (3,342) |
| | | | | | (46) | | | 3DD | | | — | | | | | |||||
| | | | | | 45 | | | 3FF | | | — | | | | | |||||
| | | | | | (13) | | | 3GG | | | — | | | | | |||||
| | (18,008) | | | (3,145) | | | (735) | | | | | (19) | | | | | (21,907) | |||
Equity method investment net earnings | | | 262 | | | — | | | — | | | | | — | | | | | 262 | ||
Other income (expense), net | | | 1,840 | | | 33 | | | — | | | | | — | | | | | 1,873 | ||
Operating profit | | | 4,515 | | | 468 | | | (735) | | | | | (19) | | | | | 4,229 | ||
Non-service pension benefit (expense) | | | (4) | | | (2) | | | — | | | | | — | | | | | (6) | ||
Interest (expense) income, net | | | (219) | | | (8) | | | 8 | | | 3EE | | | (472) | | | 3HH | | | (691) |
Income from operations before income taxes | | | 4,292 | | | 458 | | | (727) | | | | | (491) | | | | | 3,532 | ||
Income tax (expense) benefit | | | (708) | | | (134) | | | 198 | | | 3II | | | 115 | | | 3KK | | | (529) |
Net income from operations | | | 3,584 | | | 324 | | | (529) | | | | | (376) | | | | | 3,003 | ||
Less: Non-controlling interest in subsidiaries’ earnings from operations | | | 50 | | | — | | | — | | | | | — | | | | | 50 | ||
Net income attributable to common shareowners | | | 3,534 | | | 324 | | | (529) | | | | | (376) | | | | | 2,953 | ||
Earnings per share | | | | | | | | | | | | | | | |||||||
Basic | | | $4.19 | | | | | — | | | | | — | | | | | $3.27 | |||
Diluted | | | $4.10 | | | | | | | | | | | | | $3.21 | |||||
Weighted-average number of shares outstanding | | | | | | | | | | | | | | | |||||||
Basic | | | 843 | | | | | | | | | | | | | 902 | |||||
Diluted | | | 861 | | | | | | | | | | | | | 920 |
Period of Exchange Rate | | | $/€ |
Closing exchange rate as of September 30, 2023 for Balance Sheet | | | 1.0677 |
Average exchange rate for the nine months ended September 30, 2023 for Statement of Operations | | | 1.0836 |
Average exchange rate for the twelve months ended December 31, 2022 for Statement of Operations | | | 1.0535 |
Carrier Presentation | | | Historical VCS Business Presentation | | | Historical VCS Business Euro | | | Historical VCS Business USD | | | Reclassification Adjustments USD | | | U.S. GAAP Adjustments USD | | | Notes | | | VCS Business Adjusted USD |
Assets | | | | | | | | | | | | | | | |||||||
Cash and cash equivalents | | | Cash on hand and balances at banks | | | 182 | | | 194 | | | | | (5) | | | (v) | | | 189 | |
Accounts receivable, net | | | Trade receivables | | | 546 | | | 583 | | | 5 | | | 20 | | | (iv) | | | 608 |
Inventories, net | | | Inventories | | | 919 | | | 981 | | | | | 10 | | | (ii) | | | 1,018 | |
| | | | | | | | | | 4 | | | (iii) | | | ||||||
| | | | | | | | | | (3) | | | (vii) | | | ||||||
| | | | | | | | | | 21 | | | (xiv) | | | ||||||
| | | | | | | | | | 5 | | | (x) | | | ||||||
Other assets, current | | | Receivables with affiliated companies | | | 109 | | | 116 | | | (5) | | | | | | | 222 | ||
| | Other assets | | | 78 | | | 83 | | | 22 | | | 5 | | | (v) | | | ||
| | | | | | | | | | 1 | | | (iv) | | | ||||||
| | Deferred charges and prepaid expenses | | | 20 | | | 22 | | | (22) | | | — | | | | | — | ||
Total current assets | | | | | 1,854 | | | 1,979 | | | — | | | 58 | | | | | 2,037 | ||
Future income tax benefits | | | Deferred tax assets | | | 28 | | | 30 | | | 5 | | | 32 | | | (i) | | | 117 |
| | | | | | | | | | (1) | | | (iii) | | | ||||||
| | | | | | | | | | 33 | | | (vi) | | | ||||||
| | | | | | | | | | 3 | | | (vii) | | | ||||||
| | | | | | | | | | 12 | | | (xiii) | | | ||||||
| | | | | | | | | | 4 | | | (xv) | | | ||||||
| | | | | | | | | | (1) | | | (x) | | | ||||||
Fixed assets, net | | | Tangible assets | | | 514 | | | 549 | | | | | 1 | | | (xvi) | | | 555 | |
| | | | | | | | | | 5 | | | (xii) | | | ||||||
Operating lease right-of-use assets | | | | | | | | | | | 98 | | | (vi) | | | 98 | ||||
Intangible assets, net | | | Intangible assets | | | 12 | | | 13 | | | (1) | | | (4) | | | (xii) | | | 8 |
| | | | | | | | | | — | | | (xvi) | | | ||||||
Goodwill | | | | | — | | | — | | | 1 | | | 2 | | | (xii) | | | 3 | |
Pension and post-retirement assets | | | | | — | | | — | | | — | | | — | | | (xiii) | | | — | |
Equity method investments | | | | | — | | | — | | | — | | | | | | | — | |||
Other assets | | | | | | | — | | | 3 | | | 24 | | | (vi) | | | 28 | ||
| | | | | | | | | | 1 | | | (xvi) | | | ||||||
| | Financial assets | | | 3 | | | 3 | | | (3) | | | | | | | ||||
Total Assets | | | | | 2,411 | | | 2,574 | | | 5 | | | 267 | | | | | 2,846 | ||
Liabilities and Equity | | | | | | | | | | | | | | | |||||||
Accounts payable | | | Trade payables | | | 221 | | | 236 | | | 15 | | | | | | | 251 | ||
Accrued liabilities | | | Other provisions | | | 429 | | | 458 | | | (30) | | | (8) | | | (viii) | | | 689 |
| | | | | | | | | | (5) | | | (ix) | | | ||||||
| | | | | | | | | | 38 | | | (xiii) | | | ||||||
| | | | | | | | | | 1 | | | (xvi) | | | ||||||
| | Liabilities due to affiliated companies | | | 79 | | | 84 | | | (15) | | | | | | | ||||
| | Other liabilities | | | 115 | | | 123 | | | | | 25 | | | (vi) | | | |||
| | | | | | | | | | 10 | | | (viii) | | | ||||||
| | | | | | | | | | 3 | | | (ix) | | | ||||||
| | | | | | | | | | 2 | | | (xii) | | | ||||||
| | | | | | | | | | 4 | | | (xiii) | | | ||||||
| | | | | | | | | | (1) | | | (xvi) | | |
Carrier Presentation | | | Historical VCS Business Presentation | | | Historical VCS Business Euro | | | Historical VCS Business USD | | | Reclassification Adjustments USD | | | U.S. GAAP Adjustments USD | | | Notes | | | VCS Business Adjusted USD |
Contract liabilities, current | | | Advance payments received on orders | | | 30 | | | 32 | | | | | 21 | | | (xiv) | | | 94 | |
| | | | | | | | | | 1 | | | (xvi) | | | ||||||
| | Deferred income | | | 37 | | | 40 | | | | | | | | | |||||
Current portion of long-term debt | | | Bank loans | | | 5 | | | 5 | | | (4) | | | 9 | | | (vi) | | | 10 |
Total current liabilities | | | | | 916 | | | 978 | | | (34) | | | 100 | | | | | 1,044 | ||
Long-term debt | | | | | | | — | | | 4 | | | 16 | | | (vi) | | | 20 | ||
Future pension and post-retirement obligations | | | Pension and similar obligations | | | 49 | | | 52 | | | 22 | | | | | | | 74 | ||
Future income tax obligations | | | Tax provisions | | | 108 | | | 115 | | | 5 | | | (1) | | | (i) | | | 161 |
| | | | | | | | | | 1 | | | (ii) | | | ||||||
| | | | | | | | | | 33 | | | (vi) | | | ||||||
| | | | | | | | | | 2 | | | (vii) | | | ||||||
| | | | | | | | | | 1 | | | (ix) | | | ||||||
| | | | | | | | | | 5 | | | (x) | | | ||||||
| | | | | | | | | | — | | | (xiii) | | | ||||||
Operating lease liabilities | | | | | | | | | | | 74 | | | (vi) | | | 74 | ||||
Other long-term liabilities | | | Special item for investment grants | | | 2 | | | 3 | | | 8 | | | — | | | (xvi) | | | 11 |
Total Liabilities | | | | | 1,075 | | | 1,148 | | | 5 | | | 231 | | | | | 1,384 | ||
Equity | | | | | | | | | | | | | | | — | ||||||
Additional paid-in capital | | | Net investment | | | 1,336 | | | 1,426 | | | — | | | 33 | | | (i) | | | 1,462 |
| | | | | | | | | | 9 | | | (ii) | | | ||||||
| | | | | | | | | | 3 | | | (iii) | | | ||||||
| | | | | | | | | | 6 | | | (iv) | | | ||||||
| | | | | | | | | | (1) | | | (vi) | | | ||||||
| | | | | | | | | | (3) | | | (vii) | | | ||||||
| | | | | | | | | | (1) | | | (viii) | | | ||||||
| | | | | | | | | | 1 | | | (ix) | | | ||||||
| | | | | | | | | | 14 | | | (x) | | | ||||||
| | | | | | | | | | (1) | | | (xi) | | | ||||||
| | | | | | | | | | 2 | | | (xii) | | | ||||||
| | | | | | | | | | (30) | | | (xiii) | | | ||||||
| | | | | | | | | | 4 | | | (xv) | | | ||||||
| | | | | | | | | | — | | | (xvi) | | | ||||||
Total Liabilities and Equity | | | | | 2,411 | | | 2,574 | | | 5 | | | 267 | | | | | 2,846 |
Carrier Presentation | | | Historical VCS Business Presentation | | | Historical VCS Business Euro | | | Historical VCS Business USD | | | Reclassification Adjustments USD | | | U.S. GAAP Adjustments USD | | | Notes | | | VCS Business Adjusted USD |
Net sales | | | Net sales | | | 2,951 | | | 3,198 | | | (3,198) | | | | | | | — | ||
Product sales | | | | | | | | | 2,865 | | | 6 | | | (xvi) | | | 2,870 | |||
| | | | | | | | | | (1) | | | (viii) | | | ||||||
Service sales | | | | | | | | | 333 | | | | | | | 333 | |||||
| | | | 2,951 | | | 3,198 | | | — | | | 5 | | | | | 3,203 | |||
Costs and expenses | | | | | | | | | | | | | | | |||||||
Cost of products sold | | | | | | | | | (1,573) | | | 4 | | | (ii) | | | (1,576) | |||
| | | | | | | | | | 2 | | | (iii) | | | ||||||
| | | | | | | | | | (2) | | | (vii) | | | ||||||
| | | | | | | | | | (1) | | | (xiii) | | | ||||||
| | | | | | | | | | (6) | | | (xvi) | | | ||||||
| | | | | | | | | | | | | | ||||||||
Cost of services sold | | | | | | | | | (177) | | | (1) | | | (xiii) | | | (178) | |||
Research and development | | | | | | | | | (139) | | | (1) | | | (xiii) | | | (140) | |||
Selling, general and administrative | | | | | | | | | (815) | | | (1) | | | (xiii) | | | (816) | |||
| | | | — | | | — | | | (2,704) | | | (6) | | | | | (2,710) | |||
| | Change of inventories of finished and unfinished goods | | | 61 | | | 66 | | | (66) | | | | | | | — | |||
| | Internally produced and capitalized assets | | | 11 | | | 12 | | | (12) | | | | | | | — | |||
| | Material expenses | | | (1,414) | | | (1,532) | | | 1,532 | | | | | | | — | |||
| | Personnel expenses | | | (624) | | | (676) | | | 676 | | | | | | | — | |||
| | Depreciation and amortization | | | (42) | | | (46) | | | 46 | | | | | | | — | |||
Equity method investment net earnings | | | | | | | | | — | | | | | | | — | |||||
Other income (expense), net | | | | | | | | | (6) | | | 4 | | | (x) | | | (16) | |||
| | | | | | | | | | (15) | | | (xvi) | | | ||||||
| | | | | | | | | | 1 | | | (viii) | | | ||||||
| | Expenses from profit and loss transfer agreements | | | (18) | | | (20) | | | 20 | | | | | | | ||||
| | Other operating income | | | 78 | | | 85 | | | (85) | | | | | | | — | |||
| | Other operating expenses | | | (553) | | | (599) | | | 599 | | | | | | | — | |||
| | Income from other securities and loans | | | — | | | — | | | — | | | | | | | — | |||
| | Depreciation on financial assets | | | — | | | — | | | — | | | | | | | — | |||
Operating profit | | | | | 450 | | | 488 | | | — | | | (11) | | | | | 477 | ||
Non-service pension benefit (expense) | | | | | | | | | — | | | (1) | | | (xiii) | | | (1) | |||
Interest (expense) income, net | | | | | | | | | | | | | | | (8) | ||||||
| | Interests and similar income | | | 7 | | | 8 | | | (16) | | | | | | | ||||
| | Interests and similar expenses | | | (15) | | | (16) | | | 16 | | | | | | | ||||
Income from operations before income taxes | | | | | 442 | | | 480 | | | — | | | (12) | | | | | 468 | ||
Income tax expense | | | Taxes on income | | | (135) | | | (146) | | | — | | | 6 | | | (i) | | | (140) |
| | | | | | | | | | (1) | | | (ii) | | | ||||||
| | | | | | | | | | 1 | | | (xiii) | | | ||||||
| | | | | | | | | | (1) | | | (x) | | | ||||||
| | | | | | | | | | 1 | | | (xv) | | | ||||||
Net income from operations | | | | | 307 | | | 334 | | | — | | | (6) | | | | | 328 | ||
Less: Non-controlling interest in subsidiaries’ earnings from operations | | | | | | | | | | | | | | | |||||||
Net income attributable to common shareowners | | | Net income | | | 307 | | | 334 | | | — | | | (6) | | | | | 328 |
Carrier Presentation | | | Historical VCS Business Presentation | | | Historical VCS Business Euro | | | Historical VCS Business USD | | | Reclassification Adjustments USD | | | U.S. GAAP Adjustments USD | | | Notes | | | VCS Business Adjusted USD |
Net sales | | | Net sales | | | 3,402 | | | 3,584 | | | (3,584) | | | | | | | — | ||
Product sales | | | | | | | | | 3,165 | | | (5) | | | (viii) | | | 3,161 | |||
| | | | | | | | | | 1 | | | (ix) | | | ||||||
Service sales | | | | | | | | | 419 | | | | | | | 419 | |||||
| | | | 3,402 | | | 3,584 | | | — | | | (4) | | | | | 3,580 | |||
Costs and expenses | | | | | | | | | | | | | | | |||||||
Cost of products sold | | | | | | | | | (2,009) | | | (3) | | | (vii) | | | (2,013) | |||
| | | | | | | | | | 2 | | | (ii) | | | ||||||
| | | | | | | | | | (3) | | | (iii) | | | ||||||
| | | | | | | | | | (2) | | | (xiii) | | | ||||||
| | | | | | | | | | 2 | | | (x) | | | ||||||
Cost of services sold | | | | | | | | | (173) | | | | | | | (173) | |||||
Research and development | | | | | | | | | (164) | | | (1) | | | (xiii) | | | (165) | |||
Selling, general and administrative | | | | | | | | | (794) | | | | | | | (794) | |||||
| | | | — | | | — | | | (3,140) | | | (5) | | | | | (3,145) | |||
| | Change of inventories of finished and unfinished goods | | | 70 | | | 74 | | | (74) | | | | | | | — | |||
| | Internally produced and capitalized assets | | | 9 | | | 9 | | | (9) | | | | | | | — | |||
| | Material expenses | | | (1,655) | | | (1,743) | | | 1,743 | | | | | | | — | |||
| | Personnel expenses | | | (751) | | | (791) | | | 791 | | | | | | | — | |||
| | Depreciation and amortization | | | (56) | | | (59) | | | 59 | | | | | | | — | |||
Equity method investment net earnings | | | | | | | | | — | | | | | | | — | |||||
Other income (expense), net | | | | | | | | | | | | | | | 33 | ||||||
| | | | | | | | 29 | | | — | | | | | ||||||
| | | | | | | | | | 4 | | | (viii) | | | ||||||
| | | | | | | | | | (1) | | | (iv) | | | ||||||
| | | | | | | | | | 2 | | | (xii) | | | ||||||
| | | | | | | | | | (1) | | | (ix) | | | ||||||
| | Expenses from profit and loss transfer agreements | | | (217) | | | (229) | | | — | | | 229 | | | (xi) | | | ||
| | Other operating income | | | 95 | | | 100 | | | (100) | | | | | | | — | |||
| | Other operating expenses | | | (665) | | | (701) | | | 701 | | | | | | | — | |||
| | Income from other securities and loans | | | — | | | — | | | — | | | | | | | — | |||
| | Depreciation on financial assets | | | — | | | — | | | — | | | | | | | — | |||
Operating profit | | | | | 232 | | | 244 | | | — | | | 224 | | | | | 468 | ||
Non-service pension benefit (expense) | | | | | | | | | — | | | (2) | | | (xiii) | | | (2) | |||
Interest (expense) income, net | | | | | | | | | (8) | | | | | | | (8) | |||||
| | Interests and similar income | | | 5 | | | 6 | | | (6) | | | | | | | ||||
| | Interests and similar expenses | | | (13) | | | (14) | | | 14 | | | | | | | ||||
Income from operations before income taxes | | | | | 224 | | | 236 | | | — | | | 222 | | | | | 458 | ||
Income tax expense | | | Taxes on income | | | (121) | | | (127) | | | — | | | (10) | | | (i) | | | (134) |
| | | | | | | | | | 2 | | | (xv) | | | ||||||
| | | | | | | | | | 1 | | | (iii) | | | ||||||
| | | | | | | | | | 1 | | | (vii) | | | ||||||
| | | | | | | | | | (1) | | | (xiii) | | | ||||||
Net income from operations | | | | | 103 | | | 109 | | | — | | | 215 | | | | | 324 | ||
Less: Non-controlling interest in subsidiaries’ earnings from operations | | | | | | | | | | | | | | | |||||||
Net income attributable to common shareowners | | | Net income | | | 103 | | | 109 | | | — | | | 215 | | | | | 324 |
(i) | To record the impact of differences in the calculation of deferred taxes. |
(ii) | To adjust for the impact of different inventory write-down methodologies. |
(iii) | To record the impact of change in intra-company profit elimination. |
(iv) | To record the impact of differences in methodology for provision for doubtful accounts and other credit losses. |
(v) | To reduce the historical VCS Business cash by the amount of restricted cash. |
(vi) | To record operating and finance leases right of use assets and liabilities calculated in accordance with U.S. GAAP. |
(vii) | To record changes due to reclassification of consignment stocks, exhibition style special stocks and tools to fixed assets and related deferred tax impact. The recognized write-down of those stocks in inventory under German GAAP has been reversed. The respective depreciation was recognized in fixed assets. |
(viii) | To reverse the recognized revenue and corresponding expense related to customer loyalty programs that are not yet deemed earned under U.S. GAAP and are deferred as a contract liability, and the related deferred tax impact. |
(ix) | To record the reclassification of the long-term portion of contingent loss provisions and adjustments to certain provisions given different threshold criteria. |
(x) | To record a reversal in depreciation recorded in finished goods inventory of merchandised products, and the related deferred tax impact. |
(xi) | To record the elimination of expenses from profit and loss transfer agreement that comprises the portion of the profits transferred to Viessmann remaining after deduction of the income tax expense regulated by tax allocation agreements. |
(xii) | To record the reversal of goodwill amortized under German GAAP and separately an unrelated failed sale and leaseback by recording the capitalization and amortization of the related fixed asset. |
(xiii) | To record the difference in pension valuation from German GAAP to U.S. GAAP, and corresponding deferred tax adjustment. |
(xiv) | To reverse the inventory reduction recorded under German GAAP and record a contract liability for prepayment on customer contracts. |
(xv) | To record an adjustment due to the different treatment of consolidated tax group for income tax purposes. |
(xvi) | To record the difference in treatment for accounting for hyperinflationary economies between German GAAP to U.S. GAAP. |
(A) | The adjustment reflects the preliminary estimated fair value of consideration transferred comprised of the Cash Consideration and Share Consideration (as each defined in the Share Purchase Agreement). Cash Consideration was translated from euro to U.S. Dollars based on an exchange rate of $1.0962 per €1. |
USD in millions | | | |
Cash Consideration | | | $11,165 |
Share Consideration | | | $3,006 |
Preliminary estimated fair value of consideration transferred | | | $14,171 |
| | Carrier’s share price | | | Purchase price (equity portion) | |
Share price considered | | | $56.99 | | | $3,006 |
10% Increase | | | 62.69 | | | 3,307 |
10% Decrease | | | 51.29 | | | 2,706 |
USD in millions | | | |
Cash and cash equivalents | | | $231 |
Accounts receivable, net | | | 608 |
Inventories, net | | | 1,198 |
Other assets, current | | | 111 |
Future income tax benefits | | | — |
Fixed assets, net | | | 758 |
Operating lease right-of-use assets | | | 98 |
Intangible assets, net | | | 4,627 |
Pension and post-retirement assets | | | — |
Other assets | | | 28 |
Total assets | | | $7,659 |
Accounts payable | | | 251 |
Accrued liabilities | | | 620 |
Contract liabilities, current | | | 94 |
Current portion of long-term debt | | | 10 |
Long-term debt | | | 20 |
Future pension and post-retirement obligations | | | 74 |
Future income tax obligations | | | 1,451 |
Operating lease liabilities | | | 74 |
Other long-term liabilities | | | 11 |
Total liabilities | | | $2,605 |
Net assets acquired | | | $5,054 |
Goodwill | | | 9,117 |
Preliminary estimated fair value of consideration transferred | | | $14,171 |
(B) | Reflects the preliminary estimated fair value adjustment to fixed assets, net acquired in the Acquisition, as shown in the table below. The fair value of fixed assets, net is subject to change. |
USD in millions | | | Estimated Useful life (in years) | | | Preliminary Estimated Asset Fair Value |
Land | | | n/a | | | $62 |
Buildings and improvements | | | 3 to 22 | | | 213 |
Machinery, tools and equipment | | | 5 to 8 | | | 320 |
Other, including assets under construction | | | 4 to 45 | | | 163 |
Fixed assets, net | | | | | $758 | |
Less: VCS Business’s Adjusted Fixed assets, net | | | | | (555) | |
Pro Forma adjustment | | | | | $203 |
(C) | Reflects the preliminary estimated fair value adjustment to the identifiable intangible assets acquired in the Acquisition, as shown in the table below. The fair value of intangible assets is subject to change. |
USD in millions | | | Estimated Useful life (in years) | | | Preliminary Estimated Asset Fair Value |
Customer relationships | | | 15 | | | $3,256 |
Trademark | | | 40 | | | 715 |
Technology | | | 7 | | | 502 |
Backlog | | | 1 | | | 154 |
Identifiable intangible assets, net | | | | | $4,627 | |
Less: VCS Business’s Adjusted Intangible assets, net | | | | | (8) | |
Pro Forma adjustment | | | | | $4,619 |
(D) | The adjustment reflects a step up in fair value to the VCS Business’s finished goods and work-in process inventory. The calculation of fair value is preliminary and subject to change. The preliminary estimated fair value of inventories, net, was determined based on the estimated selling price of the inventory, less the remaining manufacturing and selling costs and a normal profit margin on those manufacturing and selling efforts, as shown in the table below. |
USD in millions | | | |
Inventories | | | $1,198 |
Less: VCS Business’s Adjusted Inventories, net | | | (1,018) |
Pro Forma adjustment | | | $180 |
(E) | To reflect Carrier’s estimated transaction costs of $46 million consisting of advisory, legal, accounting and auditing fees and other professional fees, that have not been recognized and accrued in the historical financial statements of Carrier and the VCS Business. These costs are recorded as a reduction in cash and retained earnings. |
(F) | Reflects (i) the elimination of $111 million of receivables recorded within “Other assets, current” from |
(G) | Reflects estimated deferred taxes related to the purchase price allocation and income tax impact effect related to the pro forma adjustments in the balance sheet resulting from step-up in inventory, fixed assets and intangible assets. These tax-related adjustments are based upon an estimated blended tax rate of 28.1% on adjustments. |
(H) | Reflects the impact of the financing for the Transactions and related debt issuance costs. The impact on other current liabilities and long-term debt have been adjusted for the following: |
USD in millions | | | Current portion of long-term debt/ Other current liabilities | | | Long-term debt | | | Total |
Bridge Facility | | | $475 | | | $— | | | $475 |
USD Notes | | | | | | | |||
5.8000% notes due 2025 | | | | | 1,000 | | | 1,000 | |
5.9000% notes due 2034 | | | | | 1,000 | | | 1,000 | |
6.2000% notes due 2054 | | | | | 1,000 | | | 1,000 | |
Euro Notes | | | | | | | |||
4.375% notes due 2025 | | | | | 801 | | | 801 | |
4.125% notes due 2028 | | | | | 801 | | | 801 | |
4.500% notes due 2032 | | | | | 907 | | | 907 | |
Term Loan Credit Agreement | | | | | 2,521 | | | 2,521 | |
Total Principal balance from incremental Bridge Facility, Notes and Term Loan Credit Agreement | | | $475 | | | $8,030 | | | $8,505 |
New deferred debt issuance costs for Term Loan Credit Agreement and other debt | | | — | | | (54) | | | (54) |
Pro Forma adjustment | | | $475 | | | $7,976 | | | $8,451 |
(I) | To adjust the VCS Business’s historical financial statements to give pro forma effect to events in connection with the Acquisition that include the elimination of the VCS Business’s historical additional paid in capital of $1,462 million. |
(AA) | Reflects incremental depreciation expense included in cost of products sold of $6 million and $8 million and selling, general, and administrative expenses (“SG&A”) of $2 million and $3 million related to step-up in value of PP&E acquired for the nine months ended September 30, 2023 and twelve months ended December 31, 2022, respectively. |
USD in millions | | | Estimated Useful life (in years) | | | Preliminary Estimated Asset Fair Value | | | Depreciation for the nine months ended September 30, 2023 | | | Depreciation for the twelve months ended December 31, 2022 |
Land | | | n/a | | | $62 | | | n/a | | | n/a |
Buildings and improvements | | | 3 to 22 | | | 213 | | | 8 | | | 11 |
Machinery, tools and equipment | | | 5 to 8 | | | 320 | | | 35 | | | 45 |
Other, including assets under construction | | | 4 to 45 | | | 163 | | | 5 | | | 7 |
Total Depreciation expense on additional Fixed assets, net | | | | | | | $48 | | | $63 | ||
Less: VCS Business’s Adjusted Depreciation expense | | | | | | | (40) | | | (52) | ||
Pro Forma adjustment | | | | | | | $8 | | | $11 |
(BB) | Reflects incremental amortization expense related to the fair value of identifiable intangible assets acquired. The adjustment included in cost of products sold is $332 million and $493 million for the nine months ended September 30, 2023 and twelve months ended December 31, 2022, respectively. The adjustment included in cost of services sold is $37 million and $39 million for the nine months ended September 30, 2023 and twelve months ended December 31, 2022, respectively. |
USD in millions | | | Estimated Useful life (in years) | | | Preliminary Estimated Asset Fair Value | | | Amortization expense for the nine months ended September 30, 2023 | | | Amortization expense for the twelve months ended December 31, 2022 |
Customer relationships | | | 15 | | | $3,256 | | | $266 | | | $288 |
Trademark | | | 40 | | | 715 | | | 30 | | | 35 |
Technology | | | 7 | | | 502 | | | 78 | | | 65 |
Backlog | | | 1 | | | 154 | | | — | | | 152 |
Amortization expense | | | | | | | $374 | | | $540 | ||
Less: VCS Business’ Adjusted Amortization expense | | | | | | | $(5) | | | $(8) | ||
Pro Forma adjustment | | | | | | | $369 | | | $532 |
| | Twelve months ended December 31, | |||||||||||||
USD in millions | | | 2024 | | | 2025 | | | 2026 | | | 2027 | | | 2028 |
Customer relationships | | | $380 | | | $358 | | | $317 | | | $281 | | | $245 |
Trademark | | | 42 | | | 43 | | | 44 | | | 43 | | | 42 |
Technology | | | $117 | | | $106 | | | $81 | | | $44 | | | $13 |
(CC) | To reflect the amortization of the preliminary estimated increase in fair value of “Inventories, net” of $178 million, as the inventory is expected to be sold within one year of the acquisition date. |
(DD) | To reflect Carrier’s estimated transaction costs of $46 million in the twelve months ended December 31, 2022. This amount consists of advisory, legal, accounting and auditing fees and other professional fees, that have not been recognized and accrued in the historical financial statements of Carrier and the VCS Business. This is a non-recurring item. |
(EE) | To reflect reversal of interest expense related to intercompany financing as per adjustment (F) above. |
(FF) | To record the reversal of the historical royalty fee of $40 million and $45 million paid by the VCS Business to Viessmann recorded in the VCS Business’s combined financial statements for the nine months ended September 30, 2023 and twelve months ended December 31, 2022, respectively. |
(GG) | To record the new royalty fee of $10 million and $13 million pursuant to the License Agreement for use of “Viessmann” trademarks in connection with the VCS Business for the nine months ended September 30, 2023 and twelve months ended December 31, 2022, respectively. |
(HH) | The following adjustments to interest expense reflect the estimated interest expense and financing costs amortization to be incurred by Carrier as a result of the financing and amortization of fees paid for the borrowings under the Term Loan Credit Agreement, the Notes and the Euro Notes: |
USD in millions | | | Interest expense for the nine months ended September 30, 2023 | | | Interest expense for the twelve months ended December 31, 2022 |
Bridge Facility | | | $— | | | $5 |
USD Notes | | | | | ||
5.8000% notes due 2025 | | | 44 | | | 58 |
5.9000% notes due 2034 | | | 44 | | | 59 |
6.2000% notes due 2054 | | | 46 | | | 62 |
Euro Notes | | | | | ||
4.375% notes due 2025 | | | 18 | | | 35 |
4.125% notes due 2028 | | | 25 | | | 33 |
4.500% notes due 2032 | | | 30 | | | 41 |
Term Loan Credit Agreement | | | 104 | | | 167 |
Total Bridge Facility, Notes and Term Loan Credit Agreement (excluding amortization of debt issuance costs) | | | $311 | | | $460 |
Amortization of debt issuance costs related to new Bridge Facility, Notes and Term Loan Credit Agreement | | | 8 | | | 12 |
Pro forma adjustment | | | $319 | | | $472 |
(II) | Reflects the estimated income tax impact of the pro forma adjustments related to transaction accounting adjustments. For taxable VCS Business’s transaction accounting adjustments, a blended tax rate of 28.1% is used. For Carrier’s taxable transaction accounting adjustments, a blended tax rate of 23.5% is used. The amounts are adjusted for certain non-deductible advisory fees. |
(JJ) | Reflects the one-time cost incurred of $19 million related to the debt issuance cost not capitalized in (HH) above, related to the loans that were ultimately not used to finance the Transactions. |
(KK) | Reflects the estimated income tax impact of the pro forma adjustments related to the issuance of new debt. Tax-related adjustments are based upon a blended tax rate of 23.5%, adjusted for the impact of a reduction in foreign tax credit utilization. |
USD in millions, except per share amounts | | | Nine months ended September 30, 2023 | | | Twelve months ended December 31, 2022 |
Numerator (Basic and Diluted): | | | | | ||
Pro Forma combined net income | | | $760 | | | $2,953 |
Denominator (in millions): | | | | | ||
Historical weighted average shares outstanding – Basic | | | 837 | | | 843 |
Pro forma adjustment for shares issued | | | 59 | | | 59 |
Weighted average common shares outstanding – Basic: | | | 896 | | | 902 |
Historical weighted average shares outstanding – Diluted | | | 853 | | | 861 |
Pro forma adjustment for shares issued | | | 59 | | | 59 |
Weighted average common and potential common shares outstanding – Diluted: | | | 912 | | | 920 |
Pro Forma earnings per share: | | | | | ||
Earnings per share – Basic | | | $0.85 | | | $3.27 |
Earnings per share – Diluted | | | $0.83 | | | $3.21 |
• | to delay accepting for exchange any Old Notes due to an extension of the relevant exchange offer(s); |
• | to extend any of the exchange offers or to terminate any of the exchange offers and to refuse to accept applicable Old Notes not previously accepted if any of the conditions set forth below under “Conditions to the Exchange Offers” have not been satisfied by giving written notice of such extension or termination to the exchange agents; or |
• | subject to the terms of the Registration Rights Agreements, to amend the terms of the exchange offers in any manner. |
• | such exchange offer would violate applicable law or any applicable interpretation of the staff of the SEC; or |
• | any action or proceeding has been instituted or threatened in any court or by any governmental agency with respect to such exchange offer. |
• | transmit a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal, to the USD exchange agent, at the address listed below under the heading “Exchange Agents;” or |
• | if Old USD Notes are tendered in accordance with the book-entry procedures described below, the tendering holder must transmit an agent’s message (described below) to the USD exchange agent. |
• | by a registered holder of the Old USD Notes that has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or |
• | for the account of an eligible institution. |
(i) | irrevocable instructions: (a) to block any attempt to transfer such participant’s tendered Old Euro Notes on or prior to the settlement date; and |
(b) | to debit such participant’s account on the settlement date in respect of all of the Old Euro Notes that such participant has tendered or, in respect of such lesser portion of such Old Euro Notes as are accepted pursuant to the exchange offers, upon receipt of an instruction from the Euro Exchange Agent; |
(ii) | authorization to disclose the identity of the Direct Participant and information about the foregoing instructions; and |
(iii) | express acknowledgement that such participant has received and agrees to be bound by the terms and subject to the conditions set forth in this prospectus and that we may enforce that agreement against such participant. |
• | it is not an affiliate of ours or, if an affiliate of ours, will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable in connection with the resale of the Exchange Notes; |
• | the Exchange Notes will be acquired in the ordinary course of its business; |
• | it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in the distribution (within the meaning of the Securities Act) of the Exchange Notes; |
• | it is not a broker-dealer that purchased any of the Old Notes from us or any of our affiliates for resale pursuant to Rule 144A or any other available exemption under the Securities Act; and |
• | if such holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Old Notes that were acquired as a result of market-making activities or other trading activities, that it will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such Exchange Notes. See “Plan of Distribution.” |
• | The certificate(s) representing the Old Notes or confirmation of book-entry transfer ; |
• | a properly completed and duly executed letter of transmittal or an agent’s message from DTC or an Electronic Exchange Instruction from Euroclear or Clearstream, as applicable ; and |
• | all other required documents. |
(1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Exchange USD Notes matured on the Par Call Date (or the Maturity Date for the Exchange USD 2025 Notes)) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the number of basis points set forth below under the heading “Description of Exchange Notes—Optional Redemption—Exchange USD Notes—Make-Whole Basis Points” across from the name of such series of Exchange USD Notes less (b) interest accrued to the date of redemption, and |
(2) | 100% of the principal amount of the notes to be redeemed, |
Series of Notes | | | Make-Whole Basis Points |
Exchange USD 2025 Notes | | | +15 basis points |
Exchange 2034 Notes | | | +25 basis points |
Exchange 2054 Notes | | | +25 basis points |
Series of Notes | | | Par Call Date |
Exchange 2034 Notes | | | December 15, 2033 (three months prior to the stated maturity of such 2034 Notes) |
Exchange 2054 Notes | | | September 15, 2053 (six months prior to the stated maturity of such 2054 Notes) |
(1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Exchange Euro Notes matured on the Euro Par Call Date (or the Maturity Date for the Exchange Euro 2025 Notes)) on an annual basis (ACTUAL/ACTUAL (ICMA)) at the Comparable Government Bond Rate plus the number of basis points set forth below under the heading “Description of Exchange Notes—Optional Redemption—Exchange Euro Notes—Make-Whole Basis Points” across from the name of such series of Notes less (b) interest accrued to the date of redemption, and |
(2) | 100% of the principal amount of the notes to be redeemed, |
Series of Notes | | | Make-Whole Basis Points |
Exchange Euro 2025 Notes | | | +20 basis points |
Exchange 2028 Notes | | | +25 basis points |
Exchange2032 Notes | | | +30 basis points |
Series of Notes | | | Par Call Date |
Exchange 2028 Notes | | | April 29, 2028 (one month prior to the stated maturity of such 2028 Notes) |
Exchange 2032 Notes | | | August 29, 2032 (three months prior to the stated maturity of such 2032 Notes) |
• | accept or cause a third party to accept for payment all the Exchange Notes properly tendered pursuant to the Change of Control Offer; |
• | deposit or cause a third party to deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all the Exchange Notes properly tendered; and |
• | deliver or cause to be delivered to the Trustee the Exchange Notes properly accepted together with an officer’s certificate stating the aggregate principal amount of the Exchange Notes being purchased. |
(a) | Liens on any property or assets of the Company or any subsidiary (including equity interests or Debt owned by the Company or any subsidiary) existing as of the date of the issuance of the Exchange Notes; |
(b) | Liens on any property or assets of, or on any equity interests or Debt of, any person existing at the time such person becomes a Wholly-Owned Domestic Manufacturing Subsidiary, or arising thereafter (i) otherwise than in connection with the borrowing of money arranged thereafter and (ii) pursuant to contractual commitments entered into prior to and not in contemplation of such person’s becoming a Wholly-Owned Domestic Manufacturing Subsidiary; |
(c) | Liens on any property or assets or equity interests or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or securing the payment of all or any part of the purchase price or construction cost thereof or securing any Debt incurred prior to, at the time of or within 120 days after, the acquisition of such property or assets or equity interests or Debt or the |
(d) | Liens on any property or assets to secure all or any part of the cost of development, operation, construction, alteration, repair or improvement of all or any part of such property or assets, or to secure Debt incurred prior to, at the time of or within 120 days after, the completion of such development, operation, construction, alteration, repair or improvement, whichever is later, for the purpose of financing all or any part of such cost (provided that such Liens are limited to such property or assets, improvements thereon and the land upon which such property, assets and improvements are located and any other property or assets not then constituting a Principal Property); |
(e) | Liens which secure Debt owing by a subsidiary to the Company or to a Wholly-Owned Domestic Manufacturing Subsidiary; |
(f) | Liens arising from the assignment of moneys due and to become due under contracts between the Company or any subsidiary and the United States of America, any State, Commonwealth, Territory or possession thereof or any agency, department, instrumentality or political subdivision of any thereof; or Liens in favor of the United States of America, any State, Commonwealth, Territory or possession thereof or any agency, department, instrumentality or political subdivision of any thereof, pursuant to the provisions of any contract not directly or indirectly in connection with securing Debt; |
(g) | any materialmen’s, carriers’, mechanics’, workmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations which are not overdue or which are being contested in good faith by appropriate proceedings; any deposit or pledge as security for the performance of any bid, tender, contract, lease, or undertaking not directly or indirectly in connection with the securing of Debt; any deposit or pledge with any governmental agency required or permitted to qualify the Company or any subsidiary to conduct business, to maintain self-insurance or to obtain the benefits of any law pertaining to workmen’s compensation, unemployment insurance, old age pensions, social security or similar matters, or to obtain any stay or discharge in any legal or administrative proceedings; deposits or pledges to obtain the release of mechanics’, workmen’s, repairmen’s, materialmen’s or warehousemen’s Liens or the release of property in the possession of a common carrier; any security interest created in connection with the sale, discount or guarantee of notes, chattel mortgages, leases, accounts receivable, trade acceptances or other paper, or contingent repurchase obligations, arising out of sales of merchandise in the ordinary course of business; Liens for Taxes levied or imposed upon the Company or any Wholly-Owned Domestic Manufacturing Subsidiary or upon the income, profits or property of the Company or any Wholly-Owned Domestic Manufacturing Subsidiary or Liens on any Principal Property of the Company or any Wholly-Owned Domestic Manufacturing Subsidiary arising from claims from labor, materials or supplies; provided that either such Tax is not overdue or that the amount, applicability or validity of such Tax or claim is being contested in good faith by appropriate proceedings; or other deposits or pledges similar to those referred to in this subdivision (g); |
(h) | Liens arising by reason of any judgment, decree or order of any court, so long as any appropriate legal proceedings which may have been initiated for the review of such judgment, decree or order shall not have been finally terminated or so long as the period within which such proceedings may be initiated shall not have expired; any deposit or pledge with any surety company or clerk of any court, or in escrow, as collateral in connection with, or in lieu of, any bond on appeal from any judgment or decree against the Company or any subsidiary, or in connection with other proceedings or actions at law or in equity by or against the Company or any subsidiary; and |
(i) | any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), as a whole or in part, of any of the Liens referred to in subdivisions (a) through (h) above or the Debt secured thereby; provided that (1) such extension, renewal, substitution or replacement Lien shall be limited to all or any part of the same property or assets or equity interests or |
(a) | the Attributable Debt of the Company and its Wholly-Owned Domestic Manufacturing Subsidiaries in respect of such sale and leaseback transaction and all other sale and leaseback transactions entered into after the date of the issuance of the Exchange Notes (other than such sale and leaseback transactions as are permitted by the provisions described in the following paragraph), plus the aggregate principal amount of Debt secured by Liens on Principal Properties then outstanding (excluding any such Debt secured by Liens covered by the provisions described in subdivisions (a) through (i) of the first paragraph of the covenant described under the caption “—Limitation upon Liens”) without equally and ratably securing the Exchange Notes, would not exceed 10% of Consolidated Net Total Assets, or |
(b) | the Company, within 365 days after the sale or transfer, applies or causes a Wholly-Owned Domestic Manufacturing Subsidiary to apply an amount equal to the greater of the net proceeds of such sale or transfer or fair market value of the Principal Property so sold and leased back at the time of entering into such sale and leaseback transaction (in either case as determined by any two of the following: the Chairman, Chief Executive Officer, Chief Financial Officer, the President, any Vice President, the Treasurer and the Controller of the Company) to the retirement of securities of any series outstanding under the Indenture or |
(a) | the person formed by the consolidation or into which the Company is merged or the person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Company is a person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and expressly assumes, by an indenture supplemental to the Indenture, executed and delivered to the Trustee, the Company’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest on all the Notes and the performance of every covenant of the Indenture on the part of the Company to be performed or observed; |
(b) | immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and |
(c) | the Company has delivered to the Trustee an officer’s certificate and an opinion of counsel, each stating that the consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with the covenant described in this section. |
(a) | default in the payment of any interest upon any security of that series when it becomes due and payable, and continuance of the default for a period of 30 days; |
(b) | default in the payment of the principal of (or premium, if any, on) any security of that series at its Maturity; |
(c) | default in the performance, or breach, of any covenant or warranty of the Company in the 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 been expressly included in the Indenture for the benefit of one or more series of Notes other than that series), and continuance of that default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in principal amount of all affected Notes of any series issued under the Indenture then outstanding (taking such action as one class) (including any affected Exchange Notes) a written notice specifying the default or breach and requiring it to be remedied and stating that the notice is a “Notice of Default” under the Indenture; |
(d) | the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state bankruptcy, insolvency, reorganization or similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of all or substantially all of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or |
(e) | the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or all or substantially all of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due. |
(a) | the holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Exchange Notes; |
(b) | the holders of not less than 25% in principal amount of the outstanding Exchange Notes in the case of any Event of Default described in clause (a) or (b) of the definition of “Event of Default,” or, in the case of any Event of Default not described in clause (a) or (b) of the definition of “Event of Default,” the holders of not less than 25% in principal amount of all affected Notes of any series issued under the Indenture outstanding (making such request as one class), will have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; |
(c) | the holder or holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; |
(d) | the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
(e) | no direction inconsistent with the written request has been given to the Trustee during the 60-day period by the holders of not less than a majority in principal amount of the outstanding Exchange Notes in the case of any Event of Default described in clause (a) or (b) of the definition of “Event of Default,” or, in the case of any Event of Default not described in clause (a) or (b) of the definition of “Event of Default,” by the holders of not less than a majority in principal amount of all affected Notes of any series issued under the Indenture outstanding (making the direction as one class), |
(a) | to evidence the succession of another person to the Company and provide for the assumption by a successor person of the Company’s obligations under the Indenture and the Notes, in each case in compliance with the provisions thereof; |
(b) | to add to the covenants of the Company or to surrender any right or power conferred upon the Company in the Indenture; |
(c) | to add any additional Events of Default; |
(d) | to add to, change or eliminate any of the provisions of the Indenture; provided that any such addition, change or elimination shall (i) neither (A) apply to any Notes of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision nor (B) modify the rights of the holder of any such Notes with respect to such provision or (ii) become effective only when there are no Notes of any series outstanding; |
(e) | to secure the Notes pursuant to the requirements of the covenant described under the caption “—Limitation upon Liens” or otherwise; |
(f) | to establish the form or terms of the Notes of any series as permitted under the Indenture; |
(g) | to evidence and provide for the acceptance of appointment under the Indenture by a successor Trustee with respect to the Notes of one or more series and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of the Indenture; |
(h) | to cure any ambiguity, to correct or supplement any provision under the Indenture which may be defective or inconsistent with any other provision therein, or to make any other provisions with respect to matters or questions arising under the Indenture; provided such action will not adversely affect the interests of the holders of the Notes of any particular series in any material respect; |
(i) | to supplement any of the provisions of the Indenture to the extent as necessary to permit or facilitate the defeasance and/or discharge of any series of Notes pursuant to the Indenture; provided that any such action does not adversely affect the interests of the holders of the Notes of that series or any other series of Notes in any material respect; |
(j) | to provide for the guarantee by any person of any series of previously issued and outstanding Notes; |
(k) | to add to the Indenture such provisions as may be expressly permitted by the Trust Indenture Act, excluding, however, the provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which the Indenture is executed or any corresponding provision in any similar federal statute thereafter enacted; |
(l) | to conform to any mandatory provisions of law and in particular to comply with the requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act; |
(m) | to conform the terms of the Indenture and the Notes to any provision or other description of the Notes, as the case may be, contained in an offering document related thereto; |
(n) | to provide for the issuance of any additional securities under the Indenture; |
(o) | to comply with the rules of any applicable securities depositary; or |
(p) | to make any change in any series of Notes or to add to the Indenture such provisions that do not adversely affect in any material respect the interests of the holders of such Notes. |
(a) | change the stated maturity of the principal of, or any installment of interest 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 the Indenture or the amount thereof provable in bankruptcy pursuant to the Indenture, or change any Place of Payment where, or the coin, currency, currencies, currency units or composite 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 or repayment at the option of the holder, on or after the redemption date or repayment date, as the case may be); |
(b) | reduce the percentage in principal amount of the outstanding Notes 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; or |
(c) | modify (i) the requirements of the section of the Indenture described in this paragraph, (ii) provisions with respect to waiving compliance with specified provisions of the Indenture or (iii) provisions with respect to waiving specified defaults, except to increase any applicable percentage or to provide that other specified provisions of this Indenture cannot be modified or waived without the consent of the holder of each outstanding security affected thereby; provided, that this clause will not be deemed to require the consent of any holder with respect to changes in the references to “the Trustee” and concomitant changes in the foregoing requirements and provisions with respect to waiving compliance with certain provisions of the Indenture, or the deletion of this proviso, in accordance with the requirements of the Indenture. |
(a) | either: |
(i) | all Notes of the applicable series theretofore authenticated and delivered (other than Notes that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Indenture and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in the Indenture) have been cancelled or delivered to the Trustee for cancellation; or |
(ii) | all Notes of the applicable series not theretofore cancelled or delivered to the Trustee for cancellation: |
(1) | have become due and payable, or |
(2) | will become due and payable at their stated maturity within one year, or |
(3) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, |
(b) | the Company has paid or caused to be paid all other sums payable under the Indenture by the Company in respect of the applicable Notes; and |
(c) | the Company has delivered to the Trustee an officer’s certificate and an opinion of counsel (as specified in the Indenture), each stating (i) that all conditions precedent in respect of such discharge have been satisfied, and (ii) such discharge is authorized and permitted by the terms and conditions of the Indenture. |
(a) | “defeasance” means that the Company may elect to defease and be discharged from any and all obligations with respect to the applicable Notes except for the obligations to register the transfer or exchange of the applicable Notes, to replace temporary or mutilated, destroyed, lost or stolen Notes and any related coupons, to maintain an office or agency in respect of the applicable Notes and to hold moneys for payment in trust; and |
(b) | “covenant defeasance” means that the Company may elect to be released from its obligations with respect to the applicable Notes that are described under the captions “—Consolidation, Merger and Sale of Assets,” “—Existence,” “—Limitation upon Liens” and “—Limitations upon Sales and Leasebacks,” and any omission to comply with these obligations will not constitute a default or an Event of Default with respect to the applicable Notes. |
(1) | the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3)of the Exchange Act) other than to the Company or one of its subsidiaries, and other than any such transaction or series of related transactions in which the holders of the Company’s Voting Stock outstanding immediately prior thereto hold Voting Stock of the transferee person representing a majority of the voting power of the transferee person’s Voting Stock immediately after giving effect thereto; |
(2) | the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the Company or one of its subsidiaries) becomes the “beneficial owner” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of the Company’s Voting Stock representing a majority of the voting power of the Company’s outstanding Voting Stock; |
(3) | the Company consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock is converted into or exchanged for cash, securities or other property, other than any such transaction where the Company’s Voting Stock outstanding immediately prior to such transaction constitutes, or is converted into or exchanged for, Voting Stock representing a majority of the voting power of the Voting Stock of the surviving person (or its parent) immediately after giving effect to such transaction; or |
(4) | the adoption by our shareholders of a plan relating to our liquidation or dissolution. |
a) | a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in, in the case of definitive notes only, the relevant place of presentation; |
b) | a day on which the TARGET 2 System is open, and |
c) | in the case of any payment in respect of a global note, a day on which Euroclear and/or Clearstream, as the case may be, settle(s) payments in euro. |
a) | an event of default has occurred and is continuing; or |
b) | either Euroclear or Clearstream is closed for business for a continuous period of 14 days or more (other than |
c) | Carrier would suffer a disadvantage as a result of a change in laws or regulations (taxation or otherwise) or as a result of a change in the practice of Euroclear and/or Clearstream which would not be suffered were the Exchange Euro Notes in definitive form and a certificate to such effect signed by an authorized signatory of Carrier is given to the Trustee. |
• | upon deposit of each global note with DTC’s custodian, DTC will credit portions of the principal amount of the global note to the accounts of the DTC participants designated by the initial purchasers; and |
• | ownership of beneficial interests in each global note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global note). |
• | a limited purpose trust company organized under the laws of the State of New York; |
• | a “banking organization” within the meaning of the New York State Banking Law; |
• | a member of the Federal Reserve System; |
• | a “clearing corporation” within the meaning of the Uniform Commercial Code; and |
• | a “clearing agency” registered under Section 17A of the Exchange Act. |
• | will not be entitled to have the Exchange USD Notes represented by the global note registered in their names; |
• | will not receive or be entitled to receive physical, certificated notes; and |
• | will not be considered the owners or holders of the Exchange USD Notes under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee under the Indenture. |
• | DTC notifies us at any time that it is unwilling or unable to continue as depositary for the global notes and a successor depositary is not appointed within 90 days; |
• | DTC ceases to be registered as a clearing agency under the Exchange Act, and a successor depositary is not appointed within 90 days; |
• | we, at our option, notify the Trustee that we elect to cause the issuance of certificated notes; or |
• | there shall have occurred and be continuing an Event of Default with respect to the Exchange USD Notes and DTC notifies the Trustee of its decision to exchange the global notes for certificated notes. |
• | released, issued, distributed or caused to be released, issued or distributed to the public in France; or |
• | used in connection with any offer for subscription or sale of the Exchange Notes to the public in France. |
• | to qualified investors (investisseurs qualifiés) and/or to a restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account, all as defined in, and in accordance with, articles L.411-2, D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the French Code monétaire et financier; |
• | to investment services providers authorized to engage in portfolio management on behalf of third parties; or |
• | in a transaction that, in accordance with article L.411-2-II-1" -or-2" -or 3" of the French Code monétaire et financier and article 211-2 of the General Regulations (Règlement Général) of the Autorité des Marchés Financiers, does not constitute a public offer (appel public à l’épargne). |
(a) | the aggregate consideration payable on acceptance of the offer or invitation by each offeree or invitee is at least A$500,000 (or its equivalent in another currency, in either case, disregarding moneys lent by the person offering the Exchange Notes or making the invitation or its associates) or the offer or invitation otherwise does not require disclosure to investors in accordance with Part 6D.2 or 7.9 of the Corporations Act; |
(b) | the offer, invitation or distribution complied with the conditions of the Australian financial services license of the person making the offer, invitation or distribution or an applicable exemption from the requirement to hold such license; |
(c) | the offer, invitation or distribution complies with all applicable Australian laws, regulations and directives (including, without limitation, the licensing requirements set out in Chapter 7 of the Corporations Act); |
(d) | the offer or invitation does not constitute an offer or invitation to a person in Australia who is a “retail client” as defined for the purposes of Section 761G of the Corporations Act; and |
(e) | such action does not require any document to be lodged with the Australian Securities and Investments Commission or the Australian Securities Exchange. |
• | our Annual Report on Form 10-K for the year ended December 31, 2022 (including the portions of our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 7, 2023, incorporated by reference therein); |
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023; and |
• | our Current Reports on Form 8-K filed with the SEC on April 21, 2023, April 25, 2023 (Film No. 23845571, Item 8.01 only), April 26, 2023, May 25, 2023, June 12, 2023, November 13, 2023 (Item 8.01 only), November 16, 2023, November 30, 2023, December 13, 2023 and January 2, 2024 (excluding Item 7.01). |
Item 20. | Indemnification of Directors and Officers. |
Item 21. | Exhibits and Financial Statement Schedules. |
Number | | | Description |
| | Separation and Distribution Agreement, dated as of April 2, 2020, by and among United Technologies Corporation, Otis Worldwide Corporation and Carrier Global Corporation (incorporated by reference to Exhibit 2.1 of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on April 3, 2020) | |
| | ||
| | Amended and Restated Certificate of Incorporation of Carrier Global Corporation (incorporated by reference to Exhibit 3.1(b) of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on April 3, 2020) | |
| | ||
| | Amended and Restated Bylaws of Carrier Global Corporation (incorporated by reference to Exhibit 3.2 of Carrier Global Corporation's Annual Report on Form 10-K filed with the SEC on February 8, 2022) | |
| | ||
| | Indenture, dated November 29, 2023, between Carrier Global Corporation and Deutsch Bank Trust Company (incorporated by reference to Exhibit 4.1 of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on November 30, 2023) | |
| | ||
| | Supplemental Indenture No. 1, dated November 29, 2023, between Carrier Global Corporation and Deutsch Bank Trust Company (incorporated by reference to Exhibit 4.2 of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on November 30, 2023) | |
| | ||
| | Supplemental Indenture No. 2, dated November 30, 2023, between Carrier Global Corporation and Deutsch Bank Trust Company (incorporated by reference to Exhibit 4.3 of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on November 30, 2023) | |
| | ||
| | Form of Carrier Global Corporation’s 4.375% Notes due 2025, 4.125% Notes due 2028 and 4.500% Notes due 2032 (included as Annex 1 to Exhibit 4.2) | |
| | ||
| | Form of Carrier Global Corporation’s 5.800% Notes due 2025, 5.900% Notes due 2034 and 6.200% Notes due 2054 (included as Annex 1 to Exhibit 4.3) | |
| |
Number | | | Description |
| | Registration Rights Agreement, dated November 29, 2023, by and among Carrier Global Corporation, J.P. Morgan Securities plc, Merrill Lynch International, Citigroup Global Markets Limited, HSBC Bank plc, Barclays Bank PLC, Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, BNP Paribas, Deutsche Bank AG, London Branch, Intesa Sanpaolo S.p.A., Mizuho International plc, MUFG Securities EMEA plc, SMBC Nikko Capital Markets Limited, UniCredit Bank AG, Wells Fargo Securities International Limited, Bank of Montreal, London Branch, Commerzbank Aktiengesellschaft, ICBC Standard Bank Plc, Loop Capital Markets LLC, Société Générale, and Siebert Williams Shank & Co., LLC (incorporated by reference to Exhibit 4.4 of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on November 30, 2023) | |
| | ||
| | Registration Rights Agreement, dated November 30, 2023, by and among Carrier Global Corporation, J.P. Morgan Securities LLC, BofA Securities, Inc., Citigroup Global Markets Inc. and HSBC Securities (USA) Inc. (incorporated by reference to Exhibit 4.5 of Carrier Global Corporation’s Current Report on Form 8-K filed with the SEC on November 30, 2023) | |
| | ||
| | Legal Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP | |
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| | Awareness Letter of PricewaterhouseCoopers LLP | |
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| | Subsidiaries of the Registrant (incorporated by reference to Exhibit 21 to the Registrant’s Annual Report on Form 10-K (File No. 001-39220) for the year ended December 31, 2022) | |
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| | Consent of PricewaterhouseCoopers LLP | |
| | ||
| | Consent of PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft | |
| | ||
| | Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in Exhibit 5.1) | |
| | ||
| | Power of Attorney (included on signature pages attached hereto) | |
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| | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, dated as of January 9, 2024, of Deutsche Bank Trust Company Americas, as trustee under the Indenture | |
| | ||
| | Form of Letter of Transmittal | |
| | ||
| | Filing Fee Table |
Item 22. | Undertakings. |
(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 range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the |
(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. |
(2) | That, for the purpose 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. |
(4) | That, for purposes of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant 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, the undersigned registrant 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 registrant 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 registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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. |
(7) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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. |
(8) | To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
(9) | To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
(10) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange 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 registrant of expenses incurred or paid by a director, officer or controlling person of the registrant 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 registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| | CARRIER GLOBAL CORPORATION | ||||
| | | | |||
| | By: | | | /s/ Kevin O’Connor | |
| | | | Name: Kevin O’Connor | ||
| | | | Title: Senior Vice President and Chief Legal Officer |
Signature | | | Title |
| | ||
/s/ David Gitlin | | | Director, President and Chief Executive Officer (Principal Executive Officer) |
David Gitlin | | ||
| | ||
/s/ Patrick Goris | | | Senior Vice President, Chief Financial Officer (Principal Financial Officer) |
Patrick Goris | | ||
| | ||
/s/ Kyle Crockett | | | Vice President, Controller (Principal Accounting Officer) |
Kyle Crockett | | ||
| | ||
/s/ Jean-Pierre Garnier | | | |
Jean-Pierre Garnier | | | Director |
| | ||
/s/ John J. Greisch | | | |
John J. Greisch | | | Director |
| | ||
/s/ Charles M. Holley, Jr. | | | |
Charles M. Holley, Jr. | | | Director |
| | ||
/s/ Michael M. McNamara | | | |
Michael M. McNamara | | | Director |
| | ||
/s/ Susan N. Story | | | |
Susan N. Story | | | Director |
| | ||
/s/ Michael A. Todman | | | |
Michael A. Todman | | | Director |
| | ||
/s/ Maximilian Viessmann | | | |
Maximilian Viessmann | | | Director |
| | ||
/s/ Virginia M. Wilson | | | |
Virginia M. Wilson | | | Director |
| | ||
/s/ Beth A. Wozniak | | | |
Beth A. Wozniak | | | Director |
Exhibit 5.1
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
212-373-3000
212-757-3990
January 16, 2024
Carrier Global Corporation
13995 Pasteur Boulevard
Palm Beach Gardens, Florida 33418
Registration Statement on Form S-4
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-4 (the “Registration Statement”) of Carrier Global Corporation, a Delaware corporation (the “Company”), filed today with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules”), you have asked us to furnish our opinion as to the legality of the securities being registered under the Registration Statement. The Registration Statement relates to the registration under the Act of the Company’s (i) €750,000,000 4.375% notes due 2025, (ii) €750,000,000 4.125% notes due 2028, (iii) €850,000,000 4.500% notes due 2032, (iv) $1,000,000,000 5.800% notes due 2025, (v) $1,000,000,000 5.900% notes due 2034, and (vi) $1,000,000,000 6.200% notes due 2054 (collectively, the “Exchange Notes”).
The Exchange Notes are to be offered in exchange for the Company’s outstanding (i) €750,000,000 4.375% notes due 2025, (ii) €750,000,000 4.125% notes due 2028, (iii) €850,000,000 4.500% notes due 2032, (iv) $1,000,000,000 5.800% notes due 2025, (v) $1,000,000,000 5.900% notes due 2034, and (vi) $1,000,000,000 6.200% notes due 2054 (collectively, the “Initial Notes”). The Exchange Notes will be issued by the Company in accordance with the terms of the Indenture, dated as of November 29, 2023 (the “Base Indenture”), as supplemented by the Supplemental Indenture No. 1, dated November 29, 2023 (the “Euro Notes Supplemental Indenture”), and the Supplemental Indenture No. 2, dated November 30, 2023 (the “USD Notes Supplemental Indenture”, and together with the Euro Notes Supplemental Indenture, the “Supplemental Indentures,” and the Base Indenture as supplemented by the Supplemental Indentures, the “Indenture”) between the Company and Deutsche Bank Trust Company Americas, as trustee.
In connection with the furnishing of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
1. the Registration Statement;
2. the Indenture;
3. the form of 4.375% Notes due 2025, 4.125% Notes due 2028 and 4.500% Notes due 2032, included as Exhibit 4.4 to the Registration Statement;
4. the form of 5.800% Notes due 2025, 5.900% Notes due 2034 and 6.200% Notes due 2054, included as Exhibit 4.5 to the Registration Statement;
5. the Registration Rights Agreement, dated November 29, 2023, by and among Carrier Global Corporation, J.P. Morgan Securities plc, Merrill Lynch International, Citigroup Global Markets Limited, HSBC Bank plc, Barclays Bank PLC, Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, BNP Paribas, Deutsche Bank AG, London Branch, Intesa Sanpaolo S.p.A., Mizuho International plc, MUFG Securities EMEA plc, SMBC Nikko Capital Markets Limited, UniCredit Bank AG, Wells Fargo Securities International Limited, Bank of Montreal, London Branch, Commerzbank Aktiengesellschaft, ICBC Standard Bank Plc, Loop Capital Markets LLC, Société Générale, and Siebert Williams Shank & Co., LLC, included as Exhibit 4.6 to the Registration Statement (the “Euro Registration Rights Agreement”); and
6. the Registration Rights Agreement, dated November 30, 2023, by and among Carrier Global Corporation, J.P. Morgan Securities LLC, BofA Securities, Inc., Citigroup Global Markets Inc. and HSBC Securities (USA) Inc., included as Exhibit 4.7 to the Registration Statement (the “USD Registration Rights Agreement,” and together with the Euro Registration Rights Agreement, the “Registration Rights Agreement”).
In addition, we have examined (i) such corporate records of the Company that we have considered appropriate, including a copy of the certificate of incorporation, as amended, and by-laws, as amended, of the Company, certified by the Company as in effect on the date of this letter, and copies of resolutions of the board of directors of the Company relating to the issuance of the Exchange Notes, certified by the Company, and (ii) such other certificates, agreements and documents that we deemed relevant and necessary as a basis for the opinions expressed below. We have also relied upon the factual matters contained in the representations and warranties of the Company made in the Documents and upon certificates of public officials and the officers of the Company.
In our examination of the documents referred to above, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents reviewed by us, the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as certified, photostatic, reproduced or conformed copies of valid existing agreements or other documents, the authenticity of all the latter documents and that the statements regarding matters of fact in the certificates, records, agreements, instruments and documents that we have examined are accurate and complete. We have also assumed, without independent investigation, (i) that the Exchange Notes will be issued as described in the Registration Statement, and (ii) that the Exchange Notes will be in substantially the form attached to the Indenture and that any information omitted from such form will be properly added.
Based upon the above, and subject to the stated assumptions, exceptions and qualifications, we are of the opinion that, when duly issued, authenticated and delivered against the surrender and cancellation of the Initial Notes as set forth in the Registration Statement and in accordance with the terms of the Indenture and the Registration Rights Agreements, the Exchange Notes will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except that the enforceability of the Exchange Notes may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
The opinion expressed above is limited to the laws of the State of New York. Our opinion is rendered only with respect to the laws, and the rules, regulations and orders under those laws, that are currently in effect.
We hereby consent to use of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading “Legal Matters” contained in the prospectus included in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required by the Act or the Rules.
Very truly yours, | |
/s/ Paul, Weiss, Rifkind, Wharton & Garrison LLP |
|
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP |
Exhibit 15.1
January 16, 2024
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Commissioners:
We are aware that our reports dated April 26, 2023, July 27, 2023, and October 26, 2023 on our reviews of interim financial information of Carrier Global Corporation, which are included in the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023 are incorporated by reference in this Registration Statement on Form S-4.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Carrier Global Corporation of our report dated February 7, 2023 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Carrier Global Corporation’s Annual Report on Form 10-K for the year ended December 31, 2022. We also consent to the reference to us under the heading “Independent Registered Public Accounting Firm” in such Registration Statement.
/s/
PricewaterhouseCoopers LLP
Miami, Florida
January 16, 2024
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Carrier Global Corporation of our report dated October 31, 2023 relating to the financial statements of the Climate Solutions Business of Viessmann Climate Solutions SE, which appears in Carrier Global Corporation’s Current Report on Form 8-K dated January 2, 2024. We also consent to the reference to us under the heading “Independent Auditors” in such Registration Statement.
Hannover, Germany
January 16, 2024
PricewaterhouseCoopers GmbH
Wirtschaftsprüfungsgesellschaft
/s/Dr. Thomas Ull | /s/Markus Küfner | |
Wirtschaftsprüfer | Wirtschaftsprüfer | |
(German Public Auditor) | (German Public Auditor) |
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)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
NEW YORK | 13-4941247 |
(Jurisdiction of Incorporation or | (I.R.S. Employer |
organization if not a U.S. national bank) | Identification no.) |
1 COLUMBUS CIRCLE | |
NEW YORK, NEW YORK | 10019 |
(Address of principal executive offices) | (Zip Code) |
Deutsche Bank Trust Company Americas
1 Columbus Circle
New York, New York 10019
(212) 250 – 2500
(Name, address and telephone number of agent for service)
Carrier Global Corporation
(Exact name of obligor as specified in its charter)
Delaware | 83-4051582 |
(State or other jurisdiction of | (I.R.S. Employer |
incorporation or organization) | Identification No.) |
13995 Pasteur Boulevard | |
Palm Beach Gardens, Florida | 33418 |
(Address of principal executive offices) | (Zip code) |
Offers to Exchange
$1,000,000,000 5.800% NOTES DUE 2025 (CUSIP 14448C AT1 AND U1453P AH4) |
$1,000,000,000 5.900% NOTES DUE 2034 (CUSIP 14448C AY0 AND U1453P AN1) |
$1,000,000,000 6.200% NOTES DUE 2054 (CUSIP 14448C BA1 AND U1453P AQ4) |
(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. |
Name | Address | |
Federal Reserve Bank (2nd District) | New York, NY | |
Federal Deposit Insurance Corporation | Washington, D.C. | |
New York State Banking Department | Albany, NY |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
NA
Item 3. -15. | Not Applicable |
Item 16. | List of Exhibits. |
Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998;Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810. | |
Exhibit 2 - | Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810. | |
Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810. | |
Exhibit 4 - | A copy of existing By-Laws of Deutsche Bank Trust Company Americas, dated March 2, 2023 (see attached). | |
Exhibit 5 - | Not applicable. | |
Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810. | |
Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirement of it's supervisiong or examining authority. |
|
Exhibit 8 - | Not Applicable. | |
Exhibit 9 - | Not Applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 9th day of January, 2024.
DEUTSCHE BANK TRUST COMPANY AMERICAS | |||
/s/ Irina Golovashchuk | |||
By: | Name: Irina Golovashchuk | ||
Title: Vise President |
AMENDED AND RESTATED
BY-LAWS
OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the stockholders of Deutsche Bank Trust Company Americas (the “Company”) shall be held in the City of New York within the State of New York within the first four months of the Company’s fiscal year, on such date and at such time and place as the board of directors of the Company (“Board of Directors” or “Board”) may designate in the call or in a waiver of notice thereof, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders of the Company may be called by the Board of Directors or by the President, and shall be called by the President or by the Secretary upon the written request of the holders of record of at least twenty-five percent (25%) of the shares of stock of the Company issued and outstanding and entitled to vote, at such times. If for a period of thirteen months after the last annual meeting, there is a failure to elect a sufficient number of directors to conduct the business of the Company, the Board of Directors shall call a special meeting for the election of directors within two weeks after the expiration of such period; otherwise, holders of record of ten percent (10%) of the shares of stock of the Company entitled to vote in an election of directors may, in writing, demand the call of a special meeting at the office of the Company for the election of directors, specifying the date and month thereof, but not less than two nor more than three months from the date of such call. At any such special meeting called on demand of stockholders, the stockholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business.
Section 1.03. Notice of Meetings. Notice of the time, place and purpose of every meeting of stockholders shall be delivered personally or mailed not less than 10 nor more than 50 days before the date of such meeting (or any other action) to each stockholder of record entitled to vote, at his post office address appearing upon the records of the Company or at such other address as shall be furnished in writing by him to the Secretary of the Company for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all stockholders entitled to vote are present in person or by proxy, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 1.04. Quorum. The holders of record of at least a majority of the shares of the stock of the Company issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, by the Company’s Organization Certificate or by these By-Laws, constitute a quorum at all meetings of the stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time until a quorum shall have been obtained.
Section 1.05. Organization of Meetings. Meetings of the stockholders shall be presided over by the Chairman of the Board or, if he is not present, by the President or, if he is not present, by a chairman to be chosen at the meeting. The Secretary of the Company, or in his absence an Assistant Secretary, shall act as secretary of the meeting, if present.
Section 1.06. Voting. At each meeting of stockholders, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his name on the records of the Company. Elections of directors shall be determined by a plurality of the votes cast thereat and, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, all other action shall be determined by a majority of the votes cast at such meeting.
At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the stockholders present in person or by proxy entitled to vote at such election.
Section 1.07. Action by Consent. Except as may otherwise be provided in the Company’s Organization Certificate, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by all the holders of record of shares of the stock of the Company, issued and outstanding and entitled to vote thereon, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 2.01. Chairman of the Board. Following the election of the Board of Directors at each annual meeting, the elected Board shall appoint one of its members as Chairman. The Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and he shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors.
Section 2.02. Lead Independent Director. Following the election of the Board of Directors at each annual meeting, the elected Board may appoint one of its independent members as its Lead Independent Director. When the Chairman of the Board is not present at a meeting of the Board of Directors, the Lead Independent Director, if there be one, shall preside.
Section 2.03. Director Emeritus. The Board of Directors may from time to time elect one or more Directors Emeritus. Each Director Emeritus shall be elected for a term expiring on the date of the regular meeting of the Board of Directors following the next annual meeting. No Director Emeritus shall be considered a “director” for purposes of these By-Laws or for any other purpose.
Section 2.04. Powers, Number, Quorum, Term, Vacancies, Removal. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Company and do all such lawful acts and things as are not by statute or by the Company’s Organization Certificate or by these By-Laws required to be exercised or done by the stockholders.
The number of directors may be changed by a resolution passed by a majority of the members of the Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote, but at all times the Board of Directors must consist of not less than seven nor more than thirty directors. No more than one-third of the directors shall be active officers or employees of the Company. At least one-half of the directors must be citizens of the United States at the time of their election and during their continuance in office.
Except as otherwise required by law, rule or regulation, or by the Company’s Organization Certificate, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors, or such committee, as applicable. Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone or video, or other similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Whether or not a quorum shall be present at any meeting of the Board of Directors or a committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time; notice of the adjourned meeting shall be given to the directors who were not present at the time of the adjournment, but if the time and place of the adjourned meeting are announced, no additional notice shall be required to be given to the directors present at the time of adjournment.
Directors shall hold office until the next annual election and until their successors shall have been elected and shall have qualified. Director vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
Any one or more of the directors of the Company may be removed either with or without cause at any time by a vote of the holders of record of at least a majority of the shares of stock of the Company, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the stockholders as provided in these By-Laws.
Section 2.05. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or without the State of New York, as may from time to time be fixed by resolution of the Board, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under applicable law, and special meetings may be held at any time upon the call of two directors, the Chairman of the Board or the President, by oral, telegraphic or written notice duly served on or sent or mailed to each director not less than two days before such meeting. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 2.06. Compensation. The Board of Directors may determine, from time to time, the amount of compensation, which shall be paid to its members. The Board of Directors shall also have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board, or of any committee of the Board. The Board of Directors shall also have power, in its discretion, to provide for and pay to directors rendering services to the Company not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board from time to time.
ARTICLE III
COMMITTEES
Section 3.01. Executive Committee. There shall be an Executive Committee of the Board who shall be appointed annually by resolution adopted by the majority of the entire Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Executive Committee as the Executive Committee from time to time may designate shall preside at such meetings.
Section 3.02. Audit and Fiduciary Committee. There shall be an Audit and Fiduciary Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of independent directors, as may from time to time be fixed by the Audit and Fiduciary Committee charter adopted by the Board of Directors.
Section 3.03. Other Committees. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.
Section 3.04. Limitations. No committee shall have the authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders’ authorization under New York Banking Law; (ii) the filling of vacancies in the Board of Directors or in any such committee; (iii) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (iv) the amendment or repeal of these By-Laws, or the adoption of new by-laws; (v) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable; or (vi) the taking of action which is expressly required by any provision of New York Banking Law to be taken at a meeting of the Board of Directors or by a specified proportion of the directors.
ARTICLE IV
OFFICERS
Section 4.01. Titles and Election. The officers of the Company, who shall be chosen by the Board of Directors within twenty-five days after each annual meeting of stockholders, shall be a President, Chief Executive Officer, Chief Risk Officer, Chief Financial Officer, Treasurer, Secretary, and a General Auditor. The Board of Directors from time to time may elect one or more Managing Directors, Directors, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person, except the offices of President and Secretary.
Section 4.02. Terms of Office. Each officer shall hold office for the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified.
Section 4.03. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.
Section 4.04. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.05. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.
Section 4.06. President. The President shall have general authority to exercise all the powers necessary for the President of the Company. In the absence of the Chairman and the Lead Independent Director, the President shall preside at all meetings of the Board of Directors and of the stockholders. The President shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the president of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.07. Chief Executive Officer. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall exercise the powers and perform the duties usual to the chief executive officer and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Company; he shall appoint and discharge employees and agents of the Company (other than officers elected by the Board of Directors); he shall see that all orders and resolutions of the Board of Directors are carried into effect; he shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the chief executive officer of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.08. Chief Risk Officer. The Chief Risk Officer shall have the responsibility for the risk management and monitoring of the Company. The Chief Risk Officer shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to his office and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.09. Chief Financial Officer. The Chief Financial Officer shall have the responsibility for reporting to the Board of Directors on the financial condition of the Company, preparing and submitting all financial reports required by applicable law, and preparing annual financial statements of the Company and coordinating with qualified third party auditors to ensure such financial statements are audited in accordance with applicable law.
Section 4.10. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys, and other valuable effects in the name and to the credit of the Company, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the directors whenever they may require it an account of all his transactions as Treasurer and of the financial condition of the Company.
Section 4.11. Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of proceedings in records or books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and shall perform such other duties and have such other powers as may be incident to the office of the secretary of a corporation and as from time to time may otherwise be prescribed by the Board of Directors. The Secretary shall have and be the custodian of the stock records and all other books, records and papers of the Company (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.
Section 4.12. General Auditor. The General Auditor shall be responsible, through the Audit and Fiduciary Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit and Fiduciary Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit and Fiduciary Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit and Fiduciary Committee may request.
Section 4.13. Managing Directors, Directors and Vice Presidents. If chosen, the Managing Directors, Directors and Vice Presidents, in the order of their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. Such Managing Directors, Directors and Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and they shall perform such other duties and have such other powers as may be incident to their respective offices and as from time to time may be prescribed by the Board of Directors or the President.
Section 4.14. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Company, or for any other reason that the Board may deem sufficient, the Board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 5.01. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made or threatened to be made a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, his or her testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which such person reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, and had no reasonable cause to believe that such person’s conduct was unlawful.
Section 5.02. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person, his or her testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, except that no indemnification under this Section 5.02 shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Section 5.03. Authorization of Indemnification. Any indemnification under this Article V (unless ordered by a court) shall be made by the Company only if authorized in the specific case (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be; or (ii) if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be, has been met by such director or officer; or (y) by the stockholders upon a finding that the director or officer has met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be. A person who has been successful on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Sections 5.01 or 5.02, shall be entitled to indemnification as authorized in such section.
Section 5.04. Good Faith Defined. For purposes of any determination under Section 5.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The provisions of this Section 5.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be.
Section 5.05. Serving an Employee Benefit Plan on behalf of the Company. For the purpose of this Article V, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.
Section 5.06. Indemnification upon Application to a Court. Notwithstanding the failure of the Company to provide indemnification and despite any contrary resolution of the Board or stockholders under Section 5.03, or in the event that no determination has been made within ninety days after receipt of the Company of a written claim therefor, upon application to a court by a director or officer, indemnification shall be awarded by a court to the extent authorized in Section 5.01 or Section 5.02. Such application shall be upon notice to the Company. Neither a contrary determination in the specific case under Section 5.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.
Section 5.07. Expenses Payable in Advance. Subject to the other provisions of this Article V, and subject to applicable law, expenses incurred in defending a civil or criminal action or proceeding may be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount (i) if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V, (ii) where indemnification is granted, to the extent expenses so advanced by the Company or allowed by a court exceed the indemnification to which such person is entitled and (iii) upon such other terms and conditions, if any, as the Company deems appropriate. Any such advancement of expenses shall be made in the sole and absolute discretion of the Company only as authorized in the specific case upon a determination made, with respect to a person who is a director or officer at the time of such determination, (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding, or (ii) if a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel or (y) by the stockholders and, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Company. Without limiting the foregoing, the Company reserves the right in its sole and absolute discretion to revoke at any time any approval previously granted in respect of any such request for the advancement of expenses or to, in its sole and absolute discretion, impose limits or conditions in respect of any such approval.
Section 5.08. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses granted pursuant to, or provided by, this Article V shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled whether contained in the Company’s Organization Certificate, these By-Laws or, when authorized by the Organization Certificate or these By-Laws, (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this Article V shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law.
Section 5.09. Insurance. Subject to the other provisions of this Article V, the Company may purchase and maintain insurance (in a single contract or supplement thereto, but not in a retrospective rated contract): (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article V, (ii) to indemnify directors and officers in instances in which they may be indemnified by the Company under the provisions of this Article V and applicable law, and (iii) to indemnify directors and officers in instances in which they may not otherwise be indemnified by the Company under the provisions of this Article V, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York Superintendent of Financial Services, for a retention amount and for co-insurance. Notwithstanding the foregoing, any such insurance shall be subject to the provisions of, and the Company shall comply with the requirements set forth in, Section 7023 of the New York State Banking Law.
Section 5.10. Limitations on Indemnification and Insurance. All indemnification and insurance provisions contained in this Article V are subject to any limitations and prohibitions under applicable law, including but not limited to Section 7022 (with respect to indemnification, advancement or allowance) and Section 7023 (with respect to insurance) of the New York State Banking Law and the Federal Deposit Insurance Act (with respect to administrative proceedings or civil actions initiated by any federal banking agency). Notwithstanding anything contained in this Article V to the contrary, no indemnification, advancement or allowance shall be made (i) to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (ii) in any circumstance where it appears (a) that the indemnification would be inconsistent with a provision of the Company’s Organization Certificate, these By-Laws, a resolution of the Board or of the stockholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) if there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.
Notwithstanding anything contained in this Article V to the contrary, but subject to any requirements of applicable law, (i) except for proceedings to enforce rights to indemnification (which shall be governed by Section 5.06), the Company shall not be obligated to indemnify any director or officer (or his testators intestate) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company, (ii) with respect to indemnification or advancement of expenses relating to attorneys’ fees under this Article V, counsel for the present or former director or officer must be reasonably acceptable to the Company (and the Company may, in its sole and absolute discretion, establish a panel of approved law firms for such purpose, out of which the present or former director or officer could be required to select an approved law firm to represent him), (iii) indemnification in respect of amounts paid in settlement shall be subject to the prior consent of the Company (not to be unreasonably withheld), (iv) any and all obligations of the Corporation under this Article V shall be subject to applicable law, (v) in no event shall any payments pursuant to this Article V be made if duplicative of any indemnification or advancement of expenses or other reimbursement available to the applicable director or officer (other than for coverage maintained by such person in his individual capacity), and (vi) no indemnification or advancement of expenses shall be provided under these By-Laws to any person in respect of any expenses, judgments, fines or amounts paid in settlement to the extent incurred by such person in his capacity or position with another entity (including, without limitation, an entity that is a stockholder of the Company or any of the branches or affiliates of such stockholder), except as expressly provided in these By-Laws in respect of such person’s capacity and position as a director or officer of the Company or such person is a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Section 5.11. Indemnification of Other Persons. The Company may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses (whether pursuant to an adoption of a policy or otherwise) to employees and agents of the Company (whether similar to those conferred in this Article V upon directors and officers of the Company or on other terms and conditions authorized from time to time by the Board of Directors), as well as to employees of direct and indirect subsidiaries of the Company and to other persons (or categories of persons) approved from time to time by the Board of Directors.
Section 5.12. Repeal. Any repeal or modification of this Article V shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Company existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
ARTICLE VI
CAPITAL STOCK
Section 6.01. Certificates. The interest of each stockholder of the Company shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board or the President or a Managing Director or a Director or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Company or a facsimile thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Company or its employee, or registered by a registrar other than the Company or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Company, whether because of death, resignation, retirement, disqualification, removal or otherwise, before such certificate or certificates shall have been delivered by the Company, such certificate or certificates may nevertheless be adopted by the Company and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Company.
Section 6.02. Transfer. The shares of stock of the Company shall be transferred only upon the books of the Company by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Company or its agents may reasonably require.
Section 6.03. Record Dates. The Board of Directors may fix in advance a date, not less than 10 nor more than 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.
Section 6.04. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of the same tenor and for the same number of shares in lieu thereof. The Board may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate or the legal representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary and to give the Company a bond in such reasonable sum as it directs to indemnify the Company.
ARTICLE VII
CHECKS, NOTES, ETC.
Section 7.01. Checks, Notes, Etc. All checks and drafts on the Company’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, may be signed by the President or any Managing Director or any Director or any Vice President and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Fiscal Year. The fiscal year of the Company shall be from January 1 to December 31, unless changed by the Board of Directors.
Section 8.02. Books. There shall be kept at such office of the Company as the Board of Directors shall determine, within or without the State of New York, correct books and records of account of all its business and transactions, minutes of the proceedings of its stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the stockholders, the number of shares held by them, respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.
Section 8.03. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Company, other than stock of the Company, shall be voted, in person or by proxy, by the President or any Managing Director or any Director or any Vice President of the Company on behalf of the Company.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. The vote of the holders of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote shall be necessary at any meeting of stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire Board, provided that any by-law adopted by the Board may be amended or repealed by the stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board of Directors or the stockholders or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Company issued and outstanding and entitled to vote are present at such meeting.
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
Board of Governors of the Federal Reserve System | OMB Number 7100-0036 | |
Federal Deposit Insurance Corporation | OMB Number 3064-0052 | |
Office of the Comptroller of the Currency | OMB Number 1557-0081 | |
Approval expires August 31, 2026 | ||
Page 1 of 86 |
Federal Financial Institutions Examination Council
Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 |
Report at the close of business September 30, 2023
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State nonmember banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and savings associations.
20230930
(RCON 9999)
This report form is to be filed by banks with domestic offices only and total consolidated assets of less than $100 billion, except those banks that file the FFIEC 051, and those banks that are advanced approaches institutions for regulatory capital purposes that are required to file the FFIEC 031.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three directors for state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of Condition and Income (including the supporting
schedules) for this report date have been prepared in confor- mance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct.
Director (Trustee) | ||
Signature of Chief Financial Officer (or Equivalent) | Director (Trustee) | |
10/30/2023 | ||
Date of Signature | Director (Trustee) | |
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
(a) | Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for data collec- tion (https://cdr.ffiec.gov/cdr/), or |
(b) | Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. |
For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at cdr.help@cdr.ffiec.gov.
FDIC Certificate Number | 623 | |
(RSSD 9050) |
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer gener- ated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms, but should show at least the caption of each Call Report item and the reported amount.
DEUTSCHE BANK TRUST COMPANY AMERICAS
Legal Title of Bank (RSSD 9017)
New York
City (RSSD 9130)
NY | 10019 | |
State Abbreviation (RSSD 9200) | Zip Code (RSSD 9220) | |
Legal Entity Identifier (LEI) | ||
8EWQ2UQKS07AKK8ANH81 | ||
(Report only if your institution already has an LEI.) (RCON 9224) |
The estimated average burden associated with this information collection is 54.60 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
FFIEC 041 | |
Page 17 of 86 | |
RC-1 |
Consolidated Report of Condition for Insured Banks
and Savings Associations for September 30, 2023
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
Dollar Amounts in Thousands | RCON | Amount | |||||
Assets | |||||||
1. | Cash and balances due from depository institutions (from Schedule RC-A) | ||||||
a. | Noninterest-bearing balances and currency and coin (1) | 0081 | 44,000 | 1.a. | |||
b. | Interest-bearing balances (2) | 0071 | 13,450,000 | 1.b. | |||
2. | Securities: | ||||||
a. | Held-to-maturity securities (from Schedule RC-B, column A) (3) | JJ34 | 0 | 2.a. | |||
b. | Available-for-sale debt securities (from Schedule RC-B, column D) | 1773 | 364,000 | 2.b. | |||
c. | Equity securities with readily determinable fair values not held for trading (4) | JA22 | 0 | 2.c. | |||
3. | Federal funds sold and securities purchased under agreements to resell: | ||||||
a. | Federal funds sold | B987 | 0 | 3.a. | |||
b. | Securities purchased under agreements to resell (5, 6) | B989 | 5,922,000 | 3.b. | |||
4. | Loans and lease financing receivables (from Schedule RC-C): | ||||||
a. | Loans and leases held for sale | 5369 | 0 | 4.a. | |||
b. | Loans and leases held for investment | B528 | 15,537,000 | 4.b. | |||
c. | LESS: Allowance for loan and lease losses | 3123 | 15,000 | 4.c. | |||
d. | Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7) | B529 | 15,522,000 | 4.d. | |||
5. | Trading assets (from Schedule RC-D) | 3545 | 0 | 5. | |||
6. | Premises and fixed assets (including capitalized leases) | 2145 | 0 | 6. | |||
7. | Other real estate owned (from Schedule RC-M) | 2150 | 4,000 | 7. | |||
8. | Investments in unconsolidated subsidiaries and associated companies | 2130 | 0 | 8. | |||
9. | Direct and indirect investments in real estate ventures | 3656 | 0 | 9. | |||
10. | Intangible assets (from Schedule RC-M) | 2143 | 2,000 | 10. | |||
11. | Other assets (from Schedule RC-F) (6) | 2160 | 2,771,000 | 11. | |||
12. | Total assets (sum of items 1 through 11) | 2170 | 38,079,000 | 12. | |||
Liabilities | |||||||
13. | Deposits: | 13.a. | |||||
a. | In domestic offices (sum of totals of columns A and C from Schedule RC-E) | 2200 | 25,355,000 | 13.a.(1) | |||
(1) Noninterest-bearing (8) (2) Interest-bearing |
6631 6636 |
8,935,000 | 13.a.(2) | ||||
b. | Not applicable | 16,420,000 | |||||
14. | Federal funds purchased and securities sold under agreements to repurchase: | ||||||
a. | Federal funds purchased (9) | 14.a. | |||||
b. | Securities sold under agreements to repurchase (10) | B993 | 0 | 14.b. | |||
15. | Trading liabilities (from Schedule RC-D) | B995 | 0 | 15. | |||
16. | Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) | 3548 | 0 | 16. | |||
17. | and 18. Not applicable | 3190 | 277,000 | ||||
19. | Subordinated notes and debentures (11) | 19. | |||||
3200 | 0 |
1. | Includes cash items in process of collection and unposted debits. |
2. | Includes time certificates of deposit not held for trading. |
3. | Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. |
4. | Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities. |
5. | Includes all securities resale agreements, regardless of maturity. |
6. | Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. |
7. | Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. |
8. | Includes noninterest-bearing demand, time, and savings deposits. |
9. | Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” |
10. | Includes all securities repurchase agreements, regardless of maturity. |
11. | Includes limited-life preferred stock and related surplus. |
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
FFIEC 041 | |
Page 18 of 86 | |
RC-2 |
Schedule RC—Continued
RCON | Amount | ||||||
Dollar Amounts in Thousands | |||||||
Liabilities—continued | 2930 | 3,071,000 | |||||
2948 | 28,703,000 | ||||||
20. | Other liabilities (from Schedule RC-G) | 20. | |||||
21. | Total liabilities (sum of items 13 through 20) | 21. | |||||
22. | Not applicable | ||||||
3838 | 0 | ||||||
Equity Capital | 3230 | 2,127,000 | |||||
Bank Equity Capital | 3839 | 935,000 | |||||
23. | Perpetual preferred stock and related surplus | 3632 | 6,359,000 | 23. | |||
24. | Common stock | B530 | (45,000) | 24. | |||
25. | Surplus (exclude all surplus related to preferred stock) | A130 | 0 | 25. | |||
26. | a | Retained earnings | 3210 | 9,376,000 | 26.a. | ||
b | Accumulated other comprehensive income (1) | 3000 | 0 | 26.b. | |||
c | Other equity capital components (2) | G105 | 9,376,000 | 26.c. | |||
27. | a | Total bank equity capital (sum of items 23 through 26.c) | 3300 | 38,079,000 | 27.a. | ||
b | Noncontrolling (minority) interests in consolidated subsidiaries | 27.b. | |||||
28. | Total equity capital (sum of items 27.a and 27.b) | 28. | |||||
29. | Total liabilities and equity capital (sum of items 21 and 28) | 29. | |||||
Memoranda | |||||||
To be reported with the March Report of Condition. | |||||||
1. | Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2022 | RCON | Number | ||||
6724 | NA | M.1. |
1a = | An integrated audit of the reporting institution’s financial statements and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants (AICPA) or Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution |
1b = | An audit of the reporting institution’s financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution |
2a = | An integrated audit of the reporting institution’s parent holding company’s consolidated financial statements and its internal control over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
2b = | An audit of the reporting institution’s parent holding company’s consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
3 = | This number is not to be used |
4 = | Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) |
5 = | Directors’ examination of the bank performed by other external auditors (may be required by state-chartering authority) |
6 = | Review of the bank’s financial statements by external auditors |
7 = | Compilation of the bank’s financial statements by external auditors |
8 = | Other audit procedures (excluding tax preparation work) |
9 = | No external audit work |
To be reported with the March Report of Condition. | RCON | Date | |
2. Bank’s fiscal year-end date (report the date in MMDD format) | 8678 | NA | M.2. |
1. | Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. |
2. | Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
Exhibit 99.1
LETTER OF TRANSMITTAL
To Tender for Exchange
€750,000,000 aggregate principal amount 4.375% Notes due 2025
(Common Code 272357153 / 272356955) (144A XS2723571530 / RegS XS2723569559)
€750,000,000 aggregate principal amount 4.125% Notes due 2028
(Common Code 272357668 / 272357587) (144A XS2723576687 / RegS XS2723575879)
€850,000,000 aggregate principal amount 4.500% Notes due 2032
(Common Code 272357781 / 272357714) (144A XS2723577818 / RegS XS2723577149)
$1,000,000,000 aggregate principal amount 5.800% Notes due 2025
(CUSIP 14448C AT1 / U1453P AH4)
$1,000,000,000 aggregate principal amount 5.900% Notes due 2034
(CUSIP 14448C AY0 / U1453P AN1)
$1,000,000,000 aggregate principal amount 6.200% Notes due 2054
(CUSIP 14448C BA1 / U1453P AQ4)
Carrier Global Corporation
THE EXCHANGE OFFERS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2024, UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS OF OLD NOTES MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. | ||
Deutsche Bank Trust Company Americas (the “USD Exchange Agent”) By Registered or Certified Mail, Overnight Delivery:
1 Columbus Circle, 17th Floor Mail Stop: NYC01-1710 New York, NY 10019 Attn: Trust & Agency Service
c/o DB Services Americas, Inc. 5022 Gate Parkway, Suite 200 MS JCK01-218 Jacksonville, FL 32256
For Information Call:
For Facsimile Transmission (for Eligible Institutions only):
732-578-4635
Confirm by E-mail: db.reorg@db.com |
Kroll Issuer Services Limited (the “Euro Exchange Agent,” and together with the USD Exchange Agent, the “Exchange Agents”) The Shard 32 London Bridge Street London SE1 95G
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DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING ANY BOX BELOW.
The undersigned acknowledges that he or she has received the prospectus, dated , 2024 (the “Prospectus”), of Carrier Global Corporation, a Delaware corporation (the “Company”), and this Letter of Transmittal (the “Letter”), which together constitute the Company’s offers (the “Exchange Offers”) to exchange €750,000,000 aggregate principal amount 4.375% Notes due 2025 (Common Code 275168874) (the “Exchange Euro 2025 Notes”), €750,000,000 aggregate principal amount 4.125% Notes due 2028 (Common Code 275168882) (the “Exchange 2028 Notes”), €850,000,000 aggregate principal amount 4.500% Notes due 2032 (Common Code 275168904) (the “Exchange 2032 Notes,” and together with the Exchange Euro 2025 Notes and the Exchange 2028 Notes, the “Exchange Euro Notes”), $1,000,000,000 aggregate principal amount 5.800% Notes due 2025 (CUSIP Number 14448C BB9) (the “Exchange USD 2025 Notes”), $1,000,000,000 aggregate principal amount 5.900% Notes due 2034 (CUSIP Number 14448C BC7) (the “Exchange 2034 Notes”) and $1,000,000,000 aggregate principal amount 6.200% Notes due 2054 (CUSIP Number 14448C BD5) (the “Exchange 2054 Notes,” and together with the Exchange USD 2025 Notes and the Exchange 2034 Notes, the “Exchange USD Notes,” and together with the Exchange Euro Notes, the “Exchange Notes”), for a like aggregate principal amount of its outstanding 4.375% Notes due 2025 (Common Code 272357153 / 272356955) (the “Old Euro 2025 Notes”), 4.125% Notes due 2028 (Common Code 272357668 / 272357587) (the “Old 2028 Notes”), 4.500% Notes due 2032 (Common Code 272357781 / 272357714) (the “Old 2032 Notes,” and together with the Old Euro 2025 Notes and the Old 2028 Notes, the “Old Euro Notes”), 5.800% Notes due 2025 (CUSIP Numbers 14448C AT1 / U1453P AH4) (the “Old USD 2025 Notes”), 5.900% Notes due 2034 (CUSIP Numbers 14448C AY0 / U1453P AN1) (the “Old 2034 Notes”) and 6.200% Notes due 2054 (CUSIP Numbers 14448C BA1 / U1453P AQ4) (the “Old 2054 Notes,” and together with the Old USD 2025 Notes and the Old 2034 Notes, the “Old USD Notes,” and together with the Old Euro Notes, the “Old Notes”) that were issued and sold in reliance upon an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”).
For each Old Note accepted for exchange, the holder of such Old Note will receive an Exchange Note having an aggregate principal amount equal to that of the surrendered Old Note.
The Old Euro Notes are held in book-entry form through Euroclear or Clearstream. A holder of Old Euro Notes with Euroclear or Clearstream wishing to participate in the Exchange Offers should submit, or arrange to have submitted on its behalf, an electronic exchange instruction (an “Electronic Exchange Instruction”) through the relevant clearing system in accordance with the procedures of, and within the time limits specified by, the relevant clearing system for receipt by the Euro Exchange Agent. If delivery is made through an Electronic Exchange Instruction, Euroclear or Clearstream will send an “agent’s message” to the Euro Exchange Agent. By using the Electronic Exchange Instruction procedures to exchange the Old Euro Notes, holders will be deemed to have agreed to the terms of this Letter.
This Letter is to be completed by a holder of Old USD Notes either if certificates are to be forwarded herewith or if a tender of certificates for Old USD Notes, if available, is to be made by book-entry transfer to the account maintained by the Exchange Agent at The Depository Trust Company (“DTC,” and together with Euroclear and Clearstream, the “Book-Entry Transfer Facility”) pursuant to the procedures set forth in “Terms of the Exchange Offers—Procedures for Tendering the Old Notes—Procedures for Tendering Old USD Notes” section of the Prospectus and an Agent’s Message (as defined herein) is not delivered. Delivery of this Letter and any other required documents should be made to the Exchange Agent.
Delivery of documents to the applicable Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent.
The undersigned has completed the appropriate boxes below and signed this Letter to indicate the action the undersigned desires to take with respect to the Exchange Offers. Holders who wish to exchange their Old Notes must complete this Letter in its entirety.
The instructions included with this Letter must be followed. Questions and requests for assistance or for additional copies of the Prospectus and this Letter may be directed to the applicable Exchange Agent.
List below the Old Notes to which this Letter relates. If the space provided below is inadequate, the certificate numbers and principal amount of Old Notes should be listed on a separate signed schedule affixed to this Letter.
DESCRIPTION OF OLD NOTES (See Instruction 2) |
||||||||
Series of Old Notes |
Name(s) and Address(es) of Registered Holder(s) Exactly as Name(s) appear(s) on Old Notes (Please fill in, if blank) |
Certificate Number(s)* |
Aggregate Principal Amount Represented by Certificate |
Principal less than |
||||
Total | ||||||||
* Need not be completed if Old Notes are being tendered by book-entry transfer. ** Unless otherwise indicated in this column, the holder will be deemed to have tendered the full aggregate principal amount represented by such Old Notes. See Instruction 2. Old Euro Notes tendered hereby must be in denomination of principal amount that are €100,000 and integral multiples of €1,000 in excess thereof. Old USD Notes tendered hereby must be in denominations of principal amount that are $2,000 and integral multiples of $1,000 in excess thereof. See Instruction 1. |
☐ | CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE APPLICABLE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: |
Name of Tendering Institution:
Account Number:
Transaction Code Number:
By crediting Old USD Notes to the USD Exchange Agent’s Account at DTC in accordance with DTC’s Automated Tender Offer Program (“ATOP”) and by complying with applicable ATOP procedures with respect to the USD Exchange Offers, including transmitting an Agent’s Message to the USD Exchange Agent in which the holder of Old USD Notes acknowledges and agrees to be bound by the terms of this Letter, the participant in ATOP confirms on behalf of itself and the beneficial owners of such Old USD Notes all provisions of this Letter applicable to it and such beneficial owners as if it had completed the information required herein and executed and transmitted this Letter to the USD Exchange Agent.
In order to exchange Old Euro Notes for Exchange Euro Notes, a holder of Old Euro Notes need not submit this Letter. However, in order for a tender to be considered valid, a holder of Old Euro Notes must deliver an electronic confirmation of acceptance of the Exchange Offers to Euroclear or Clearstream before the deadlines specified in their notifications.
☐ | CHECK HERE IF YOU ARE A BROKER-DEALER. |
☐ | CHECK HERE IF YOU WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
Name: | |||
Address: | |||
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of each Exchange Offer, the undersigned hereby tenders to the Company for exchange the aggregate principal amount of Old Notes indicated above. Unless otherwise indicated above, the undersigned will be deemed to have tendered the full aggregate principal amount represented by the Old Notes. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the applicable Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the applicable Exchange Agent also acts as the agent of the Company in connection with the applicable Exchange Offers) with respect to the tendered Old Notes with full power of substitution to (i) deliver such Old Notes, or transfer ownership of such Old Notes on the account books maintained by the Book-Entry Transfer Facility, to the Company and deliver all accompanying evidences of transfer and authenticity, and (ii) present such Old Notes for transfer on the books of the Company and receive all benefits and otherwise exercise all rights of beneficial ownership of such Old Notes, all in accordance with the terms of the Exchange Offers. The power of attorney granted in this paragraph shall be deemed to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, exchange, assign and transfer the Old Notes tendered hereby and to acquire Exchange Notes issuable upon the exchange of such tendered Old Notes, and that the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by the Company.
The undersigned acknowledges that the Exchange Offers are being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the “SEC”), as set forth in no-action letters issued to third parties, that the Exchange Notes issued in exchange for the Old Notes pursuant to the Exchange Offers may be offered for resale, resold and otherwise transferred by holders thereof (other than (i) any such holder that is an “affiliate” of the Company within the meaning of Rule 405 under the Securities Act or (ii) any broker-dealer that purchases Old Notes from the Company to resell pursuant to Rule 144A under the Securities Act (“Rule 144A”)(or any other available exemption), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such holders’ business and such holders have no arrangement or understanding with anyone to participate in the distribution within the meaning of the Securities Act of such Exchange Notes and are not participating in, and do not intend to participate in, the distribution of the Exchange Notes. The undersigned acknowledges that the Company does not intend to request the SEC to consider, and the SEC has not considered the Exchange Offers in the context of a no-action letter, and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offers as in other circumstances. The undersigned acknowledges that any holder that is an affiliate of the Company, or is participating in or intends to participate in or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offers, (i) cannot rely on the applicable interpretations of the staff of the SEC and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
The undersigned hereby further represents that (i) any Exchange Notes acquired pursuant to the Exchange Offers are being acquired in the ordinary course of business of the person receiving such Exchange Notes, whether or not such person is the holder; (ii) such holder or other person has no arrangement or understanding with any person to participate in a distribution of such Exchange Notes within the meaning of the Securities Act and is not participating in, and does not intend to participate in, the distribution of such Exchange Notes within the meaning of the Securities Act and (iii) such holder or such other person is not an “affiliate,” as defined in Rule 405 under the Securities Act, of the Company or, if such holder or such other person is an affiliate, such holder or such other person will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable.
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes. If the undersigned is a broker-dealer, it represents that it will receive Exchange Notes for its own account in exchange for Old Notes that were acquired by it as a result of market-making activities or other trading activities, and acknowledges that it will deliver a prospectus (or, to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale, offer to resell or other transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The undersigned also warrants that acceptance of any tendered Old Euro Notes by the Company and the issuance of Exchange Euro Notes in exchange therefor shall constitute performance in full by the Company of certain of its obligations under the Registration Rights Agreement, dated as of November 29, 2023, by and among the Company, J.P. Morgan Securities plc, Merrill Lynch International, Citigroup Global Markets Limited, HSBC Bank plc, Barclays Bank PLC, Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, BNP Paribas, Deutsche Bank AG, London Branch, Intesa Sanpaolo S.p.A., Mizuho International plc, MUFG Securities EMEA plc, SMBC Nikko Capital Markets Limited, UniCredit Bank AG, Wells Fargo Securities International Limited, Bank of Montreal, London Branch, Commerzbank Aktiengesellschaft, ICBC Standard Bank Plc, Loop Capital Markets LLC, Société Générale, and Siebert Williams Shank & Co., LLC, which has been filed as an exhibit to the registration statement in connection with the Exchange Offers.
The undersigned also warrants that acceptance of any tendered Old USD Notes by the Company and the issuance of Exchange USD Notes in exchange therefor shall constitute performance in full by the Company of certain of its obligations under the Registration Rights Agreement, dated as of November 30, 2023, by and among the Company, J.P. Morgan Securities LLC, BofA Securities, Inc., Citigroup Global Markets Inc. and HSBC Securities (USA) Inc., which has been filed as an exhibit to the registration statement in connection with the Exchange Offers.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in this Letter.
The undersigned understands that tenders of the Old Notes pursuant to any one of the procedures described under “Terms of the Exchange Offers—Procedures for Tendering the Old Notes” in the Prospectus and in the instructions hereto will constitute a binding agreement between the undersigned and the Company in accordance with the terms and subject to the conditions of the Exchange Offers.
The undersigned recognizes that, under certain circumstances set forth in the Prospectus under “Terms of the Exchange Offers—Conditions to the Exchange Offers” the Company may not be required to accept for exchange any of the Old Notes tendered. Old Notes not accepted for exchange or withdrawn will be returned to the undersigned at the address set forth below unless otherwise indicated under “Special Delivery Instructions” below. Unless otherwise indicated herein in the box entitled “Special Issuance Instructions” below, please deliver the Exchange Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at the Book Entry Transfer Facility. Similarly, unless otherwise indicated under the box entitled “Special Delivery Instructions” below, please send the Exchange Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown below the undersigned’s signature(s). In the event that both “Special Issuance Instructions” and “Special Delivery Instructions” are completed, please issue the Exchange Notes issued in exchange for the Old Notes accepted for exchange (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the names of the person(s) so indicated. The undersigned recognizes that the Company has no obligation pursuant to the “Special Issuance Instructions” and “Special Delivery Instructions” to transfer any Old Notes from the name of the registered holder(s) thereof if the Company does not accept for exchange any of the Old Notes so tendered for exchange.
The Book-Entry Transfer Facility, as the holder of record of certain Old Notes, has granted authority to the Book-Entry Transfer Facility participants whose names appear on a security position listing with respect to such Old Notes as of the date of tender of such Old Notes to execute and deliver this Letter as if they were the holders of record. Accordingly, for purposes of this Letter, the term “holder” shall be deemed to include such Book-Entry Transfer Facility participants.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED “DESCRIPTION OF OLD NOTES” ABOVE AND SIGNING THIS LETTER AND DELIVERING SUCH NOTES AND THIS LETTER TO THE APPLICABLE EXCHANGE AGENT, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE.
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3, 4, 5 and 6)
To be completed ONLY if certificates for Old Notes not tendered or not accepted for exchange, or Exchange Notes issued in exchange for Old Notes accepted for exchange, are to be issued in the name of and sent to someone other than the undersigned, or if Old Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above.
Issue (certificates) to:
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Name(s): | |
(Please Type or Print)
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Address: |
(Please Type or Print)
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(Include Zip Code) | |
(Taxpayer Identification or Social Security Number) |
(Complete IRS Form W-9)
☐ | Credit unexchanged Old Notes delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below. |
(Book-Entry Transfer Facility Account Number, if applicable) |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3, 4, 5 and 6)
To be completed ONLY if certificates for Old Notes not tendered or not accepted for exchange, or Exchange Notes issued in exchange for Old Notes accepted for exchange, are to be sent to someone other than the undersigned or to the undersigned at an address other than shown in the box entitled “Description of Old Notes” above.
Mail to:
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Name(s): | |
(Please Type or Print)
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Address: |
(Please Type or Print)
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(Include Zip Code) | |
(Taxpayer Identification or Social Security Number) |
(Complete IRS Form W-9)
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT’S MESSAGE IN LIEU HEREOF (IN EACH CASE, TOGETHER WITH THE CERTIFICATE(S) FOR OLD NOTES OR A CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
PLEASE SIGN HERE (TO BE COMPLETED BY ALL TENDERING HOLDERS WHETHER OR NOT OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY) (Please Also Complete and Return the Accompanying IRS Form W-9)
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x | ||||
Signature(s) of Owner(s) | Date |
Area Code and Telephone Number: |
If a holder is tendering any Old Notes, this Letter must be signed by the registered holder(s) exactly as the name(s) appear(s) on the certificate(s) for the Old Notes or on a security position listing as the owner of Old Notes by person(s) authorized to become registered holder(s) by a properly completed bond power from the registered holder(s), a copy of which must be transmitted with this Letter. If Old Notes to which this Letter relates are held of record by two or more joint holders, then all such holders must sign this Letter. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of corporation or other person acting in a fiduciary or representative capacity, then such person must (i) set forth his or her full title below and (ii) unless waived by the Company, submit evidence satisfactory to the Company of such person’s authority to so act. See Instruction 3.
Name(s): | ||
(Please Type or Print) | ||
(Please Type or Print) | ||
Capacity: | ||
Address: | ||
(Including Zip Code) |
SIGNATURE GUARANTEE BY AN ELIGIBLE INSTITUTION
(If required by Instruction 3)
Signature(s) Guaranteed by
an Eligible Institution: | ||
(Authorized Signature) | ||
(Title) | ||
(Name of Firm) | ||
(Address, Include Zip Code) | ||
(Area Code and Telephone Number) |
Dated: |
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offers
1. | Delivery of this Letter and Old Notes. |
This Letter or, in lieu thereof, an Agent’s Message stating that the holder has expressly acknowledged receipt of and agrees to be bound by and held accountable by this Letter, is to be completed by or received with respect to holders of Old USD Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in the “Terms of the Exchange Offers—Procedures for Tendering the Old Notes—Procedures for Tendering Old USD Notes” section of the Prospectus. Certificates for all physically tendered Old USD Notes, or Book-Entry Confirmation, as the case may be, as well as a properly completed and duly executed Letter (or manually signed facsimile hereof) and any other documents required by this Letter (or, in lieu thereof, an Agent’s Message), must be received by the USD Exchange Agent at the address set forth herein on or prior to 5:00 p.m., New York City Time, on the Expiration Date. Old USD Notes tendered hereby must be in denominations of principal amount that are $2,000 and integral multiples of $1,000 in excess thereof. The term “agent’s message” means a computer-generated message, transmitted by DTC to, and received by, the USD Exchange Agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant that such participant has received and agrees to be bound by, and makes the representations and warranties contained in, the letter of transmittal and that the Company may enforce the letter of transmittal against such participant.
A holder of Old Euro Notes with Euroclear or Clearstream wishing to participate in the Exchange Offers should submit, or arrange to have submitted on its behalf, an Electronic Exchange Instruction through the relevant clearing system in accordance with the procedures of, and within the time limits specified by, the relevant clearing system for receipt by the Euro Exchange Agent. If delivery is made through an Electronic Exchange Instruction, Euroclear or Clearstream will send an “agent’s message” to the Euro Exchange Agent. By using the Electronic Exchange Instruction procedures to exchange the Old Euro Notes, holders will be deemed to have agreed to the terms of this Letter. Old Euro Notes tendered hereby must be in denominations of €100,000 and any integral multiple of €1,000 in excess thereof.
2. | Partial Tenders (not applicable to noteholders who tender by book-entry transfer). |
Tenders of Old USD Notes will be accepted only in denominations of principal amount that are $2,000 and integral multiples of $1,000 in excess thereof. Tenders of Old Euro Notes will be accepted only in denominations of principal amount that are €100,000 and integral multiples of €1,000 in excess thereof.
If less than the entire principal amount of any Old Notes is tendered, the tendering holder(s) should fill in the principal amount of Old Notes to be tendered in the box above entitled “Description of Old Notes.” The entire principal amount of the Old Notes delivered to the applicable Exchange Agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of Old Notes is not tendered, then Old Notes for the principal amount of Old Notes not tendered and Exchange Notes issued in exchange for any Old Notes accepted will be sent to the holder at his or her registered address, unless otherwise provided in the appropriate box on this Letter, promptly after the Old Notes are accepted for exchange.
3. | Signatures on this Letter; Bond Powers and Endorsements; Guarantee of Signatures. |
If this Letter is signed by the registered holder of the Old Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the certificates representing such Old Notes without alteration, enlargement or any change whatsoever.
If this Letter is signed by a participant in the Book-Entry Transfer Facility, the signature must correspond with the name as it appears on the security position listing as the holder of the Old Notes.
If any tendered Old Notes are owned of record by two or more joint owners, all of such owners must sign this Letter.
If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered holder or holders of the Old Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the Exchange Notes are to be issued, or any untendered Old Notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder or holders of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the certificate(s) and signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, evidence satisfactory to the Company of its authority to so act must be submitted with the Letter.
Endorsements on certificates for Old Notes or signatures on bond powers required by this Instruction 3 must be guaranteed a financial institution, including most banks, savings and loan associations and brokerage houses, that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program (each an “Eligible Institution”).
Signatures on this Letter need not be guaranteed by an Eligible Institution if the Old Notes are tendered: (i) by a registered holder of Old Notes (which term, for purposes of the Exchange Offers, includes any participant in the Book-Entry Transfer Facility system whose name appears on a security position listing as the holder of such Old Notes) who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter, or (ii) for the account of an Eligible Institution.
4. | Special Issuance and Delivery Instructions of Old USD Notes. |
Tendering holders of Old USD Notes should indicate, in the applicable box or boxes, the name and address (or account at the Book-Entry Transfer Facility) to which Exchange USD Notes issued pursuant to the Exchange Offers, or substitute Old USD Notes not tendered or accepted for exchange, are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering Old USD Notes by book-entry transfer may request that Old USD Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such noteholder may designate hereon. If no such instructions are given, such Old USD Notes not exchanged will be returned to the name or address of the person signing this Letter.
5. | IRS Form W-9. |
Under U.S. federal income tax law, payments made in respect of Exchange Notes issued pursuant to the Exchange Offers may be subject to backup withholding at the rate, currently 24%, specified in Section 3406(a)(1) of the Code (the “Specified Rate”). In order to avoid such backup withholding, each tendering holder (or other payee) that is a U.S. person (including a U.S. resident alien) should complete and sign the Internal Revenue Service (“IRS”) Form W-9 included with this Letter, on which form such holder must provide the correct taxpayer identification number (“TIN”) and certify, under penalties of perjury, that (a) the TIN provided is correct or that such holder is awaiting a TIN; (b) the holder is not subject to backup withholding because (i) the holder has not been notified by the IRS that the holder is subject to backup withholding as a result of failure to report interest or dividends, (ii) the IRS has notified the holder that the holder is no longer subject to backup withholding, or (iii) the holder is exempt from backup withholding; and (c) the holder is a U.S. person (including a U.S. resident alien). If a holder has been notified by the IRS that it is subject to backup withholding, it must follow the applicable instructions included with the IRS Form W-9.
The holder (other than an exempt or foreign holder subject to the requirements described below) is required to give the TIN (in general, if an individual, the holder’s Social Security number, otherwise, the holder’s employer identification number) of the record holder of the Old Notes. If the tendering holder has not been issued a TIN and has applied for one or intends to apply for one in the near future, such holder should follow the applicable instructions included with the IRS Form W-9. If the USD Exchange Agent or the Company is not provided with the correct TIN, the holder may be subject to a $50 penalty imposed by the Code in addition to backup withholding at the Specified Rate on payments to such holder.
Certain holders (including all corporations and certain holders that are neither U.S. persons nor U.S. resident aliens (“foreign holders”)) are not subject to these backup withholding and reporting requirements. Such an exempt holder, other than a foreign holder, should enter the holder’s name, address, status and TIN on the IRS Form W-9 and check the “Exempt Payee” box on the IRS Form W-9, sign, date and return the IRS Form W-9 to the Paying Agent, and should follow the additional instructions included with the IRS Form W-9. A foreign holder should not complete the IRS Form W-9. In order for a foreign holder to qualify as an exempt recipient, such holder must submit a statement (generally, the IRS Form W-8BEN or other applicable Form W-8), signed under penalties of perjury, attesting to that person’s exempt status. Such statements can be obtained from the USD Exchange Agent or online from the IRS at www.irs.gov. For further information concerning backup withholding and instructions for completing the IRS Form W-9 (including how to obtain a TIN if you do not have one and how to complete the IRS Form W-9 if Old Notes are registered in more than one name), consult the instructions included with the IRS Form W-9.
Failure to complete the IRS Form W-9 will not, by itself, cause Old Notes to be deemed invalidly tendered, but may require the Company (or the Paying Agent) to withhold at the Specified Rate on payments made in respect of Exchange Notes. Backup withholding is not an additional tax. Rather, if the required information is furnished to the IRS, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained provided that the required information is timely furnished to the IRS.
6. | Transfer Taxes. |
The Company will pay all transfer taxes, if any, applicable to the transfer of Old Notes to it or its order pursuant to the Exchange Offers. If, however, Exchange Notes or substitute Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to the Company or its order pursuant to the Exchange Offers, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with this Letter, the amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Old Notes specified in this Letter or for funds to cover such stamps to be provided with the Old Notes specified in this Letter.
7. | Waiver of Conditions. |
The Company reserves the absolute right to amend, waive or modify, in whole or in part, any or all conditions to the Exchange Offers.
8. | No Conditional Tenders. |
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of Old Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Old Notes for exchange.
Neither the Company, the Exchange Agents nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Old Notes nor shall any of them incur any liability for failure to give any such notice.
9. | Mutilated, Lost, Stolen or Destroyed Old Notes. |
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the applicable Exchange Agent at the address indicated above for further instructions. This Letter and related documents cannot be processed until the Old Notes have been replaced.
10. | Requests for Assistance or Additional Copies. |
Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter, may be directed to the applicable Exchange Agent, at the address and telephone number indicated above.
11. | Incorporation of Letter of Transmittal. |
This Letter shall be deemed to be incorporated in and acknowledged and accepted by any tender including through DTC’s ATOP procedures or via an Electronic Exchange Instruction by any participant on behalf of itself and the beneficial owners of any Older Notes so tendered.
12. | Withdrawals. |
Tenders of Old Notes may be withdrawn only pursuant to the limited withdrawal rights set
forth in the Prospectus under the caption “Terms of the Exchange Offers—Withdrawal of Tenders” in the Prospectus.
Form W-9 (Rev. October 2018) Department of the Treasury Internal Revenue Service |
Request for Taxpayer
► Go to www.irs.gov/FormW9 for instructions and the latest information. |
Give Form to the requester. Do not send to the IRS. |
1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
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2 Business name/disregarded entity name, if different from above | |||
3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the following seven boxes.
☐ Individual/sole proprietor or ☐ C Corporation ☐ S Corporation ☐ Partnership ☐ Trust/estate single-member LLC
☐ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) ► _________ Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner.
☐ Other (see instructions) ► |
4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3):
Exempt payee code (if any) _________
Exemption from FATCA reporting code (if any) ____________________
(Applies to accounts maintained outside the U.S.)
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5 Address (number, street, and apt. or suite no.) See instructions. | Requester’s name and address (optional) | ||
6 City, state, and ZIP code | |||
7 List account number(s) here (optional) | |||
Part I |
Taxpayer Identification Number (TIN) |
Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.
Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. |
Social security number | ||||||||||
– | – | ||||||||||
or | |||||||||||
Employer identification number | |||||||||||
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Part II |
Certification |
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and
3. I am a U.S. citizen or other U.S. person (defined below); and
4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
Sign Here |
Signature of U.S. person ► |
Date ► |
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following.
• Form 1099-INT (interest earned or paid)
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• Form 1099-DIV (dividends, including those from stocks or mutual funds)
• Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
• Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
• Form 1099-S (proceeds from real estate transactions)
• Form 1099-K (merchant card and third party network transactions)
• Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
• Form 1099-C (canceled debt)
• Form 1099-A (acquisition or abandonment of secured property)
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later. |
Cat. No. 10231X | Form W-9 (Rev. 10-2018) |
Form W-9 (Rev. 10-2018) | Page 2 |
By signing the filled-out form, you:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.
Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are:
• An individual who is a U.S. citizen or U.S. resident alien;
• A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;
• An estate (other than a foreign estate); or
• A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.
In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.
• In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
• In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
• In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the instructions for Part II for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.
Also see Special rules for partnerships, earlier.
What is FATCA Reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Form W-9 (Rev. 10-2018) |
Page 3 |
Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return.
If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.
a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.
Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application.
b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or “doing business as” (DBA) name on line 2.
c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entity's name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2.
d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulations section 301.7701-2(c)(2)(iii). Enter the owner’s name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2, “Business name/disregarded entity name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.
Line 2
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3
Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.
IF the entity/person on line 1 is a(n) | THEN check the box for |
• Corporation | Corporation |
• Individual • Sole proprietorship, or • Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes. |
Individual/sole proprietor or single-member LLC |
• LLC treated as a partnership for U.S. federal tax purposes, • LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or • LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes. |
Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) |
• Partnership | Partnership |
• Trust/estate | Trust/estate |
Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.
Exempt payee code.
• Generally, individuals (including sole proprietors) are not exempt from backup withholding.
• Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.
• Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.
• Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.
The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.
1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)
2—The United States or any of its agencies or instrumentalities
3—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
4—A foreign government or any of its political subdivisions, agencies, or instrumentalities
5—A corporation
6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
7—A futures commission merchant registered with the Commodity Futures Trading Commission
8—A real estate investment trust
9—An entity registered at all times during the tax year under the Investment Company Act of 1940
10—A common trust fund operated by a bank under section 584(a) 11—A financial institution
12—A middleman known in the investment community as a nominee or custodian
13—A trust exempt from tax under section 664 or described in section 4947
Form W-9 (Rev. 10-2018) |
Page 4 |
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
IF the payment is for | THEN the payment is exempt for |
Interest and dividend payments | All exempt payees except for 7 |
Broker transactions | Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. |
Barter exchange transactions and patronage dividends | Exempt payees 1 through 4 |
Payments over $600 required to be reported and direct sales over $5,0001 |
Generally, exempt payees 1 through 52 |
Payments made in settlement of payment card or third party network transactions | Exempt payees 1 through 4 |
1 | See Form 1099-MISC, Miscellaneous Income, and its instructions. |
2 | However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. |
Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) written or printed on the line for a FATCA exemption code.
A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)
B—The United States or any of its agencies or instrumentalities
C—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)
F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
G—A real estate investment trust
H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940
I—A common trust fund as defined in section 584(a)
J—A bank as defined in section 581
K—A broker
L—A trust exempt from tax under section 664 or described in section 4947(a)(1)
M—A tax exempt trust under a section 403(b) plan or section 457(g) plan
Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.
Line 5
Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.
Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.
If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN.
Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days.
If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.
Signature requirements. Complete the certification as indicated in items 1 through 5 below.
Form W-9 (Rev. 10-2018) |
Page 5 |
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
For this type of account: | Give name and SSN of: |
1. Individual | The individual |
2. Two or more individuals (joint account) other than an account maintained by an FFI |
The actual owner of the account or, if combined funds, the first individual on the account1 |
3. Two or more U.S. persons (joint account maintained by an FFI) |
Each holder of the account |
4. Custodial account of a minor (Uniform Gift to Minors Act) | The minor2 |
5. a. The usual revocable savings trust (grantor is also trustee) b. So-called trust account that is not a legal or valid trust under state law |
The grantor-trustee1
The actual owner1 |
6. Sole proprietorship or disregarded entity owned by an individual | The owner3 |
7. Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i) (A)) | The grantor* |
For this type of account: | Give name and EIN of: |
8. Disregarded entity not owned by an individual |
The owner |
9. A valid trust, estate, or pension trust | Legal entity4 |
10. Corporation or LLC electing corporate status on Form 8832 or Form 2553 | The corporation |
11. Association, club, religious, charitable, educational, or other tax- exempt organization | The organization |
12. Partnership or multi-member LLC | The partnership |
13. A broker or registered nominee | The broker or nominee |
For this type of account: | Give name and EIN of: |
14. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity |
15. Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B)) | The trust |
1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished.
2 Circle the minor’s name and furnish the minor’s SSN.
3 You must show your individual name and you may also enter your business or DBA name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.
4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier.
*Note: The grantor also must provide a Form W-9 to trustee of trust.
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records From Identity Theft
Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
• | Protect your SSN, |
• | Ensure your employer is protecting your SSN, and |
• | Be careful when choosing a tax preparer. |
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Pub. 5027, Identity Theft Information for Taxpayers.
Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
Form W-9 (Rev. 10-2018) |
Page 6 |
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.
Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Exhibit 107
Calculation of Filing Fee Tables
Form S-4
(Form Type)
Carrier Global Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Proposed Maximum Aggregate Offering Price (1) |
Fee Rate |
Amount of Registration Fee (2) |
|
Fees to Be Paid |
Debt | 4.375% NOTES DUE 2025 | 457(f) | $822,900,000 (2) | 100% | $822,900,000 (2) | $147.60 per $1,000,000 | $121,460.04 |
Debt | 4.125% NOTES DUE 2028 | 457(f) | $822,900,000 (3) | 100% | $822,900,000 (3) | $147.60 per $1,000,000 | $121,460.04 | |
Debt | 4.500% NOTES DUE 2032 | 457(f) | $932,620,000 (4) | 100% | $932,620,000 (4) | $147.60 per $1,000,000 | $137,654.71 | |
Debt | 5.800% NOTES DUE 2025 | 457(f) | $1,000,000,000 | 100% | $1,000,000,000 | $147.60 per $1,000,000 | $147,600 | |
Debt | 5.900% NOTES DUE 2034 | 457(f) | $1,000,000,000 | 100% | $1,000,000,000 | $147.60 per $1,000,000 | $147,600 | |
Debt | 6.200% NOTES DUE 2054 | 457(f) | $1,000,000,000 | 100% | $1,000,000,000 | $147.60 per $1,000,000 | $147,600 | |
Fees Previously Paid |
— | — | — | — | — | — | — | |
Total Offering Amounts | $5,578,420,000.00 | $147.60 per $1,000,000 | $823,374.79 | |||||
Total Fees Previously Paid | — | |||||||
Net Fee Due | $823,374.79 |
(1) | Represents the aggregate principal amount of each series of notes to be offered in the exchange offer to which the registration statement relates. |
(2) | The U.S. dollar equivalent of €750,000,000, which has been calculated using an exchange rate of $1.0972 per €1.00, which was the Bloomberg Generic Composite Rate between the U.S. Dollar and the euro on January 11, 2024. |
(3) | The U.S. dollar equivalent of €750,000,000, which has been calculated using an exchange rate of $1.0972 per €1.00, which was the Bloomberg Generic Composite Rate between the U.S. Dollar and the euro on January 11, 2024. |
(4) | The U.S. dollar equivalent of €850,000,000, which has been calculated using an exchange rate of $1.0972 per €1.00, which was the Bloomberg Generic Composite Rate between the U.S. Dollar and the euro on January 11, 2024. |
(5) | Calculated in accordance with Rule 457(f) of the Securities Act of 1933, as amended. |