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þ
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Ireland
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98-1448883
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State or other jurisdiction of incorporation or organization
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(I.R.S. Employer Identification No.)
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The Priestley Centre, 10 Priestley Road,
Surrey Research Park, Guildford, Surrey GU2 7XY United Kingdom
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+44 1483 242200
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(Address of principal executive offices)
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Registrant’s Telephone Number, Including Area Code
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Title of each class:
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Name of each exchange on which registered:
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Ordinary shares (
€
0.001 nominal value per share)
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New York Stock Exchange
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Page
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Part I
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Item 1:
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Item 1A:
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Item 1B:
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Item 2:
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Item 3:
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Item 4:
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Part II
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Item 5:
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Item 6:
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Item 7:
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Item 7A:
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Item 8:
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Item 9:
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Item 9A:
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Item 9B:
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Part III
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Item 10:
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Item 11:
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Item 12:
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Item 13:
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Item 14:
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Part IV
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Item 15:
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Item 16:
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•
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managing a significantly larger combined group;
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•
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aligning and executing the strategy of the company;
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•
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integrating and unifying the offerings and services available to customers and coordinating distribution and marketing efforts in geographically separate organizations;
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•
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coordinating corporate and administrative infrastructures and aligning insurance coverage;
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•
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coordinating accounting, reporting, information technology, communications, administration and other systems;
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•
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addressing possible differences in corporate cultures and management philosophies;
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•
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the company being subject to Irish laws and regulations and legal action in Ireland;
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•
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coordinating the compliance program and uniform financial reporting, information technology and other standards, controls, procedures and policies;
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•
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the implementation, ultimate impact and outcome of post-completion reorganization transactions, such as the squeeze-out with respect to remaining minority Linde AG shareholders, which may be delayed;
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•
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unforeseen and unexpected liabilities related to the business combination or the combined businesses;
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•
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managing tax costs or inefficiencies associated with integrating operations;
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•
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identifying and eliminating redundant and underperforming functions and assets; and
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•
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effecting actions that may be required in connection with obtaining regulatory approvals.
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•
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the need to implement or remediate controls, procedures and policies appropriate for a larger public company at companies that prior to the acquisition lacked these controls, procedures and policies;
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•
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diversion of management time and focus from operating existing business to acquisition integration challenges;
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•
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cultural challenges associated with integrating employees from the acquired company into the existing organization;
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•
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the need to integrate each company’s accounting, management information, human resources and other administrative systems to permit effective management;
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•
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difficulty with the assimilation of acquired operations and products;
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•
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failure to achieve targeted synergies and cost reductions; and
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•
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inability to retain key employees and business relationships of acquired companies.
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•
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environmental protection, including climate change and energy efficiency laws and policies;
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•
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domestic and international tax laws and currency controls;
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•
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safety;
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•
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securities laws applicable in the United States, the European Union, Germany, Ireland, and other jurisdictions;
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•
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trade and import/export restrictions, as well as economic sanctions laws;
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•
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antitrust matters;
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•
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data protection;
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•
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global anti-bribery laws, including the U.S. Foreign Corrupt Practices Act; and
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•
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healthcare regulations.
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ITEM 5.
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MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
|
Period
|
Total
Number of
Shares
Purchased
(Thousands)
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|
Average
Price Paid
Per Share
|
|
Total Number of
Shares Purchased as
Part of Publicly
Announced
Program (1)
(Thousands)
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|
Approximate Dollar
Value of Shares that
May Yet be Purchased
Under the Program (2)
(Millions)
|
||||||
October 2018
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
—
|
|
November 2018
|
—
|
|
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$
|
—
|
|
|
—
|
|
|
$
|
—
|
|
December 2018
|
4,069
|
|
|
$
|
154.48
|
|
|
4,069
|
|
|
$
|
371
|
|
Fourth Quarter 2018
|
4,069
|
|
|
$
|
154.48
|
|
|
4,069
|
|
|
$
|
371
|
|
(1)
|
On December 10, 2018 the company’s board of directors approved the repurchase of $1.0 billion of its ordinary shares ("2018 program") which could take place from time to time on the open market (which could include the use of 10b5-1 trading plans), subject to market and business conditions. The 2018 program has a maximum repurchase amount of 5% of outstanding shares and a stated expiration date of April 30, 2019.
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(2)
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As of December 31, 2018, the company had purchased $629 million of its ordinary shares pursuant to the 2018 program, leaving an additional
$371 million
remaining authorized under the 2018 program.
|
|
2013
|
2014
|
2015
|
2016
|
2017
|
2018
|
LIN
|
$100
|
$102
|
$83
|
$97
|
$132
|
$136
|
SPX
|
$100
|
$114
|
$115
|
$129
|
$157
|
$149
|
S5MATR
|
$100
|
$107
|
$98
|
$115
|
$143
|
$121
|
Year Ended December 31,
|
2018(a)
|
|
2017(a)
|
|
2016(a)
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|
2015(a)
|
|
2014(a)
|
||||||||||
From the Consolidated Statements of Income
|
|
|
|
|
|
|
|
|
|
||||||||||
Sales
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
$
|
10,776
|
|
|
$
|
12,273
|
|
Cost of sales, exclusive of depreciation and amortization
|
9,084
|
|
|
6,461
|
|
|
5,855
|
|
|
5,918
|
|
|
6,933
|
|
|||||
Selling, general and administrative
|
1,629
|
|
|
1,207
|
|
|
1,145
|
|
|
1,152
|
|
|
1,308
|
|
|||||
Depreciation and amortization
|
1,830
|
|
|
1,184
|
|
|
1,122
|
|
|
1,106
|
|
|
1,170
|
|
|||||
Research and development
|
113
|
|
|
93
|
|
|
92
|
|
|
93
|
|
|
96
|
|
|||||
Transaction costs and other charges
|
309
|
|
|
52
|
|
|
96
|
|
|
165
|
|
|
131
|
|
|||||
Net gain on sale of business
|
3,294
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Other income (expenses) – net
|
18
|
|
|
4
|
|
|
23
|
|
|
28
|
|
|
9
|
|
|||||
Operating profit
|
5,247
|
|
|
2,444
|
|
|
2,247
|
|
|
2,370
|
|
|
2,644
|
|
|||||
Interest expense – net
|
202
|
|
|
161
|
|
|
190
|
|
|
161
|
|
|
213
|
|
|||||
Net pension and OPEB cost (benefit), excluding service cost
|
(4
|
)
|
|
(4
|
)
|
|
9
|
|
|
49
|
|
|
36
|
|
|||||
Income from continuing operations before income taxes and equity investments
|
5,049
|
|
|
2,287
|
|
|
2,048
|
|
|
2,160
|
|
|
2,395
|
|
|||||
Income taxes on continuing operations
|
817
|
|
|
1,026
|
|
|
551
|
|
|
612
|
|
|
691
|
|
|||||
Income from continuing operations before equity investments
|
4,232
|
|
|
1,261
|
|
|
1,497
|
|
|
1,548
|
|
|
1,704
|
|
|||||
Income from equity investments
|
56
|
|
|
47
|
|
|
41
|
|
|
43
|
|
|
42
|
|
|||||
Income from continuing operations (including noncontrolling interests)
|
4,288
|
|
|
1,308
|
|
|
1,538
|
|
|
1,591
|
|
|
1,746
|
|
|||||
Noncontrolling interests from continuing operations
|
(15
|
)
|
|
(61
|
)
|
|
(38
|
)
|
|
(44
|
)
|
|
(52
|
)
|
|||||
Income from continuing operations
|
$
|
4,273
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
|
$
|
1,547
|
|
|
$
|
1,694
|
|
Per Share Data – Linde plc Shareholders
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic earnings per share from continuing operations
|
$
|
12.93
|
|
|
$
|
4.36
|
|
|
$
|
5.25
|
|
|
$
|
5.39
|
|
|
$
|
5.79
|
|
Diluted earnings per share from continuing operations
|
$
|
12.79
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
|
$
|
5.35
|
|
|
$
|
5.73
|
|
Cash dividends per share
|
$
|
3.30
|
|
|
$
|
3.15
|
|
|
$
|
3.00
|
|
|
$
|
2.86
|
|
|
$
|
2.60
|
|
Weighted Average Shares Outstanding (000’s) (b)
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic shares outstanding
|
330,401
|
|
|
286,261
|
|
|
285,677
|
|
|
287,005
|
|
|
292,494
|
|
|||||
Diluted shares outstanding
|
334,127
|
|
|
289,114
|
|
|
287,757
|
|
|
289,055
|
|
|
295,608
|
|
|||||
Other Information and Ratios
|
|
|
|
|
|
|
|
|
|
||||||||||
Total assets
|
$
|
93,386
|
|
|
$
|
20,436
|
|
|
$
|
19,332
|
|
|
$
|
18,319
|
|
|
$
|
19,769
|
|
Total debt
|
$
|
15,296
|
|
|
$
|
9,000
|
|
|
$
|
9,515
|
|
|
$
|
9,231
|
|
|
$
|
9,225
|
|
Net debt (c)
|
$
|
10,830
|
|
|
$
|
8,383
|
|
|
$
|
8,991
|
|
|
$
|
9,084
|
|
|
$
|
9,099
|
|
Cash flow from operations
|
$
|
3,654
|
|
|
$
|
3,041
|
|
|
$
|
2,789
|
|
|
$
|
2,695
|
|
|
$
|
2,923
|
|
Net cash provided by (used for) investing activities
|
$
|
5,363
|
|
|
$
|
(1,314
|
)
|
|
$
|
(1,770
|
)
|
|
$
|
(1,303
|
)
|
|
$
|
(1,803
|
)
|
Net cash used for financing activities
|
$
|
(4,998
|
)
|
|
$
|
(1,656
|
)
|
|
$
|
(659
|
)
|
|
$
|
(1,310
|
)
|
|
$
|
(1,063
|
)
|
EBITDA (c)
|
$
|
7,133
|
|
|
$
|
3,675
|
|
|
$
|
3,410
|
|
|
$
|
3,519
|
|
|
$
|
3,856
|
|
Adjusted EBITDA (c)
|
$
|
4,516
|
|
|
$
|
3,727
|
|
|
$
|
3,506
|
|
|
$
|
3,684
|
|
|
$
|
3,987
|
|
Capital expenditures
|
$
|
1,883
|
|
|
$
|
1,311
|
|
|
$
|
1,465
|
|
|
$
|
1,541
|
|
|
$
|
1,689
|
|
Shares outstanding (000’s)
|
547,242
|
|
|
286,777
|
|
|
284,901
|
|
|
284,879
|
|
|
289,262
|
|
|||||
Number of employees
|
80,820
|
|
|
26,461
|
|
|
26,498
|
|
|
26,657
|
|
|
27,780
|
|
(a)
|
Amounts for 2018 include: (i) charges of $309 million ($306 million after-tax, or $0.92 per diluted share) for transaction costs and other charges primarily related to the merger, (ii) pension settlement charges of $14 million ($11 million after-tax, or $0.03 per diluted share) related to lump sum benefit payments made from pension plans, (iii) income tax benefit, net of $17 million
|
(c)
|
Non-GAAP measures. See the “Non-GAAP Financial Measures” section in Item 7 for definitions and reconciliation to reported amounts. Net debt, as presented in the table above, is calculated as total debt less cash and cash equivalents.
|
ITEM 7.
|
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
|
Page
|
Merger of Praxair and Linde AG
|
|
Business Overview
|
|
Executive Summary – Financial Results & Outlook
|
|
Consolidated Results and Other Information
|
|
Segment Discussion
|
|
Liquidity, Capital Resources and Other Financial Data
|
|
Contractual Obligations
|
|
Off-Balance Sheet Arrangements
|
|
Critical Accounting Policies
|
|
New Accounting Standards
|
|
Fair Value Measurements
|
|
Non-GAAP Financial Measures
|
North and South America ("Americas")
|
|
Europe, Middle East and Africa (“EMEA”)
|
|
Asia and Pacific (“APAC”)
|
United States
|
|
Germany
|
|
China
|
Canada
|
|
United Kingdom
|
|
India
|
Mexico
|
|
Scandinavia
|
|
South Korea
|
Brazil
|
|
Republic of South Africa*
|
|
Australia/New Zealand*
|
|
|
|
|
Taiwan
|
•
|
Sales of
$14,900 million
were
30%
above
2017
sales of
$11,437 million
, primarily driven by the merger with Linde AG that contributed 24% to sales, net of divestitures. Underlying sales increased 6% driven by volume growth primarily in North America and Asia, including new project start-ups, and higher price.
|
•
|
Reported operating profit of $
5,247 million
was
115%
above
2017
. Adjusted operating profit of
$2,976 million
was
19%
above adjusted operating profit in
2017
. Adjusted operating profit growth was driven by higher volumes and price across the geographic segments and the impact of the merger.*
|
•
|
Income from continuing operations of
$4,273
million and diluted earnings per share from continuing operations of
$12.79
increased from
$1,247 million
and
$4.32
, respectively in
2017
. Adjusted income from continuing operations of
$2,121 million
and adjusted diluted earnings per share from continuing operations of
$6.35
were
26%
and
9%
, respectively above
2017
adjusted amounts.*
|
•
|
Cash flow from operations was $
3,654 million
, or 25% of sales. Capital expenditures were
$1,883 million
; dividends paid were
$1,166 million
; and debt repayments, net were
$2,908 million
.
|
•
|
Cash on hand at December 31, 2018 was $4,466 million versus $617 million at December 31, 2017. This increase is primarily a result of the stock only merger with Linde AG and proceeds from the sale of Praxair's European industrial gases business. The cash is available for Corporate uses, including among others the planned squeeze-out of the 8% Linde AG noncontrolling interests and stock buybacks.
|
|
|
|
|
|
|
|
Variance
|
||||||||||
(Dollar amounts in millions, except per share data)
Year Ended December 31,
|
2018
|
|
2017 (d)
|
|
2016 (d)
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
||||||||
Reported Amounts
|
|
|
|
|
|
|
|
|
|
||||||||
Sales
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
30
|
%
|
|
9
|
%
|
Cost of sales, exclusive of depreciation and amortization
|
$
|
9,084
|
|
|
$
|
6,461
|
|
|
$
|
5,855
|
|
|
41
|
%
|
|
10
|
%
|
Gross margin (a)
|
$
|
5,816
|
|
|
$
|
4,976
|
|
|
$
|
4,679
|
|
|
17
|
%
|
|
6
|
%
|
As a percent of sales
|
39.0
|
%
|
|
43.5
|
%
|
|
44.4
|
%
|
|
|
|
|
|||||
Selling, general and administrative
|
$
|
1,629
|
|
|
$
|
1,207
|
|
|
$
|
1,145
|
|
|
35
|
%
|
|
5
|
%
|
As a percent of sales
|
10.9
|
%
|
|
10.6
|
%
|
|
10.9
|
%
|
|
|
|
|
|||||
Depreciation and amortization
|
$
|
1,830
|
|
|
$
|
1,184
|
|
|
$
|
1,122
|
|
|
55
|
%
|
|
6
|
%
|
Transaction costs and other charges (b)
|
$
|
309
|
|
|
$
|
52
|
|
|
$
|
96
|
|
|
|
|
|
||
Net gain on sale of businesses (b)
|
$
|
3,294
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
||
Other income (expense) – net
|
$
|
18
|
|
|
$
|
4
|
|
|
$
|
23
|
|
|
|
|
|
||
Operating Profit
|
$
|
5,247
|
|
|
$
|
2,444
|
|
|
$
|
2,247
|
|
|
115
|
%
|
|
9
|
%
|
Operating margin
|
35.2
|
%
|
|
21.4
|
%
|
|
21.3
|
%
|
|
|
|
|
|||||
Interest expense – net
|
$
|
202
|
|
|
$
|
161
|
|
|
$
|
190
|
|
|
25
|
%
|
|
(15
|
)%
|
Net pension and OPEB cost (benefit), excluding service cost
|
$
|
(4
|
)
|
|
$
|
(4
|
)
|
|
$
|
9
|
|
|
—
|
%
|
|
(144
|
)%
|
Effective tax rate
|
16.2
|
%
|
|
44.9
|
%
|
|
26.9
|
%
|
|
|
|
|
|||||
Income from equity investments
|
$
|
56
|
|
|
$
|
47
|
|
|
$
|
41
|
|
|
19
|
%
|
|
15
|
%
|
Noncontrolling interests from continuing operations
|
$
|
(15
|
)
|
|
$
|
(61
|
)
|
|
$
|
(38
|
)
|
|
(75
|
)%
|
|
61
|
%
|
Income from continuing operations
|
$
|
4,273
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
|
243
|
%
|
|
(17
|
)%
|
Diluted earnings per share from continuing operations
|
$
|
12.79
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
|
196
|
%
|
|
(17
|
)%
|
Diluted shares outstanding (c)
|
334,127
|
|
|
289,114
|
|
|
287,757
|
|
|
16
|
%
|
|
—
|
%
|
|||
Number of employees
|
80,820
|
|
|
26,461
|
|
|
26,498
|
|
|
|
|
|
|||||
Adjusted Amounts (e)
|
|
|
|
|
|
|
|
|
|
||||||||
Operating profit
|
$
|
2,976
|
|
|
$
|
2,496
|
|
|
$
|
2,343
|
|
|
19
|
%
|
|
7
|
%
|
Operating margin
|
20.0
|
%
|
|
21.8
|
%
|
|
22.2
|
%
|
|
|
|
|
|||||
Interest expense – net
|
$
|
197
|
|
|
$
|
161
|
|
|
$
|
174
|
|
|
22
|
%
|
|
(7
|
)%
|
Net pension and OPEB cost (benefit), excluding service cost
|
$
|
(18
|
)
|
|
$
|
(6
|
)
|
|
$
|
5
|
|
|
200
|
%
|
|
(220
|
)%
|
Effective tax rate
|
23.8
|
%
|
|
27.2
|
%
|
|
27.1
|
%
|
|
|
|
|
|||||
Noncontrolling interests from continuing operations
|
$
|
(73
|
)
|
|
$
|
(61
|
)
|
|
$
|
(43
|
)
|
|
20
|
%
|
|
42
|
%
|
Income from continuing operations
|
$
|
2,121
|
|
|
$
|
1,690
|
|
|
$
|
1,576
|
|
|
26
|
%
|
|
7
|
%
|
Diluted earnings per share from continuing operations
|
$
|
6.35
|
|
|
$
|
5.85
|
|
|
$
|
5.48
|
|
|
9
|
%
|
|
7
|
%
|
Other Financial Data (e)
|
|
|
|
|
|
|
|
|
|
||||||||
EBITDA
|
$
|
7,133
|
|
|
$
|
3,675
|
|
|
$
|
3,410
|
|
|
94
|
%
|
|
8
|
%
|
EBITDA Margin
|
47.9
|
%
|
|
32.1
|
%
|
|
32.4
|
%
|
|
49
|
%
|
|
(1
|
)%
|
|||
Adjusted EBITDA
|
$
|
4,516
|
|
|
$
|
3,727
|
|
|
$
|
3,506
|
|
|
21
|
%
|
|
6
|
%
|
Adjusted EBITDA Margin
|
30.3
|
%
|
|
32.6
|
%
|
|
33.3
|
%
|
|
(7
|
)%
|
|
(2
|
)%
|
(a)
|
Gross margin excludes depreciation and amortization expense.
|
(b)
|
See Notes 5 and 4 to the consolidated financial statements.
|
(c)
|
As a result of the merger, share amounts for the year ended December 31, 2018 reflect the weighted averaging effect of Praxair shares outstanding prior to October 31, 2018 and Linde shares outstanding from October 31, 2018 through December 31, 2018.
|
(d)
|
Prior period information has been reclassified to conform with current year presentation as a result of the adoption of new accounting guidance on the presentation of net period pension and postretirement benefit costs. See Note 2 to the consolidated financial statements.
|
(e)
|
Adjusted amounts and other financial data are non-GAAP performance measures. A reconciliation of reported amounts to adjusted amounts can be found in the “Non-GAAP Financial Measures” section of this MD&A. See Notes 3, 4, 5, 13 and 18 to the consolidated financial statements.
|
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
||||||||
|
|
% Change
|
|
% Change
|
||||||||
|
|
Sales
|
|
Operating Profit
|
|
Sales
|
|
Operating Profit
|
||||
Factors Contributing to Changes
|
|
|
|
|
|
|
|
|
||||
Volume
|
|
4
|
%
|
|
5
|
%
|
|
5
|
%
|
|
8
|
%
|
Price/Mix
|
|
2
|
%
|
|
9
|
%
|
|
1
|
%
|
|
5
|
%
|
Cost pass-through
|
|
1
|
%
|
|
—
|
%
|
|
2
|
%
|
|
—
|
%
|
Currency
|
|
(1
|
)%
|
|
—
|
%
|
|
1
|
%
|
|
1
|
%
|
Acquisitions/Divestitures
|
|
|
|
|
|
|
|
|
||||
Europe divestiture
|
|
(1
|
)%
|
|
(1
|
)%
|
|
—
|
%
|
|
—
|
%
|
Net gain on sale of businesses
|
|
—
|
%
|
|
132
|
%
|
|
—
|
%
|
|
—
|
%
|
Linde AG - excluding purchase accounting
|
|
25
|
%
|
|
10
|
%
|
|
—
|
%
|
|
—
|
%
|
Purchase accounting impacts - Linde AG
|
|
—
|
%
|
|
(29
|
)%
|
|
—
|
%
|
|
—
|
%
|
Other
|
|
—
|
%
|
|
(11
|
)%
|
|
—
|
%
|
|
(5
|
)%
|
Reported
|
|
30
|
%
|
|
115
|
%
|
|
9
|
%
|
|
9
|
%
|
Transaction costs and other charges
|
|
—
|
%
|
|
7
|
%
|
|
—
|
%
|
|
(2
|
)%
|
Net gain on sale of businesses
|
|
—
|
%
|
|
(132
|
)%
|
|
—
|
%
|
|
—
|
%
|
Purchase accounting impacts - Linde AG
|
|
—
|
%
|
|
29
|
%
|
|
—
|
%
|
|
—
|
%
|
Adjusted
|
|
30
|
%
|
|
19
|
%
|
|
9
|
%
|
|
7
|
%
|
|
|
|
|
|
|||||||||||
|
|
% of Sales*
|
|
% Change*
|
|||||||||||
|
|
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||
Sales by End-Markets
|
|
|
|
|
|
|
|
|
|
|
|||||
Manufacturing
|
|
22
|
%
|
|
22
|
%
|
|
23
|
%
|
|
7
|
%
|
|
4
|
%
|
Metals
|
|
17
|
%
|
|
17
|
%
|
|
17
|
%
|
|
7
|
%
|
|
7
|
%
|
Energy
|
|
11
|
%
|
|
12
|
%
|
|
12
|
%
|
|
6
|
%
|
|
5
|
%
|
Chemicals
|
|
11
|
%
|
|
10
|
%
|
|
10
|
%
|
|
14
|
%
|
|
9
|
%
|
Electronics
|
|
9
|
%
|
|
9
|
%
|
|
8
|
%
|
|
8
|
%
|
|
13
|
%
|
Healthcare
|
|
8
|
%
|
|
8
|
%
|
|
8
|
%
|
|
6
|
%
|
|
4
|
%
|
Food & Beverage
|
|
9
|
%
|
|
9
|
%
|
|
9
|
%
|
|
7
|
%
|
|
5
|
%
|
Aerospace
|
|
4
|
%
|
|
3
|
%
|
|
3
|
%
|
|
14
|
%
|
|
11
|
%
|
Other
|
|
9
|
%
|
|
10
|
%
|
|
10
|
%
|
|
(1
|
)%
|
|
3
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
|
|
|
|
|
% of Sales*
|
|||||||
|
|
2018
|
|
2017
|
|
2016
|
|||
Sales by Distribution Method
|
|
|
|
|
|
|
|||
On-Site
|
|
28
|
%
|
|
30
|
%
|
|
29
|
%
|
Merchant
|
|
31
|
%
|
|
34
|
%
|
|
35
|
%
|
Packaged Gas
|
|
30
|
%
|
|
27
|
%
|
|
28
|
%
|
Other
|
|
11
|
%
|
|
9
|
%
|
|
8
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
|
Variance
|
||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
Sales
|
|
|
|
|
|
|
|
|
|
||||||||
North America
|
$
|
6,420
|
|
|
$
|
6,023
|
|
|
$
|
5,592
|
|
|
7
|
%
|
|
8
|
%
|
Europe
|
1,592
|
|
|
1,558
|
|
|
1,392
|
|
|
2
|
%
|
|
12
|
%
|
|||
South America
|
1,369
|
|
|
1,501
|
|
|
1,399
|
|
|
(9
|
)%
|
|
7
|
%
|
|||
Asia
|
1,964
|
|
|
1,738
|
|
|
1,555
|
|
|
13
|
%
|
|
12
|
%
|
|||
Surface Technologies
|
682
|
|
|
617
|
|
|
596
|
|
|
11
|
%
|
|
4
|
%
|
|||
Linde AG
|
2,873
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|||||
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
30
|
%
|
|
9
|
%
|
Operating Profit
|
|
|
|
|
|
|
|
|
|
||||||||
North America
|
$
|
1,648
|
|
|
$
|
1,517
|
|
|
$
|
1,431
|
|
|
9
|
%
|
|
6
|
%
|
Europe
|
316
|
|
|
301
|
|
|
274
|
|
|
5
|
%
|
|
10
|
%
|
|||
South America
|
215
|
|
|
239
|
|
|
263
|
|
|
(10
|
)%
|
|
(9
|
)%
|
|||
Asia
|
427
|
|
|
333
|
|
|
276
|
|
|
28
|
%
|
|
21
|
%
|
|||
Surface Technologies
|
118
|
|
|
106
|
|
|
99
|
|
|
11
|
%
|
|
7
|
%
|
|||
Linde AG
|
252
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|||||
Segment operating profit
|
2,976
|
|
|
2,496
|
|
|
2,343
|
|
|
19
|
%
|
|
7
|
%
|
|||
Transaction costs and other charges
|
(309
|
)
|
|
(52
|
)
|
|
(96
|
)
|
|
|
|
|
|||||
Net gain on sale of businesses
|
3,294
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|||||
Purchase accounting impacts - Linde AG
|
(714
|
)
|
|
—
|
|
|
—
|
|
|
|
|
|
|||||
Consolidated operating profit
|
$
|
5,247
|
|
|
$
|
2,444
|
|
|
$
|
2,247
|
|
|
|
|
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
|
Variance
|
||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||
Sales
|
$
|
6,420
|
|
|
$
|
6,023
|
|
|
$
|
5,592
|
|
|
7
|
%
|
|
8
|
%
|
Cost of sales, exclusive of depreciation and amortization
|
3,395
|
|
|
3,167
|
|
|
2,871
|
|
|
|
|
|
|||||
Gross margin
|
3,025
|
|
|
2,856
|
|
|
2,721
|
|
|
|
|
|
|||||
Operating expenses
|
717
|
|
|
708
|
|
|
676
|
|
|
|
|
|
|||||
Depreciation and amortization
|
660
|
|
|
631
|
|
|
614
|
|
|
|
|
|
|||||
Operating profit
|
$
|
1,648
|
|
|
$
|
1,517
|
|
|
$
|
1,431
|
|
|
9
|
%
|
|
6
|
%
|
Operating margin
|
25.7
|
%
|
|
25.2
|
%
|
|
25.6
|
%
|
|
|
|
|
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
|
|
% Change
|
|
% Change
|
|||||||||
|
|
Sales
|
|
Operating Profit
|
|
Sales
|
|
Operating Profit
|
|||||
Factors Contributing to Changes
|
|
|
|
|
|
|
|
|
|||||
Volume
|
|
4
|
%
|
|
6
|
%
|
|
4
|
%
|
|
8
|
%
|
|
Price/Mix
|
|
2
|
%
|
—
|
|
8
|
%
|
|
2
|
%
|
|
5
|
%
|
Cost pass-through
|
|
1
|
%
|
|
—
|
%
|
|
2
|
%
|
|
—
|
%
|
|
Currency
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
Acquisitions/Divestitures
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
Other
|
|
—
|
%
|
|
(5
|
)%
|
|
—
|
%
|
|
(7
|
)%
|
|
|
|
7
|
%
|
|
9
|
%
|
|
8
|
%
|
|
6
|
%
|
|
|
|
|
|
|||||||||||
|
|
% of Sales
|
|
% Change*
|
|||||||||||
|
|
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||
Sales by End-Markets
|
|
|
|
|
|
|
|
|
|
|
|||||
Manufacturing
|
|
29
|
%
|
|
29
|
%
|
|
29
|
%
|
|
8
|
%
|
|
4
|
%
|
Metals
|
|
11
|
%
|
|
12
|
%
|
|
12
|
%
|
|
5
|
%
|
|
7
|
%
|
Energy
|
|
17
|
%
|
|
18
|
%
|
|
17
|
%
|
|
(1
|
)%
|
|
7
|
%
|
Chemicals
|
|
11
|
%
|
|
9
|
%
|
|
9
|
%
|
|
25
|
%
|
|
5
|
%
|
Electronics
|
|
5
|
%
|
|
5
|
%
|
|
5
|
%
|
|
3
|
%
|
|
17
|
%
|
Healthcare
|
|
7
|
%
|
|
7
|
%
|
|
7
|
%
|
|
7
|
%
|
|
5
|
%
|
Food & Beverage
|
|
10
|
%
|
|
10
|
%
|
|
10
|
%
|
|
8
|
%
|
|
5
|
%
|
Aerospace
|
|
2
|
%
|
|
2
|
%
|
|
2
|
%
|
|
21
|
%
|
|
14
|
%
|
Other
|
|
8
|
%
|
|
8
|
%
|
|
9
|
%
|
|
(2
|
)%
|
|
1
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
|
|
|
|
|
% of Sales
|
|||||||
|
|
2018
|
|
2017
|
|
2016
|
|||
Sales by Distribution Method
|
|
|
|
|
|
|
|||
On-Site
|
|
30
|
%
|
|
30
|
%
|
|
28
|
%
|
Merchant
|
|
37
|
%
|
|
37
|
%
|
|
38
|
%
|
Packaged Gas
|
|
31
|
%
|
|
31
|
%
|
|
31
|
%
|
Other
|
|
2
|
%
|
|
2
|
%
|
|
3
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
|
Variance
|
||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||
Sales
|
$
|
1,592
|
|
|
$
|
1,558
|
|
|
$
|
1,392
|
|
|
2
|
%
|
|
12
|
%
|
Cost of sales, exclusive of depreciation and amortization
|
940
|
|
|
889
|
|
|
774
|
|
|
|
|
|
|||||
Gross margin
|
652
|
|
|
669
|
|
|
618
|
|
|
|
|
|
|||||
Operating expenses
|
190
|
|
|
199
|
|
|
189
|
|
|
|
|
|
|||||
Depreciation and amortization
|
146
|
|
|
169
|
|
|
155
|
|
|
|
|
|
|||||
Operating profit
|
$
|
316
|
|
|
$
|
301
|
|
|
$
|
274
|
|
|
5
|
%
|
|
10
|
%
|
Operating margin
|
19.8
|
%
|
|
19.3
|
%
|
|
19.7
|
%
|
|
|
|
|
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
||||||||
|
|
% Change
|
|
% Change
|
||||||||
|
|
Sales
|
|
Operating Profit
|
|
Sales
|
|
Operating Profit
|
||||
Factors Contributing to Changes
|
|
|
|
|
|
|
|
|
||||
Volume
|
|
1
|
%
|
|
1
|
%
|
|
5
|
%
|
|
8
|
%
|
Price/Mix
|
|
2
|
%
|
|
9
|
%
|
|
1
|
%
|
|
3
|
%
|
Cost pass-through
|
|
2
|
%
|
|
—
|
%
|
|
1
|
%
|
|
—
|
%
|
Currency
|
|
4
|
%
|
|
5
|
%
|
|
2
|
%
|
|
2
|
%
|
Acquisitions/Divestitures
|
|
(7
|
)%
|
|
(7
|
)%
|
|
3
|
%
|
|
2
|
%
|
Other
|
|
—
|
%
|
|
(3
|
)%
|
|
—
|
%
|
|
(5
|
)%
|
|
|
2
|
%
|
|
5
|
%
|
|
12
|
%
|
|
10
|
%
|
|
|
|
|
|
|||||||||||
|
|
% of Sales
|
|
% Change*
|
|||||||||||
|
|
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||
Sales by End-Markets
|
|
|
|
|
|
|
|
|
|
|
|||||
Manufacturing
|
|
20
|
%
|
|
20
|
%
|
|
21
|
%
|
|
5
|
%
|
|
4
|
%
|
Metals
|
|
17
|
%
|
|
16
|
%
|
|
16
|
%
|
|
8
|
%
|
|
9
|
%
|
Energy
|
|
4
|
%
|
|
5
|
%
|
|
5
|
%
|
|
(4
|
)%
|
|
1
|
%
|
Chemicals
|
|
12
|
%
|
|
12
|
%
|
|
14
|
%
|
|
6
|
%
|
|
7
|
%
|
Electronics
|
|
7
|
%
|
|
7
|
%
|
|
7
|
%
|
|
2
|
%
|
|
7
|
%
|
Healthcare
|
|
12
|
%
|
|
12
|
%
|
|
11
|
%
|
|
6
|
%
|
|
4
|
%
|
Food & Beverage
|
|
15
|
%
|
|
14
|
%
|
|
12
|
%
|
|
11
|
%
|
|
8
|
%
|
Aerospace
|
|
1
|
%
|
|
1
|
%
|
|
1
|
%
|
|
(12
|
)%
|
|
3
|
%
|
Other
|
|
12
|
%
|
|
13
|
%
|
|
13
|
%
|
|
(1
|
)%
|
|
8
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
|
|
|
|
|
% of Sales
|
|||||||
|
|
2018
|
|
2017
|
|
2016
|
|||
Sales by Distribution Method
|
|
|
|
|
|
|
|||
On-Site
|
|
18
|
%
|
|
18
|
%
|
|
19
|
%
|
Merchant
|
|
34
|
%
|
|
35
|
%
|
|
35
|
%
|
Packaged Gas
|
|
43
|
%
|
|
42
|
%
|
|
42
|
%
|
Other
|
|
5
|
%
|
|
5
|
%
|
|
4
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
|
Variance
|
||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||
Sales
|
$
|
1,369
|
|
|
$
|
1,501
|
|
|
$
|
1,399
|
|
|
(9
|
)%
|
|
7
|
%
|
Cost of sales, exclusive of depreciation and amortization
|
819
|
|
|
905
|
|
|
822
|
|
|
|
|
|
|||||
Gross margin
|
550
|
|
|
596
|
|
|
577
|
|
|
|
|
|
|||||
Operating expenses
|
187
|
|
|
198
|
|
|
181
|
|
|
|
|
|
|||||
Depreciation and amortization
|
148
|
|
|
159
|
|
|
133
|
|
|
|
|
|
|||||
Operating profit
|
$
|
215
|
|
|
$
|
239
|
|
|
$
|
263
|
|
|
(10
|
)%
|
|
(9
|
)%
|
Operating margin
|
15.7
|
%
|
|
15.9
|
%
|
|
18.8
|
%
|
|
|
|
|
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
||||||||
|
|
% Change
|
|
% Change
|
||||||||
|
|
Sales
|
|
Operating Profit
|
|
Sales
|
|
Operating Profit
|
||||
Factors Contributing to Changes
|
|
|
|
|
|
|
|
|
||||
Volume
|
|
1
|
%
|
|
(5
|
)%
|
|
—
|
%
|
|
(2
|
)%
|
Price/Mix
|
|
2
|
%
|
|
12
|
%
|
|
1
|
%
|
|
3
|
%
|
Cost pass-through
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Currency
|
|
(12
|
)%
|
|
(18
|
)%
|
|
6
|
%
|
|
4
|
%
|
Acquisitions/Divestitures
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Other
|
|
—
|
%
|
|
1
|
%
|
|
—
|
%
|
|
(14
|
)%
|
|
|
(9
|
)%
|
|
(10
|
)%
|
|
7
|
%
|
|
(9
|
)%
|
|
|
|
|
|
|||||||||||
|
|
% of Sales
|
|
% Change*
|
|||||||||||
|
|
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||
Sales by End-Markets
|
|
|
|
|
|
|
|
|
|
|
|||||
Manufacturing
|
|
15
|
%
|
|
17
|
%
|
|
18
|
%
|
|
(5
|
)%
|
|
(2
|
)%
|
Metals
|
|
32
|
%
|
|
31
|
%
|
|
31
|
%
|
|
4
|
%
|
|
1
|
%
|
Energy
|
|
2
|
%
|
|
2
|
%
|
|
2
|
%
|
|
1
|
%
|
|
23
|
%
|
Chemicals
|
|
10
|
%
|
|
10
|
%
|
|
9
|
%
|
|
7
|
%
|
|
8
|
%
|
Electronics
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Healthcare
|
|
19
|
%
|
|
19
|
%
|
|
19
|
%
|
|
2
|
%
|
|
3
|
%
|
Food & Beverage
|
|
14
|
%
|
|
13
|
%
|
|
13
|
%
|
|
3
|
%
|
|
2
|
%
|
Aerospace
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Other
|
|
8
|
%
|
|
8
|
%
|
|
8
|
%
|
|
11
|
%
|
|
(7
|
)%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
|
|
|
|
|
% of Sales
|
|||||||
|
|
2018
|
|
2017
|
|
2016
|
|||
Sales by Distribution Method
|
|
|
|
|
|
|
|||
On-Site
|
|
33
|
%
|
|
33
|
%
|
|
31
|
%
|
Merchant
|
|
38
|
%
|
|
38
|
%
|
|
40
|
%
|
Packaged Gas
|
|
27
|
%
|
|
27
|
%
|
|
27
|
%
|
Other
|
|
2
|
%
|
|
2
|
%
|
|
2
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
|
Variance
|
||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||
Sales
|
$
|
1,964
|
|
|
$
|
1,738
|
|
|
$
|
1,555
|
|
|
13
|
%
|
|
12
|
%
|
Cost of sales, exclusive of depreciation and amortization
|
1,215
|
|
|
1,098
|
|
|
998
|
|
|
|
|
|
|||||
Gross margin
|
749
|
|
|
640
|
|
|
557
|
|
|
|
|
|
|||||
Operating expenses
|
118
|
|
|
122
|
|
|
102
|
|
|
|
|
|
|||||
Depreciation and amortization
|
204
|
|
|
185
|
|
|
179
|
|
|
|
|
|
|||||
Operating profit
|
$
|
427
|
|
|
$
|
333
|
|
|
$
|
276
|
|
|
28
|
%
|
|
21
|
%
|
Operating margin
|
21.7
|
%
|
|
19.2
|
%
|
|
17.7
|
%
|
|
|
|
|
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
||||||||
|
|
% Change
|
|
% Change
|
||||||||
|
|
Sales
|
|
Operating Profit
|
|
Sales
|
|
Operating Profit
|
||||
Factors Contributing to Changes
|
|
|
|
|
|
|
|
|
||||
Volume
|
|
9
|
%
|
|
14
|
%
|
|
11
|
%
|
|
19
|
%
|
Price/Mix
|
|
2
|
%
|
|
14
|
%
|
|
1
|
%
|
|
8
|
%
|
Cost pass-through
|
|
1
|
%
|
|
—
|
%
|
|
1
|
%
|
|
—
|
%
|
Currency
|
|
1
|
%
|
|
1
|
%
|
|
1
|
%
|
|
1
|
%
|
Acquisitions / Divestitures
|
|
—
|
%
|
|
—
|
%
|
|
(2
|
)%
|
|
—
|
%
|
Other
|
|
—
|
%
|
|
(1
|
)%
|
|
—
|
%
|
|
(7
|
)%
|
|
|
13
|
%
|
|
28
|
%
|
|
12
|
%
|
|
21
|
%
|
|
|
|
|
|
|||||||||||
|
|
% of Sales
|
|
% Change*
|
|||||||||||
|
|
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||
Sales by End-Markets
|
|
|
|
|
|
|
|
|
|
|
|||||
Manufacturing
|
|
9
|
%
|
|
9
|
%
|
|
9
|
%
|
|
16
|
%
|
|
13
|
%
|
Metals
|
|
26
|
%
|
|
27
|
%
|
|
28
|
%
|
|
12
|
%
|
|
15
|
%
|
Energy
|
|
5
|
%
|
|
3
|
%
|
|
3
|
%
|
|
104
|
%
|
|
14
|
%
|
Chemicals
|
|
14
|
%
|
|
15
|
%
|
|
14
|
%
|
|
3
|
%
|
|
20
|
%
|
Electronics
|
|
34
|
%
|
|
33
|
%
|
|
33
|
%
|
|
13
|
%
|
|
12
|
%
|
Healthcare
|
|
1
|
%
|
|
1
|
%
|
|
1
|
%
|
|
10
|
%
|
|
(1
|
)%
|
Food & Beverage
|
|
2
|
%
|
|
2
|
%
|
|
2
|
%
|
|
(6
|
)%
|
|
(1
|
)%
|
Aerospace
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Other
|
|
9
|
%
|
|
10
|
%
|
|
10
|
%
|
|
(6
|
)%
|
|
10
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
|
|
|
|
|
% of Sales
|
|||||||
|
|
2018
|
|
2017
|
|
2016
|
|||
Sales by Distribution Method
|
|
|
|
|
|
|
|||
On-Site
|
|
50
|
%
|
|
50
|
%
|
|
50
|
%
|
Merchant
|
|
32
|
%
|
|
30
|
%
|
|
29
|
%
|
Packaged Gas
|
|
11
|
%
|
|
13
|
%
|
|
14
|
%
|
Other
|
|
7
|
%
|
|
7
|
%
|
|
7
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
|
Variance
|
||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||
Sales
|
$
|
682
|
|
|
$
|
617
|
|
|
$
|
596
|
|
|
11
|
%
|
|
4
|
%
|
Cost of sales, exclusive of depreciation and amortization
|
448
|
|
|
402
|
|
|
391
|
|
|
|
|
|
|||||
Gross margin
|
234
|
|
|
215
|
|
|
205
|
|
|
|
|
|
|||||
Operating expenses
|
72
|
|
|
69
|
|
|
66
|
|
|
|
|
|
|||||
Depreciation and amortization
|
44
|
|
|
40
|
|
|
40
|
|
|
|
|
|
|||||
Operating profit
|
$
|
118
|
|
|
$
|
106
|
|
|
$
|
99
|
|
|
11
|
%
|
|
7
|
%
|
Operating margin
|
17.3
|
%
|
|
17.2
|
%
|
|
16.6
|
%
|
|
|
|
|
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
||||||||
|
|
% Change
|
|
% Change
|
||||||||
|
|
Sales
|
|
Operating Profit
|
|
Sales
|
|
Operating Profit
|
||||
Factors Contributing to Changes
|
|
|
|
|
|
|
|
|
||||
Volume/Price
|
|
8
|
%
|
|
19
|
%
|
|
2
|
%
|
|
4
|
%
|
Cost pass-through
|
|
1
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Currency
|
|
2
|
%
|
|
2
|
%
|
|
—
|
%
|
|
—
|
%
|
Acquisitions/Divestitures
|
|
—
|
%
|
|
—
|
%
|
|
2
|
%
|
|
1
|
%
|
Other
|
|
—
|
%
|
|
(10
|
)%
|
|
—
|
%
|
|
2
|
%
|
|
|
11
|
%
|
|
11
|
%
|
|
4
|
%
|
|
7
|
%
|
|
|
|
|
|
|||||||||||
|
|
% of Sales
|
|
% Change*
|
|||||||||||
|
|
2018
|
|
2017
|
|
2016
|
|
2018 vs. 2017
|
|
2017 vs. 2016
|
|||||
Sales by End-Markets
|
|
|
|
|
|
|
|
|
|
|
|||||
Manufacturing
|
|
12
|
%
|
|
11
|
%
|
|
11
|
%
|
|
22
|
%
|
|
2
|
%
|
Metals
|
|
8
|
%
|
|
9
|
%
|
|
9
|
%
|
|
(4
|
)%
|
|
—
|
%
|
Energy
|
|
18
|
%
|
|
19
|
%
|
|
23
|
%
|
|
4
|
%
|
|
(12
|
)%
|
Chemicals
|
|
2
|
%
|
|
2
|
%
|
|
2
|
%
|
|
(4
|
)%
|
|
(7
|
)%
|
Electronics
|
|
1
|
%
|
|
1
|
%
|
|
1
|
%
|
|
33
|
%
|
|
32
|
%
|
Healthcare
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
Food & Beverage
|
|
3
|
%
|
|
3
|
%
|
|
4
|
%
|
|
(3
|
)%
|
|
(4
|
)%
|
Aerospace
|
|
45
|
%
|
|
44
|
%
|
|
40
|
%
|
|
12
|
%
|
|
11
|
%
|
Other
|
|
11
|
%
|
|
11
|
%
|
|
10
|
%
|
|
5
|
%
|
|
2
|
%
|
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
|
|
|
(Dollar amounts in millions)
Year Ended December 31,
|
|
||
2018
|
|||
|
|
||
Sales
|
$
|
2,873
|
|
Cost of sales, exclusive of depreciation and amortization
|
1,899
|
|
|
Gross margin
|
974
|
|
|
Operating expenses
|
440
|
|
|
Depreciation and amortization
|
282
|
|
|
Operating profit
|
$
|
252
|
|
Operating margin
|
8.8
|
%
|
|
|
|
|
|
|
% of Sales
|
|
|
|
2018
|
|
Sales by End-Markets
|
|
|
|
Manufacturing
|
|
19
|
%
|
Metals
|
|
9
|
%
|
Chemicals & Energy
|
|
13
|
%
|
Electronics
|
|
7
|
%
|
Healthcare
|
|
23
|
%
|
Food & Beverage
|
|
6
|
%
|
Engineering
|
|
18
|
%
|
Other
|
|
5
|
%
|
|
|
100
|
%
|
|
Percent of
2018
Consolidated
Sales
|
|
Statements of Income
|
|
Balance Sheets
|
||||||||||||
|
Average Year Ended December 31,
|
|
December 31,
|
||||||||||||||
Currency
|
2018
|
|
2017
|
|
2016
|
|
2018
|
|
2017
|
||||||||
Euro
|
16
|
%
|
|
0.85
|
|
|
0.89
|
|
|
0.90
|
|
|
0.87
|
|
|
0.83
|
|
Brazilian real
|
7
|
%
|
|
3.63
|
|
|
3.19
|
|
|
3.47
|
|
|
3.87
|
|
|
3.31
|
|
Chinese yuan
|
7
|
%
|
|
6.60
|
|
|
6.76
|
|
|
6.64
|
|
|
6.88
|
|
|
6.51
|
|
Canadian dollar
|
6
|
%
|
|
1.30
|
|
|
1.30
|
|
|
1.32
|
|
|
1.36
|
|
|
1.26
|
|
Mexican peso
|
4
|
%
|
|
19.20
|
|
|
18.86
|
|
|
18.65
|
|
|
19.65
|
|
|
19.66
|
|
Korean won
|
3
|
%
|
|
1,100
|
|
|
1,131
|
|
|
1,160
|
|
|
1,111
|
|
|
1,067
|
|
British pound
|
3
|
%
|
|
0.75
|
|
|
0.78
|
|
|
0.74
|
|
|
0.78
|
|
|
0.74
|
|
Indian rupee
|
3
|
%
|
|
68
|
|
|
65
|
|
|
67
|
|
|
70
|
|
|
64
|
|
Australia dollars
|
1
|
%
|
|
1.34
|
|
|
—
|
|
|
—
|
|
|
1.42
|
|
|
—
|
|
Taiwan dollars
|
1
|
%
|
|
30.13
|
|
|
30.43
|
|
|
32.25
|
|
|
30.55
|
|
|
29.73
|
|
Norwegian krone
|
<1%
|
|
|
8.13
|
|
|
8.26
|
|
|
8.39
|
|
|
8.64
|
|
|
8.20
|
|
Argentina peso (a)
|
<1%
|
|
|
26.19
|
|
|
16.51
|
|
|
14.74
|
|
|
37.70
|
|
|
18.65
|
|
(a)
|
See Note 5 to the consolidated financial statements.
|
(b)
|
See Note 4 to the consolidated financial statements.
|
(Millions of dollars)
|
Due or expiring by December 31,
|
||||||||||||||||||||||||||
|
2019
|
|
2020
|
|
2021
|
|
2022
|
|
2023
|
|
Thereafter
|
|
Total
|
||||||||||||||
Long-term debt obligations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Debt and capitalized lease maturities (Note 13)
|
$
|
1,523
|
|
|
$
|
1,642
|
|
|
$
|
1,864
|
|
|
$
|
2,336
|
|
|
$
|
1,788
|
|
|
$
|
4,658
|
|
|
$
|
13,811
|
|
Contractual interest
|
315
|
|
|
283
|
|
|
232
|
|
|
169
|
|
|
141
|
|
|
621
|
|
|
1,761
|
|
|||||||
Operating leases (Note 6)
|
305
|
|
|
236
|
|
|
186
|
|
|
145
|
|
|
102
|
|
|
326
|
|
|
1,300
|
|
|||||||
Retirement obligations
|
245
|
|
|
29
|
|
|
30
|
|
|
31
|
|
|
31
|
|
|
180
|
|
|
546
|
|
|||||||
Unconditional purchase obligations
|
842
|
|
|
767
|
|
|
721
|
|
|
675
|
|
|
583
|
|
|
3,267
|
|
|
6,855
|
|
|||||||
Construction commitments
|
2,100
|
|
|
902
|
|
|
249
|
|
|
4
|
|
|
—
|
|
|
—
|
|
|
3,255
|
|
|||||||
Total Contractual Obligations
|
$
|
5,330
|
|
|
$
|
3,859
|
|
|
$
|
3,282
|
|
|
$
|
3,360
|
|
|
$
|
2,645
|
|
|
$
|
9,052
|
|
|
$
|
27,528
|
|
(Dollar amounts in millions, except per share data)
|
2018
|
|
2017
|
|
2016
|
|
2015
|
|
2014
|
||||||||||
Year Ended December 31,
|
|
|
|
|
|||||||||||||||
Adjusted Operating Profit and Margin
|
|
|
|
|
|
|
|
|
|
||||||||||
Reported operating profit
|
$
|
5,247
|
|
|
$
|
2,444
|
|
|
$
|
2,247
|
|
|
$
|
2,370
|
|
|
$
|
2,644
|
|
Less: Net gain on sale of businesses
|
(3,294
|
)
|
|
|
|
|
|
|
|
—
|
|
|
—
|
|
|||||
Add: Transaction costs and other charges
|
309
|
|
|
52
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Add: Purchase accounting impacts - Linde AG
|
714
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Add: Venezuela currency devaluation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
131
|
|
|||||
Add: Cost reduction program
|
—
|
|
|
—
|
|
|
96
|
|
|
165
|
|
|
—
|
|
|||||
Total adjustments
|
(2,271
|
)
|
|
52
|
|
|
96
|
|
|
165
|
|
|
131
|
|
|||||
Adjusted operating profit
|
$
|
2,976
|
|
|
$
|
2,496
|
|
|
$
|
2,343
|
|
|
$
|
2,535
|
|
|
$
|
2,775
|
|
Reported percent change
|
115
|
%
|
|
9
|
%
|
|
(5
|
)%
|
|
(10
|
)%
|
|
(2
|
)%
|
|||||
Adjusted percent change
|
19
|
%
|
|
7
|
%
|
|
(8
|
)%
|
|
(9
|
)%
|
|
2
|
%
|
|||||
Reported sales
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
$
|
10,776
|
|
|
$
|
12,273
|
|
Reported operating margin
|
35.2
|
%
|
|
21.4
|
%
|
|
21.3
|
%
|
|
22.0
|
%
|
|
21.5
|
%
|
|||||
Adjusted operating margin
|
20.0
|
%
|
|
21.8
|
%
|
|
22.2
|
%
|
|
23.5
|
%
|
|
22.6
|
%
|
|||||
|
|
|
|
|
|
|
|
|
|
||||||||||
Adjusted Net pension and OPEB cost (benefit), excluding service cost
|
|
|
|
|
|
|
|
|
|
||||||||||
Reported net pension and OPEB cost (benefit), excluding service cost
|
$
|
(4
|
)
|
|
$
|
(4
|
)
|
|
$
|
9
|
|
|
49
|
|
|
36
|
|
||
Less: Pension settlement charge
|
(14
|
)
|
|
(2
|
)
|
|
(4
|
)
|
|
(7
|
)
|
|
(7
|
)
|
|||||
Adjusted net pension and OPEB cost (benefit), excluding service cost
|
$
|
(18
|
)
|
|
$
|
(6
|
)
|
|
$
|
5
|
|
|
$
|
42
|
|
|
$
|
29
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Adjusted Interest Expense - Net
|
|
|
|
|
|
|
|
|
|
||||||||||
Reported interest expense
|
202
|
|
|
161
|
|
|
190
|
|
|
161
|
|
|
213
|
|
|||||
Less: Bond redemption
|
(26
|
)
|
|
—
|
|
|
(16
|
)
|
|
—
|
|
|
(36
|
)
|
|||||
Add: Purchase accounting impacts - Linde AG
|
21
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Adjusted interest expense - net
|
$
|
197
|
|
|
$
|
161
|
|
|
$
|
174
|
|
|
$
|
161
|
|
|
$
|
177
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
(Dollar amounts in millions, except per share data)
|
2018
|
|
2017
|
|
2016
|
|
2015
|
|
2014
|
||||||||||
Year Ended December 31,
|
|
|
|
|
|||||||||||||||
Adjusted Diluted Earnings Per Share from Continuing Operations
|
|
|
|
|
|
|
|
|
|
||||||||||
Reported diluted earnings per share from continuing operations
|
$
|
12.79
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
|
$
|
5.35
|
|
|
$
|
5.73
|
|
Add: Bond redemption
|
0.06
|
|
|
—
|
|
|
0.04
|
|
|
—
|
|
|
0.07
|
|
|||||
Add: Pension settlement charge
|
0.03
|
|
|
—
|
|
|
0.01
|
|
|
0.02
|
|
|
0.02
|
|
|||||
Add: Venezuela currency devaluation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.45
|
|
|||||
Add: Cost reduction program
|
—
|
|
|
—
|
|
|
0.22
|
|
|
0.43
|
|
|
—
|
|
|||||
Add: Tax Act
|
(0.18
|
)
|
|
1.36
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Add: Transaction costs and other charges
|
0.92
|
|
|
0.17
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Add: Net gain on sale of businesses
|
(8.75
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Less: Other tax charges
|
0.13
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Less: Purchase accounting impacts - Linde AG
|
1.35
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Total adjustments
|
(6.44
|
)
|
|
1.53
|
|
|
0.27
|
|
|
0.45
|
|
|
0.54
|
|
|||||
Adjusted diluted earnings per share from continuing operations
|
$
|
6.35
|
|
|
$
|
5.85
|
|
|
$
|
5.48
|
|
|
$
|
5.80
|
|
|
$
|
6.27
|
|
Reported percent change
|
196
|
%
|
|
(17
|
)%
|
|
(3
|
)%
|
|
(7
|
)%
|
|
(2
|
)%
|
|||||
Adjusted percent change
|
9
|
%
|
|
7
|
%
|
|
(6
|
)%
|
|
(7
|
)%
|
|
6
|
%
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Audited Consolidated Financial Statements
|
|
|
|
Notes to Consolidated Financial Statements
|
|
|
|
|
/s/ S
TEPHEN
F. A
NGEL
|
|
/s/
K
ELCEY
E
.
H
OYT
|
Stephen F. Angel
Chief Executive Officer
|
|
Kelcey E. Hoyt
Chief Accounting Officer
|
/s/ M
ATTHEW
J. W
HITE
|
|
|
Matthew J. White
Chief Financial Officer
|
|
March 18, 2019
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Sales
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
Cost of sales, exclusive of depreciation and amortization
|
9,084
|
|
|
6,461
|
|
|
5,855
|
|
|||
Selling, general and administrative
|
1,629
|
|
|
1,207
|
|
|
1,145
|
|
|||
Depreciation and amortization
|
1,830
|
|
|
1,184
|
|
|
1,122
|
|
|||
Research and development
|
113
|
|
|
93
|
|
|
92
|
|
|||
Transaction costs and other charges
|
309
|
|
|
52
|
|
|
96
|
|
|||
Net gain on sale of businesses
|
3,294
|
|
|
—
|
|
|
—
|
|
|||
Other income (expenses) – net
|
18
|
|
|
4
|
|
|
23
|
|
|||
Operating Profit
|
5,247
|
|
|
2,444
|
|
|
2,247
|
|
|||
Interest expense – net
|
202
|
|
|
161
|
|
|
190
|
|
|||
Net pension and OPEB cost (benefit), excluding service cost
|
(4
|
)
|
|
(4
|
)
|
|
9
|
|
|||
Income From Continuing Operations Before Income Taxes and Equity Investments
|
5,049
|
|
|
2,287
|
|
|
2,048
|
|
|||
Income taxes on continuing operations
|
817
|
|
|
1,026
|
|
|
551
|
|
|||
Income From Continuing Operations Before Equity Investments
|
4,232
|
|
|
1,261
|
|
|
1,497
|
|
|||
Income from equity investments
|
56
|
|
|
47
|
|
|
41
|
|
|||
Income From Continuing Operations (Including Noncontrolling Interests)
|
4,288
|
|
|
1,308
|
|
|
1,538
|
|
|||
Income from discontinued operations, net of tax
|
117
|
|
|
—
|
|
|
—
|
|
|||
Net Income (Including Noncontrolling Interests)
|
4,405
|
|
|
1,308
|
|
|
1,538
|
|
|||
Less: noncontrolling interests from continuing operations
|
(15
|
)
|
|
(61
|
)
|
|
(38
|
)
|
|||
Less: noncontrolling interests from discontinued operations
|
(9
|
)
|
|
—
|
|
|
—
|
|
|||
Net Income – Linde plc
|
$
|
4,381
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
|
|
|
|
|
|
||||||
Net Income – Linde plc
|
|
|
|
|
|
||||||
Income from continuing operations
|
$
|
4,273
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
Income from discontinued operations
|
$
|
108
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
||||||
Per Share Data – Linde plc Shareholders
|
|
|
|
|
|
||||||
Basic earnings per share from continuing operations
|
$
|
12.93
|
|
|
$
|
4.36
|
|
|
$
|
5.25
|
|
Basic earnings per share from discontinued operations
|
0.33
|
|
|
—
|
|
|
—
|
|
|||
Basic earnings per share
|
$
|
13.26
|
|
|
$
|
4.36
|
|
|
$
|
5.25
|
|
Diluted earnings per share from continuing operations
|
$
|
12.79
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
Diluted earnings per share from discontinued operations
|
0.32
|
|
|
—
|
|
|
—
|
|
|||
Diluted earnings per share
|
$
|
13.11
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
|
|
|
|
|
|
||||||
Weighted Average Shares Outstanding (000’s):
|
|
|
|
|
|
||||||
Basic shares outstanding
|
330,401
|
|
|
286,261
|
|
|
285,677
|
|
|||
Diluted shares outstanding
|
334,127
|
|
|
289,114
|
|
|
287,757
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
NET INCOME (INCLUDING NONCONTROLLING INTERESTS)
|
$
|
4,405
|
|
|
$
|
1,308
|
|
|
$
|
1,538
|
|
|
|
|
|
|
|
||||||
OTHER COMPREHENSIVE INCOME (LOSS)
|
|
|
|
|
|
||||||
Translation adjustments:
|
|
|
|
|
|
||||||
Foreign currency translation adjustments
|
(401
|
)
|
|
433
|
|
|
116
|
|
|||
Reclassifications to net income (Note 4)
|
318
|
|
|
—
|
|
|
—
|
|
|||
Income taxes
|
7
|
|
|
92
|
|
|
(48
|
)
|
|||
Translation adjustments
|
(76
|
)
|
|
525
|
|
|
68
|
|
|||
Funded status - retirement obligations (Note 18):
|
|
|
|
|
|
||||||
Retirement program remeasurements
|
(260
|
)
|
|
(39
|
)
|
|
(163
|
)
|
|||
Reclassifications to net income
|
94
|
|
|
55
|
|
|
60
|
|
|||
Income taxes
|
(55
|
)
|
|
(5
|
)
|
|
27
|
|
|||
Funded status - retirement obligations
|
(221
|
)
|
|
11
|
|
|
(76
|
)
|
|||
Derivative instruments (Note 14):
|
|
|
|
|
|
||||||
Current year unrealized gain (loss)
|
—
|
|
|
—
|
|
|
1
|
|
|||
Reclassifications to net income
|
(1
|
)
|
|
—
|
|
|
(1
|
)
|
|||
Income taxes
|
—
|
|
|
—
|
|
|
—
|
|
|||
Derivative instruments
|
(1
|
)
|
|
—
|
|
|
—
|
|
|||
Securities (Note 9):
|
|
|
|
|
|
||||||
Current year unrealized gain (loss)
|
(1
|
)
|
|
—
|
|
|
—
|
|
|||
Reclassifications to net income
|
—
|
|
|
—
|
|
|
—
|
|
|||
Income taxes
|
—
|
|
|
—
|
|
|
—
|
|
|||
Securities
|
(1
|
)
|
|
—
|
|
|
—
|
|
|||
TOTAL OTHER COMPREHENSIVE INCOME (LOSS)
|
(299
|
)
|
|
536
|
|
|
(8
|
)
|
|||
|
|
|
|
|
|
||||||
COMPREHENSIVE INCOME (INCLUDING NONCONTROLLING INTERESTS)
|
4,106
|
|
|
1,844
|
|
|
1,530
|
|
|||
Less: noncontrolling interests
|
(83
|
)
|
|
(95
|
)
|
|
(34
|
)
|
|||
COMPREHENSIVE INCOME - LINDE PLC
|
$
|
4,023
|
|
|
$
|
1,749
|
|
|
$
|
1,496
|
|
December 31,
|
2018
|
|
2017
|
||||
Assets
|
|
|
|
||||
Cash and cash equivalents
|
$
|
4,466
|
|
|
$
|
617
|
|
Accounts receivable – net
|
4,297
|
|
|
1,710
|
|
||
Contract assets
|
283
|
|
|
—
|
|
||
Inventories
|
1,651
|
|
|
614
|
|
||
Assets held for sale
|
5,498
|
|
|
—
|
|
||
Prepaid and other current assets
|
1,077
|
|
|
344
|
|
||
Total Current Assets
|
17,272
|
|
|
3,285
|
|
||
Property, plant and equipment – net
|
29,717
|
|
|
11,825
|
|
||
Equity investments
|
1,838
|
|
|
727
|
|
||
Goodwill
|
26,874
|
|
|
3,233
|
|
||
Other intangible assets – net
|
16,223
|
|
|
785
|
|
||
Other long-term assets
|
1,462
|
|
|
581
|
|
||
Total Assets
|
$
|
93,386
|
|
|
$
|
20,436
|
|
Liabilities and Equity
|
|
|
|
||||
Accounts payable
|
$
|
3,219
|
|
|
$
|
922
|
|
Short-term debt
|
1,485
|
|
|
238
|
|
||
Current portion of long-term debt
|
1,523
|
|
|
979
|
|
||
Contract liabilities
|
1,546
|
|
|
—
|
|
||
Accrued taxes
|
657
|
|
|
242
|
|
||
Liabilities of assets held for sale
|
768
|
|
|
—
|
|
||
Other current liabilities
|
3,758
|
|
|
926
|
|
||
Total Current Liabilities
|
12,956
|
|
|
3,307
|
|
||
Long-term debt
|
12,288
|
|
|
7,783
|
|
||
Other long-term liabilities
|
3,435
|
|
|
1,588
|
|
||
Deferred credits
|
7,611
|
|
|
1,236
|
|
||
Total Liabilities
|
36,290
|
|
|
13,914
|
|
||
Commitments and contingencies (Note 19)
|
|
|
|
||||
Redeemable noncontrolling interests
|
16
|
|
|
11
|
|
||
Linde plc Shareholders’ Equity:
|
|
|
|
||||
Ordinary shares (2018: €0.001 par value, authorized 1,750,000,000 shares, issued 551,310,272 ordinary shares; 2017: and Common stock $0.01 par value, authorized 800,000,000 shares, issued 383,230,625 shares)
|
1
|
|
|
4
|
|
||
Additional paid-in capital
|
40,151
|
|
|
4,084
|
|
||
Retained earnings
|
16,529
|
|
|
13,224
|
|
||
Accumulated other comprehensive income (loss)
|
(4,456
|
)
|
|
(4,098
|
)
|
||
Less: Treasury stock, at cost (2018 – 4,068,642 shares and
2017 – 96,453,634 shares)
|
(629
|
)
|
|
(7,196
|
)
|
||
Total Linde plc Shareholders’ Equity
|
51,596
|
|
|
6,018
|
|
||
Noncontrolling interests
|
5,484
|
|
|
493
|
|
||
Total Equity
|
57,080
|
|
|
6,511
|
|
||
Total Liabilities and Equity
|
$
|
93,386
|
|
|
$
|
20,436
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Increase (Decrease) in Cash and Cash Equivalents
|
|
|
|
|
|
||||||
Operations
|
|
|
|
|
|
||||||
Net income – Linde plc
|
$
|
4,381
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
Less: income from discontinued operations, net of tax and noncontrolling interests
|
(108
|
)
|
|
—
|
|
|
—
|
|
|||
Add: Noncontrolling interests from continuing operations
|
15
|
|
|
61
|
|
|
38
|
|
|||
Income from continuing operations (including noncontrolling interests)
|
$
|
4,288
|
|
|
$
|
1,308
|
|
|
$
|
1,538
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
|
|
||||||
Transaction costs and other charges, net of payments
|
40
|
|
|
26
|
|
|
83
|
|
|||
Amortization of merger-related inventory step-up
|
368
|
|
|
—
|
|
|
—
|
|
|||
Tax Act income tax charge, net
|
(61
|
)
|
|
394
|
|
|
—
|
|
|||
Depreciation and amortization
|
1,830
|
|
|
1,184
|
|
|
1,122
|
|
|||
Deferred income taxes, excluding Tax Act
|
(187
|
)
|
|
136
|
|
|
(13
|
)
|
|||
Share-based compensation
|
62
|
|
|
59
|
|
|
39
|
|
|||
Net gain on sale of businesses, net of tax
|
(2,923
|
)
|
|
—
|
|
|
—
|
|
|||
Non-cash charges and other
|
175
|
|
|
43
|
|
|
(43
|
)
|
|||
Working capital
|
|
|
|
|
|
||||||
Accounts receivable
|
(124
|
)
|
|
(92
|
)
|
|
(33
|
)
|
|||
Inventory
|
(4
|
)
|
|
(22
|
)
|
|
(13
|
)
|
|||
Prepaid and other current assets
|
43
|
|
|
(66
|
)
|
|
6
|
|
|||
Payables and accruals
|
287
|
|
|
22
|
|
|
92
|
|
|||
Pension contributions
|
(87
|
)
|
|
(19
|
)
|
|
(11
|
)
|
|||
Long-term assets, liabilities and other
|
(53
|
)
|
|
68
|
|
|
22
|
|
|||
Net cash provided by operating activities
|
3,654
|
|
|
3,041
|
|
|
2,789
|
|
|||
Investing
|
|
|
|
|
|
||||||
Capital expenditures
|
(1,883
|
)
|
|
(1,311
|
)
|
|
(1,465
|
)
|
|||
Acquisitions, net of cash acquired
|
(25
|
)
|
|
(33
|
)
|
|
(363
|
)
|
|||
Divestitures and asset sales, net of cash divested
|
5,908
|
|
|
30
|
|
|
58
|
|
|||
Cash acquired in merger transaction
|
1,363
|
|
|
—
|
|
|
—
|
|
|||
Net cash provided by (used for) investing activities
|
5,363
|
|
|
(1,314
|
)
|
|
(1,770
|
)
|
|||
Financing
|
|
|
|
|
|
||||||
Short-term debt borrowings (repayments) – net
|
208
|
|
|
(199
|
)
|
|
191
|
|
|||
Long-term debt borrowings
|
8
|
|
|
11
|
|
|
936
|
|
|||
Long-term debt repayments
|
(3,124
|
)
|
|
(583
|
)
|
|
(770
|
)
|
|||
Issuances of ordinary shares
|
77
|
|
|
120
|
|
|
139
|
|
|||
Purchases of ordinary shares
|
(599
|
)
|
|
(12
|
)
|
|
(228
|
)
|
|||
Cash dividends – Linde plc shareholders
|
(1,166
|
)
|
|
(901
|
)
|
|
(856
|
)
|
|||
Noncontrolling interest transactions and other
|
(402
|
)
|
|
(92
|
)
|
|
(71
|
)
|
|||
Net cash used for financing activities
|
(4,998
|
)
|
|
(1,656
|
)
|
|
(659
|
)
|
|||
Discontinued Operations
|
|
|
|
|
|
||||||
Cash provided by operating activities
|
$
|
48
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Cash used for investing activities
|
(23
|
)
|
|
—
|
|
|
—
|
|
|||
Cash provided by financing activities
|
2
|
|
|
—
|
|
|
—
|
|
|||
Net cash provided by discontinued operations
|
27
|
|
|
—
|
|
|
—
|
|
|||
Effect of exchange rate changes on cash and cash equivalents
|
(60
|
)
|
|
22
|
|
|
17
|
|
|||
Change in cash and cash equivalents
|
3,986
|
|
|
93
|
|
|
377
|
|
|||
Cash and cash equivalents, beginning-of-period
|
617
|
|
|
524
|
|
|
147
|
|
|||
Cash and cash equivalents, including discontinued operations
|
$
|
4,603
|
|
|
$
|
617
|
|
|
$
|
524
|
|
Cash and cash equivalents of discontinued operations
|
(137
|
)
|
|
—
|
|
|
—
|
|
Cash and cash equivalents, end-of-period
|
$
|
4,466
|
|
|
$
|
617
|
|
|
$
|
524
|
|
|
|
|
|
|
|
||||||
Supplemental Data
|
|
|
|
|
|
||||||
Income taxes paid
|
$
|
757
|
|
|
$
|
565
|
|
|
$
|
585
|
|
Interest paid, net of capitalized interest (Note 9)
|
$
|
214
|
|
|
$
|
184
|
|
|
$
|
189
|
|
|
Linde plc Shareholders’ Equity
|
|
|
|
|
||||||||||||||||||||||||||||||||
|
Ordinary shares
|
|
Additional
Paid-in
Capital
|
|
Retained
Earnings
|
|
Accumulated Other
Comprehensive
Income (Loss)
(Note 9)
|
|
Treasury Stock
|
|
Linde plc
Shareholders’
Equity
|
|
Noncontrolling
Interests
|
|
Total Equity
|
||||||||||||||||||||||
Activity
|
Shares
|
|
Amounts
|
|
Shares
|
|
Amounts
|
|
|||||||||||||||||||||||||||||
Balance, December 31, 2015
|
383,231
|
|
|
$
|
4
|
|
|
$
|
4,005
|
|
|
$
|
12,229
|
|
|
$
|
(4,596
|
)
|
|
98,352
|
|
|
$
|
(7,253
|
)
|
|
$
|
4,389
|
|
|
$
|
404
|
|
|
$
|
4,793
|
|
Net Income
|
|
|
|
|
|
|
1,500
|
|
|
|
|
|
|
|
|
1,500
|
|
|
35
|
|
|
1,535
|
|
||||||||||||||
Other comprehensive income (loss)
|
|
|
|
|
|
|
|
|
(4
|
)
|
|
|
|
|
|
(4
|
)
|
|
(11
|
)
|
|
(15
|
)
|
||||||||||||||
Noncontrolling interests:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Dividends and other capital reductions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
—
|
|
|
(28
|
)
|
|
(28
|
)
|
|||||||||||||||
Additions (Reductions)
|
|
|
|
|
50
|
|
|
|
|
|
|
|
|
|
|
50
|
|
|
20
|
|
|
70
|
|
||||||||||||||
Redemption value adjustments (Note 16)
|
|
|
|
|
|
|
6
|
|
|
|
|
|
|
|
|
6
|
|
|
|
|
6
|
|
|||||||||||||||
Dividends ($3.00 per common share)
|
|
|
|
|
|
|
(856
|
)
|
|
|
|
|
|
|
|
(856
|
)
|
|
|
|
(856
|
)
|
|||||||||||||||
Issuances of common stock:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
For the dividend reinvestment and stock purchase plan
|
|
|
|
|
|
|
|
|
|
|
(60
|
)
|
|
7
|
|
|
7
|
|
|
|
|
7
|
|
||||||||||||||
For employee savings and incentive plans
|
|
|
|
|
(20
|
)
|
|
|
|
|
|
(2,044
|
)
|
|
143
|
|
|
123
|
|
|
|
|
123
|
|
|||||||||||||
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
5
|
|
|
5
|
|
|
|
|
5
|
|
|||||||||||||||
Purchases of common stock
|
|
|
|
|
|
|
|
|
|
|
2,082
|
|
|
(238
|
)
|
|
(238
|
)
|
|
|
|
(238
|
)
|
||||||||||||||
Share-based compensation
|
|
|
|
|
39
|
|
|
|
|
|
|
|
|
|
|
39
|
|
|
|
|
39
|
|
|||||||||||||||
Balance, December 31, 2016
|
383,231
|
|
|
$
|
4
|
|
|
$
|
4,074
|
|
|
$
|
12,879
|
|
|
$
|
(4,600
|
)
|
|
98,330
|
|
|
$
|
(7,336
|
)
|
|
$
|
5,021
|
|
|
$
|
420
|
|
|
$
|
5,441
|
|
Net Income
|
|
|
|
|
|
|
1,247
|
|
|
|
|
|
|
|
|
1,247
|
|
|
59
|
|
|
1,306
|
|
||||||||||||||
Other comprehensive income (loss)
|
|
|
|
|
|
|
|
|
502
|
|
|
|
|
|
|
502
|
|
|
34
|
|
|
536
|
|
||||||||||||||
Noncontrolling interests:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Dividends and other capital reductions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
—
|
|
|
(35
|
)
|
|
(35
|
)
|
|||||||||||||||
Additions (Reductions)
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
—
|
|
|
15
|
|
|
15
|
|
||||||||||||||
Redemption value adjustments (Note 16)
|
|
|
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
(1
|
)
|
|
|
|
(1
|
)
|
|||||||||||||||
Dividends ($3.15 per common share)
|
|
|
|
|
|
|
(901
|
)
|
|
|
|
|
|
|
|
(901
|
)
|
|
|
|
(901
|
)
|
|
Linde plc Shareholders’ Equity
|
|
|
|
|
||||||||||||||||||||||||||||||||
|
Ordinary shares
|
|
Additional
Paid-in
Capital
|
|
Retained
Earnings
|
|
Accumulated Other
Comprehensive
Income (Loss)
(Note 9)
|
|
Treasury Stock
|
|
Linde plc
Shareholders’
Equity
|
|
Noncontrolling
Interests
|
|
Total Equity
|
||||||||||||||||||||||
Activity
|
Shares
|
|
Amounts
|
|
Shares
|
|
Amounts
|
|
|||||||||||||||||||||||||||||
Issuances of common stock:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
For the dividend reinvestment and stock purchase plan
|
|
|
|
|
|
|
|
|
|
|
(50
|
)
|
|
7
|
|
|
7
|
|
|
|
|
7
|
|
||||||||||||||
For employee savings and incentive plans
|
|
|
|
|
(49
|
)
|
|
|
|
|
|
(1,835
|
)
|
|
134
|
|
|
85
|
|
|
|
|
85
|
|
|||||||||||||
Purchases of common stock
|
|
|
|
|
|
|
|
|
|
|
9
|
|
|
(1
|
)
|
|
(1
|
)
|
|
|
|
(1
|
)
|
||||||||||||||
Share-based compensation
|
|
|
|
|
59
|
|
|
|
|
|
|
|
|
|
|
59
|
|
|
|
|
59
|
|
|||||||||||||||
Balance, December 31, 2017
|
383,231
|
|
|
$
|
4
|
|
|
$
|
4,084
|
|
|
$
|
13,224
|
|
|
$
|
(4,098
|
)
|
|
96,454
|
|
|
$
|
(7,196
|
)
|
|
$
|
6,018
|
|
|
$
|
493
|
|
|
$
|
6,511
|
|
Net Income available for Linde plc shareholders
|
|
|
|
|
|
|
4,381
|
|
|
|
|
|
|
|
|
4,381
|
|
|
21
|
|
|
4,402
|
|
||||||||||||||
Other comprehensive loss
|
|
|
|
|
|
|
|
|
(265
|
)
|
|
|
|
|
|
(265
|
)
|
|
59
|
|
|
(206
|
)
|
||||||||||||||
Noncontrolling interests:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Dividends and other capital reductions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
—
|
|
|
(49
|
)
|
|
(49
|
)
|
|||||||||||||||
Additions (Reductions) - (Note 16)
|
|
|
|
|
(127
|
)
|
|
|
|
|
|
|
|
|
|
(127
|
)
|
|
(186
|
)
|
|
(313
|
)
|
||||||||||||||
Redemption value adjustments (Note 16)
|
|
|
|
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
(3
|
)
|
|
|
|
(3
|
)
|
|||||||||||||||
Dividends ($3.30 per common share)
|
|
|
|
|
|
|
(1,166
|
)
|
|
|
|
|
|
|
|
(1,166
|
)
|
|
|
|
(1,166
|
)
|
|||||||||||||||
Issuances of ordinary shares:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
For the dividend reinvestment and stock purchase plan
|
|
|
|
|
|
|
|
|
|
|
(31
|
)
|
|
5
|
|
|
5
|
|
|
|
|
5
|
|
||||||||||||||
For employee savings and incentive plans
|
255
|
|
|
—
|
|
|
(46
|
)
|
|
|
|
|
|
(1,109
|
)
|
|
79
|
|
|
33
|
|
|
|
|
33
|
|
|||||||||||
Purchases of ordinary shares
|
|
|
|
|
|
|
|
|
|
|
4,079
|
|
|
(630
|
)
|
|
(630
|
)
|
|
|
|
(630
|
)
|
||||||||||||||
Share-based compensation
|
|
|
|
|
62
|
|
|
|
|
|
|
|
|
|
|
62
|
|
|
|
|
62
|
|
|||||||||||||||
Tax Act Reclassification (Note 7)
|
|
|
|
|
|
|
93
|
|
|
(93
|
)
|
|
|
|
|
|
—
|
|
|
|
|
—
|
|
||||||||||||||
Impact of merger (Notes 3 and 16)
|
167,824
|
|
|
(3
|
)
|
|
36,178
|
|
|
|
|
|
|
(95,324
|
)
|
|
7,113
|
|
|
43,288
|
|
|
5,146
|
|
|
48,434
|
|
||||||||||
Balance, December 31, 2018
|
551,310
|
|
|
$
|
1
|
|
|
$
|
40,151
|
|
|
$
|
16,529
|
|
|
$
|
(4,456
|
)
|
|
4,069
|
|
|
$
|
(629
|
)
|
|
$
|
51,596
|
|
|
$
|
5,484
|
|
|
$
|
57,080
|
|
•
|
Revenue Recognition
– In May 2014, the Financial Accounting Standards Board ("FASB") issued updated guidance on the reporting and disclosure of revenue. Effective January 1, 2018, Linde has adopted this guidance using the modified retrospective transition method. No material differences in revenue recognition accounting were identified under the new guidance compared with the company's historic revenue recognition accounting (see Note 21).
|
•
|
Classification of Certain Cash Receipts and Cash Payments
– In August 2016, the FASB issued updated guidance on the classification of certain cash receipts and cash payments within the statement of cash flows. The update provides accounting guidance for specific cash flow issues with the objective of reducing diversity in practice. The adoption of this guidance did not have a material impact on the financial statements.
|
•
|
Intra-Entity Asset Transfers
– In October 2016, the FASB issued updated guidance for income tax accounting of intra-entity transfers of assets other than inventory. The update requires an entity to recognize the income tax consequences of an intra-entity transfer of an asset other than inventory in the period when the transfer occurs. The adoption of this guidance did not have a material impact on the financial statements.
|
•
|
Pension Costs
- In March 2017, the FASB issued updated guidance on the presentation of net periodic pension cost and net periodic postretirement benefit cost. The new guidance requires the service cost component be reported in the same line item or items as other compensation costs arising from services rendered by employees during the period. The other components of net benefit cost are required to be presented in the income statement separately from the service cost component and not included within operating profit. This guidance was adopted in the first quarter 2018. Accordingly, non-service related components of net periodic pension and postretirement benefit costs were reclassified out of "Operating Profit" to "Net pension and OPEB cost (benefit), excluding service cost" using the practical expedient to use the amounts disclosed in the retirement benefits note for the prior comparative periods as the estimation basis for applying the retrospective presentation requirements (see Note 18).
|
•
|
Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income
– In February 2018, the FASB issued updated guidance which allows a reclassification from accumulated other comprehensive income to retained earnings for stranded tax effects resulting from the Tax Cuts and Jobs Act. The company adopted this guidance in the fourth quarter of 2018 resulting in a reclassification adjustment of
$93 million
.
|
•
|
Leases
– In February 2016, the FASB issued updated guidance on the accounting and financial statement presentation of leases. The new guidance requires lessees to recognize a right-of-use asset and lease liability for all leases, except those that meet certain scope exceptions, and would require expanded quantitative and qualitative disclosures. This guidance will be effective for the company beginning in the first quarter 2019 and requires companies to transition using a modified retrospective approach. Linde has implemented a new application to administer the accounting and disclosure requirements and is finalizing its determination of the impact the standard will have on its consolidated financial statements.
|
•
|
Credit Losses on Financial Instruments
–
In June 2016, the FASB issued an update on the measurement of credit losses. The guidance introduces a new accounting model for expected credit losses on financial instruments, including trade receivables, based on estimates of current expected credit losses. This guidance will be effective for the company beginning in the first quarter 2020, with early adoption permitted beginning in the first quarter 2019 and requires companies to apply the change in accounting on a prospective basis. The company is currently evaluating the impact this update will have on the consolidated financial statements.
|
•
|
Simplifying the Test for Goodwill Impairment
– In January 2017, the FASB issued updated guidance on the measurement of goodwill. The new guidance eliminates the requirement to calculate the implied fair value of goodwill to measure a goodwill impairment charge. The guidance will be effective for the company beginning in the first quarter 2020 with early adoption permitted. The company does not expect this guidance to have a material impact.
|
•
|
Derivatives and Hedging
- In August 2017, the FASB issued updated guidance on accounting for hedging activities. The new guidance changes both the designation and measurement for qualifying hedging relationships and the presentation of hedge results. This guidance will be effective for the company
|
|
(i)
|
Number of Linde AG shares tendered in the 2017 Exchange Offer.
|
|
(ii)
|
Exchange ratio for Linde AG shares as set forth in the business combination agreement.
|
|
(iii)
|
Closing price of Praxair shares on the New York Stock Exchange prior to the effective time of the business combination on October 31, 2018.
|
Millions of dollars
|
Estimated Fair Value
|
||
Assets
|
|
||
Cash and cash equivalents
|
$
|
1,363
|
|
Accounts receivable – net
|
2,859
|
|
|
Inventories
|
1,452
|
|
|
Assets held for sale
|
5,180
|
|
|
Prepaid and other current assets
|
1,251
|
|
|
Property, plant and equipment
|
19,381
|
|
|
Equity investments
|
1,395
|
|
|
Goodwill
|
24,146
|
|
|
Other intangible assets
|
15,592
|
|
|
Other long-term assets
|
1,024
|
|
|
Total Assets Acquired
|
$
|
73,643
|
|
Less: Liabilities Assumed
|
|
||
Accounts payable
|
$
|
3,360
|
|
Short-term debt
|
1,177
|
|
|
Current portion of long-term debt
|
1,864
|
|
|
Accrued taxes
|
159
|
|
|
Liabilities of assets held for sale
|
676
|
|
|
Other current liabilities
|
3,016
|
|
|
Long-term debt
|
6,295
|
|
|
Other long-term liabilities
|
1,908
|
|
|
Deferred credits, including deferred income taxes
|
6,754
|
|
|
Total Liabilities Assumed
|
$
|
25,209
|
|
Less: Noncontrolling Interests
|
5,146
|
|
|
Purchase Price (i)
|
$
|
43,288
|
|
|
(i)
|
See above for the calculation of the purchase price.
|
Property, plant and equipment ("PP&E")
|
(in millions)
|
|||
Production plants
|
$
|
10,739
|
|
|
Storage tanks
|
1,809
|
|
||
Transportation equipment and other
|
574
|
|
||
Cylinders
|
2,493
|
|
||
Buildings
|
1,970
|
|
||
Land and improvements
|
647
|
|
||
Construction in progress
|
1,149
|
|
||
Preliminary fair value of PP&E
|
$
|
19,381
|
|
|
Weighted Average Amortization Period (in years)
|
|
(in millions)
|
|||
Identifiable intangible assets
|
|
|
|
|||
|
Customer relationships
|
27
|
|
$
|
12,555
|
|
|
Linde Brand
|
Indefinite
|
|
1,648
|
|
|
|
Brands/Tradenames
|
27
|
|
578
|
|
|
|
Other intangibles
|
8
|
|
811
|
|
|
Preliminary fair value of identifiable intangible assets
|
26
|
|
$
|
15,592
|
|
Millions of dollars
Linde AG Results of Operations
|
November 1, - December 31, 2018
|
||
Sales
|
$
|
2,873
|
|
Income (loss) from continuing operations*
|
$
|
(385
|
)
|
Millions of dollars
|
2018
|
|
2017
|
||||
Sales (a)
|
$
|
29,774
|
|
|
$
|
28,449
|
|
Income from continuing operations
|
$
|
4,739
|
|
|
$
|
871
|
|
•
|
The Società Italiana Acetilene e Derivati S.p.A. ("SIAD") Sale and Purchase Agreement dated December 5, 2017 whereby Praxair agreed,
inter alia
, to sell its
34%
non-controlling participation in its Italian joint venture SIAD to its joint venture partner Flow Fin in exchange for Flow Fin’s
40%
non-controlling participation in Praxair’s majority-owned Italian joint venture, Rivoira S.p.A., and cash payment of a net purchase price of
€90 million
(
$102 million
as of October 31, 2018) by Praxair to Flow Fin. This transaction was completed on October 31, 2018, and;
|
•
|
The Praxair Europe Sale and Purchase Agreement dated July 5, 2018 pursuant to which Praxair sold the majority of its European businesses to Taiyo Nippon Sanso Corporation for
€5,000 million
in cash consideration (
$5,700 million
at December 3, 2018), reduced by estimated normal closing adjustments of
€86 million
(
$96 million
). These transactions were completed on December 3, 2018.
|
Millions of dollars
|
Carrying Value
|
||
Assets
|
|
||
Cash and cash equivalents
|
$
|
38
|
|
Accounts receivable – net
|
311
|
|
|
Inventories
|
67
|
|
|
Prepaid and other current assets
|
22
|
|
|
Property, plant and equipment – net
|
1,342
|
|
|
Equity investments
|
234
|
|
|
Goodwill
|
620
|
|
|
Other intangible assets – net
|
115
|
|
|
Other long-term assets
|
36
|
|
|
Total Assets Divested
|
$
|
2,785
|
|
Liabilities
|
|
||
Accounts payable
|
$
|
215
|
|
Accrued taxes
|
27
|
|
|
Other current liabilities
|
111
|
|
|
Long-term debt
|
2
|
|
|
Other long-term liabilities
|
92
|
|
|
Deferred credits
|
174
|
|
|
Total Liabilities Divested
|
$
|
621
|
|
Noncontrolling interests
|
$
|
200
|
|
Accumulated other comprehensive income (loss)
|
|
||
Pension/OPEB funded status obligation, net of taxes
|
(8
|
)
|
|
Cumulative translation adjustment, net of taxes
|
(318
|
)
|
|
Net Assets Divested
|
$
|
2,290
|
|
•
|
Praxair's Chilean business which will be sold as part of the Americas' SPA (as defined below) for
$21 million
proceeds which is further described below.
|
•
|
Various transactions within China, India and South Korea.
|
•
|
The Linde AG Americas Sales and Purchase Agreement, dated July 16, 2018, as and further amended on September 22, 2018, October 19, 2018, and February 20, 2019 whereby Linde AG and Praxair, Inc. entered into an agreement with a consortium comprising companies of the German industrial gases manufacturer Messer Group and CVC Capital Partners Fund VII to sell the majority of Linde AG’s industrial gases business in North America and certain industrial gases business activities of Linde AG's in South America for
$2.97 billion
in cash consideration after purchase price adjustments for certain items relating to assets and liabilities
|
•
|
Various transactions within China, India and South Korea.
|
Millions of dollars
|
November 1, - December 31, 2018
|
||
Net sales
|
$
|
388
|
|
Cost of sales
|
173
|
|
|
Other operating costs
|
90
|
|
|
Operating profit
|
$
|
125
|
|
Income from equity investments
|
1
|
|
|
Income taxes
|
9
|
|
|
Income from discontinued operations, net of tax
|
$
|
117
|
|
Noncontrolling interests
|
(9
|
)
|
|
Income from discontinued operations, net of tax and noncontrolling interests
|
$
|
108
|
|
Millions of dollars
|
Carrying / Fair Market Value
|
||
Assets
|
|
||
Cash and cash equivalents
|
$
|
182
|
|
Accounts receivable – net
|
297
|
|
|
Inventories
|
209
|
|
|
Prepaid and other current assets
|
54
|
|
|
Property, plant and equipment – net
|
2,005
|
|
|
Other Assets
|
187
|
|
|
Asset adjustments for estimated fair value (Note 3)
|
2,564
|
|
|
Total Assets Classified as Assets Held for Sale
|
$
|
5,498
|
|
Liabilities
|
|
||
Accounts payable
|
125
|
|
|
Deferred credits
|
206
|
|
|
Other liabilities
|
437
|
|
|
Total Liabilities Classified as Assets Held for Sale
|
768
|
|
|
Net Assets Classified as Held for Sale
|
$
|
4,730
|
|
(millions of dollars)
|
Severance costs
|
|
Other Charges
|
|
Total
|
||||||
North America
|
$
|
14
|
|
|
$
|
29
|
|
|
$
|
43
|
|
Europe
|
12
|
|
|
3
|
|
|
15
|
|
|||
South America
|
5
|
|
|
7
|
|
|
12
|
|
|||
Asia
|
6
|
|
|
13
|
|
|
19
|
|
|||
Surface Technologies
|
3
|
|
|
4
|
|
|
7
|
|
|||
Total
|
$
|
40
|
|
|
$
|
56
|
|
|
$
|
96
|
|
(Millions of dollars)
|
|
||
2019
|
$
|
305
|
|
2020
|
236
|
|
|
2021
|
186
|
|
|
2022
|
145
|
|
|
2023
|
102
|
|
|
Thereafter
|
326
|
|
|
|
$
|
1,300
|
|
(Millions of dollars)
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
United States
|
$
|
931
|
|
|
$
|
1,003
|
|
|
$
|
954
|
|
Foreign (a)
|
4,118
|
|
|
1,284
|
|
|
1,094
|
|
|||
Total income before income taxes
|
$
|
5,049
|
|
|
$
|
2,287
|
|
|
$
|
2,048
|
|
(a)
|
Includes a benefit of
$61 million
and a charge of
$394 million
related to the Tax Act in 2018 and 2017, respectively and a charge of
$371 million
related to divestitures in 2018 (see Note 4) as follows:
|
|
2018
|
|
2017
|
||||
Current tax expense (benefit)
|
|
|
|
||||
U.S. federal
|
$
|
219
|
|
|
$
|
414
|
|
State and local
|
(36
|
)
|
|
53
|
|
||
Foreign
|
114
|
|
|
60
|
|
||
|
297
|
|
|
527
|
|
||
Deferred tax expense (benefit)
|
|
|
|
||||
U.S. federal
|
6
|
|
|
(333
|
)
|
||
State and local
|
7
|
|
|
—
|
|
||
Foreign
|
—
|
|
|
200
|
|
||
|
13
|
|
|
(133
|
)
|
||
Total income taxes
|
$
|
310
|
|
|
$
|
394
|
|
(Dollar amounts in millions)
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
|||||||||||||||
U.S. statutory income tax
|
$
|
1,060
|
|
|
21.0
|
%
|
|
$
|
801
|
|
|
35.0
|
%
|
|
$
|
717
|
|
|
35.0
|
%
|
State and local taxes – net of federal benefit
|
30
|
|
|
0.6
|
%
|
|
32
|
|
|
1.4
|
%
|
|
28
|
|
|
1.4
|
%
|
|||
U.S. tax credits and deductions (a)
|
(12
|
)
|
|
(0.2
|
)%
|
|
(27
|
)
|
|
(1.2
|
)%
|
|
(32
|
)
|
|
(1.6
|
)%
|
|||
Foreign tax differentials (b)
|
57
|
|
|
1.1
|
%
|
|
(145
|
)
|
|
(6.3
|
)%
|
|
(140
|
)
|
|
(6.8
|
)%
|
|||
Share Based Compensation
|
(22
|
)
|
|
(0.4
|
)%
|
|
(35
|
)
|
|
(1.5
|
)%
|
|
(20
|
)
|
|
(1.0
|
)%
|
|||
Tax Act
|
(61
|
)
|
|
(1.2
|
)%
|
|
394
|
|
|
17.2
|
%
|
|
—
|
|
|
—
|
%
|
|||
Divestitures (c)
|
(321
|
)
|
|
(6.4
|
)%
|
|
—
|
|
|
—
|
%
|
|
—
|
|
|
—
|
%
|
|||
Other – net (d)
|
86
|
|
|
1.7
|
%
|
|
6
|
|
|
0.3
|
%
|
|
(2
|
)
|
|
(0.1
|
)%
|
|||
Provision for income taxes
|
$
|
817
|
|
|
16.2
|
%
|
|
$
|
1,026
|
|
|
44.9
|
%
|
|
$
|
551
|
|
|
26.9
|
%
|
(a)
|
U.S. tax credits and deductions relate to foreign derived intangible income in 2018, the research and experimentation tax credit in 2018, 2017 and 2016 and manufacturing deduction in years 2017 and 2016.
|
(b)
|
Primarily related to differences between the U.S. tax rate (
21%
in year 2018 and
35%
in years 2017 and 2016) and the statutory tax rate in the countries where the company operates. Other permanent items and tax rate changes were not significant.
|
(c)
|
Divestitures primarily relate to the sale of the company’s European business (see Note 4).
|
(d)
|
Other - net includes
$34 million
of U.S tax related to GILTI in 2018 and an increase in unrecognized tax benefits in Europe of
$44 million
.
|
(Millions of dollars)
December 31,
|
2018
|
|
2017
|
||||
Deferred tax liabilities
|
|
|
|
||||
Fixed assets
|
$
|
3,935
|
|
|
$
|
1,128
|
|
Goodwill
|
124
|
|
|
143
|
|
||
Other intangible assets
|
3,684
|
|
|
72
|
|
||
Subsidiary/equity investments
|
570
|
|
|
200
|
|
||
Other
|
648
|
|
|
93
|
|
||
|
$
|
8,961
|
|
|
$
|
1,636
|
|
Deferred tax assets
|
|
|
|
||||
Carryforwards
|
$
|
526
|
|
|
$
|
209
|
|
Benefit plans and related (a)
|
575
|
|
|
257
|
|
||
Inventory
|
63
|
|
|
16
|
|
||
Accruals and other (b)
|
1,112
|
|
|
261
|
|
||
|
$
|
2,276
|
|
|
$
|
743
|
|
Less: Valuation allowances (c)
|
(237
|
)
|
|
(76
|
)
|
||
|
$
|
2,039
|
|
|
$
|
667
|
|
Net deferred tax liabilities
|
$
|
6,922
|
|
|
$
|
969
|
|
Recorded in the consolidated balance sheets as (Note 9):
|
|
|
|
||||
Other long-term assets
|
510
|
|
|
198
|
|
||
Deferred credits
|
7,432
|
|
|
1,167
|
|
||
|
$
|
6,922
|
|
|
$
|
969
|
|
(a)
|
Includes deferred taxes of
$292 million
and
$217 million
in
2018
and
2017
, respectively, related to pension / OPEB funded status (see Notes 9 and 18).
|
(b)
|
Includes
$104 million
and
$130 million
in
2018
and
2017
, respectively, related to research and development costs.
|
(c)
|
Summary of valuation allowances relating to deferred tax assets follows (millions of dollars):
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
|
Balance, January 1,
|
$
|
(76
|
)
|
|
$
|
(132
|
)
|
|
$
|
(123
|
)
|
|
Income tax (charge) benefit (i)
|
(51
|
)
|
|
59
|
|
|
(13
|
)
|
|||
|
Merger with Linde AG
|
(121
|
)
|
|
—
|
|
|
—
|
|
|||
|
Other, including write-offs
|
7
|
|
|
—
|
|
|
6
|
|
|||
|
Translation adjustments
|
4
|
|
|
(3
|
)
|
|
(2
|
)
|
|||
|
Balance, December 31,
|
$
|
(237
|
)
|
|
$
|
(76
|
)
|
|
$
|
(132
|
)
|
(i)
|
2017
includes a
$59 million
benefit related to the utilization of foreign tax credits under the Tax Act.
|
(Millions of dollars)
|
2018
|
|
2017
|
|
2016
|
||||||
Unrecognized income tax benefits, January 1
|
$
|
54
|
|
|
$
|
56
|
|
|
$
|
68
|
|
Additions for tax positions of prior years (a)
|
104
|
|
|
48
|
|
|
6
|
|
|||
Reductions for tax positions of prior years
|
(7
|
)
|
|
(26
|
)
|
|
(15
|
)
|
|||
Additions for current year tax positions (b)
|
179
|
|
|
—
|
|
|
—
|
|
|||
Reductions for settlements with taxing authorities (c)
|
(3
|
)
|
|
(26
|
)
|
|
(2
|
)
|
|||
Foreign currency translation and other
|
(8
|
)
|
|
2
|
|
|
(1
|
)
|
|||
Unrecognized income tax benefits, December 31
|
$
|
319
|
|
|
$
|
54
|
|
|
$
|
56
|
|
(a)
|
Increase primarily relates to tax positions in the United States and Europe.
|
(b)
|
2018 includes
$167 million
related to the merger with Linde AG.
|
(c)
|
Settlements are uncertain tax positions that were effectively settled with the taxing authorities, including positions where the company has agreed to amend its tax returns to eliminate the uncertainty.
|
|
2018
|
|
2017
|
|
2016
|
||||||
Numerator (millions of dollars)
|
|
|
|
|
|
||||||
Income From Continuing Operations
|
$
|
4,273
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
Income from discontinued operations, net of tax
|
108
|
|
|
—
|
|
|
—
|
|
|||
Net Income – Linde plc
|
$
|
4,381
|
|
|
$
|
1,247
|
|
|
$
|
1,500
|
|
Denominator (thousands of shares)
|
|
|
|
|
|
||||||
Weighted average shares outstanding
|
330,088
|
|
|
285,893
|
|
|
285,289
|
|
|||
Shares earned and issuable under compensation plans
|
313
|
|
|
368
|
|
|
388
|
|
|||
Weighted average shares used in basic earnings per share *
|
330,401
|
|
|
286,261
|
|
|
285,677
|
|
|||
Effect of dilutive securities
|
|
|
|
|
|
||||||
Stock options and awards
|
3,726
|
|
|
2,853
|
|
|
2,080
|
|
|||
Weighted average shares used in diluted earnings per share *
|
334,127
|
|
|
289,114
|
|
|
287,757
|
|
|||
Basic earnings per share from continuing operations
|
$
|
12.93
|
|
|
$
|
4.36
|
|
|
$
|
5.25
|
|
Basic earnings per share from discontinued operations
|
$
|
0.33
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Basic Earnings Per Share
|
$
|
13.26
|
|
|
$
|
4.36
|
|
|
$
|
5.25
|
|
Diluted earnings per share from continuing operations
|
$
|
12.79
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
Diluted earnings per share from discontinued operations
|
$
|
0.32
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Diluted Earnings Per Share
|
$
|
13.11
|
|
|
$
|
4.32
|
|
|
$
|
5.21
|
|
(Millions of dollars)
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Selling, General and Administrative
|
|
|
|
|
|
||||||
Selling
|
$
|
757
|
|
|
$
|
511
|
|
|
$
|
493
|
|
General and administrative
|
872
|
|
|
696
|
|
|
652
|
|
|||
|
$
|
1,629
|
|
|
$
|
1,207
|
|
|
$
|
1,145
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Depreciation and Amortization (a)
|
|
|
|
|
|
||||||
Depreciation
|
$
|
1,615
|
|
|
$
|
1,093
|
|
|
$
|
1,028
|
|
Amortization of other intangibles (Note 12)
|
215
|
|
|
91
|
|
|
94
|
|
|||
|
$
|
1,830
|
|
|
$
|
1,184
|
|
|
$
|
1,122
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Other Income (Expenses) – Net
|
|
|
|
|
|
||||||
Currency related net gains (losses)
|
$
|
4
|
|
|
$
|
(3
|
)
|
|
$
|
1
|
|
Partnership income
|
8
|
|
|
6
|
|
|
5
|
|
|||
Severance expense
|
(7
|
)
|
|
(6
|
)
|
|
(7
|
)
|
|||
Asset divestiture gains (losses) – net
|
6
|
|
|
4
|
|
|
16
|
|
|||
Other – net
|
7
|
|
|
3
|
|
|
8
|
|
|||
|
$
|
18
|
|
|
$
|
4
|
|
|
$
|
23
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Interest Expense – Net
|
|
|
|
|
|
||||||
Interest incurred on debt
|
$
|
196
|
|
|
$
|
189
|
|
|
$
|
208
|
|
Interest capitalized
|
(20
|
)
|
|
(28
|
)
|
|
(34
|
)
|
|||
Bond redemption (b)
|
26
|
|
|
—
|
|
|
16
|
|
|||
|
$
|
202
|
|
|
$
|
161
|
|
|
$
|
190
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Income Attributable to Noncontrolling Interests
|
|
|
|
|
|
||||||
Noncontrolling interests' operations (c)
|
$
|
12
|
|
|
$
|
59
|
|
|
$
|
35
|
|
Redeemable noncontrolling interests' operations (Note 16)
|
3
|
|
|
2
|
|
|
3
|
|
|||
Noncontrolling interests from continuing operations
|
$
|
15
|
|
|
$
|
61
|
|
|
$
|
38
|
|
Noncontrolling interests from discontinued operations
|
$
|
9
|
|
|
$
|
—
|
|
|
$
|
—
|
|
(Millions of dollars)
December 31,
|
2018
|
|
2017
|
||||
Accounts Receivable
|
|
|
|
||||
Trade
|
$
|
4,368
|
|
|
$
|
1,814
|
|
Other
|
42
|
|
|
34
|
|
||
|
4,410
|
|
|
1,848
|
|
||
Less: allowance for doubtful accounts (d)
|
(113
|
)
|
|
(138
|
)
|
||
|
$
|
4,297
|
|
|
$
|
1,710
|
|
December 31,
|
2018
|
|
2017
|
||||
Inventories
|
|
|
|
||||
Raw materials and supplies
|
$
|
339
|
|
|
$
|
224
|
|
Work in process
|
321
|
|
|
57
|
|
||
Finished goods
|
991
|
|
|
333
|
|
||
|
$
|
1,651
|
|
|
$
|
614
|
|
December 31,
|
2018
|
|
2017
|
||||
Prepaid and Other Current Assets
|
|
|
|
||||
Prepaid (e)
|
367
|
|
|
185
|
|
||
VAT Recoverable
|
250
|
|
|
94
|
|
||
Other
|
460
|
|
|
65
|
|
||
|
$
|
1,077
|
|
|
$
|
344
|
|
December 31,
|
2018
|
|
2017
|
||||
Other Long-term Assets
|
|
|
|
||||
Pension assets (Note 18)
|
$
|
140
|
|
|
$
|
17
|
|
Insurance contracts (f)
|
75
|
|
|
74
|
|
||
Long-term receivables, net (g)
|
135
|
|
|
54
|
|
||
Deposits
|
61
|
|
|
70
|
|
||
Investments carried at cost
|
76
|
|
|
12
|
|
||
Deferred charges
|
148
|
|
|
47
|
|
||
Deferred income taxes (Note 7)
|
510
|
|
|
198
|
|
||
Other
|
317
|
|
|
109
|
|
||
|
$
|
1,462
|
|
|
$
|
581
|
|
December 31,
|
2018
|
|
2017
|
||||
Other Current Liabilities
|
|
|
|
||||
Accrued expenses
|
$
|
1,187
|
|
|
$
|
319
|
|
Payroll
|
658
|
|
|
170
|
|
||
VAT Payable
|
235
|
|
|
50
|
|
||
Deferred Income
|
242
|
|
|
9
|
|
||
Pension and postretirement (Note 18)
|
117
|
|
|
30
|
|
||
Interest payable
|
137
|
|
|
81
|
|
||
Employee benefit accrual
|
104
|
|
|
23
|
|
||
Insurance reserves
|
36
|
|
|
12
|
|
||
Other
|
1,042
|
|
|
232
|
|
||
|
$
|
3,758
|
|
|
$
|
926
|
|
December 31,
|
2018
|
|
2017
|
||||
Other Long-term Liabilities
|
|
|
|
||||
Pension and postretirement (Note 18)
|
$
|
2,004
|
|
|
$
|
851
|
|
Tax liabilities for uncertain tax positions
|
191
|
|
|
35
|
|
||
Tax Act liabilities for deemed repatriation (Note 7)
|
265
|
|
|
388
|
|
||
Interest and penalties for uncertain tax positions (Note 7)
|
48
|
|
|
8
|
|
||
Insurance reserves
|
24
|
|
|
23
|
|
||
Other
|
903
|
|
|
283
|
|
||
|
$
|
3,435
|
|
|
$
|
1,588
|
|
December 31,
|
2018
|
|
2017
|
||||
Deferred Credits
|
|
|
|
||||
Deferred income taxes (Note 7)
|
$
|
7,432
|
|
|
$
|
1,167
|
|
Other
|
179
|
|
|
69
|
|
||
|
$
|
7,611
|
|
|
$
|
1,236
|
|
December 31,
|
2018
|
|
2017
|
||||
Accumulated Other Comprehensive Income (Loss)
|
|
|
|
||||
Cumulative translation adjustment - net of taxes:
|
|
|
|
||||
North America (h)
|
$
|
(955
|
)
|
|
$
|
(885
|
)
|
South America (h)
|
(2,347
|
)
|
|
(2,004
|
)
|
||
Europe (h)
|
(185
|
)
|
|
(398
|
)
|
||
Asia (h)
|
(300
|
)
|
|
(151
|
)
|
||
Surface Technologies
|
(34
|
)
|
|
(17
|
)
|
||
Linde AG (h)
|
231
|
|
|
—
|
|
||
|
(3,590
|
)
|
|
(3,455
|
)
|
||
Derivatives – net of taxes
|
(2
|
)
|
|
(1
|
)
|
||
Unrealized gain (loss) on securities
|
(1
|
)
|
|
—
|
|
||
Pension/OPEB funded status obligation (net of $292 million and $347 million tax benefit in 2018 and 2017) (Note 18)
|
(863
|
)
|
|
(642
|
)
|
||
|
$
|
(4,456
|
)
|
|
$
|
(4,098
|
)
|
(a)
|
Capitalized software has been reclassified from property plant and equipment - net to other intangibles - net. The associated expense has been reclassified from depreciation expense to amortization expense. The impact of this reclassification was
$40 million
and
$43 million
in 2018 and 2017, respectively. 2018 depreciation and amortization expense include
$225 million
and
$121 million
, respectively, of Linde AG purchase accounting impacts.
|
(b)
|
In December 2018, Linde repaid
$600 million
of
4.50%
notes due 2019 and
€600 million
of
1.50%
notes due 2020 resulting in a
$26 million
interest charge (
$20 million
after-tax, or
$0.06
per diluted share). In February 2016, Linde redeemed
$325 million
of
5.20%
notes due March 2017 resulting in a
$16 million
interest charge (
$10 million
after-tax, or
$0.04
per diluted share).
|
(c)
|
Noncontrolling interests from continuing operations includes a
$35 million
charge in 2018 related to the
8%
of Linde AG Shares which were not tendered in the Exchange Offer (see Note 3).
|
(d)
|
Provisions to the allowance for doubtful accounts were $
25 million
, $
33 million
, and $
41 million
in
2018
,
2017
, and
2016
, respectively. The allowance activity in each period related primarily to write-offs of uncollectible amounts, net of recoveries and currency movements.
|
(e)
|
Includes estimated income tax payments of
$172 million
and
$58 million
in 2018 and 2017, respectively.
|
(f)
|
Consists primarily of insurance contracts and other investments to be utilized for non-qualified pension and OPEB obligations.
|
(g)
|
Long-term receivables are not material and are largely reserved. The balances at
December 31, 2018
and
2017
are net of reserves of $
46 million
and $
51 million
, respectively. The amounts in both periods relate primarily to long-term notes receivable from customers and government receivables in Brazil. Collectability is reviewed regularly and uncollectible amounts are written-off as appropriate.
|
(h)
|
North America consists of currency translation adjustments in Canada and Mexico. South America relates primarily to Brazil and Argentina. Europe relates primarily to Spain, Russia and Germany. Asia relates primarily to China, India and Korea. Linde AG includes currency movements since the merger date and relates primarily to the Euro.
|
(Millions of dollars)
December 31,
|
|
Depreciable Lives (Yrs)
|
|
2018
|
|
2017
|
||||
Production plants (primarily 15-year life) (a)
|
|
10-20
|
|
$
|
24,726
|
|
|
$
|
16,258
|
|
Storage tanks
|
|
15-20
|
|
4,061
|
|
|
2,620
|
|
||
Transportation equipment and other (b)
|
|
3-15
|
|
2,654
|
|
|
1,588
|
|
||
Cylinders
|
|
10-30
|
|
3,955
|
|
|
1,875
|
|
||
Buildings
|
|
25-40
|
|
3,083
|
|
|
1,202
|
|
||
Land and improvements (c)
|
|
0-20
|
|
1,162
|
|
|
589
|
|
||
Construction in progress
|
|
|
|
2,296
|
|
|
1,159
|
|
||
|
|
|
|
41,937
|
|
|
25,291
|
|
||
Less: accumulated depreciation
|
|
|
|
(12,220
|
)
|
|
(13,466
|
)
|
||
|
|
|
|
$
|
29,717
|
|
|
$
|
11,825
|
|
(Millions of dollars)
|
North
America
|
|
South
America
|
|
Europe
|
|
Asia
|
|
Surface
Technologies
|
|
Linde AG
|
|
Total
|
||||||||||||||
Balance, December 31, 2016
|
$
|
2,165
|
|
|
$
|
132
|
|
|
$
|
629
|
|
|
$
|
58
|
|
|
$
|
133
|
|
|
$
|
—
|
|
|
$
|
3,117
|
|
Acquisitions (Note 3)
|
24
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
24
|
|
|||||||
Purchase adjustments & other
|
—
|
|
|
(1
|
)
|
|
1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||||
Foreign currency translation
|
13
|
|
|
(2
|
)
|
|
68
|
|
|
3
|
|
|
10
|
|
|
—
|
|
|
92
|
|
|||||||
Balance, December 31, 2017
|
$
|
2,202
|
|
|
$
|
129
|
|
|
$
|
698
|
|
|
$
|
61
|
|
|
$
|
143
|
|
|
$
|
—
|
|
|
$
|
3,233
|
|
Addition due to Merger (Note 3)
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
24,146
|
|
|
24,146
|
|
|||||||
Acquisitions (Note 3)
|
5
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5
|
|
|||||||
Purchase adjustments & other
|
12
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
12
|
|
|||||||
Foreign currency translation
|
(11
|
)
|
|
(23
|
)
|
|
(37
|
)
|
|
—
|
|
|
(5
|
)
|
|
174
|
|
|
98
|
|
|||||||
Disposals (Note 4)
|
—
|
|
|
—
|
|
|
(620
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(620
|
)
|
|||||||
Balance, December 31, 2018
|
$
|
2,208
|
|
|
$
|
106
|
|
|
$
|
41
|
|
|
$
|
61
|
|
|
$
|
138
|
|
|
$
|
24,320
|
|
|
$
|
26,874
|
|
(Millions of dollars) For the year ended December 31, 2018
|
Customer Relationships
|
|
Brands/Tradenames
|
|
Other Intangible Assets
|
|
Total
|
||||||||
Cost:
|
|
|
|
|
|
|
|
||||||||
Balance, December 31, 2017
|
$
|
772
|
|
|
$
|
46
|
|
|
$
|
619
|
|
|
$
|
1,437
|
|
Additions due to merger (Note 3)
|
12,555
|
|
|
2,226
|
|
|
811
|
|
|
15,592
|
|
||||
Additions (primarily acquisitions)
|
1
|
|
|
—
|
|
|
26
|
|
|
27
|
|
||||
Foreign currency translation
|
121
|
|
|
24
|
|
|
(9
|
)
|
|
136
|
|
||||
Disposals (Note 4)
|
(141
|
)
|
|
(8
|
)
|
|
(78
|
)
|
|
(227
|
)
|
||||
Other *
|
(20
|
)
|
|
—
|
|
|
(3
|
)
|
|
(23
|
)
|
||||
Balance, December 31, 2018
|
13,288
|
|
|
2,288
|
|
|
1,366
|
|
|
16,942
|
|
||||
Less: accumulated amortization:
|
|
|
|
|
|
|
|
||||||||
Balance, December 31, 2017
|
(260
|
)
|
|
(18
|
)
|
|
(374
|
)
|
|
(652
|
)
|
||||
Amortization expense (Note 9)
|
(135
|
)
|
|
(9
|
)
|
|
(71
|
)
|
|
(215
|
)
|
||||
Foreign currency translation
|
4
|
|
|
—
|
|
|
8
|
|
|
12
|
|
||||
Disposals (Note 4)
|
55
|
|
|
5
|
|
|
52
|
|
|
112
|
|
||||
Other *
|
19
|
|
|
—
|
|
|
5
|
|
|
24
|
|
||||
Balance, December 31, 2018
|
(317
|
)
|
|
(22
|
)
|
|
(380
|
)
|
|
(719
|
)
|
||||
Net intangible asset balance at December 31, 2018
|
$
|
12,971
|
|
|
$
|
2,266
|
|
|
$
|
986
|
|
|
$
|
16,223
|
|
|
|
|
|
|
|
|
|
||||||||
(Millions of dollars) For the year ended December 31, 2017
|
Customer Relationships
|
|
Brands/Tradenames
|
|
Other Intangible Assets
|
|
Total
|
||||||||
Cost:
|
|
|
|
|
|
|
|
||||||||
Balance, December 31, 2016
|
$
|
751
|
|
|
$
|
45
|
|
|
$
|
586
|
|
|
$
|
1,382
|
|
Additions (primarily acquisitions)
|
1
|
|
|
|
|
40
|
|
|
41
|
|
|||||
Foreign currency translation
|
22
|
|
|
1
|
|
|
10
|
|
|
33
|
|
||||
Other *
|
(2
|
)
|
|
|
|
(17
|
)
|
|
(19
|
)
|
|||||
Balance, December 31, 2017
|
772
|
|
|
46
|
|
|
619
|
|
|
1,437
|
|
||||
Less: accumulated amortization:
|
|
|
|
|
|
|
|
||||||||
Balance, December 31, 2016
|
(214
|
)
|
|
(15
|
)
|
|
(342
|
)
|
|
(571
|
)
|
||||
Amortization expense (Note 9)
|
(40
|
)
|
|
(3
|
)
|
|
(48
|
)
|
|
(91
|
)
|
||||
Foreign currency translation
|
(8
|
)
|
|
|
|
(6
|
)
|
|
(14
|
)
|
|||||
Other *
|
2
|
|
|
|
|
22
|
|
|
24
|
|
|||||
Balance, December 31, 2017
|
(260
|
)
|
|
(18
|
)
|
|
(374
|
)
|
|
(652
|
)
|
||||
Net balance at December 31, 2017
|
$
|
512
|
|
|
$
|
28
|
|
|
$
|
245
|
|
|
$
|
785
|
|
*
|
Other primarily relates to the write-off of fully amortized assets, purchase accounting adjustments and reclassifications.
|
(Millions of dollars)
|
2018
|
|
2017
|
||||
Short-term
|
|
|
|
||||
Commercial paper and U.S. bank borrowings
|
$
|
829
|
|
|
$
|
202
|
|
Other bank borrowings (primarily international)
|
656
|
|
|
36
|
|
||
Total short-term debt
|
1,485
|
|
|
238
|
|
||
Long-term (a)
|
|
|
|
||||
1.20% Notes due 2018 (b)
|
—
|
|
|
498
|
|
||
1.25% Notes due 2018 (c)
|
—
|
|
|
475
|
|
||
1.90% Notes due 2019 (f)
|
500
|
|
|
500
|
|
||
Variable rate notes due 2019
|
150
|
|
|
—
|
|
||
1.75% Euro denominated notes due 2019 (e)
|
578
|
|
|
—
|
|
||
4.25% AUD denominated notes due 2019
|
71
|
|
|
—
|
|
||
4.50% Notes due 2019 (d)
|
—
|
|
|
599
|
|
||
Variable rate notes due 2019
|
200
|
|
|
—
|
|
||
1.50% Euro denominated notes due 2020 (d)
|
—
|
|
|
717
|
|
||
2.25% Notes due 2020
|
299
|
|
|
299
|
|
||
1.75% Euro denominated notes due 2020 (e)
|
1,185
|
|
|
—
|
|
||
0.634% Euro denominated notes due 2020
|
58
|
|
|
—
|
|
||
4.05% Notes due 2021
|
499
|
|
|
498
|
|
||
3.875% Euro denominated notes due 2021 (e)
|
755
|
|
|
—
|
|
||
3.00% Notes due 2021
|
498
|
|
|
497
|
|
||
0.250% Euro denominated notes due 2022 (e)
|
1,156
|
|
|
—
|
|
||
2.45% Notes due 2022
|
598
|
|
|
598
|
|
||
2.20% Notes due 2022
|
498
|
|
|
498
|
|
||
2.70% Notes due 2023
|
498
|
|
|
498
|
|
||
2.00% Euro denominated notes due 2023 (e)
|
805
|
|
|
—
|
|
||
5.875% GBP denominated notes due 2023 (e)
|
454
|
|
|
—
|
|
||
1.20% Euro denominated notes due 2024
|
628
|
|
|
658
|
|
||
1.875% Euro denominated notes due 2024 (e)
|
373
|
|
|
—
|
|
||
2.65% Notes due 2025
|
398
|
|
|
397
|
|
||
1.625% Euro denominated notes due 2025
|
568
|
|
|
594
|
|
||
3.20% Notes due 2026
|
725
|
|
|
725
|
|
||
3.434% Notes due 2026
|
195
|
|
|
—
|
|
||
1.652% Euro denominated notes due 2027
|
96
|
|
|
—
|
|
||
1.00% Euro denominated notes due 2028 (e)
|
861
|
|
|
—
|
|
||
1.90% Euro denominated notes due 2030
|
121
|
|
|
—
|
|
||
3.55% Notes due 2042
|
662
|
|
|
662
|
|
||
Other
|
10
|
|
|
12
|
|
||
International bank borrowings
|
291
|
|
|
33
|
|
||
Obligations under capital lease
|
81
|
|
|
4
|
|
||
|
13,811
|
|
|
8,762
|
|
||
Less: current portion of long-term debt
|
(1,523
|
)
|
|
(979
|
)
|
||
Total long-term debt
|
12,288
|
|
|
7,783
|
|
||
Total debt
|
$
|
15,296
|
|
|
$
|
9,000
|
|
(a)
|
Amounts are net of unamortized discounts, premiums and/or debt issuance costs as applicable.
|
(b)
|
In March 2018, Linde repaid
$500 million
of
1.20%
notes that became due.
|
(c)
|
In November 2018, Linde repaid
$475 million
of
1.25%
notes that became due and the associated interest rate swap was settled. See Note 14 for additional information regarding interest rate swaps.
|
(d)
|
In December 2018, Linde repaid
$600 million
of
4.50%
notes due 2019 and
€600 million
of
1.50%
notes due 2020 resulting in a
$26 million
interest charge (
$20 million
after-tax, or
$0.06
per diluted share). Also during December Linde repaid
€750 million
of
3.125%
notes acquired in the merger that became due in December 2018.
|
(e)
|
The fair value decrease in debt related to hedge accounting for the year ended
December 31, 2018
was
$14
million; the impact in
2017
was not significant. See Note 14 for additional information.
|
(f)
|
In February 2019, Linde repaid
$500 million
of
1.90%
notes that became due.
|
Millions of dollars
|
Total
Facility
|
|
Borrowings
Outstanding
|
|
Available for
Borrowing
|
|
Expires
|
||||||
Praxair Senior Unsecured
|
$
|
2,500
|
|
|
$
|
—
|
|
|
$
|
2,500
|
|
|
Dec-19
|
Linde AG Revolving Credit Facility
|
€
|
2,500
|
|
|
$
|
—
|
|
|
€
|
2,500
|
|
|
Jul-20
|
|
|
|
|
|
Fair Value
|
||||||||||||||||||
(Millions of dollars)
|
Notional Amounts
|
|
Assets (a)
|
|
Liabilities (a)
|
||||||||||||||||||
December 31,
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
||||||||||||
Derivatives Not Designated as Hedging Instruments:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Currency contracts:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Balance sheet items
|
$
|
6,357
|
|
|
$
|
2,693
|
|
|
$
|
24
|
|
|
$
|
16
|
|
|
$
|
42
|
|
|
$
|
16
|
|
Forecasted transactions
|
945
|
|
|
—
|
|
|
15
|
|
|
—
|
|
|
17
|
|
|
—
|
|
||||||
Interest rate
/
Cross-currency interest rate swaps
|
2,110
|
|
|
—
|
|
|
112
|
|
|
—
|
|
|
40
|
|
|
—
|
|
||||||
Commodity contracts
|
—
|
|
|
—
|
|
|
27
|
|
|
—
|
|
|
9
|
|
|
—
|
|
||||||
Derivatives Designated as Hedging Instruments:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Currency contracts:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Balance sheet items
|
$
|
—
|
|
|
$
|
38
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
2
|
|
Forecasted transactions
|
158
|
|
|
4
|
|
|
2
|
|
|
1
|
|
|
3
|
|
|
—
|
|
||||||
Interest rate contracts:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Interest rate swaps
|
2,164
|
|
|
475
|
|
|
13
|
|
|
—
|
|
|
10
|
|
|
—
|
|
||||||
Total Hedges
|
$
|
2,322
|
|
|
$
|
517
|
|
|
$
|
15
|
|
|
$
|
1
|
|
|
$
|
13
|
|
|
$
|
2
|
|
Total Derivatives
|
$
|
11,734
|
|
|
$
|
3,210
|
|
|
$
|
193
|
|
|
$
|
17
|
|
|
$
|
121
|
|
|
$
|
18
|
|
|
2018
|
|
2017
|
||||||||||||
(Millions of dollars)
|
US$ Derivative Notional
|
|
Change in Fair Value (b)
|
|
US$ Derivative Notional
|
|
Change in Fair Value
|
||||||||
Underlying debt instrument:
|
|
|
|
|
|
|
|
||||||||
1.00% Euro denominated notes due 2028
|
$
|
516
|
|
|
$
|
8
|
|
|
$
|
—
|
|
|
$
|
—
|
|
1.25% Notes due 2018 (a)
|
—
|
|
|
—
|
|
|
475
|
|
|
—
|
|
||||
0.250% Euro denominated notes due 2022
|
344
|
|
|
2
|
|
|
—
|
|
|
—
|
|
||||
2.00% Euro denominated notes due 2023
|
287
|
|
|
2
|
|
|
—
|
|
|
—
|
|
||||
3.875% Euro denominated notes due 2021
|
287
|
|
|
1
|
|
|
—
|
|
|
—
|
|
||||
5.875% GBP denominated notes due 2023
|
254
|
|
|
1
|
|
|
—
|
|
|
—
|
|
||||
1.75% Euro denominated notes due 2019
|
229
|
|
|
(1
|
)
|
|
—
|
|
|
—
|
|
||||
1.75% Euro denominated notes due 2020
|
132
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
1.875% Euro denominated notes due 2024
|
115
|
|
|
1
|
|
|
—
|
|
|
—
|
|
||||
|
$
|
2,164
|
|
|
$
|
14
|
|
|
$
|
475
|
|
|
$
|
—
|
|
|
|
|
|
|
Unrecognized Gain / (Loss) (a)
|
||||||||
(Millions of dollars)
|
Year
Terminated
|
|
Original
Gain / (Loss)
|
|
12/31/2018
|
|
12/31/2017
|
||||||
Treasury Rate Locks
|
|
|
|
|
|
|
|
||||||
Underlying debt instrument:
|
|
|
|
|
|
|
|
||||||
$500 million 2.20% fixed-rate notes that mature in 2022 (b)
|
2012
|
|
$
|
(2
|
)
|
|
$
|
—
|
|
|
$
|
(1
|
)
|
$500 million 3.00% fixed-rate notes that mature in 2021 (b)
|
2011
|
|
(11
|
)
|
|
(3
|
)
|
|
(4
|
)
|
|||
$600 million 4.50% fixed-rate notes that mature in 2019 (b,c)
|
2009
|
|
16
|
|
|
—
|
|
|
3
|
|
|||
Total – pre-tax
|
|
|
|
|
$
|
(3
|
)
|
|
$
|
(2
|
)
|
||
Less: income taxes
|
|
|
|
|
1
|
|
|
1
|
|
||||
After- tax amounts
|
|
|
|
|
$
|
(2
|
)
|
|
$
|
(1
|
)
|
(a)
|
The unrecognized gains / (losses) for the treasury rate locks are shown in accumulated other comprehensive income ("AOCI") and are being recognized on a straight line basis to interest expense – net over the term of the underlying debt agreements. Refer to the table below summarizing the impact of the company’s consolidated statements of income and AOCI for current period gain (loss) recognition.
|
(b)
|
The notional amount of the treasury rate lock contracts are equal to the underlying debt instrument with the exception of the treasury rate lock contract entered into to hedge the
$600 million
4.50%
fixed-rate notes that mature in 2019. The notional amount of this contract was
$500 million
.
|
(c)
|
In December 2018, Linde repaid
$600 million
of
4.50%
notes that mature in 2019. The unrecognized gain on the associated treasury rate lock was reclassified from other comprehensive income to interest expense.
|
(Millions of dollars)
|
Amount of Pre-Tax Gain (Loss)
Recognized in Earnings *
|
||||||||||
December 31,
|
2018
|
|
2017
|
|
2016
|
||||||
Derivatives Not Designated as Hedging Instruments
|
|
|
|
|
|
||||||
Currency contracts:
|
|
|
|
|
|
||||||
Balance sheet items:
|
|
|
|
|
|
||||||
Debt-related
|
$
|
(118
|
)
|
|
$
|
121
|
|
|
$
|
21
|
|
Other balance sheet items
|
3
|
|
|
—
|
|
|
4
|
|
|||
Total
|
$
|
(115
|
)
|
|
$
|
121
|
|
|
$
|
25
|
|
(Millions of dollars)
|
Amount of Gain (Loss)
Recognized in AOCI
|
|
Amount of Gain (Loss) Reclassified from AOCI to the Consolidated Statement of Income
|
||||||||||||||||||
December 31,
|
2018
|
|
2017
|
|
2016
|
|
2018
|
2017
|
2016
|
||||||||||||
Derivatives Designated as Hedging Instruments**
|
|
|
|
|
|
|
|
|
|
||||||||||||
Currency contracts:
|
|
|
|
|
|
|
|
|
|
||||||||||||
Net investment hedge
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(4
|
)
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
Forecasted transactions
|
—
|
|
|
1
|
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
||||||
Balance sheet items
|
—
|
|
|
(1
|
)
|
|
1
|
|
|
—
|
|
—
|
|
—
|
|
||||||
Interest rate contracts:
|
|
|
|
|
|
|
|
|
|
||||||||||||
Treasury rate locks
|
—
|
|
|
—
|
|
|
—
|
|
|
(1
|
)
|
—
|
|
(1
|
)
|
||||||
Total – Pre tax
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(3
|
)
|
|
$
|
(1
|
)
|
$
|
—
|
|
$
|
(1
|
)
|
Less: income taxes
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
—
|
|
1
|
|
||||||
Total - Net of Taxes
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(3
|
)
|
|
$
|
(1
|
)
|
$
|
—
|
|
$
|
—
|
|
|
Fair Value Measurements Using
|
||||||||||||||||||||||
(Millions of dollars)
|
Level 1
|
|
Level 2
|
|
Level 3
|
||||||||||||||||||
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
||||||||||||
Assets
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Derivative assets
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
193
|
|
|
$
|
17
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Investments and securities *
|
22
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
30
|
|
|
—
|
|
||||||
Total
|
$
|
22
|
|
|
$
|
—
|
|
|
$
|
193
|
|
|
$
|
17
|
|
|
$
|
30
|
|
|
$
|
—
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Derivative liabilities
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
121
|
|
|
$
|
18
|
|
|
$
|
—
|
|
|
$
|
—
|
|
*
|
Investments and securities are recorded in prepaid and other current assets in the company's consolidated balance sheets.
|
(Millions of dollars)
|
2018
|
||
Balance at January 1
|
$
|
—
|
|
Merger impact
|
28
|
|
|
Gains (losses) recognized in earnings
|
2
|
|
|
Balance at December 31
|
$
|
30
|
|
|
Ordinary Shares
|
Additional Paid in Capital
|
Treasury Stock
|
||||||||||
(Dollar amounts in millions, shares in thousands)
|
Shares
|
Amount
|
|
Shares
|
Amount
|
||||||||
|
|
|
|
|
|
||||||||
Merger with Linde AG (a)
|
263,148
|
|
$
|
—
|
|
$
|
43,288
|
|
—
|
|
$
|
—
|
|
Conversion of Praxair to Linde plc shares (b)
|
—
|
|
(3
|
)
|
3
|
|
—
|
|
—
|
|
|||
Cancellation of Praxair Treasury stock (c)
|
(95,324
|
)
|
—
|
|
(7,113
|
)
|
(95,324
|
)
|
7,113
|
|
|||
Impact of Linde AG merger
|
167,824
|
|
$
|
(3
|
)
|
$
|
36,178
|
|
(95,324
|
)
|
$
|
7,113
|
|
(in thousands, except Linde AG exchange ratio)
|
||
Linde plc shares exchanged for Linde AG shares
|
|
|
Linde AG common stock tendered as of October 31, 2018 (i)
|
170,875
|
|
Business combination agreement exchange ratio (ii)
|
1.54
|
|
Linde plc ordinary shares issued in exchange for Linde AG
|
263,148
|
|
Linde plc shares issued to Praxair shareholders upon conversion
|
|
|
Praxair shares outstanding at merger date
|
287,907
|
|
Total Linde plc shares issued at merger date
|
551,055
|
|
(i)
|
Number of Linde AG shares tendered in the 2017 Exchange Offer.
|
(ii)
|
Exchange ratio for Linde AG shares as set forth in the business combination agreement.
|
(Millions of dollars)
|
2018
|
|
2017
|
|
2016
|
||||||
Beginning Balance
|
$
|
11
|
|
|
$
|
11
|
|
|
$
|
113
|
|
Net income
|
3
|
|
|
2
|
|
|
3
|
|
|||
Distributions to noncontrolling interest
|
(1
|
)
|
|
(3
|
)
|
|
(2
|
)
|
|||
Redemption value adjustment/accretion
|
3
|
|
|
1
|
|
|
(6
|
)
|
|||
Foreign currency translation and other
|
—
|
|
|
—
|
|
|
7
|
|
|||
Purchase/divestiture of noncontrolling interest *
|
—
|
|
|
—
|
|
|
(104
|
)
|
|||
Ending Balance
|
$
|
16
|
|
|
$
|
11
|
|
|
$
|
11
|
|
Year Ended December 31,
|
2018
|
|
2017
|
|
2016
|
|||
Dividend yield
|
2.1
|
%
|
|
2.7
|
%
|
|
2.9
|
%
|
Volatility
|
14.4
|
%
|
|
14.0
|
%
|
|
14.4
|
%
|
Risk-free interest rate
|
2.67
|
%
|
|
2.13
|
%
|
|
1.41
|
%
|
Expected term years
|
5
|
|
|
6
|
|
|
6
|
|
Activity
|
Number of
Options
(000’s)
|
|
Average
Exercise
Price
|
|
Average
Remaining
Life
|
|
Aggregate
Intrinsic
Value
|
|||||
Outstanding at January 1, 2018
|
10,787
|
|
|
$
|
108.70
|
|
|
|
|
|
||
Granted
|
1,625
|
|
|
154.00
|
|
|
|
|
|
|||
Exercised
|
(1,714
|
)
|
|
95.25
|
|
|
|
|
|
|||
Cancelled or expired
|
(74
|
)
|
|
131.91
|
|
|
|
|
|
|||
Outstanding at December 31, 2018
|
10,624
|
|
|
$
|
117.65
|
|
|
5.9
|
|
$
|
408
|
|
Exercisable at December 31, 2018
|
7,065
|
|
|
$
|
111.16
|
|
|
4.7
|
|
$
|
317
|
|
|
Performance-Based
|
|
Restricted Stock
|
||||||||||
|
Number of
Shares
(000’s)
|
|
Average
Grant Date
Fair Value
|
|
Number of
Shares
(000’s)
|
|
Average
Grant Date
Fair Value
|
||||||
Non-vested at January 1, 2018
|
665
|
|
|
$
|
113.40
|
|
|
264
|
|
|
$
|
107.56
|
|
Granted
|
—
|
|
|
—
|
|
|
279
|
|
|
144.86
|
|
||
Vested
|
(79
|
)
|
|
119.98
|
|
|
(153
|
)
|
|
117.67
|
|
||
Award conversions
|
(435
|
)
|
|
—
|
|
|
704
|
|
|
—
|
|
||
Cancelled and Forfeited
|
(151
|
)
|
|
110.29
|
|
|
(23
|
)
|
|
111.41
|
|
||
Non-vested at December 31, 2018
|
—
|
|
|
$
|
—
|
|
|
1,071
|
|
|
$
|
118.84
|
|
(Millions of dollars)
Year Ended December 31,
|
Pensions
|
|
OPEB
|
||||||||||||||||||||
2018
|
|
2017
|
|
2016
|
|
2018
|
|
2017
|
|
2016
|
|||||||||||||
Amount recognized in Operating Profit
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Service cost
|
$
|
74
|
|
|
$
|
46
|
|
|
$
|
45
|
|
|
$
|
2
|
|
|
$
|
3
|
|
|
$
|
2
|
|
Amount recognized in Net pension and OPEB cost (benefit), excluding service cost
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Interest cost
|
128
|
|
|
103
|
|
|
100
|
|
|
5
|
|
|
5
|
|
|
6
|
|
||||||
Expected return on plan assets
|
(219
|
)
|
|
(161
|
)
|
|
(157
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Net amortization and deferral
|
71
|
|
|
68
|
|
|
59
|
|
|
(3
|
)
|
|
(3
|
)
|
|
(3
|
)
|
||||||
Curtailment gain (a)
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(18
|
)
|
|
—
|
|
||||||
Settlement charges (b)
|
14
|
|
|
2
|
|
|
4
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
|
$
|
(6
|
)
|
|
$
|
12
|
|
|
$
|
6
|
|
|
$
|
2
|
|
|
$
|
(16
|
)
|
|
$
|
3
|
|
Amount recognized in Net gain on sale of businesses
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Settlement gains from divestitures (c)
|
(44
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Net periodic benefit cost (benefit)
|
$
|
24
|
|
|
$
|
58
|
|
|
$
|
51
|
|
|
$
|
4
|
|
|
$
|
(13
|
)
|
|
$
|
5
|
|
(Millions of dollars)
Year Ended December 31,
|
Pensions
|
|
|
||||||||||||||||||||
2018
|
|
2017
|
|
OPEB
|
|||||||||||||||||||
U.S.
|
|
International
|
|
U.S.
|
|
International
|
|
2018
|
|
2017
|
|||||||||||||
Change in Benefit Obligation ("PBO")
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Benefit obligation, January 1
|
$
|
2,215
|
|
|
$
|
725
|
|
|
$
|
2,066
|
|
|
$
|
666
|
|
|
$
|
146
|
|
|
$
|
156
|
|
Merger impact (a)
|
415
|
|
|
6,920
|
|
|
—
|
|
|
—
|
|
|
53
|
|
|
—
|
|
||||||
Service cost
|
42
|
|
|
32
|
|
|
32
|
|
|
14
|
|
|
2
|
|
|
3
|
|
||||||
Interest cost
|
74
|
|
|
54
|
|
|
70
|
|
|
33
|
|
|
5
|
|
|
5
|
|
||||||
Divestitures (b)
|
—
|
|
|
(106
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Participant contributions
|
—
|
|
|
4
|
|
|
—
|
|
|
—
|
|
|
9
|
|
|
6
|
|
||||||
Plan amendment
|
—
|
|
|
1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Actuarial loss (gain)
|
(100
|
)
|
|
7
|
|
|
153
|
|
|
8
|
|
|
(11
|
)
|
|
(6
|
)
|
||||||
Benefits paid
|
(138
|
)
|
|
(84
|
)
|
|
(106
|
)
|
|
(43
|
)
|
|
(19
|
)
|
|
(13
|
)
|
||||||
Plan curtailment
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(6
|
)
|
||||||
Foreign currency translation and other changes
|
—
|
|
|
(20
|
)
|
|
—
|
|
|
47
|
|
|
(1
|
)
|
|
1
|
|
||||||
Benefit obligation, December 31
|
$
|
2,508
|
|
|
$
|
7,533
|
|
|
$
|
2,215
|
|
|
$
|
725
|
|
|
$
|
184
|
|
|
$
|
146
|
|
Accumulated benefit obligation ("ABO")
|
$
|
2,428
|
|
|
$
|
7,385
|
|
|
$
|
2,113
|
|
|
$
|
691
|
|
|
|
|
|
||||
Change in Plan Assets
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Fair value of plan assets, January 1
|
$
|
1,655
|
|
|
$
|
567
|
|
|
$
|
1,507
|
|
|
$
|
507
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Merger impact (a)
|
475
|
|
|
5,880
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Actual return on plan assets
|
(72
|
)
|
|
(88
|
)
|
|
243
|
|
|
44
|
|
|
—
|
|
|
—
|
|
||||||
Company contributions
|
—
|
|
|
75
|
|
|
4
|
|
|
15
|
|
|
—
|
|
|
—
|
|
||||||
Benefits paid from plan assets
|
(106
|
)
|
|
(69
|
)
|
|
(99
|
)
|
|
(32
|
)
|
|
—
|
|
|
—
|
|
||||||
Divestitures (b)
|
—
|
|
|
(49
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Foreign currency translation and other changes
|
—
|
|
|
(24
|
)
|
|
—
|
|
|
33
|
|
|
—
|
|
|
—
|
|
||||||
Fair value of plan assets, December 31
|
$
|
1,952
|
|
|
$
|
6,292
|
|
|
$
|
1,655
|
|
|
$
|
567
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Funded Status, End of Year
|
$
|
(556
|
)
|
|
$
|
(1,241
|
)
|
|
$
|
(560
|
)
|
|
$
|
(158
|
)
|
|
$
|
(184
|
)
|
|
$
|
(146
|
)
|
Recorded in the Balance Sheet (Note 9)
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Other long-term assets
|
$
|
47
|
|
|
$
|
93
|
|
|
$
|
—
|
|
|
$
|
17
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Other current liabilities
|
(94
|
)
|
|
(10
|
)
|
|
(13
|
)
|
|
(7
|
)
|
|
(13
|
)
|
|
(10
|
)
|
||||||
Other long-term liabilities
|
(509
|
)
|
|
(1,324
|
)
|
|
(547
|
)
|
|
(168
|
)
|
|
(171
|
)
|
|
(136
|
)
|
||||||
Net amount recognized, December 31
|
$
|
(556
|
)
|
|
$
|
(1,241
|
)
|
|
$
|
(560
|
)
|
|
$
|
(158
|
)
|
|
$
|
(184
|
)
|
|
$
|
(146
|
)
|
Amounts recognized in accumulated other comprehensive income (loss) consist of:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Net actuarial loss (gain)
|
$
|
834
|
|
|
$
|
339
|
|
|
$
|
807
|
|
|
$
|
192
|
|
|
$
|
(23
|
)
|
|
$
|
(15
|
)
|
Prior service cost (credit)
|
—
|
|
|
10
|
|
|
—
|
|
|
11
|
|
|
(5
|
)
|
|
(6
|
)
|
||||||
Deferred tax benefit (Note 7)
|
(212
|
)
|
|
(87
|
)
|
|
(309
|
)
|
|
(47
|
)
|
|
7
|
|
|
9
|
|
||||||
Amount recognized in accumulated other comprehensive income (loss) (Note 9)
|
$
|
622
|
|
|
$
|
262
|
|
|
$
|
498
|
|
|
$
|
156
|
|
|
$
|
(21
|
)
|
|
$
|
(12
|
)
|
|
United Kingdom
|
|
Germany
|
|
Other International
|
|
Total International
|
||||||||
(Millions of dollars)
|
2018
|
|
2018
|
|
2018
|
|
2018
|
||||||||
Benefit obligation, December 31
|
$
|
4,444
|
|
|
$
|
1,916
|
|
|
$
|
1,173
|
|
|
$
|
7,533
|
|
Fair value of plan assets, December 31
|
4,339
|
|
|
1,043
|
|
|
910
|
|
|
6,292
|
|
||||
Funded Status, End of Year
|
$
|
(105
|
)
|
|
$
|
(873
|
)
|
|
$
|
(263
|
)
|
|
$
|
(1,241
|
)
|
|
Pensions
|
|
OPEB
|
||||||||||||
(Millions of dollars)
|
2018
|
|
2017
|
|
2018
|
|
2017
|
||||||||
Current year net actuarial losses (gains)*
|
$
|
286
|
|
|
$
|
34
|
|
|
$
|
(11
|
)
|
|
$
|
(6
|
)
|
Amortization of net actuarial gains (losses)
|
(70
|
)
|
|
(67
|
)
|
|
2
|
|
|
1
|
|
||||
Divestitures
|
(12
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Amortization of prior service credits (costs)
|
(1
|
)
|
|
(1
|
)
|
|
1
|
|
|
2
|
|
||||
Pension settlements (Note 5)
|
(14
|
)
|
|
(2
|
)
|
|
—
|
|
|
—
|
|
||||
Curtailments
|
—
|
|
|
—
|
|
|
—
|
|
|
12
|
|
||||
Foreign currency translation and other changes
|
(16
|
)
|
|
13
|
|
|
1
|
|
|
(2
|
)
|
||||
Total recognized in other comprehensive income
|
$
|
173
|
|
|
$
|
(23
|
)
|
|
$
|
(7
|
)
|
|
$
|
7
|
|
*
|
Pension net actuarial losses in
2018
are primarily driven by a lower actual return on plan assets, which more than offset the benefit derived from favorable liability experience. Pension net actuarial losses in
2017
are driven by lower U.S. discount rates, which more than offset favorable plan asset experience. OPEB net actuarial gains in
2018
relate to the benefits from higher U.S. discount rates and favorable actual participant experience and net actuarial gains in
2017
relate primarily to favorable liability experience.
|
(Millions of dollars)
|
Pension
|
|
OPEB
|
||||
Net actuarial loss (gain)
|
$
|
54
|
|
|
$
|
(3
|
)
|
Prior service cost (credit)
|
2
|
|
|
(1
|
)
|
||
|
$
|
56
|
|
|
$
|
(4
|
)
|
(Millions of dollars)
Year Ended December 31,
|
Pensions
|
||||||||||||||
2018
|
|
2017
|
|||||||||||||
U.S.
|
|
International
|
|
U.S.
|
|
International
|
|||||||||
Projected benefit obligation ("PBO")
|
$
|
2,139
|
|
|
$
|
6,681
|
|
|
$
|
2,215
|
|
|
$
|
391
|
|
Accumulated benefit obligation ("ABO")
|
$
|
2,060
|
|
|
$
|
6,586
|
|
|
$
|
2,113
|
|
|
$
|
383
|
|
Fair value of plan assets
|
$
|
1,482
|
|
|
$
|
5,307
|
|
|
$
|
1,655
|
|
|
$
|
215
|
|
|
Pensions
|
|
|
|
|
||||||||||||
|
U.S.
|
|
International
|
|
OPEB
|
||||||||||||
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
||||||
Weighted average assumptions used to determine benefit obligations at December 31,
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Discount rate
|
4.20
|
%
|
|
3.61
|
%
|
|
2.72
|
%
|
|
4.46
|
%
|
|
4.16
|
%
|
|
3.58
|
%
|
Rate of increase in compensation levels
|
3.25
|
%
|
|
3.25
|
%
|
|
2.38
|
%
|
|
3.35
|
%
|
|
N/A
|
|
|
N/A
|
|
Weighted average assumptions used to determine net periodic benefit cost for years ended December 31,
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Discount rate
|
3.73
|
%
|
|
4.05
|
%
|
|
2.73
|
%
|
|
5.09
|
%
|
|
3.81
|
%
|
|
4.21
|
%
|
Rate of increase in compensation levels
|
3.25
|
%
|
|
3.25
|
%
|
|
2.45
|
%
|
|
3.73
|
%
|
|
N/A
|
|
|
N/A
|
|
Expected long-term rate of return on plan assets (1)
|
7.62
|
%
|
|
8.00
|
%
|
|
5.13
|
%
|
|
7.91
|
%
|
|
N/A
|
|
|
N/A
|
|
(1)
|
The expected long term rate of return on the U.S. and international plan assets is estimated based on the plans' investment strategy and asset allocation, historical capital market performance and, to a lesser extent, historical plan performance. For the U.S. plans, the expected rate of return of
7.62%
was derived based on the target asset allocation of
40%-60%
equity securities (approximately
9.5%
expected return),
30%-50%
fixed income securities (approximately
5.5%
expected return) and
5%-15%
alternative investments (approximately
7%
expected return). For the international plans, the expected rate of return was derived based on the weighted average target asset allocation of
15%-25%
equity securities (approximately
10%
expected return),
30%-50%
fixed income securities (approximately
7.5%
expected return), and
30%-40%
alternative investments (approximately
7.5%
expected return). For the U.S. plan assets, the actual annualized total return for the most recent 10-year period ended December 31, 2018 was approximately
8.44%
. For the international plan assets, the actual annualized total return for the same period was approximately
6.26%
. Changes to plan asset allocations and investment strategy over this time period limit the value of historical plan performance as factor in estimating the expected long term rate of return. For 2019, the expected long-term rate of return on plan assets will be
7.50%
for the U.S. plans. Expected weighted average returns for international plans will vary.
|
|
OPEB
|
||||
Assumed healthcare cost trend rates
|
2018
|
|
2017
|
||
Praxair, Inc.
|
|
|
|
||
Healthcare cost trend assumed
|
6.25
|
%
|
|
6.50
|
%
|
Rate to which the cost trend rate is assumed to decline (the ultimate trend rate)
|
5.00
|
%
|
|
5.00
|
%
|
Year that the rate reaches the ultimate trend rate
|
2023
|
|
|
2023
|
|
Linde AG
|
|
|
|
||
Healthcare cost trend assumed
|
5.49
|
%
|
|
|
|
Rate to which the cost trend rate is assumed to decline (the ultimate trend rate)
|
4.50
|
%
|
|
|
|
Year that the rate reaches the ultimate trend rate
|
2038
|
|
|
|
|
One-Percentage Point
|
||||||
(Millions of dollars)
|
Increase
|
|
Decrease
|
||||
Effect on the total of service and interest cost components of net OPEB benefit cost
|
$
|
—
|
|
|
$
|
—
|
|
Effect on OPEB benefit obligation
|
$
|
7
|
|
|
$
|
(6
|
)
|
|
U.S.
|
|
International
|
||||||||||||||||
Asset Category
|
Target 2018 **
|
|
Target 2017
|
|
2018
|
|
2017
|
|
Target 2018 **
|
|
Target 2017
|
|
2018
|
|
2017
|
||||
Equity securities
|
40%-60%
|
|
50%-70%
|
|
48
|
%
|
|
61
|
%
|
|
15%-25%
|
|
30%-50%
|
|
20
|
%
|
|
38
|
%
|
Fixed income securities
|
30%-50%
|
|
20%-40%
|
|
40
|
%
|
|
30
|
%
|
|
30%-50%
|
|
40%-60%
|
|
46
|
%
|
|
53
|
%
|
Other
|
5%-15%
|
|
2%-10%
|
|
13
|
%
|
|
9
|
%
|
|
30%-40%
|
|
0%-10%
|
|
34
|
%
|
|
9
|
%
|
|
Fair Value Measurements Using
|
|
|
|
|
||||||||||||||||||||||||||
|
Level 1
|
|
Level 2
|
|
Level 3 **
|
|
Total
|
||||||||||||||||||||||||
(Millions of dollars)
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
||||||||||||||||
Cash and cash equivalents
|
$
|
348
|
|
|
$
|
7
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
348
|
|
|
$
|
7
|
|
Equity securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Global equities
|
1,131
|
|
|
302
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,131
|
|
|
302
|
|
||||||||
Mutual funds
|
74
|
|
|
—
|
|
|
43
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
117
|
|
|
—
|
|
||||||||
Fixed income securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Government bonds
|
—
|
|
|
—
|
|
|
1,772
|
|
|
246
|
|
|
—
|
|
|
—
|
|
|
1,772
|
|
|
246
|
|
||||||||
Emerging market debt
|
—
|
|
|
—
|
|
|
522
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
522
|
|
|
—
|
|
||||||||
Mutual funds
|
109
|
|
|
118
|
|
|
21
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
130
|
|
|
118
|
|
||||||||
Corporate bonds
|
—
|
|
|
—
|
|
|
382
|
|
|
181
|
|
|
—
|
|
|
—
|
|
|
382
|
|
|
181
|
|
||||||||
Bank loans
|
—
|
|
|
—
|
|
|
313
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
313
|
|
|
—
|
|
||||||||
Alternative investments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Insurance contracts
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
50
|
|
|
—
|
|
|
50
|
|
||||||||
Real estate funds
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
298
|
|
|
158
|
|
|
298
|
|
|
158
|
|
||||||||
Private debt
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
671
|
|
|
—
|
|
|
671
|
|
|
—
|
|
||||||||
Other investments
|
—
|
|
|
—
|
|
|
33
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
33
|
|
|
—
|
|
||||||||
Liquid alternative
|
—
|
|
|
—
|
|
|
1,192
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,192
|
|
|
—
|
|
||||||||
Total plan assets at fair value,
December 31,
|
$
|
1,662
|
|
|
$
|
427
|
|
|
$
|
4,278
|
|
|
$
|
427
|
|
|
$
|
969
|
|
|
$
|
208
|
|
|
$
|
6,909
|
|
|
$
|
1,062
|
|
Pooled funds *
|
|
|
|
|
|
|
|
|
|
|
|
|
1,335
|
|
|
1,160
|
|
||||||||||||||
Total fair value plan assets
December 31,
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
8,244
|
|
|
$
|
2,222
|
|
(Millions of dollars)
|
Insurance
Contracts
|
|
Real Estate Funds
|
|
Private Debt
|
|
Total
|
||||||||
Balance, December 31, 2016
|
$
|
45
|
|
|
$
|
135
|
|
|
$
|
—
|
|
|
$
|
180
|
|
Gain/(Loss) for the period
|
(1
|
)
|
|
12
|
|
|
—
|
|
|
11
|
|
||||
Acquisitions
|
—
|
|
|
11
|
|
|
—
|
|
|
11
|
|
||||
Foreign currency translation
|
6
|
|
|
—
|
|
|
—
|
|
|
6
|
|
||||
Balance, December 31, 2017
|
50
|
|
|
158
|
|
|
—
|
|
|
208
|
|
||||
Assumed in Linde AG merger
|
—
|
|
|
148
|
|
|
667
|
|
|
815
|
|
||||
Gain/(Loss) for the period
|
—
|
|
|
9
|
|
|
4
|
|
|
13
|
|
||||
Acquisitions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Merger-related divestitures
|
(49
|
)
|
|
—
|
|
|
—
|
|
|
(49
|
)
|
||||
Other divestitures
|
—
|
|
|
(17
|
)
|
|
—
|
|
|
(17
|
)
|
||||
Foreign currency translation
|
(1
|
)
|
|
—
|
|
|
—
|
|
|
(1
|
)
|
||||
Balance, December 31, 2018
|
$
|
—
|
|
|
$
|
298
|
|
|
$
|
671
|
|
|
$
|
969
|
|
(Millions of dollars)
|
Pensions
|
|
|
||||||||
Year Ended December 31,
|
U.S.
|
|
International
|
|
OPEB
|
||||||
2019 (a)
|
$
|
353
|
|
|
$
|
322
|
|
|
$
|
14
|
|
2020
|
150
|
|
|
333
|
|
|
15
|
|
|||
2021
|
146
|
|
|
344
|
|
|
15
|
|
|||
2022
|
168
|
|
|
352
|
|
|
15
|
|
|||
2023
|
149
|
|
|
364
|
|
|
14
|
|
|||
2024-2028
|
767
|
|
|
1,018
|
|
|
59
|
|
•
|
During May 2009, the Brazilian government published Law 11941/2009 instituting a new voluntary amnesty program (“Refis Program”) which allowed Brazilian companies to settle certain federal tax disputes at reduced amounts. During the 2009 third quarter, Praxair decided that it was economically beneficial to settle many of its outstanding federal tax disputes and such disputes were enrolled in the Refis Program, subject to final calculation and review by the Brazilian federal government. The company recorded estimated liabilities based on the terms of the Refis Program. Since 2009, Praxair has been unable to reach final agreement on the calculations and initiated litigation against the government in an attempt to resolve certain items. Open issues relate to the following matters: (i) application of cash deposits and net operating loss carryforwards to satisfy obligations and (ii) the amount of tax reductions available under the Refis Program. It is difficult to estimate the timing of resolution of legal matters in Brazil.
|
•
|
At
December 31, 2018
the most significant non-income and income tax claims in Brazil, after enrollment in the Refis Program, relate to state VAT tax matters and a federal income tax matter where the taxing authorities are challenging the tax rate that should be applied to income generated by a subsidiary company. The total estimated exposure relating to such claims, including interest and penalties, as appropriate, is approximately
$205 million
. Linde has not recorded any liabilities related to such claims based on management judgments, after considering judgments and opinions of outside counsel. Because litigation in Brazil historically takes many years to resolve, it is very difficult to estimate the timing of resolution of these matters; however, it is possible that certain of these matters may be resolved within the near term. The company is vigorously defending against the proceedings.
|
•
|
On September 1, 2010, CADE ("Brazilian Administrative Council for Economic Defense") announced alleged anticompetitive activity on the part of five industrial gas companies in Brazil and imposed fines on all five companies. Originally, CADE imposed a civil fine of R
$2.2 billion
Brazilian reais (US$
568 million
) against White Martins, the Brazil-based subsidiary of Praxair. In response to a motion for clarification, the fine was reduced to R
$1.7 billion
Brazilian reais (US$
439 million
) due to a calculation error made by CADE. The amount of the fine is subject to indexation using SELIC. On September 2, 2010, Praxair issued a press release and filed a report on Form 8-K rejecting all claims and stating that the fine represents a gross and arbitrary disregard of Brazilian law.
|
•
|
As stated above, in 2010, the Brazilian competition authority CADE imposed fines on a number of gases companies, including Linde AG’s Brazilian subsidiary, on the grounds of alleged anti-competitive business conduct. CADE imposed a fine of approximately
R$188 million
Brazilian reais (US $
49
million) on Linde AG’s Brazilian subsidiary. Based on the fact that the fine has been overturned by a federal court in the first instance and on a subsequent appeal by CADE, Linde believes that this decision will not stand up to judicial review in the third instance either, and deems the possibility of cash outflows to be extremely unlikely. As a result, no reserve has been recorded for this proceeding as management does not believe that a loss is probable.
|
(Millions of dollars)
|
2018
|
|
2017
|
|
2016
|
||||||
Sales (a)
|
|
|
|
|
|
||||||
North America
|
$
|
6,420
|
|
|
$
|
6,023
|
|
|
$
|
5,592
|
|
Europe
|
1,592
|
|
|
1,558
|
|
|
1,392
|
|
|||
South America
|
1,369
|
|
|
1,501
|
|
|
1,399
|
|
|||
Asia
|
1,964
|
|
|
1,738
|
|
|
1,555
|
|
|||
Surface Technologies
|
682
|
|
|
617
|
|
|
596
|
|
|||
Linde AG
|
2,873
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Operating Profit
|
|
|
|
|
|
||||||
North America
|
$
|
1,648
|
|
|
$
|
1,517
|
|
|
$
|
1,431
|
|
Europe
|
316
|
|
|
301
|
|
|
274
|
|
|||
South America
|
215
|
|
|
239
|
|
|
263
|
|
|||
Asia
|
427
|
|
|
333
|
|
|
276
|
|
|||
Surface Technologies
|
118
|
|
|
106
|
|
|
99
|
|
|||
Linde AG
|
252
|
|
|
—
|
|
|
—
|
|
|||
Segment operating profit
|
2,976
|
|
|
2,496
|
|
|
2,343
|
|
|||
Transaction costs and other charges
|
(309
|
)
|
|
(52
|
)
|
|
(96
|
)
|
|||
Net gain on sale of business
|
3,294
|
|
|
—
|
|
|
—
|
|
|||
Purchase accounting impacts - Linde AG
|
(714
|
)
|
|
—
|
|
|
—
|
|
|||
Total operating profit
|
$
|
5,247
|
|
|
$
|
2,444
|
|
|
$
|
2,247
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Total Assets (b)
|
|
|
|
|
|
||||||
North America
|
$
|
11,643
|
|
|
$
|
10,419
|
|
|
$
|
10,019
|
|
Europe
|
769
|
|
|
3,282
|
|
|
2,928
|
|
|||
South America
|
2,675
|
|
|
2,738
|
|
|
2,748
|
|
|||
Asia
|
3,518
|
|
|
3,252
|
|
|
2,984
|
|
|||
Surface Technologies
|
940
|
|
|
745
|
|
|
653
|
|
|||
Linde AG
|
73,841
|
|
|
—
|
|
|
—
|
|
|||
|
$
|
93,386
|
|
|
$
|
20,436
|
|
|
$
|
19,332
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Depreciation and Amortization
|
|
|
|
|
|
||||||
North America
|
$
|
660
|
|
|
$
|
631
|
|
|
$
|
614
|
|
Europe
|
146
|
|
|
169
|
|
|
155
|
|
|||
South America
|
148
|
|
|
159
|
|
|
133
|
|
|||
Asia
|
204
|
|
|
185
|
|
|
179
|
|
|||
Surface Technologies
|
44
|
|
|
40
|
|
|
41
|
|
|||
Linde AG
|
282
|
|
|
—
|
|
|
—
|
|
|||
Segment depreciation and amortization
|
1,484
|
|
|
1,184
|
|
|
1,122
|
|
|||
Purchase accounting impacts - Linde AG
|
346
|
|
|
—
|
|
|
—
|
|
|||
Total depreciation and amortization
|
$
|
1,830
|
|
|
$
|
1,184
|
|
|
$
|
1,122
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Capital Expenditures and Acquisitions
|
|
|
|
|
|
||||||
North America
|
$
|
916
|
|
|
$
|
779
|
|
|
$
|
989
|
|
Europe
|
157
|
|
|
141
|
|
|
402
|
|
|||
South America
|
97
|
|
|
129
|
|
|
232
|
|
|||
Asia
|
248
|
|
|
209
|
|
|
165
|
|
|||
Surface Technologies
|
93
|
|
|
86
|
|
|
40
|
|
|||
Linde AG
|
397
|
|
|
—
|
|
|
—
|
|
|||
|
$
|
1,908
|
|
|
$
|
1,344
|
|
|
$
|
1,828
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Sales by Product Group
|
|
|
|
|
|
||||||
Atmospheric gases and related
|
$
|
8,375
|
|
|
$
|
7,938
|
|
|
$
|
7,329
|
|
Process gases and other
|
2,970
|
|
|
2,882
|
|
|
2,609
|
|
|||
Surface technologies
|
682
|
|
|
617
|
|
|
596
|
|
|||
Linde AG
|
2,873
|
|
|
—
|
|
|
—
|
|
|||
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Sales by Major Country
|
|
|
|
|
|
||||||
United States
|
$
|
5,942
|
|
|
$
|
4,973
|
|
|
$
|
4,623
|
|
Europe, excluding Germany
|
2,435
|
|
|
1,372
|
|
|
1,240
|
|
|||
Brazil
|
1,067
|
|
|
1,179
|
|
|
1,091
|
|
|||
China
|
1,032
|
|
|
735
|
|
|
613
|
|
|||
Germany
|
868
|
|
|
401
|
|
|
373
|
|
|||
Other – foreign
|
3,556
|
|
|
2,777
|
|
|
2,594
|
|
|||
|
$
|
14,900
|
|
|
$
|
11,437
|
|
|
$
|
10,534
|
|
|
2018
|
|
2017
|
|
2016
|
||||||
Long-lived Assets by Major Country (c)
|
|
|
|
|
|
||||||
United States
|
$
|
7,189
|
|
|
$
|
4,979
|
|
|
$
|
4,779
|
|
Europe, excluding Germany
|
7,754
|
|
|
1,318
|
|
|
1,170
|
|
|||
Germany
|
2,411
|
|
|
413
|
|
|
379
|
|
|||
China
|
2,237
|
|
|
1,060
|
|
|
975
|
|
|||
Brazil
|
1,012
|
|
|
1,204
|
|
|
1,240
|
|
|||
Other – foreign
|
9,114
|
|
|
2,851
|
|
|
2,706
|
|
|||
Total long-lived assets
|
$
|
29,717
|
|
|
$
|
11,825
|
|
|
$
|
11,249
|
|
(a)
|
Sales reflect external sales only and include two months of Linde AG sales from the merger date of October 31, 2018 to year end. Intersegment sales, primarily from North America to other segments, were not material.
|
(b)
|
Includes equity investments as of December 31, as follows:
|
(Millions of dollars)
|
2018
|
|
2017
|
|
2016
|
||||||
North America
|
$
|
118
|
|
|
$
|
115
|
|
|
$
|
121
|
|
Europe (i)
|
34
|
|
|
287
|
|
|
243
|
|
|||
Asia
|
306
|
|
|
325
|
|
|
353
|
|
|||
Linde AG (ii)
|
1,380
|
|
|
—
|
|
|
—
|
|
|||
|
$
|
1,838
|
|
|
$
|
727
|
|
|
$
|
717
|
|
(c)
|
Long-lived assets include property, plant and equipment – net and reflect the impact of the merger with Linde AG (refer to Note 3).
|
2018
|
1Q (a)
|
|
2Q (a)
|
|
3Q (a)
|
|
4Q (a)
|
|
YEAR (a)
|
||||||||||
Sales
|
$
|
2,999
|
|
|
$
|
3,061
|
|
|
$
|
3,024
|
|
|
$
|
5,816
|
|
|
$
|
14,900
|
|
Cost of sales, exclusive of depreciation and amortization
|
$
|
1,677
|
|
|
$
|
1,723
|
|
|
$
|
1,714
|
|
|
$
|
3,970
|
|
|
$
|
9,084
|
|
Depreciation and amortization
|
$
|
311
|
|
|
$
|
311
|
|
|
$
|
306
|
|
|
$
|
902
|
|
|
$
|
1,830
|
|
Operating profit
|
$
|
653
|
|
|
$
|
689
|
|
|
$
|
669
|
|
|
$
|
3,236
|
|
|
$
|
5,247
|
|
Net income – Linde plc
|
$
|
462
|
|
|
$
|
480
|
|
|
$
|
461
|
|
|
$
|
2,978
|
|
|
$
|
4,381
|
|
Income from continuing operations
|
$
|
462
|
|
|
$
|
480
|
|
|
$
|
461
|
|
|
$
|
2,870
|
|
|
$
|
4,273
|
|
Income from discontinued operations
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
108
|
|
|
$
|
108
|
|
Basic Per Share Data
|
|
|
|
|
|
|
|
|
|
||||||||||
Income from continuing operations *
|
$
|
1.61
|
|
|
$
|
1.67
|
|
|
$
|
1.60
|
|
|
$
|
6.27
|
|
|
$
|
12.93
|
|
Income from discontinued operations *
|
—
|
|
|
—
|
|
|
—
|
|
|
0.24
|
|
|
0.33
|
|
|||||
Weighted average shares (000’s)
|
287,504
|
|
|
287,803
|
|
|
288,093
|
|
|
457,518
|
|
|
330,401
|
|
|||||
Diluted Per Share Data
|
|
|
|
|
|
|
|
|
|
||||||||||
Income from continuing operations *
|
$
|
1.59
|
|
|
$
|
1.65
|
|
|
$
|
1.58
|
|
|
$
|
6.22
|
|
|
$
|
12.79
|
|
Income from discontinued operations *
|
—
|
|
|
—
|
|
|
—
|
|
|
0.23
|
|
|
0.32
|
|
|||||
Weighted average shares (000’s)
|
290,809
|
|
|
290,908
|
|
|
291,513
|
|
|
461,150
|
|
|
$
|
334,127
|
|
2017
|
1Q (a)
|
|
2Q (a)
|
|
3Q (a)
|
|
4Q (a)
|
|
YEAR (a)
|
||||||||||
Sales
|
$
|
2,728
|
|
|
$
|
2,834
|
|
|
$
|
2,922
|
|
|
$
|
2,953
|
|
|
$
|
11,437
|
|
Cost of sales, exclusive of depreciation and amortization
|
$
|
1,549
|
|
|
$
|
1,599
|
|
|
$
|
1,652
|
|
|
$
|
1,661
|
|
|
$
|
6,461
|
|
Depreciation and amortization
|
$
|
287
|
|
|
$
|
292
|
|
|
$
|
298
|
|
|
$
|
307
|
|
|
$
|
1,184
|
|
Operating profit
|
$
|
567
|
|
|
$
|
606
|
|
|
$
|
632
|
|
|
$
|
639
|
|
|
$
|
2,444
|
|
Net income – Linde plc
|
$
|
389
|
|
|
$
|
406
|
|
|
$
|
419
|
|
|
$
|
33
|
|
|
$
|
1,247
|
|
Basic Per Share Data
|
|
|
|
|
|
|
|
|
|
||||||||||
Net income
|
$
|
1.36
|
|
|
$
|
1.42
|
|
|
$
|
1.46
|
|
|
$
|
0.11
|
|
|
$
|
4.36
|
|
Weighted average shares (000’s)
|
285,509
|
|
|
286,090
|
|
|
286,467
|
|
|
286,976
|
|
|
286,261
|
|
|||||
Diluted Per Share Data
|
|
|
|
|
|
|
|
|
|
||||||||||
Net income
|
$
|
1.35
|
|
|
$
|
1.41
|
|
|
$
|
1.45
|
|
|
$
|
0.11
|
|
|
$
|
4.32
|
|
Weighted average shares (000’s)
|
287,384
|
|
|
288,535
|
|
|
289,216
|
|
|
290,456
|
|
|
289,114
|
|
*
|
Due to quarterly changes in the share count as a result of the merger the sum of the four quarters does not equal the earnings per share amount calculated for the year.
|
(a)
|
2018
and
2017
include the impact of the following matters (see Notes 3, 4, 5, 7, 13 and 18):
|
(Millions of dollars)
|
Operating
Profit/
(Loss)
|
|
Income from Continuing Operations
|
||||
Transaction costs and other charges - Q1
|
$
|
(19
|
)
|
|
$
|
(18
|
)
|
Transaction costs and other charges - Q2
|
(24
|
)
|
|
(21
|
)
|
||
Transaction costs and other charges - Q3
|
(31
|
)
|
|
(29
|
)
|
||
Pension settlement charge - Q3
|
—
|
|
|
(3
|
)
|
||
Transaction costs and other charges - Q4
|
(235
|
)
|
|
(238
|
)
|
||
Gain on sale of business - Q4
|
3,294
|
|
|
2,923
|
|
||
Bond redemption - Q4
|
—
|
|
|
(20
|
)
|
||
Pension settlement charge - Q4
|
—
|
|
|
(8
|
)
|
||
Tax Act and other tax charges - Q4
|
—
|
|
|
17
|
|
||
Purchase accounting impacts - Linde AG - Q4
|
(714
|
)
|
|
(451
|
)
|
||
Year 2018
|
$
|
2,271
|
|
|
$
|
2,152
|
|
|
|
|
|
||||
Transaction costs and other charges - Q1
|
$
|
(6
|
)
|
|
$
|
(6
|
)
|
Transaction costs and other charges - Q2
|
(15
|
)
|
|
(15
|
)
|
||
Transaction costs and other charges - Q3
|
(14
|
)
|
|
(13
|
)
|
||
Pension settlement charge - Q3
|
—
|
|
|
(1
|
)
|
||
Transaction costs and other charges - Q4
|
(17
|
)
|
|
(14
|
)
|
||
Tax Act - Q4
|
—
|
|
|
(394
|
)
|
||
Year 2017
|
$
|
(52
|
)
|
|
$
|
(443
|
)
|
ITEM 9.
|
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
|
Plan Category
|
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights (a)
|
|
Weighted-average
exercise price of
outstanding options,
warrants and rights (b)
|
|
Number of securities
remaining available for
future issuance under
equity compensation plans
(excluding securities
reflected in column (a)) (c)
|
|
||||
Equity compensation plans approved by shareholders
|
11,694,110
|
|
(1)
|
$
|
117.65
|
|
|
8,482,731
|
|
(2)
|
Equity compensation plans not approved by shareholders
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Total
|
11,694,110
|
|
|
$
|
117.65
|
|
|
8,482,731
|
|
|
(1)
|
This amount includes 1,070,423 restricted shares.
|
(2)
|
This amount includes 8,009,603 shares available for future issuance pursuant to the Amended and Restated 2009 Praxair, Inc. Long Term Incentive Plan assumed by Linde, and 473,128 shares available for future issuance pursuant to the Linde plc Long Term Incentive Plan 2018.
|
(a)
|
The following documents are filed as part of this report:
|
(1)
|
The company’s
2018
Consolidated Financial Statements and the Report of the Independent Registered Public Accounting Firm are included in Part II, Item 8. Financial Statements and Supplementary Data.
|
(2)
|
Financial Statement Schedules – All financial statement schedules have been omitted because they are not applicable or the required information is shown in the financial statements or notes thereto.
|
(3)
|
Exhibits – The exhibits filed as part of this Annual Report on Form 10-K are listed in the accompanying index.
|
Exhibit No.
|
|
Description
|
|
|
|
2.1
|
|
|
|
|
|
2.1a
|
|
|
|
|
|
**2.2
|
|
|
|
|
|
**2.3
|
|
|
|
|
|
**2.3a
|
|
|
|
|
|
**2.3b
|
|
|
|
|
|
**2.3c
|
|
|
|
|
|
3.01
|
|
|
|
|
|
4.01
|
|
|
|
|
|
4.02
|
|
|
|
|
|
4.03
|
|
Copies of the agreements relating to long-term debt which are not required to be filed as exhibits to this Annual Report on Form 10-K will be furnished to the Securities and Exchange Commission upon request.
|
|
|
|
10.01
|
|
|
|
|
|
10.01a
|
|
|
|
|
10.02
|
|
|
|
|
|
10.02a
|
|
|
|
|
|
*10.03
|
|
|
|
|
|
*10.04
|
|
|
|
|
|
*10.05
|
|
|
|
|
|
*10.05a
|
|
|
|
|
|
*10.05b
|
|
|
*10.05c
|
|
|
|
|
|
*10.05d
|
|
|
|
|
|
*10.05e
|
|
|
*10.06
|
|
|
|
|
|
*10.06a
|
|
|
|
|
|
*10.06b
|
|
|
|
|
|
*10.06c
|
|
|
|
|
|
*10.06d
|
|
|
|
|
|
*10.06e
|
|
|
|
|
|
*10.06f
|
|
|
|
|
|
*10.07
|
|
|
|
|
|
*10.07a
|
|
|
|
|
|
*10.07b
|
|
|
|
|
|
*10.07c
|
|
|
|
|
|
*10.07d
|
|
|
|
|
|
*10.07e
|
|
|
|
|
|
*10.07f
|
|
|
|
|
|
*10.07g
|
|
|
|
|
|
*10.07h
|
|
|
|
|
|
*10.08
|
|
|
|
|
|
*10.09
|
|
|
|
|
|
*10.09a
|
|
|
|
|
|
*10.10
|
|
|
|
|
|
*10.11
|
|
|
|
|
|
*10.11a
|
|
|
|
|
|
*10.11b
|
|
|
|
|
|
*10.11c
|
|
|
|
|
*10.11d
|
|
|
|
|
|
*10.11e
|
|
|
|
|
|
*10.11f
|
|
|
|
|
|
*10.11g
|
|
|
|
|
|
*10.11h
|
|
|
|
|
|
*10.11i
|
|
|
|
|
|
*10.11j
|
|
|
|
|
|
*10.11k
|
|
|
|
|
|
*10.11l
|
|
|
|
|
|
*10.11m
|
|
|
|
|
|
*10.11n
|
|
|
|
|
|
*10.11o
|
|
|
|
|
|
*10.12
|
|
|
|
|
|
*10.13a
|
|
|
|
|
|
*10.13b
|
|
|
|
|
|
*10.13c
|
|
|
|
|
|
*10.13d
|
|
|
|
|
|
*10.13e
|
|
|
|
|
|
*10.13f
|
|
|
|
|
|
*10.14
|
|
|
|
|
|
*10.15
|
|
|
|
|
|
*10.15a
|
|
|
|
|
|
*10.16
|
|
|
|
|
|
|
|
|
21.01
|
|
|
|
|
|
23.01
|
|
|
|
|
|
31.01
|
|
|
|
|
|
31.02
|
|
|
|
|
|
32.01
|
|
|
|
|
|
32.02
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase
|
*
|
Indicates a management contract or compensatory plan or arrangement.
|
**
|
Certain schedules or similar attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplemental copies of any of the omitted schedules or attachments upon request by the SEC.
|
|
|
Linde plc
|
||||
|
|
(Registrant)
|
||||
Date: March 18, 2019
|
By:
|
/s/
K
ELCEY
E
.
H
OYT
|
||||
|
|
Kelcey E. Hoyt
Chief Accounting Officer
|
/s/ PROF. DR. WOLFGANG REITZLE
|
|
/s/ STEPHEN F. ANGEL
|
|
/s/ MATTHEW J. WHITE
|
Wolfgang Reitzle
Chairman
|
|
Stephen F. Angel
Chief Executive Officer and Director
|
|
Matthew J. White
Chief Financial Officer
|
|
|
|
||
/s/ PROF. DDR. ANN-KRISTIN ACHLIETNER
|
|
/s/ DR. CLEMENS BÖRSIG
|
|
/s/ DR. NANCE K. DICCIANI
|
Ann-Kristin Achleitner
Director
|
|
Clemens B
ö
rsig
Director
|
|
Nance K. Dicciani
Director
|
|
|
|
||
/s/ DR. THOMAS ENDERS
|
|
/s/ FRANZ FEHRENBACH
|
|
/s/ EDWARD G. GALANTE
|
Thomas Enders
Director
|
|
Franz Fehrenbach
Director
|
|
Edward G. Galante
Director
|
|
|
|
|
|
/s/ LARRY D. MCVAY
|
|
/s/ DR. VICTORIA OSSADNIK
|
|
/s/ PROF. DR. MARTIN H. RICHENHAGEN
|
Larry D. McVay
Director
|
|
Victoria Ossadnik
Director
|
|
Martin Richenhagen
Director
|
|
|
|
|
|
/s/ ROBERT L. WOOD
|
|
|
|
|
Robert L. Wood
Director
|
|
|
|
|
FORM OF PROCESS AGENT APPOINTMENT LETTER
|
137
|
(1)
|
LINDE AG
as original borrower and guarantor (
Linde
or the
Company
);
|
(2)
|
LINDE FINANCE B.V.
as original borrower (together with the Company the
Original Borrowers
);
|
(3)
|
BARCLAYS BANK PLC, BAYERISCHE LANDESBANK, BANC OF AMERICA SECURITIES LIMITED, BANK OF CHINA LIMITED ZWEIGNIEDERLASSUNG FRANKFURT AM MAIN FRANKFURT BRANCH, BNP PARIBAS FORTIS SA/NV, NIEDERLASSUNG DEUTSCHLAND, CITIGROUP GLOBAL MARKETS LIMITED, COMMERZBANK AKTIENGESELLSCHAFT, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK DEUTSCHLAND, DEUTSCHE BANK AG, DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, HSBC BANK PLC, ING BANK, A BRANCH OF ING-DIBA AG, LANDESBANK BADEN-WÜRTTEMBERG, LLOYDS TSB BANK PLC, MIZUHO BANK LTD., MORGAN STANLEY BANK INTERNATIONAL LIMITED, ROYAL BANK OF CANADA, SEB AG, STANDARD CHARTERED BANK, SUMITOMO MITSUI BANKING CORPORATION, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., DÜSSELDORF BRANCH, TD BANK EUROPE LIMITED
and
UNICREDIT BANK AG
as mandated lead arrangers (the
Arrangers
);
|
(4)
|
THE FINANCIAL INSTITUTIONS
listed in Part B in Schedule 1 as lenders (the
Original Lenders
);
|
(5)
|
DEUTSCHE BANK LUXEMBOURG S.A.
(the
EUR Swingline Agent
) and
DEUTSCHE BANK AG, New York Branch
(the
USD Swingline Agent
) as swingline agents (each a
Swingline Agent
and together the
Swingline Agents
);
|
(6)
|
DEUTSCHE BANK LUXEMBOURG S.A.
as agent of the other Finance Parties (the
Agent
); and
|
(7)
|
BNP Paribas Fortis SA/NV, Niederlassung Deutschland
and
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Düsseldorf Branch
as issuing banks (each an Original Issuing Bank and together the
Original Issuing Banks
).
|
1.1
|
Definitions
|
(a)
|
the principal amount under each overdraft facility and on-demand short term loan facility;
|
(b)
|
the face amount of each guarantee, bond and letter of credit under that Ancillary Facility; and
|
(c)
|
the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,
|
(a)
|
Executive Order No. 13224 of September 23, 2001 – Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the
Executive Order
);
|
(b)
|
the Uniting and Strengthening America by Providing Appropriate Tools Required to intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as USA Patriot Act);
|
(c)
|
the Money Laundering Control Act of 1986, Public Law 99-570; and
|
(d)
|
any similar law enacted in the United States of America subsequent to the date of this Agreement.
|
(a)
|
the proposed Assignment Date specified in the Assignment Certificate; and
|
(b)
|
the date on which the Agent accepts the Assignment Certificate.
|
(a)
|
the Initial Termination Date if the Initial Termination Date has not been extended in accordance with paragraph (a) and/or paragraph (b) of Clause 3 (
Extension Opinion
);
|
(b)
|
the First Extended Termination Date if the Initial Termination Date has been extended until the First Extended Termination Date but not until the Second Extended Termination Date in accordance with paragraph (a) and/or paragraph (b) of Clause 3 (
Extension Opinion
); or
|
(c)
|
the Second Extended Termination Date if the Initial Termination Date has been extended until the Second Extended Termination Date in accordance with paragraph (b) of Clause 3 (
Extension Opinion
).
|
(a)
|
the Base Currency Amount of its (and its Lender Affiliates') participation in any outstanding Utilisations under the Facility and the aggregate of its Ancillary Commitments; and
|
(b)
|
in relation to any proposed Utilisation, the Base Currency Amount of its (and its Lender Affiliates') participation in any Utilisations that are due to be made under the Facility on or before the proposed Utilisation Date and the amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date,
|
(iii)
|
any guarantee, indemnity or similar assurance against financial loss of any person in respect of any indebtedness referred to in (i) and (ii),
|
(a)
|
the interest which a Lender should have received (excluding the Margin) for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a)
|
(in relation to any date for payment or purchase of a currency other than euro) the principal financial center of the country of that currency; or
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Section 1 of Part B of Schedule 1 (
The Original Parties
) and the amount of any other Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a)
|
in the Annex to the Executive Order;
|
(b)
|
on the "Specially Designated Nationals and Blocked Persons" list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury; or
|
(c)
|
in any successor list to either of the foregoing.
|
(a)
|
the applicable Screen Rate; or
|
(b)
|
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
|
(c)
|
If:
|
(i)
|
no Screen Rate is available for the Interest Period of that Loan; and
|
(ii)
|
it is not possible to calculate an Interpolated Screen Rate for that Loan,
|
(a)
|
the shares of which are on the date of this Agreement listed on a stock exchange and which are set out in Schedule 12 (
List of Excluded Subsidiaries
);
|
(b)
|
which, with the consent of the Majority Lenders, will be added by the Company to the List of Excluded Subsidiaries at any time after the date of this Agreement; or
|
(c)
|
which is a Subsidiary of an Excluded Subsidiary pursuant to (a) and (b) above.
|
(a)
|
in relation to a Lender (other than a Swingline Lender) the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement; and
|
(b)
|
in relation to a Swingline Lender the office or offices notified by a Lender to the Agent in writing before the date it becomes a Swingline Lender (or, following that date, by not less than five Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement as a Swingline Lender.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
(b)
|
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 January 2014;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
(a)
|
the weighted average of the rates on overnight Federal funds transactions with members of the US Federal Reserve System arranged by Federal funds brokers, as published for that day (or, if that day is not a New York Business Day, for the immediately preceding New York Business Day) by the Federal Reserve Bank of New York; or
|
(b)
|
if a rate is not so published for any day which is a New York Business Day, the average of the quotations for that day on such transactions received by the USD Swingline Agent from three Federal funds brokers of recognised standing selected by the USD Swingline Agent.
|
(e)
|
leases entered into primarily as a method of raising finance or financing the acquisition of the asset leased;
|
(f)
|
currency swap or interest rate swap, cap or collar arrangements or other form of interest or currency hedging transaction (
provided
that, when calculating the value of any such derivative transaction, only the mark to market value shall be taken into account); or
|
(g)
|
any guarantee, indemnity or similar assurance against financial loss of any person in respect of any indebtedness referred to in (a) through (f) above.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan
|
(a)
|
any Original Lender listed in Section 1 of Part B of Schedule 1 (
The Original Parties
) as a Lender in respect of the Revolving Facility; or
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Lender in respect of the Revolving Facility in accordance with Clause 29 (
Changes to the Lenders
) (except for Clause 29.6 (
Additional Lender Affiliates
)),
|
(a)
|
who is a Party to this Agreement on the date of this Agreement and is designated as such on the signature pages;
|
(b)
|
who has become a Party to this Agreement as a Lender Affiliate after the date of this Agreement in accordance with Clause 29.6 (
Additional Lender Affiliates
); or
|
(c)
|
who has become a Party to this Agreement for any of the purposes specified above with the consent of the Lender of which it is an Affiliate by means of executing a Transfer Certificate providing for the transfer in whole or in part of the rights and obligations of an existing Lender Affiliate,
|
(a)
|
the applicable Screen Rate;
|
(b)
|
(if no Screen Rate is available for the Interest Period of that Loan) ) the Interpolated Screen Rate for that Loan; or
|
(c)
|
if:
|
(i)
|
no Screen Rate is available for the currency of that Loan; or
|
(ii)
|
no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,
|
(a)
|
which contributed at least five per cent. to the total net sales of the Group as shown in the consolidated financial statements of the Company last delivered pursuant to Clause 26.1(a)(ii) or Clause 26.1(b); or
|
(b)
|
which contributed at least five per cent. to the total assets of the Group as shown in the consolidated financial statements of the Company last delivered pursuant to Clause 26.1(a)(ii) or Clause 26.1(b);
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c)
|
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a)
|
is not an Acceptable Bank (other than a Lender which the Issuing Banks have agreed is acceptable to them notwithstanding that fact); or
|
(b)
|
is a Non-funding Lender; or
|
(c)
|
has failed to make (or has notified the Agent that it will not make) a payment to be made by it under Clause 8.4 (
Indemnities
) or Clause 31.10 (
Lenders’ indemnity to the Agent
) or any other payment to be made by it under the Finance Documents to or for the account of any other Finance Party in its capacity as Lender by the due date for payment,
|
(a)
|
in relation to the Company, its audited unconsolidated financial statements and the audited consolidated financial statements of the Group for the financial year ended 31 December 2012;
|
(b)
|
in relation to Linde Finance B.V., its audited unconsolidated financial statements for the financial year ended 31 December 2012; and
|
(c)
|
in relation to an Additional Borrower acceding to this Agreement after the date hereof its most recent annual unconsolidated (and, if available, consolidated) (audited, if available) financial statements available at the date of such accession or its opening balance sheet if at the date of accession no financial statement are available.
|
(a)
|
(if the currency is euro) two TARGET Days before the first day of that period; or
|
(b)
|
(if the currency is Sterling) the first day of that period; or
|
(c)
|
(for any other currency) two Business Days before the first day of that period,
|
(a)
|
made or to be made on the same day that (i) a maturing Revolving Facility Loan is due to be repaid; or (ii) a Borrower is obliged to pay to the Agent for the account of an Issuing Bank the amount of any claim under a Letter of Credit;
|
(b)
|
the aggregate amount of which is equal to or less than (i) the maturing Revolving Facility Loan; or (ii) the amount of the relevant claim under that Letter of Credit;
|
(c)
|
in the same currency as (i) the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 11.2 (
Unavailability of a currency
)); or (ii) the relevant claim under that Letter of Credit; and
|
(d)
|
made or to be made to the same Borrower for the purpose of (i) refinancing a maturing Revolving Facility Loan or (ii) satisfying the obligation of the Borrower to pay to the Agent for the account of the relevant Issuing Bank the amount of the relevant claim under that Letter of Credit.
|
(a)
|
in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or the replacement Reuters page which displays that rate); and
|
(b)
|
in relation to LIBOR, the London interbank offered rate administered by the British Bankers Association (or any other person which takes over the administration of that rate) for the relevant period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or the replacement Reuters page which displays that rate)
|
(a)
|
in the case of a merger where the Company is the surviving entity, the Rating; or
|
(b)
|
the rating from Standard & Poor’s or Moody’s of the long term senior unsecured and unsubordinated debt obligations of the entity into which the Company merges,
|
(a)
|
in relation to a Swingline Lender who is also an Original Lender, the amount in euro set opposite its name under the heading "Swingline Commitment" in Section 2 of Part B of Schedule 1 (
The Original Parties
) and the amount of any other Swingline Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Swingline Lender, the amount of any Swingline Commitment transferred to it under this Agreement,
|
(d)
|
any Original Lender listed in Section 2 of Part B of Schedule 1 (
The Original Parties
) with a Swingline Commitment; or
|
(e)
|
any other person that becomes a Swingline Lender after the date of this Agreement in accordance with Clause 29 (
Changes to the Lenders
) (except for Clause 29.6 (
Additional Lender Affiliates
));
|
(a)
|
the proposed Transfer Date specified in the Transfer Certificate; and
|
(b)
|
the date on which the Agent accepts the Transfer Certificate.
|
(a)
|
in the case of a Utilisation of the Revolving Facility by way of a Revolving Facility Loan a notice substantially in the form set out in Part A of Schedule 3 (
Requests
);
|
(b)
|
in the case of a Utilisation of the Swingline Facility a notice substantially in the form set out in Part B of Schedule 3 (
Requests
); and
|
(c)
|
in the case of a Utilisation of the Revolving Facility by way of a Letter of Credit a notice substantially in the form set out in Part C of Schedule 3 (
Requests
).
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, any reference in this Agreement to:
|
(i)
|
the
Agent
, any
Arranger
, any
Finance Party
, any
Lender
, any
Obligor
,
any
Swingline Agent
or any
Party
shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii)
|
assets
includes present and future properties, revenues and rights of every description;
|
(iii)
|
director
shall be construed as any statutory legal representative(s) (
organschaftlicher Vertreter
) of a person pursuant to the laws of its jurisdiction of incorporation, including but not limited to, in relation to a person incorporated or established in Germany, a managing director (
Geschäftsführer
) or member of the board of directors (
Vorstand
);
|
(iv)
|
a
Finance Document
or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(v)
|
gross negligence
means
grobe Fahrlässigkeit
and
wilful misconduct
means
Vorsatz
;
|
(vi)
|
indebtedness
includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(vii)
|
majority-owned Subsidiary
of a person means a Subsidiary of such person whose voting equity shares are (directly or indirectly) more than 50% owned by such person;
|
(viii)
|
a
person
includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(ix)
|
promptly
is to be construed as
unverzüglich
(without undue delay) as contemplated in the first paragraph of section 121 of the German Civil Code (
Bürgerliches Gesetzbuch
);
|
(x)
|
a
regulation
means any regulation, rule, official directive, obligation imposed by an order, permit or public law agreement, request or guideline of or made with any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation, whether or not having the force of law but, if not, where compliance is customary;
|
(xi)
|
wholly-owned Subsidiary
of a person means a Subsidiary of such person whose voting and non-voting equity shares are (directly or indirectly) 100% owned by such person provided that in making this determination any shares of such a Subsidiary (or any other intermediate Subsidiary that directly or indirectly owns shares in such Subsidiary) that are held by:
|
(A)
|
a director of such Subsidiary for the sole purpose of satisfying a legal requirement that such director be a shareholder of such Subsidiary, provided such director is required by law or pursuant to contract (to the extent permitted by applicable law) to transfer such shares to or at the direction of the person who transferred the relevant share or shares to such director forthwith (or if not forthwith, then on demand) upon such director's ceasing to be a director of such company; or
|
(B)
|
any other person for the sole purpose of satisfying a legal requirement that such Subsidiary have a minimum number of shareholders,
|
(xii)
|
a
provision of law
is a reference to that provision as amended or re-enacted;
|
(xiii)
|
a
time
of day is a reference to Central European Time (CET) unless otherwise specified; and
|
(xiv)
|
know your customer
requirements are identification checks that a Finance Party (acting for itself or on behalf of a prospective new Lender) requests in order to meet its obligations under any anti-money laundering laws and regulations to identify a person who is (or is to become) its customer.
|
(b)
|
Section, Clause and Schedule headings are for ease of reference only.
|
(c)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d)
|
A Default (or an Event of Default) is
continuing
if it has not been remedied or waived.
|
1.3
|
This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail.
|
2.1
|
The Revolving Facility
|
(a)
|
Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving credit facility in an aggregate amount equal to the Total Commitments.
|
(b)
|
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any of the Borrowers in place of all or part of its Available Commitment under the Facility.
|
2.2
|
Finance Parties' rights and obligations
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several and do not constitute a joint obligation (
Ausschluß der gesamtschuldnerischen Haftung
). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and do not constitute a joint creditorship (
Ausschluß der Gesamtgläubigerschaft
) and any debt arising under the Finance Documents to a Finance Party from an Obligor shall, except as otherwise set out in this Agreement or any other Finance Document, be a separate and independent debt (
Ausschluß der gesamtschuldnerischen Haftung
).
|
(c)
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
2.3
|
Borrowers' obligations
|
2.4
|
Company as Obligors' Agent
|
(a)
|
Each Obligor (other than the Company and any Borrower incorporated in The Netherlands) irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
|
(i)
|
the Company on its behalf to supply all information concerning itself, its financial condition and otherwise to the relevant persons contemplated under this Agreement, to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Finance Document and to enter into any agreement in connection with the Finance Documents (notwithstanding that the same may affect such Obligor), without further reference to or the consent of that Obligor; and
|
(ii)
|
each Finance Party to give any notice, demand or other communication to be given to or served on that Obligor pursuant to the Finance Documents to the Company on its behalf,
|
(b)
|
In the event of any conflict between any notices or other communications of the Company and any other Obligor, those of the Company shall prevail.
|
(a)
|
By giving the Agent notice not more than sixty days and not less than thirty days prior to the first anniversary of the date of this Agreement, the Company may request that the Initial Termination Date be extended for one year until the First Extended Termination Date.
|
(b)
|
Without prejudice to paragraph (a) above, by giving the Agent notice not more than sixty days and not less than thirty days prior to the second anniversary of the date of this Agreement, the Company may request that
|
(i)
|
the Initial Termination Date be extended for one year until the First Extended Termination Date or for two years until the Second Extended Termination Date if the Company has not served a request pursuant to paragraph (a) above;
|
(ii)
|
Lenders, that have not agreed to a request pursuant to paragraph (a) above, agree that the Initial Termination Date be extended for one year until the First Extended Termination Date or for two years until the Second Extended Termination Date; and/or
|
(iii)
|
Lenders, that have already agreed that the Initial Termination Date be extended until the First Extended Termination Date, agree that the Initial Termination Date is further extended until the Second Extended Termination Date.
|
(c)
|
The Agent shall promptly notify each Lender of any such extension request pursuant to paragraph (a) and (b) above. Each Lender, in its sole discretion, has the option to extend its Commitment for the respective requested period and shall notify the Agent of its decision within twenty (20) days after the submission of the relevant request. If no notice is received by the Agent from a Lender within twenty (20) days after the submission of the relevant request, the Termination Date in respect of that Lender will not be extended. If a Lender agrees to extend its Commitment, the Initial Termination Date or the First Extended Termination Date (as the case may be) shall be postponed and the Facility shall continue to be available in an amount equal to the aggregate Commitments of such Lenders beyond the Initial Termination Date or the First Extended Termination Date (as the case may be), in each case with effect as of the first and/or second anniversary of the date of this Agreement, as applicable. The participations and Available Commitments of those Lenders which have not agreed to the extension request pursuant to paragraph (a) and/or paragraph (b) above shall be repaid and cancelled in full (in relation to Lenders that have not agreed to any postponement of the Initial Termination Date) on the Initial Termination Date or (in relation to Lenders that have agreed to a postponement until the First Extended Termination Date) on the First Extended Termination Date.
|
(d)
|
If a Lender has not agreed to the extension request pursuant to paragraph (a) and/or paragraph (b) above (as the case may be), the Company has the right to, prior to the first or second anniversary of the date of this Agreement (as the case may be) require each Lender which is not willing to extend its Commitment to transfer its Commitment (at par) to a Lender or Lenders and/or other bank(s), credit institution(s) or financial institution(s), which is/are willing to extend or increase its/their respective Commitment or to acquire a commitment under the Facility as "Lenders" (subject to compliance with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such other bank, credit institution or financial institution).
|
(e)
|
As soon as reasonably practicable, the Agent shall confirm to the Company and the Lenders the aggregate amount of the Commitments extended until the First Extended Termination Date and the Second Extended Termination Date, as applicable.
|
(f)
|
In relation to any Utilisation requested prior to the Initial Termination Date with an Interest Period extending beyond the Initial Termination Date the Available Commitment or Available Swingline Commitment (as the case may be) of any Lender or, as the case may be, Swingline Lender (or in the case of a Lender Affiliate, the Lender, or, as the case may be, Swingline Lender of which it is an Affiliate) in relation to which the Termination Date is not extended in accordance with the above shall not be taken into account when calculating the Lenders' or Swingline Lenders' participations for that Utilisation and the relevant Lender or Swingline Lender shall not participate in such Utilisation.
|
(g)
|
In relation to any Utilisation requested prior to the First Extended Termination Date with an Interest Period extending beyond the First Extended Termination Date the Available Commitment or Available Swingline Commitment (as the case may be) of any Lender or, as the case may be, Swingline Lender (or in the case of a Lender Affiliate, the Lender, or, as the case may be, Swingline Lender of which it is an Affiliate) in relation to which the Termination Date is not extended in accordance with the above shall not be taken into account when calculating the Lenders' or Swingline Lenders' participations for that Utilisation and the relevant Lender or Swingline Lender shall not participate in such Utilisation.
|
4.1
|
Purpose
|
4.2
|
Monitoring
|
5.1
|
Initial conditions precedent
|
5.2
|
Further conditions precedent
|
(a)
|
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and
|
(b)
|
the Repeated Representations made by each Obligor are true in all material respects.
|
5.3
|
Conditions relating to Optional Currencies
|
(a)
|
A currency (other than GBP or USD, which are committed Optional Currencies) will constitute an Optional Currency in relation to a Utilisation if:
|
(i)
|
it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Utilisation; and
|
(ii)
|
it has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.
|
(b)
|
If the Agent has received a written request from the Company by the Specified Time for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Company by the Specified Time:
|
(i)
|
whether or not the Lenders have granted their approval; and
|
(ii)
|
if approval has been granted, the minimum amount (and, if required, integral multiples) for any Utilisation in that currency.
|
5.4
|
Maximum number of Utilisations
|
(a)
|
A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than twenty-five (25) Loans or more than twenty-five (25) Letters of Credit would be outstanding.
|
(b)
|
Any Loan made by a single Lender under Clause 11.2 (
Unavailability of a currency
) shall not be taken into account in this Clause 5.4.
|
6.1
|
Delivery of a Utilisation Request
|
6.2
|
Completion of a Utilisation Request
|
(a)
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
it identifies the Borrower;
|
(ii)
|
the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
|
(iii)
|
the currency and amount of the Utilisation comply with Clause 6.3 (
Currency and amount
);
|
(iv)
|
the proposed Interest Period complies with Clause 16 (
Interest Periods
);
|
(v)
|
it specifies the account bank details to which the proceeds of the Loan are to be credited; and
|
(vi)
|
it is duly signed by authorised signatories of the relevant Borrower.
|
(b)
|
Only one Revolving Facility Loan may be requested in each subsequent Utilisation Request.
|
6.3
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.
|
(b)
|
The amount of the proposed Revolving Facility Loan must be:
|
(i)
|
if the currency selected is the Base Currency, a minimum of EUR 20,000,000 or greater multiples of EUR 5,000,000 or, if less, the Available Facility; or
|
(ii)
|
if the currency selected is GBP, a minimum of GBP 10,000,000 or greater multiples of GBP 1,000,000 or , if less, the Available Facility;
|
(iii)
|
if the currency selected is USD, a minimum of USD 20,000,000 or greater multiples of USD 5,000,000 or, if less, the Available Facility;
|
(iv)
|
if the currency selected is an Optional Currency other than GBP or USD, the minimum amount (and, if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 5.3 (
Conditions relating to Optional Currencies
) or, if less, the Available Facility; and
|
(v)
|
in any event such that its Base Currency Amount is less than or equal to the Available Facility.
|
6.4
|
Lenders’ participation
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Revolving Facility Loan available by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender’s participation in each Revolving Facility Loan will be equal to the proportion borne by the Available Commitment of such Lender (or, in the case of a Lender Affiliate, the Lender of which it is a Lender Affiliate) to the Available Facility immediately prior to making the Revolving Facility Loan.
|
(c)
|
The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Revolving Facility Loan and the amount of its participation in that Revolving Facility Loan, in each case by the Specified Time.
|
6.5
|
Limitation of Ancillary Facility
|
6.6
|
Cancellation of Commitment
|
6.7
|
Affiliate Facility Offices – Revolving Facility Loans
|
(a)
|
A Lender may fulfil its obligations to participate in or make any Revolving Facility Loan to a certain Borrower, certain Borrowers or, as the case may be, all Borrowers in a particular jurisdiction or particular jurisdictions through a Lender Affiliate.
|
(b)
|
A Lender Affiliate shall not have any Commitment, but the Available Commitment of the relevant Lender shall be reduced by the amount of the Base Currency Amount of the Revolving Facility Loans made available by its Lender Affiliate. The Lender and the relevant Lender Affiliate shall be treated as having a single vote which is exercised by the Lender (and not the Lender Affiliate).
|
(c)
|
A Lender which has a Lender Affiliate will remain liable for the relevant obligations under the Finance Documents in the event that the Lender Affiliate fails to perform them.
|
7.1
|
General
|
(a)
|
In this Clause 7 and Clause 8 (
Letters of Credit
):
|
(i)
|
Expiry Date
means, for a Letter of Credit, the last day of its Term;
|
(ii)
|
L/C Proportion
means, in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender's Available Commitment to the Available Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender;
|
(iii)
|
Renewal Request
means a written notice delivered to the Agent in accordance with Clause 7.7 (
Renewal of a Letter of Credit
); and
|
(iv)
|
Term
means each period determined under this Agreement for which the relevant Issuing Bank is under a liability under a Letter of Credit.
|
(b)
|
Any reference in this Agreement to:
|
(i)
|
a
Finance Party
includes any Issuing Bank;
|
(ii)
|
the Interest Period of a Letter of Credit will be construed as a reference to the Term of that Letter of Credit;
|
(iii)
|
an amount borrowed includes any amount utilised by way of Letter of Credit;
|
(iv)
|
a Utilisation made or to be made to a Borrower includes a Letter of Credit issued on its behalf;
|
(v)
|
a Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit;
|
(vi)
|
amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit;
|
(vii)
|
an outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the Borrower in respect of that Letter of Credit at that time;
|
(viii)
|
a Borrower
repaying
or
prepaying
a Letter of Credit means:
|
(A)
|
that Borrower providing cash cover for that Letter of Credit;
|
(B)
|
the maximum amount payable under the Letter of Credit being reduced or cancelled in accordance with its terms;
|
(C)
|
the relevant Issuing Bank being satisfied that it has no further liability under that Letter of Credit; or
|
(D)
|
the relevant Issuing Bank and the Borrower agreeing for the benefit of the Finance Parties in form and substance acceptable to the Agent, that such Letter of Credit continues on a bilateral basis outside the scope of the Facility and no longer constitutes a Utilisation hereunder,
|
(ix)
|
a Borrower providing
cash cover
for a Letter of Credit means a Borrower paying an amount in the currency of the Letter of Credit to an interest-bearing account in the name of the Borrower and the following conditions are met:
|
(A)
|
the account is with the Agent or the relevant Issuing Bank or with the Lender for which that cash cover is to be provided;
|
(B)
|
subject to paragraph (b) of Clause 8.6 (
Cash Cover by Borrower
), withdrawals from the account may only be made to pay a Finance Party amounts due and payable under this Agreement in respect of that Letter of Credit until no amount is or may be outstanding under that Letter of Credit; and
|
(C)
|
the Borrower has executed a security document, in form and substance satisfactory to the Agent or the Finance Party with which that account is held, creating a first ranking security interest over that account.
|
(c)
|
Clause 6 (
Utilisation - Revolving Facility
Loans
) does not apply to a Utilisation by way of Letter of Credit.
|
(d)
|
In determining the amount of the Available Facility and a Lender's L/C Proportion of a proposed Letter of Credit for the purposes of this Agreement the Available Commitment of a Lender will be calculated ignoring any cash cover provided for outstanding Letters of Credit unless the relevant Issuing Bank and the Borrower have agreed for the benefit of the Finance Parties in form and substance acceptable to the Agent, that such Letter of Credit continues on a bilateral basis outside the scope of the Facility and no longer constitutes a Utilisation hereunder.
|
7.2
|
Facility
|
7.3
|
Delivery of a Utilisation Request for Letters of Credit
|
7.4
|
Completion of a Utilisation Request for Letters of Credit
|
(a)
|
it specifies that it is for a Letter of Credit;
|
(b)
|
it identifies the Borrower and the Issuing Bank;
|
(c)
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
(d)
|
the currency and amount of the Letter of Credit comply with Clause 7.5 (
Currency and amount
);
|
(e)
|
the form of Letter of Credit is attached;
|
(f)
|
the Expiry Date of the Letter of Credit falls on or before the applicable Termination Date;
|
(g)
|
the delivery instructions for the Letter of Credit are specified; and
|
(h)
|
it identifies the beneficiary.
|
7.5
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.
|
(b)
|
The aggregate Base Currency Amount of all outstanding Letters of Credit shall at no time exceed EUR 250,000,000 per Issuing Bank and EUR 500,000,000 in aggregate (in each case calculated ignoring any cash cover provided for outstanding Letters of Credit).
|
(c)
|
The amount of the proposed Letter of Credit must be an amount whose Base Currency Amount is not more than the Available Facility and which is:
|
(i)
|
if the currency selected is the Base Currency, a minimum of EUR 5,000,000 or, if less, the Available Facility; or
|
(ii)
|
if the currency selected is GBP, a minimum of GBP 3,000,000 or, if less, the Available Facility; or
|
(iii)
|
if the currency selected is USD, a minimum of USD 5,000,000 or, if less, the Available Facility; or
|
(iv)
|
if the currency selected is an Optional Currency other than GBP or USD, the minimum amount (and if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 5.3 (
Conditions relating to Optional Currencies
) or, if less, the Available Facility.
|
7.6
|
Issue of Letters of Credit
|
(a)
|
If the conditions set out in this Agreement have been met, the relevant Issuing Bank shall issue the Letter of Credit on the Utilisation Date, provided that an Issuing Bank may refuse to issue the requested Letter of Credit because of the identity of the beneficiary or due to legal or regulatory restrictions or its acceptability under legal, commercial (other than in relation to the agreed pricing pursuant to the terms of this Agreement) and internal policy implications. The relevant Issuing Bank will inform the Agent and the relevant Borrower at the Specified Time whether it intends to issue the requested Letter of Credit on the Utilisation Date or whether it intends to refuse to issue the requested Letter of Credit.
|
(b)
|
The relevant Issuing Bank will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:
|
(i)
|
in the case of a Letter of Credit renewed in accordance with Clause 7.7 (
Renewal of Letter of Credit
), no Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and
|
(ii)
|
the Repeating Representations to be made by each Obligor are true in all material respects.
|
(c)
|
The amount of each Lender's participation in each Letter of Credit will be equal to the proportion borne by that Lender's Available Commitment to the Available Facility immediately prior to the issue of the Letter of Credit.
|
(d)
|
The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the relevant Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.
|
7.7
|
Renewal of a Letter of Credit
|
(a)
|
A Borrower may request any Letter of Credit issued on its behalf be renewed by delivery to the Agent of a Renewal Request by the Specified Time.
|
(b)
|
The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit except that the conditions set out in paragraphs (e) and (g) of Clause 7.4 (
Completion of a Utilisation Request for Letters of Credit
) shall not apply.
|
(c)
|
The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:
|
(i)
|
its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and
|
(ii)
|
its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.
|
(d)
|
If the conditions set out in this Agreement have been met, the relevant Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.
|
7.8
|
Reduction of a Letter of Credit
|
(a)
|
If, on the proposed Utilisation Date of a Letter of Credit, any of the Lenders is a Non-Acceptable L/C Lender and:
|
(i)
|
that Lender has failed to provide cash collateral to the Issuing Bank in accordance with Clause 8.5 (
Cash collateral by Non-Acceptable L/C Lender
); and
|
(ii)
|
either:
|
(A)
|
the Issuing Bank has not required the relevant Borrower to provide cash cover pursuant to Clause 8.6 (
Cash cover by Borrower
); or
|
(B)
|
the relevant Borrower has failed to provide cash cover to the Issuing Bank in accordance with Clause 8.6 (
Cash cover by Borrower
),
|
(b)
|
The Issuing Bank shall notify the Agent of each reduction made pursuant to this Clause 7.8.
|
(c)
|
This Clause 7.8 shall not affect the participation of each other Lender in that Letter of Credit.
|
7.9
|
Revaluation of Letters of Credit
|
(a)
|
If any Letter of Credit is denominated in an Optional Currency, the Agent shall on the last Business Day of each calendar quarter falling after the date of the Letter of Credit recalculate the Base Currency Amount of that Letter of Credit by notionally converting into the Base Currency the outstanding amount of that Letter of Credit on the basis of the Agent's Spot Rate of Exchange on the date of calculation.
|
(b)
|
A Borrower shall, if requested by the Agent within three Business Days of any calculation under paragraph (a) above, ensure that within three Business Days sufficient Utilisations are prepaid to prevent the Base Currency Amount
|
(i)
|
of all Utilisations exceeding the Total Commitments (after deducting the total Ancillary Commitments); and
|
(ii)
|
of all outstanding Letters of Credit exceeding EUR 250,000,000 per Issuing Bank or EUR 500,000,000 in aggregate
|
8.1
|
Immediately payable
|
8.2
|
Fee payable in respect of Letters of Credit
|
(a)
|
Each Borrower shall pay to the relevant Issuing Bank a fronting fee in respect of each Letter of Credit requested by it in the amount and at the time agreed in a letter between the relevant Issuing Bank and the Company and calculated on the outstanding amount which is counter-indemnified by the other Lenders (excluding, for the avoidance of doubt any Affiliate of the relevant Issuing Bank) for the period from the issue of that Letter of Credit until its Expiry Date. A reference in this Agreement to a Fee Letter shall include the letter referred to in this paragraph.
|
(b)
|
Each Borrower shall pay to the Agent (for the account of each Lender) a letter of credit fee in the Base Currency computed at a rate equal to 80 % of the applicable Margin on the outstanding amount of each Letter of Credit requested by it for the period from the issue of that Letter of Credit until its Expiry Date. This fee shall be distributed according to each Lender's L/C Proportion of that Letter of Credit.
|
(c)
|
The accrued fronting fee and letter of credit fee on a Letter of Credit shall be payable on the last day of each successive period of three Months (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of issue of that Letter of Credit.
|
(d)
|
If and for as long as a Borrower cash covers any part of a Letter of Credit then
|
(i)
|
the fronting fee payable to the relevant Issuing Bank (subject to paragraph (e) below) and (other than in relation to a Letter of Credit in respect of which paragraph (c) of Clause 8.6 (
Cash cover by Borrower
) applies) the letter of credit fee payable for the account of each Lender shall continue to be payable until the expiry of the Letter of Credit;
|
(ii)
|
the Borrower will be entitled to withdraw the interest accrued on the cash cover to pay those fees.
|
(e)
|
If and for as long as a Borrower or a Lender cash covers any part of a Letter of Credit then the fronting fee payable to the relevant Issuing Bank in respect of the cash covered part of that Letter of Credit shall be reduced to 50 per cent of the fronting fee otherwise payable to the relevant Issuing Bank.
|
8.3
|
Claims under a Letter of Credit
|
(a)
|
Each Borrower irrevocably and unconditionally authorises the relevant Issuing Bank (acting in good faith) to pay any claim made or purported to be made under a Letter of Credit requested by it and which appears on its face to be in order (a
claim
).
|
(b)
|
Each Borrower which requested a Letter of Credit shall immediately on demand pay to the Agent for the relevant Issuing Bank an amount equal to the amount of any claim under that Letter of Credit or direct the Agent to apply any cash cover therefor in payment of such claim.
|
(c)
|
Each Borrower acknowledges that an Issuing Bank:
|
(i)
|
is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and
|
(ii)
|
deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person;
|
(d)
|
The obligations of a Borrower under this Clause will not be affected by:
|
(i)
|
the sufficiency, accuracy or genuineness of any claim or any other document; or
|
(ii)
|
any incapacity of, or limitation on the powers of, any person signing a claim or other document.
|
8.4
|
Indemnities
|
(a)
|
Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss or liability (other than Tax or amounts in respect of Tax) incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence or wilful misconduct) in acting as an Issuing Bank under any Letter of Credit requested by that Borrower.
|
(b)
|
Each Lender shall (according to its L/C Proportion) immediately on demand indemnify the relevant Issuing Bank against any cost, loss or liability incurred by such Issuing Bank (otherwise than by reason of such Issuing Bank's gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit (unless the relevant Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).
|
(c)
|
If any Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that Lender will not be obliged to comply with paragraph (b) and shall instead be deemed to have taken, on the date the Letter of Credit is issued (or if later, on the date the Lender's participation in the Letter of Credit is transferred or assigned to the Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Letter of Credit in an amount equal to its L/C Proportion of that Letter of Credit. On receipt of demand from the Agent, that Lender shall pay to the Agent (for the account of the relevant Issuing Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.
|
(d)
|
The Borrower which requested a Letter of Credit shall immediately on demand reimburse any Lender for any payment it makes to an Issuing Bank under this Clause 8.4 (
Indemnities
) in respect of that Letter of Credit.
|
(e)
|
The obligations of each Lender or Borrower under this Clause are continuing obligations and will extend to the ultimate balance of sums payable by that Lender or Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.
|
(f)
|
The obligations of any Lender under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
|
(i)
|
any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or other person;
|
(ii)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement;
|
(iii)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Letter of Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(iv)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;
|
(v)
|
any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit or any other document or security;
|
(vi)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or
|
(vii)
|
any insolvency or similar proceedings.
|
(g)
|
Neither the Company nor any Borrower nor any Lender shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that a Letter of Credit with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
|
(h)
|
Each relevant Borrower who requested a Letter of Credit and the Company undertakes with regard to Clause 27.10 (
Letter of Credit upon first demand
) that if
|
(i)
|
a Borrower has requested the issuance of a surety or guarantee payable upon first demand (
auf erstes Anfordern
) with respect to an obligation in the underlying contract (governed by German law) which provides for warranty and/or performance obligations to be secured by means of a Letter of Credit; and
|
(ii)
|
the classification of such obligation to provide for such a surety or guarantee payable upon first demand as an individual agreement (
Individualabrede
) between the relevant counterparties is disputed
|
(A)
|
taking any steps of whatever kind which are based on the Invalid First Demand Feature and which may hinder the relevant Issuing Bank in fulfilling its obligations under and in connection with such a Letter of Credit in compliance with its terms; and
|
(B)
|
disputing any reimbursement claims based on the Invalid First Demand Feature.
|
(i)
|
If and to the extent a Lender does not reimburse and indemnify an Issuing Bank with respect to any claims notified to it in accordance with paragraph (b) above (such Lender a
Defaulting Lender
and each such amount a
Final Loss Amount
), the relevant Issuing Bank shall inform the Agent of the Final Loss Amount and each other Issuing Bank (each an
Indemnifying Issuing Bank
) shall equally (
ohne Rangverhältnis
) indemnify like a guarantor (
garantiegleiche Freistellungsverpflichtung
) that Issuing Bank on demand in an amount equal to the percentage of each Final Loss Amount which is equal to the ratio of the aggregate Base Currency Amount of all outstanding Letters of Credit issued by the relevant Indemnifying Issuing Bank to the aggregate Base Currency Amount of all outstanding Letters of Credit issued under this Agreement on the date it is notified by the Agent of the Base Currency Amount of the Final Loss Amount.
|
(j)
|
The Agent shall inform the Indemnifying Issuing Banks as soon as practically possible of the Base Currency Amount of any Final Loss Amount and each Indemnifying Issuing Bank shall within three Business Days following such notice make payment to the relevant Issuing Bank as instructed by the Agent of an amount equal to its proportion of the Base Currency Amount of the Final Loss Amount calculated as set out in paragraph (i) above.
|
(k)
|
The Borrower which requested a Letter of Credit and the Defaulting Lender shall jointly and severally (
gesamtschuldnerisch
) immediately on demand reimburse any Indemnifying Issuing Bank for any payment it makes to an Issuing Bank under paragraphs (i) and (j) above in respect of a Letter of Credit.
|
8.5
|
Cash collateral by Non-Acceptable L/C Lender
|
(a)
|
If, at any time, a Lender is a Non-Acceptable L/C Lender, the relevant Issuing Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling three Business Days after the request by the Issuing Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Letter of Credit and in the currency of that Letter of Credit to an interest-bearing account held in the name of that Lender with the Issuing Bank.
|
(b)
|
The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the Issuing Bank, as collateral for any amounts due and payable under the Finance Documents by that Lender to the Issuing Bank in respect of that Letter of Credit.
|
(c)
|
Until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay to the Issuing Bank amounts due and payable to the Issuing Bank by the Non-Acceptable L/C Lender under the Finance Documents in respect of that Letter of Credit.
|
(d)
|
Each Lender shall notify the Agent and the Company:
|
(i)
|
on the date of this Agreement or on any later date on which it becomes a Lender in accordance with Clause 29 (
Changes to the Lenders
) whether it is a Non-Acceptable L/C Lender; and
|
(ii)
|
as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,
|
(e)
|
Any notice received by the Agent pursuant to paragraph (d) above shall constitute notice to the Issuing Bank of that Lender’s status and the Agent shall, upon receiving such notice, promptly notify the Issuing Bank of that Lender’s status as specified in that notice.
|
(f)
|
If a Lender who has provided cash collateral in accordance with this Clause 8.5:
|
(i)
|
ceases to be a Non-Acceptable L/C Lender; and
|
(ii)
|
no amount is due and payable by that Lender in respect of a Letter of Credit,
|
8.6
|
Cash cover by Borrower
|
(a)
|
If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the Issuing Bank that it will not provide cash collateral) in accordance with Clause 8.5 (
Cash collateral by Non-Acceptable L/C Lender
) and the Issuing Bank notifies the Company (with a copy to the Agent) that it requires the Borrower of the relevant Letter of Credit or proposed Letter of Credit to provide cash cover to an account with the Issuing Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Letter of Credit and in the currency of that Letter of Credit then that Borrower shall do so within three Business Days after the notice is given.
|
(b)
|
Notwithstanding paragraph (b)(ix) of Clause 7.1 (
General
), the Issuing Bank may agree to the withdrawal of amounts up to the level of that cash cover from the account if:
|
(i)
|
it is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender; or
|
(ii)
|
the relevant Lender’s obligations in respect of the relevant Letter of Credit are transferred to a New Lender (as defined in Clause 29 (
Changes to the Lenders
) in accordance with the terms of this Agreement.
|
(c)
|
To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 8.6, the relevant Lender’s L/C Proportion in respect of that Letter of Credit will remain (but that Lender’s obligations in relation to that Letter of Credit may be satisfied in accordance with paragraph (b)(ix)(B) of Clause 7.1 (
General
)). However, the relevant Borrower’s obligation to pay any letter of credit fee in relation to the relevant letter of credit to the Agent (for the account of that Lender) in accordance with paragraph (b) of Clause 8.2 (
Fee payable in respect of Letters of Credit
) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).
|
(d)
|
The relevant Issuing Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to this Clause 8.6 and of any change in the amount of cash cover so provided.
|
8.7
|
Rights of contribution
|
8.8
|
Role of the Issuing Banks
|
(a)
|
Nothing in this Agreement constitutes any Issuing Bank as a trustee (
Treuhänder
) of any other person. No Issuing Bank has any financial or commercial duty of care (
Vermögensfürsorgepflicht
) for any person.
|
(b)
|
No Issuing Bank shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
(c)
|
An Issuing Bank may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.
|
(d)
|
An Issuing Bank may rely on:
|
(i)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
(ii)
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
(e)
|
An Issuing Bank may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
(f)
|
An Issuing Bank may act in relation to the Finance Documents through its personnel and agents.
|
(g)
|
An Issuing Bank is not responsible for:
|
(i)
|
the adequacy, accuracy and/or completeness of any information (whether oral or written) provided by the Agent, any Party (including itself), or any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or
|
(ii)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, an Issuing Bank is not obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
8.9
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below, an Issuing Bank will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
(b)
|
No Party (other than an Issuing Bank) may take any proceedings against any officer, employee or agent of an Issuing Bank in respect of any claim it might have against an Issuing Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document (and any officer, employee or agent of an Issuing Bank may rely on this Clause pursuant to Section 328 para 1 Civil Code (
Bürgerliches Gesetzbuch
) (
echter berechtigender Vertrag zugunsten Dritter
).
|
8.10
|
Credit appraisal by the Lenders
|
8.11
|
Affiliates of Lenders as Issuing Banks
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Issuing Bank. In such case, the Lender and its Affiliate shall be treated as a single Issuing Bank for all purposes of this Agreement except this Clause 8.11 (
Affiliates of Lenders as Issuing Banks
).
|
(b)
|
Prior to such an Affiliate becoming an Issuing Bank, the Lender shall specify such Affiliate for this purpose in a notice delivered by that Lender to the Agent.
|
(c)
|
An Affiliate of a Lender which becomes an Issuing Bank shall accede to this Agreement by delivery to the Agent of a duly completed Lender Accession Letter.
|
(d)
|
Where this Agreement or any other Finance Document imposes an obligation on an Issuing Bank and the relevant Issuing Bank is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.
|
9.1
|
General
|
(a)
|
In this Clause and Clause 10 (
Swingline Loans
):
|
(i)
|
Available Swingline Commitment
means (but without limiting Clause 9.6 (
Relationship with the Revolving Facility
) a Swingline Lender's Swingline Commitment minus:
|
(A)
|
the Base Currency Amount of its (and its Lender Affiliates') participation in any outstanding Swingline Loans; and
|
(B)
|
in relation to any proposed Utilisation, the Base Currency Amount of its (and its Lender Affiliates') participation in any Swingline Loans that are due to be made on or before the proposed Utilisation Date,
|
(ii)
|
Available Swingline Facility
means EUR 500,000,000 less the Base Currency Amount of any Swingline Loans outstanding at such time and adjusted so as to take account of any Swingline Loans due to be made and/or repaid on the proposed Utilisation Date.
|
(iii)
|
Relevant Swingline Lenders
means:
|
(A)
|
in the case of any Swingline Loan denominated in euro, the Swingline Lenders listed in Section 2 of Part B of Schedule 1 (
The Original Parties
) or any other person that becomes a Swingline Lender after the date of this Agreement in accordance with Clause 29 (
Changes to the Lenders
) and to whom a Swingline Commitment is transferred; and
|
(B)
|
in the case of any Swingline Loan denominated in US Dollars, the Swingline Lenders listed in Section 2 of Part B of Schedule 1 (
The Original Parties
) or any other person that becomes a Swingline Lender after the date of this Agreement in accordance with Clause 29 (
Changes to the Lenders
) and to whom or to whom's Affiliate a Swingline Commitment is transferred and that has notified the Relevant Swingline Agent as being the Swingline Lender through whom the obligation to participate in Swingline Loans denominated in US Dollars may be fulfilled.
|
(iv)
|
Relevant Swingline Rate
means, in relation to
|
(A)
|
a Swingline Loan denominated in US Dollars, the percentage rate per annum which is the aggregate of:
|
(I)
|
the rate per annum determined by the USD Swingline Agent to be the Federal Funds Rate (as published by the Federal Reserve Bank of New York) for that day and if any such rate is below zero the relevant rate will be deemed to be zero; and
|
(II)
|
the Margin; and
|
(B)
|
a Swingline Loan denominated in euro, the percentage rate per annum which is the aggregate of:
|
(I)
|
the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the European interbank market as of 11.00 a.m. on the Utilisation Date for that Swingline Loan for the offering of deposits in euro for a period comparable to the Interest Period for the relevant Swingline Loan and for settlement on that day and if any such rate is below zero the relevant rate will be deemed to be zero; and
|
(II)
|
the Margin.
|
(v)
|
Overall Commitment
of a Lender means:
|
(A)
|
its Commitment minus the Base Currency Amount of the aggregate of its Ancillary Commitments; or
|
(B)
|
in the case of a Swingline Lender which does not have a Commitment, the Commitment of a Lender which is its Affiliate minus the Base Currency Amount of the aggregate of such Lender's (or its Affiliate's) Ancillary Commitments.
|
(b)
|
Any reference in this Agreement to:
|
(i)
|
an
Interest Period
includes each period determined under this Agreement by reference to which interest on a Swingline Loan is calculated; and
|
(ii)
|
a
Lender
includes a Swingline Lender unless the context otherwise requires.
|
(c)
|
(i) Clause 5.2 (
Further conditions precedent
) and 5.3 (
Conditions relating to optional
|
(iv)
|
Clause 15 (
Interest
) as it applies to the calculation of interest on a Loan but not default interest on an overdue amount; and
|
9.2
|
Delivery of a Utilisation Request for Swingline Loans
|
(a)
|
A Borrower may utilise the Swingline Facility by delivery to the Relevant Swingline Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b)
|
Each Utilisation Request for a Swingline Loan must be sent to the Relevant Swingline Agent to the address notified by the Relevant Swingline Agent for this purpose with a copy to its address referred to in Clause 36 (
Notices
). A copy of each Utilisation Request for Swingline Loans must also be sent to the Agent at the same time as such Utilisation Request is sent to the Relevant Swingline Agent.
|
9.3
|
Completion of a Utilisation Request for Swingline Loans
|
(a)
|
Each Utilisation Request for a Swingline Loan is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
it identifies the Borrower;
|
(ii)
|
the proposed Utilisation Date is a TARGET Day and a Business Day in Luxembourg with respect to Swingline Loans denominated in euro or with respect to Swingline Loans denominated in US Dollars, a New York Business Day, in each case within the Availability Period;
|
(iii)
|
it specifies the currency for the Swingline Loan as being either euro or US Dollar;
|
(iv)
|
the Base Currency Amounts of the Swingline Loans outstanding following the requested Utilisation will not exceed the amount of the Total Swingline Commitments;
|
(v)
|
the amount of the proposed Swingline Loan is not more than the Available Swingline Facility and the Available Facility and is a minimum of EUR 10,000,000 if denominated in euro, or, USD 10,000,000 if denominated in US Dollars or, if less, the Available Swingline Facility;
|
(vi)
|
the aggregate amount of outstanding Swingline Loans denominated in US Dollars does not and, following the requested Utilisation, will not exceed the Base Currency Amount of EUR 250,000,000;
|
(vii)
|
the proposed Interest Period:
|
(A)
|
does not overrun the Termination Date;
|
(B)
|
is a period of not more than seven Business Days; and
|
(C)
|
ends on a Business Day (in case of a Swingline Loan denominated in euro) or a New York Business Day (in case of a Swingline Loan denominated in USD);
|
(viii)
|
it specifies the account bank details to which the proceeds of the Swingline Loan are to be credited; and
|
(ix)
|
it is duly signed by authorised signatories of the relevant Borrower.
|
(b)
|
Only one Swingline Loan may be requested in each Utilisation Request.
|
9.4
|
Swingline Lenders' participation
|
(a)
|
Subject to Clause 9.5 (
Affiliate Facility Offices – Swingline Loans
), if the conditions set out in this Agreement have been met, each Relevant Swingline Lender shall make its participation in each Swingline Loan available through its Facility Office in New York or such other Facility Office nominated by a Swingline Lender and notified to the USD Swingline Agent (for Swingline Loans denominated in US Dollar) or its Facility Office in any Participating Member State or London (for Swingline Loans denominated in euro).
|
(b)
|
The Relevant Swingline Lenders will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request and on the proposed Utilisation Date:
|
(i)
|
no Default is continuing or would result from the proposed Swingline Loan; and
|
(ii)
|
the Repeating Representations made by each Obligor are true in all material respects.
|
(c)
|
The amount of each Relevant Swingline Lender's participation in each Swingline Loan in which it is obliged to participate will be equal to the proportion borne by its Available Swingline Commitment (or, in the case of a Lender Affiliate, that of the Swingline Lender of which it is a Lender Affiliate) to the Available Swingline Facility immediately prior to making the Swingline Loan, adjusted to take account of any limit applying under Clause 9.6 (
Relationship with the Facility
).
|
(d)
|
The Relevant Swingline Agent shall notify each Relevant Swingline Lender of the amount of each Swingline Loan in which it is obliged to participate, the Base Currency Amount of each Swingline Loan and its participation in that Swingline Loan by the Specified Time.
|
(e)
|
Notwithstanding any other term of this Agreement a Swingline Lender is only obliged to participate in a Swingline Loan to the extent that it would not result in the Base Currency Amount of its participation in such Swingline Loan exceeding the Available Swingline Commitment of such Swingline Lender (or in the case of a Lender Affiliate, that of the Swingline Lender of which it is a Lender Affiliate).
|
9.5
|
Affiliate Facility Offices – Swingline Loans
|
(a)
|
A Swingline Lender may fulfil its obligations to participate in or make any Swingline Loan to a certain Borrower, certain Borrowers or, as the case may be, all Borrowers in a particular jurisdiction or particular jurisdictions through a Lender Affiliate.
|
(b)
|
A Lender Affiliate shall not have any Swingline Commitment, but the Available Swingline Commitment of the relevant Swingline Lender shall be reduced by the amount of the Base Currency Amount of Swingline Loans made available by its Lender Affiliate. The Swingline Lender and the relevant Lender Affiliate shall be treated as having a single vote which is exercised by the Swingline Lender.
|
(c)
|
A Swingline Lender which has a Lender Affiliate will remain liable for the relevant obligations under the Finance Documents in the event that the Lender Affiliate fails to perform them.
|
9.6
|
Relationship with the Revolving Facility
|
(a)
|
This Subclause applies when a Swingline Loan is outstanding or is to be borrowed.
|
(b)
|
The Revolving Facility may be used by way of Swingline Loans. The Swingline Facility is not independent of the Revolving Facility.
|
(c)
|
Notwithstanding any other term of this Agreement a Lender is only obliged to participate in a Utilisation to the extent that it would not result in the aggregate Base Currency Amounts of all its participation and that of a Lender which is its Affiliate in Utilisations exceeding its Overall Commitment.
|
(d)
|
Where, but for the operation of paragraph (c) above, the Base Currency Amount of a Lender's participation and that of a Lender which is its Affiliate in Utilisations would have exceeded its Overall Commitment, the excess will be apportioned among the other Lenders participating in the relevant Utilisation pro rata according to their relevant Commitments (or in the case of a Lender Affiliate, that of the Lender of which it is a Lender Affiliate). This calculation will be applied as often as necessary until the Utilisation is apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.
|
10.1
|
Swingline
|
(a)
|
Subject to the terms of this Agreement the Swingline Lenders make available to the Borrowers a dual-currency swingline loan facility in an aggregate amount equal to the Total Swingline Commitments.
|
(b)
|
A Swingline Loan may not be applied in repayment or prepayment of another Swingline Loan.
|
10.2
|
Repayment
|
(a)
|
Each Borrower that has drawn a Swingline Loan shall repay that Swingline Loan on the last day of its Interest Period.
|
(b)
|
If a Swingline Loan is not repaid in full on its due date, the Relevant Swingline Agent shall (if requested to do so in writing by any affected Swingline Lender) set a date (the
Loss Sharing Date
) on which payments shall be made between the Lenders to re-distribute the unpaid amount between them. The Relevant Swingline Agent shall give at least three Business Days notice to each affected Lender of the Loss Sharing Date and notify it of the amounts to be paid or received by it.
|
(c)
|
On the Loss Sharing Date each Lender must pay to the Relevant Swingline Agent its Proportion of the Unpaid Amount minus its (or its Affiliate's) Unpaid Swingline Participation (if any). If this produces a negative figure for a Lender no amount need be paid by that Lender.
|
(i)
|
its Commitment (or in the case of a Lender Affiliate, that of the Lender of which it is a Lender Affiliate) (or, if the Total Commitments are then zero, its Commitment (or in the case of a Lender Affiliate, that of the Lender of which it is a Lender Affiliate) immediately prior to their reduction to zero) minus (A) the Base Currency Amount of its participation (or that of a Lender which is its Affiliate) in any outstanding Utilisations (but ignoring its (or its Affiliate's) participation in the unpaid Swingline Loan) and (B) its (and/or its Affiliate's) Ancillary Commitment: to
|
(ii)
|
the Total Commitments (or, if the Total Commitments are then zero, the Total Commitments immediately prior to their reduction to zero) minus (A) any outstanding Utilisations (but ignoring the unpaid Swingline Loan) and (B) the aggregate of all Ancillary Commitments.
|
(d)
|
Out of the funds received by the Relevant Swingline Agent pursuant to sub-clause (c) the Agent shall pay to each Swingline Lender an amount equal to the Shortfall (if any) of that Swingline Lender where:
|
(e)
|
If the amount actually received by the Relevant Swingline Agent from the Lenders is insufficient to pay the full amount of the Shortfall of all Swingline Lenders then the amount actually received will be distributed amongst the Swingline Lenders pro rata to the Shortfall of each Swingline Lender.
|
(i)
|
Upon a payment under this paragraph, the paying Lender will be subrogated to the rights of the Swingline Lenders which have shared in the payment received.
|
(ii)
|
If and to the extent the paying Lender is not able to rely on its rights under sub-paragraph (i) above, the relevant Borrower shall be liable to the paying Lender for a debt equal to the amount the paying Lender has paid under this paragraph.
|
(iii)
|
Any payment under this paragraph does not reduce the obligations in aggregate of any Obligor.
|
10.3
|
Voluntary Prepayment of Swingline Loans
|
(a)
|
The Borrower to which a Swingline Loan has been made may prepay at any time the whole of that Swingline Loan.
|
(b)
|
Unless a contrary indication appears in this Agreement, any part of the Swingline Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement.
|
10.4
|
Interest
|
(a)
|
The rate of interest on each Swingline Loan for its Interest Period is the Relevant Swingline Rate.
|
(b)
|
The Relevant Swingline Agent shall promptly notify the relevant Swingline Lenders and the relevant Borrower of the Relevant Swingline Rate applicable to a Swingline Loan.
|
(c)
|
Each Borrower shall pay accrued interest on each Swingline Loan made to it on the last day of its Interest Period.
|
10.5
|
Interest Period
|
(a)
|
Each Swingline Loan has one Interest Period only.
|
(b)
|
The Interest Period for a Swingline Loan must be selected in the relevant Utilisation Request.
|
10.6
|
Swingline Agent
|
(a)
|
The Relevant Swingline Agent may perform its duties in respect of the Swingline Facility through an Affiliate acting as its agent.
|
(b)
|
Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) pay to or indemnify the Relevant Swingline Agent, within three Business Days of demand, for or against any cost, loss or liability incurred by the Relevant Swingline Agent or its Affiliate (other than by reason of the Agent's or the Affiliate's gross negligence or wilful misconduct) in acting as the Relevant Swingline Agent for the Swingline Facility under the Finance Documents (unless the Relevant Swingline Agent or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document).
|
10.7
|
Conditions of assignment or transfer
|
(a)
|
its Swingline Commitment; or
|
(b)
|
if it does not have a Swingline Commitment, the Swingline Commitment of a Lender which is its Affiliate.
|
11.1
|
Selection of currency
|
11.2
|
Unavailability of a currency
|
(a)
|
a Lender notifies the Agent that the Optional Currency (other than GBP or USD) requested is not readily available to it in the amount required; or
|
(b)
|
a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
|
12.1
|
Type of Facility
|
(i)
|
an overdraft facility;
|
(ii)
|
a guarantee, bonding, documentary or stand-by letter of credit facility;
|
(iii)
|
a short term loan facility;
|
(iv)
|
a derivatives facility;
|
(v)
|
a foreign exchange facility; or
|
(vi)
|
any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender.
|
12.2
|
Availability
|
(a)
|
If the Company and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide an Ancillary Facility on a bilateral basis in place of part of that Lender's unutilised Commitment (which shall (except for the purposes of determining the Majority Lenders) be reduced by the amount of the Ancillary Commitment under that Ancillary Facility).
|
(b)
|
An Ancillary Facility shall not be made available unless, not later than 10 Business Days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from the Company:
|
(i)
|
a notice in writing of the establishment of an Ancillary Facility and specifying:
|
(A)
|
the proposed Borrower(s) (or Affiliate(s) of a Borrower) which may use the Ancillary Facility;
|
(B)
|
the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;
|
(C)
|
the proposed type of Ancillary Facility to be provided;
|
(D)
|
the proposed Ancillary Lender;
|
(E)
|
the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, if the Ancillary Facility is an overdraft facility comprising more than one account its maximum gross amount (that amount being the
Designated Gross Amount
) and its maximum net amount (that amount being the
Designated Net Amount
); and
|
(F)
|
the proposed currency of the Ancillary Facility (if not denominated in EUR); and
|
(ii)
|
any other information which the Agent may reasonably request in connection with the Ancillary Facility.
|
(c)
|
Subject to compliance with paragraph (b) above:
|
(i)
|
the Lender concerned will become an Ancillary Lender; and
|
(ii)
|
the Ancillary Facility will be available,
|
12.3
|
Terms of Ancillary Facilities
|
(a)
|
Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Company.
|
(b)
|
However, those terms:
|
(i)
|
must be based upon normal commercial terms at that time (except as varied by this Agreement);
|
(ii)
|
may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 12.8 (
Affiliates of Borrowers
)) to use the Ancillary Facility;
|
(iii)
|
may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;
|
(iv)
|
may not allow the Ancillary Commitment of a Lender to exceed the Available Commitment of that Lender; and
|
(v)
|
must require that the Ancillary Commitment is reduced to nil, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date (or such earlier date as the Commitment of the relevant Ancillary Lender (or its Affiliate) is reduced to zero).
|
(c)
|
If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) Clause 37.3 (
Day count convention
) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility; (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.
|
12.4
|
Repayment of Ancillary Facility
|
(a)
|
An Ancillary Facility shall cease to be available on the Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.
|
(b)
|
If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (and its Commitment shall be increased accordingly).
|
(c)
|
No Ancillary Lender may demand repayment or prepayment of any amounts or demand cash cover for any liabilities made available or incurred by it under its Ancillary Facility (except where the Ancillary Facility is provided on a net limit basis to the extent required to bring any gross outstandings down to the net limit) unless:
|
(i)
|
the Total Commitments have been cancelled in full, or all outstanding Utilisations under the Facility have become due and payable in accordance with the terms of this Agreement, or the Agent has declared all outstanding Utilisations under the Facility immediately due and payable, or the expiry date of the Ancillary Facility occurs; or
|
(ii)
|
it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility; or
|
(iii)
|
the Ancillary Outstandings (if any) under that Ancillary Facility can be refinanced by a Utilisation and the Ancillary Lender gives sufficient notice to enable a Utilisation to be made to refinance those Ancillary Outstandings.
|
(d)
|
For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility mentioned in paragraph (c)(iii) above can be refinanced by a Utilisation of the Facility:
|
(i)
|
the Commitment of the Ancillary Lender will be increased by the amount of its Ancillary Commitment; and
|
(ii)
|
the Utilisation may (so long as paragraph (c)(i) above does not apply) be made irrespective of whether a Default is outstanding or any other applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether Clause 5.4 (
Maximum number of Utilisations
) or paragraph (a)(iii) of Clause 6.2 (
Completion of a Utilisation Request for Loans
) applies.
|
(e)
|
On the making of a Utilisation of the Facility to refinance Ancillary Outstandings:
|
(i)
|
each Lender will participate in that Utilisation in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Utilisations then outstanding bearing the same proportion to the aggregate amount of the Utilisations then outstanding as its Commitment bears to the Total Commitments; and
|
(ii)
|
the relevant Ancillary Facility shall be cancelled.
|
(f)
|
In relation to an Ancillary Facility which comprises an overdraft facility where a Designated Net Amount has been established, the Ancillary Lender providing that Ancillary Facility shall only be obliged to take into account for the purposes of calculating compliance with the Designated Net Amount those credit balances which it is permitted to take into account by the then current law and regulations in relation to its reporting of exposures to the applicable regulatory authorities as netted for capital adequacy purposes.
|
12.5
|
Ancillary Outstandings
|
(a)
|
the Ancillary Outstandings under any Ancillary Facility provided by that Ancillary Lender shall not exceed the Ancillary Commitment applicable to that Ancillary Facility and where the Ancillary Facility is an overdraft facility comprising more than one account, Ancillary Outstandings under that Ancillary Facility shall not exceed the Designated Net Amount in respect of that Ancillary Facility; and
|
(b)
|
where all or part of the Ancillary Facility is an overdraft facility comprising more than one account, the Ancillary Outstandings (calculated on the basis that the words in brackets in paragraph (a) of the definition of that term were deleted) shall not exceed the Designated Gross Amount applicable to that Ancillary Facility.
|
12.6
|
Information
|
12.7
|
Affiliates of Lenders as Ancillary Lenders
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender's name in Part B of Schedule 1 (
The Original Parties
) and/or the amount of any Commitment transferred to that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lender's Available Commitment, the Lender's Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.
|
(b)
|
The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 12.2 (
Availability
).
|
(c)
|
If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 29 (
Changes to the Lenders
), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.
|
(d)
|
Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.
|
12.8
|
Affiliates of Borrowers
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Borrower may with the approval of the relevant Lender become a borrower with respect to an Ancillary Facility.
|
(b)
|
The Company shall specify any relevant Affiliate of a Borrower in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 12.2 (
Availability
).
|
(c)
|
If a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 30.3 (
Resignation of a Borrower
), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Document.
|
(d)
|
Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
|
(e)
|
Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document.
|
12.9
|
Commitment amounts
|
(a)
|
its Ancillary Commitment; and
|
(b)
|
the Ancillary Commitment of its Affiliate.
|
14.1
|
Illegality
|
(a)
|
If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Utilisation:
|
(i)
|
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(ii)
|
upon the Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and
|
(iii)
|
each Borrower shall repay that Lender’s participation (and that of each of its Lender Affiliates) in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
(b)
|
If it becomes unlawful for an Issuing Bank to issue any Letter of Credit, such Issuing Bank shall promptly notify the Agent upon becoming aware of that event, and upon the Agent notifying the Company, the Facility shall cease to be available for the issue of Letters of Credit by that Issuing Bank.
|
14.2
|
Change of control
|
(a)
|
Upon the occurrence of a Change of Control Event, the Agent (acting on the instructions of the Majority Lenders) shall have the right to terminate the Facility by giving a written Change of Control Termination Notice to the Company (to be given within 30 days after notice has been given by the Company to the Agent of such Change of Control Event). Upon receipt of such Change of Control Termination Notice the Facility will be cancelled as set forth in paragraph (c) below and all Utilisations shall be repaid together with accrued interest as set forth in paragraph (b) below.
|
(b)
|
Any repayment pursuant to paragraph (a) above of a Utilisation outstanding at the relevant time shall be made in full with accrued interest on (i) the earlier of the last day of the Interest Period for that Utilisation and the date falling 60 days after the date of the Change of Control Event or (ii) if later, the fifteenth Business Day following receipt by the Company of the Change of Control Termination Notice.
|
(c)
|
If a Change of Control Termination Notice is given pursuant to the provisions of paragraph (a) above, any undrawn Commitments shall automatically be cancelled on the date the Change of Control Termination Notice is given and, upon any repayment made thereafter or any repayment made in accordance with the provisions of paragraph (b) above, a portion of the Facility corresponding to the amount repaid or prepaid shall automatically be cancelled with effect from the date such repayment or prepayment is made.
|
14.3
|
Voluntary cancellation
|
14.4
|
Voluntary prepayment of Revolving Facility Loans
|
14.5
|
Right of repayment and cancellation in relation to a single Lender
|
(a)
|
If:
|
(i)
|
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 19.2 (
Tax gross-up
); or
|
(ii)
|
any Lender claims indemnification from the Company under Clause 19.3 (
Tax indemnity
) or Clause 20.1 (
Increased costs
),
|
(b)
|
If any Lender becomes a Non-funding Lender, the Company may, at any time whilst the Lender continues to be a Non-funding Lender, give the Agent notice of cancellation of the Available Commitment of that Lender. On receipt of such notice, the Available Commitment of the Non-funding Lender shall immediately be reduced to zero. The Agent shall as soon as practicable after receipt of such notice, notify all the Lenders.
|
(c)
|
On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
(d)
|
On the last day of each Interest Period which ends after the Company has given notice under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation.
|
14.6
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 14 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
(c)
|
Unless a contrary indication appears in this Agreement, any part of the Facility which is repaid or prepaid may be reborrowed in accordance with the terms of this Agreement.
|
(d)
|
The Borrowers shall not repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e)
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Agent receives a notice under this Clause 14 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.
|
15.1
|
Calculation of interest
|
(a)
|
Margin; and
|
(b)
|
EURIBOR or, in relation to any Revolving Facility Loan in a currency other than euro, LIBOR.
|
15.2
|
Payment of interest
|
15.3
|
Default interest and lump sum damages
|
(a)
|
If an Obligor fails to pay any amount (other than interest) payable by it under a Finance Document on its due date, subject to paragraph (b) below, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). If an Obligor fails to pay interest payable by it under the Finance Documents on its due date, lump sum damages (
pauschalierter Schadensersatz
) shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). In the case of lump sum damages, the relevant Obligor shall be free to prove that no damages have arisen or that damages have not arisen in the asserted amount and any Finance Party shall be entitled to prove that further damages have arisen. Any interest or lump sum damage accruing under this Clause 15.3 shall be immediately payable by the Obligor on demand by the Agent.
|
(b)
|
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
(i)
|
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(ii)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent. higher than the rate which would have applied if the overdue amount had not become due.
|
15.4
|
Notification of rates of interest
|
16.1
|
Selection of Interest Periods
|
(a)
|
Each Loan shall have an Interest Period of one, two, three or six Months or any other period agreed between the Company and the Agent (acting on the instructions of all the Lenders), in each case as the relevant Borrower (or the Company) may select in the Utilisation Request for the respective Loan.
|
(b)
|
An Interest Period for a Loan shall not extend beyond the Termination Date.
|
(c)
|
A Loan has one Interest Period only.
|
16.2
|
Non-Business Days
|
17.1
|
Absence of quotations
|
17.2
|
Market disruption
|
(a)
|
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then:
|
(i)
|
the Agent shall promptly give notice of such to the relevant Borrower, the Company and the Lenders and the Loan which has been requested to be made:
|
(A)
|
if the relevant Borrower has given instruction to that effect in the Utilisation Request, shall not be made; or
|
(B)
|
if the relevant Borrower has not given such instruction, shall be made, and
|
(ii)
|
the rate of interest on each Lender’s share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
(A)
|
the Margin; and
|
(B)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
(b)
|
In this Agreement
Market Disruption Event
means:
|
(i)
|
at or about noon on the Quotation Day for the relevant Interest Period EURIBOR or, if applicable, LIBOR is to be determined by reference to the Reference Banks and none or only one of the Reference Banks supplies a rate to the Agent to determine EURIBOR or, if applicable, LIBOR for the relevant currency and Interest Period; or
|
(ii)
|
before close of business in Luxembourg on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed thirty-five per cent. of that Loan) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of EURIBOR or, if applicable, LIBOR.
|
17.3
|
Alternative basis of interest or funding
|
(a)
|
If a Market Disruption Event occurs and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
(b)
|
Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
|
17.4
|
Break Costs
|
(a)
|
Each Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent or the Company, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
18.1
|
Commitment fee
|
(a)
|
The Company shall pay to the Agent (for the account of each Lender) a fee in EUR computed at the rate of 35% of the applicable Margin on that Lender’s Available Commitment during the Availability Period.
|
(b)
|
The accrued commitment fee is payable quarterly in arrears during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
|
18.2
|
Utilisation fee
|
(a)
|
The Company shall pay to the Agent (for the account of each Lender pro rata to its Commitment) a fee in EUR computed at the rate of:
|
(i)
|
0.075 % p.a. on the aggregate amount of all Utilisations outstanding for each day on which the aggregate amount of all Utilisations outstanding is lower than or equal to one third (1/3) of the Total Commitments;
|
(ii)
|
0.15 % p.a. on the aggregate amount of all Utilisations outstanding for each day on which the aggregate amount of all Utilisations outstanding is higher than one third (1/3) of the Total Commitments but lower than or equal to two thirds (2/3) of the Total Commitments; or
|
(iii)
|
0.30 % p.a. on the aggregate amount of all Utilisations outstanding for each day on which the aggregate amount of all Utilisations outstanding is higher than two thirds (2/3) of the Total Commitments.
|
(b)
|
The accrued utilisation fee is payable in arrear on the last day of each calendar quarter and on the Termination Date. Accrued utilisation fee is also payable to the Agent for a Lender on the date such Lender's Commitment is cancelled and its participation in the Utilisations is prepaid or repaid in full.
|
18.3
|
Up-front Fee
|
18.4
|
Agency fee
|
19.1
|
Definitions
|
(a)
|
a Lender which is:
|
(i)
|
resident in Germany for German income tax purposes; or
|
(ii)
|
not so resident in Germany but which carries on a trade or business through a permanent establishment and which brings into account interest payable in respect of that advance in computing its taxable income in Germany; or
|
(b)
|
a Treaty Lender.
|
(a)
|
a Lender or Issuing Bank
|
(i)
|
which is a bank (as defined for the purpose of section 879 of the ITA, making an advance under a Finance Document; or
|
(ii)
|
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made,
|
(b)
|
a Lender or Issuing Bank which is
|
(i)
|
a company resident in the United Kingdom for United Kingdom tax purposes (as set out in section 933 of the ITA);
|
(ii)
|
a Lender which satisfies one of the other conditions in sections 934 to 937 of the ITA; or
|
(c)
|
a Treaty Lender.
|
(a)
|
either
|
(i)
|
a US Lender;
|
(ii)
|
a Treaty Lender;
|
(iii)
|
an ECI Lender; or
|
(iv)
|
a PIE Lender,
|
(b)
|
otherwise entitled to receive that payment without deduction or withholding of any United States federal income taxes (assuming for this purpose only that any applicable filing or administrative requirements and any procedural formalities in relation to that entitlement are duly complied with).
|
(a)
|
is treated as a resident of a Treaty State for the purposes of the relevant Treaty;
|
(b)
|
does not carry on a business in the United Kingdom (where a UK Borrower makes the interest payments) or the US (where a US Borrower makes the interest payments) or in Germany (where a German Borrower makes the interest payment) through a permanent establishment with which that Lender's or Issuing Bank's participation in the Utilisation is effectively connected; and
|
(c)
|
which under the terms of such Treaty is entitled to receive payments under the Finance Documents from the Obligor without any deduction of Tax.
|
(a)
|
where such Lender or Issuing Bank becomes a Party on the day on which this Agreement is entered into, such Lender or Issuing Bank is listed in Schedule 1 (
The Original Lenders
); and
|
(b)
|
where such Lender becomes a Party after the day on which this Agreement is entered into, such Lender or Issuing Bank gives a Tax Confirmation in the Transfer Certificate or Assignment Certificate which it executes on becoming a Party.
|
19.2
|
Tax gross up
|
(a)
|
Each Obligor shall make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The Company or the relevant Obligor shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender or Issuing Bank shall notify the Agent on becoming so aware in respect of a payment payable to that Lender or Issuing Bank. If the Agent receives such notification from a Lender or Issuing Bank, it shall promptly notify the Company and that Obligor.
|
(c)
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
An Obligor is not required to make an increased payment to a Lender or Issuing Bank under paragraph (c) above for a Tax Deduction in respect of tax imposed by the United Kingdom or Germany from a payment of interest on a Utilisation if, on the date on which the payment falls due:
|
(i)
|
the payment could have been made to the relevant Lender or Issuing Bank without a Tax Deduction if it was a Qualifying Lender (UK) or a Qualifying Lender (Germany), but on that date that Lender or Issuing Bank is not or has ceased to be a Qualifying Lender (UK) or a Qualifying Lender (Germany) other than as a result of any change after the date it became a Lender or Issuing Bank under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or
|
(A)
|
the relevant Lender or Issuing Bank is a Qualifying Lender (UK) solely under paragraph (b) of the definition of Qualifying Lender (UK);
|
(B)
|
an officer of H.M. Revenues Customs has given (and not revoked) a direction (a
Direction
) under section 931 of the ITA (as that provision has effect on the date on which the relevant Lender or Issuing Bank became a Party) which relates to that payment and that Lender or Issuing Bank has received from that Obligor or the Company a certified copy of that Direction; and
|
(C)
|
the payment could have been made to such Lender or Issuing Bank without any Tax Deduction in the absence of that Direction; or
|
(iii)
|
the relevant Lender or Issuing Bank is a Qualifying Lender (UK) solely under paragraph (b) of the definition of Qualifying Lender (UK) and it has not, other than by reason of any change after the date of this Agreement in (or in the interpretation, administration, or application of) any law, or any published practice or concession of any relevant taxing authority, given a Tax Confirmation to the Company; or
|
(iv)
|
the relevant Lender or Issuing Bank is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to such Lender or Issuing Bank without the Tax Deduction had that Lender or Issuing Bank complied with its obligations under paragraph (h) below.
|
(e)
|
A US Obligor is not required to make an increased payment to a Lender or Issuing Bank under paragraph (c) above for a Tax Deduction in respect of tax imposed by the United States from a payment of interest under the Finance Documents if, on the date on which the payment falls due, (i) with respect to any Utilisation made after 18 March 2012, withholding is required as a result of a failure by a Lender or Issuing Bank to comply with all requirements under Chapter 4, Subtitle A of the Code to permit any US Obligors to make payments to such Lender or Issuing Bank without deduction or withholding of any United States federal income tax; (ii) the payment could have been made to the relevant Lender or Issuing Bank without a Tax Deduction if it was a Qualifying Lender (US), but on that date that Lender or Issuing Bank is not or has ceased to be a Qualifying Lender (US) other than as a result of or any change, after the date it became a Lender or Issuing Bank under this Agreement, in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or (iii) the US Obligor making the payment is able to demonstrate that the payment could have been made to such Lender or Issuing Bank without the Tax Deduction had that Lender or Issuing Bank complied with its obligations under paragraphs (h) or (l) below.
|
(f)
|
If an Obligor is required to make a Tax Deduction, such Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(g)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
(h)
|
Unless paragraph (l) below applies, a Treaty Lender shall complete and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing, any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
|
(i)
|
A UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement.
|
(j)
|
A UK Non-Bank Lender shall promptly notify the Company and the Agent if there is any change in the position from that set out in the Tax Confirmation.
|
(k)
|
If appropriate, each Finance Party which is not a Qualifying Lender agrees that, upon request by an Obligor affected, it shall deliver, as soon as it can (and is entitled to) do so in the ordinary course of business, to such Obligor the relevant tax form as may be required under the laws of the Relevant Jurisdiction or under the relevant Treaty to avoid or reduce a Tax Deduction.
|
(l)
|
If requested by the Agent or by (or on behalf of) a US Borrower, a Qualifying Lender (US) shall, as soon as reasonably practicable, deliver to that US Borrower or the Company:
|
(i)
|
a duly completed United States of America Internal Revenue Service Form W-8BEN relating to exemption from withholding in respect of payments made by that US Borrower to that Lender in relation to participations in Utilisations to that US Borrower:
|
(A)
|
in the case of a PIE Lender, claiming that Lender's entitlement to the United States federal "portfolio interest exemption" in relation to participations in Utilisations to that US Borrower; or
|
(B)
|
in the case of a Treaty Lender, certifying that that Lender is entitled to a zero rate of withholding under a Treaty;
|
(ii)
|
in the case of an ECI Lender, a duly completed United States of America Internal Revenue Service Form W-8ECI certifying that the payments made by that US Borrower to that Lender in relation to participations in Utilisations to that US Borrower are effectively connected with the conduct by that Lender of a trade or business within the United States of America; or
|
(iii)
|
in the case of foreign intermediary or foreign flow-through entity, a duly completed United States of America Internal Revenue Service Form W-8IMY with all appropriate attachments establishing full exemption from withholding in respect of payments made by that US Borrower to that Lender in relation to participations in Utilisations to that US Borrower;
|
(iv)
|
in the case of a US Lender, a duly completed United States of America Internal Revenue Service Form W-9; or
|
(v)
|
in the case of any other Qualifying Lender (US) other than a US Lender, such other evidence as may reasonably be required from time to time to establish that the Lender is entitled to full exemption or relief from any federal taxation otherwise imposed by the United States of America in relation to participations by that Lender in Utilisations to that US Borrower,
|
(m)
|
Each Finance Party confirms on the date it becomes a Party to this Agreement (whether by transfer or otherwise) that it is or would be a Qualifying Lender (UK) with respect to any payments under the Finance Documents by any relevant UK Borrower and a Qualifying Lender (US) with respect to any payments under the Finance Documents by any relevant US Borrower, in each case, unless otherwise notified to the Company and the Agent and each Finance Party agrees to promptly notify the Company if it is a Treaty Lender.
|
19.3
|
Tax indemnity
|
(a)
|
The Company shall (within five Business Days of demand by the Agent) pay (or procure that an Obligor pays) to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax (including the loss or setting-off of any relief, deduction, credit or allowance in respect of tax which would otherwise have been available to that Protected Party) by that Protected Party in respect of a Finance Document, except as provided below in (b).
|
(b)
|
Paragraph (a) above shall not apply to any Tax assessed on a Finance Party under the laws of (x) the jurisdiction in which that Finance Party is incorporated, (y) the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for Tax purposes or (z) the jurisdiction in which that Finance Party's Facility Office is located, in respect of amounts received or receivable in that jurisdiction:
|
(i)
|
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
(ii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under Clause 19.2 (
Tax gross up
);
|
(B)
|
would have been compensated for by an increased payment under Clause 19.2 (
Tax gross up
) but was not so compensated solely because one of the exclusions in paragraphs (d) or (e) of Clause 19.2 (
Tax gross up
) applied; or
|
(C)
|
relates to a FATCA Deduction required to be made by a Party.
|
(c)
|
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, setting out such event in reasonable detail, following which the Agent shall notify the Company.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 19.3 (
Tax indemnity
), notify the Agent.
|
19.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
(b)
|
that Finance Party has obtained, utilised and retained that Tax Credit (in whole or in part),
|
(i)
|
no Finance Party shall be obliged to make any such payment if to do so would contravene any applicable law or requirement of any governmental or regulatory authority (whether or not having the force of law);
|
(ii)
|
if a Finance Party has made a payment to an Obligor under this Clause 19.4 (
Tax Credit
) and it transpires that such Finance Party did not receive the relevant Tax Credit, that Obligor shall on demand pay to that Finance Party such amount as that Finance Party determines will put it in the same after-tax position as it would have been had no such payment been made to the Obligor; and
|
(iii)
|
no Finance Party shall be obliged to disclose to any other person any information regarding its business, tax affairs or tax computations.
|
19.5
|
Stamp Taxes
|
19.6
|
Value Added Tax
|
(a)
|
All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any VAT. If VAT is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party) provided that the reverse charge mechanism is not applicable.
|
(b)
|
If VAT is chargeable on any supply made by a Finance Party (the
Supplier
) to any other Finance Party (the
Recipient
) in connection with a Finance Document, and any Party is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier, such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT.
|
(c)
|
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that neither it nor any other member of any group of which it is a member for VAT purposes is entitled to a credit or repayment from the relevant authority of the VAT.
|
19.7
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party; and
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Borrower is a US Tax Obligor, or where the Agent reasonably believes that its obligations under FATCA require it, each Lender shall, within fifteen Business Days of:
|
(i)
|
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii)
|
where a Borrower is a US Tax Obligor and the relevant Lender is a New Lender, the relevant Transfer Date;
|
(iii)
|
the date a new US Tax Obligor accedes as a Borrower; or
|
(iv)
|
where the Borrower is not a US Tax Obligor, the date of a request from the Agent,
|
(i)
|
a withholding certificate on Form W-8 or Form W-9 (or any successor form) (as applicable); or
|
(ii)
|
any withholding statement and other documentation, authorisations and waivers as the Agent may require to certify or establish the status of such Lender under FATCA.
|
(e)
|
Each Lender agrees that if any withholding certificate, withholding statement, documentation, authorisations and waivers provided to the Agent pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, it shall promptly update such withholding certificate, withholding statement, documentation, authorisations and waivers or promptly notify the Agent in writing of its legal inability to do so. The Agent shall provide any such updated withholding certificate, withholding statement, documentation, authorisations and waivers to the Borrower. The Agent shall not be liable for any action taken by it under or in connection with this paragraph (f).
|
19.8
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Company, the Agent and the other Finance Parties.
|
20.1
|
Increased costs
|
(a)
|
Subject to Clause 20.3 (
Exceptions
) the Company shall, for any Interest Period beginning after the day on which the Agent has notified the Company in accordance with paragraph (a) of Clause 20.2 (
Increased cost claims
), pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application by any competent authority of) any law or regulation after the date of this Agreement, (ii) compliance with any law or regulation made after the date of this Agreement, or (iii) the compliance with, Basel III or any law or regulation that implements or applies Basel III. The amount of Increased Costs shall become due and payable within five Business Days of a demand by the Agent.
|
(b)
|
In this Agreement:
|
(i)
|
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
20.2
|
Increased cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 20.1 (
Increased costs
) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Agent or the Company, provide a certificate confirming the amount of its Increased Costs and setting out its calculation in reasonable detail.
|
20.3
|
Exceptions
|
(a)
|
Clause 20.1 (
Increased costs
) does not apply to the extent any Increased Cost is:
|
(i)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(ii)
|
compensated for by Clause 19.3 (
Tax indemnity
) (or would have been compensated for under Clause 19.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 19.3 (
Tax indemnity
) applied);
|
(iii)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(iv)
|
attributable to the grossly negligent or wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(v)
|
attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (
Basel II
) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates), but excluding, for the avoidance of doubt, any Increased Cost attributable to the implementation or application of or compliance with Basel III.
|
(b)
|
For the purpose of paragraph (a) above a reference to a "Tax Deduction" has the same meaning given to the term in Clause 19.1 (
Definitions
).
|
21.1
|
Currency indemnity
|
(a)
|
If any sum due from an Obligor under the Finance Documents (a
Sum
), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the
First Currency
) in which that Sum is payable into another currency (the
Second Currency
) for the purpose of:
|
(i)
|
making or filing a claim or proof against that Obligor;
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Unless otherwise required by law, each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
21.2
|
Other indemnities
|
(a)
|
the occurrence of any Event of Default;
|
(b)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 33 (
Sharing among the Finance Parties
);
|
(c)
|
funding, or making arrangements to fund, its participation in a Utilisation requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
(d)
|
a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.
|
21.3
|
Indemnity to the Agent
|
(a)
|
investigating any event which it reasonably believes is a Default; or
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised by an Obligor (or the Company on its behalf).
|
22.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 14.1 (
Illegality
), Clause 19 (
Tax gross-up and indemnities
) or Clause 20 (
Increased costs
) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
22.2
|
Limitation of liability
|
(a)
|
The Company shall, upon presentation of a reasonably detailed statement of account, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 22.1 (
Mitigation
).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 22.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
23.1
|
Transaction expenses
|
(a)
|
this Agreement and any other documents referred to in this Agreement; and
|
(b)
|
any other Finance Documents executed after the date of this Agreement.
|
23.2
|
Amendment costs
|
23.3
|
Enforcement costs
|
24.1
|
Guarantee (
Garantie
) and indemnity (
Ausfallhaftung
)
|
(a)
|
guarantees (
garantiert
) by way of an independent payment obligation (
selbständiges Zahlungsversprechen
) to each Finance Party to pay to that Finance Party within five Business Days of receipt by it of a written demand by a Finance Party (or the Agent on its behalf) the amount of principal, interest, costs, expenses or other amount demanded in that demand, which demand shall state that the sum demanded by that Finance Party is expressed to be payable by a Borrower (other than itself) under or in connection with the Finance Documents or, in relation to an Ancillary Facility, by a Borrower or an Affiliate of a Borrower under or in connection with the Ancillary Documents and has not been fully and irrevocably paid by that Borrower (other than the Company) or, in relation to an Ancillary Facility, by that Borrower or that Affiliate of a Borrower; and
|
(b)
|
undertakes vis-à-vis each Finance Party to indemnify (
schadloshalten
) each Finance Party within five Business Days of a written demand against any cost, loss or liability suffered or reasonably incurred by that Finance Party as a result of any obligation of a Borrower (other than the Company) under or in connection with any Finance Document or, in relation to an Ancillary Facility, any obligation of a Borrower or an Affiliate of a Borrower under or in connection with any Ancillary Document or any obligation under any Finance Document or any Ancillary Document guaranteed by it being or becoming unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover (
Ersatz des positiven Interesses
).
|
24.2
|
Continuing and independent guarantee and indemnity
|
24.3
|
Reinstatement
|
(a)
|
the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
|
(b)
|
each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
|
24.4
|
No defences
|
(a)
|
The obligations of the Company under this Clause 24 will not be affected by an act, omission, matter or thing which relates to the principal obligation (or purported obligation) of any Borrower and which but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 24, including any personal defences of any Borrower (
Einreden des Hauptschuldners
) or any right of revocation (
Anfechtung
) or set-off (
Aufrechnung
) of any Borrower.
|
(b)
|
The obligations of the Company under this Clause 24 are independent from any other security or guarantee which may have been or will be given to the Finance Parties. In particular, the obligations of the Company under this Clause 24 will not be affected by any of the following:
|
(i)
|
the release of, or any time (
Stundung
), waiver or consent granted to, any other Obligor from or in respect of its obligations under or in connection with any Finance Document;
|
(ii)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or any other person or any failure to realise the full value of any security;
|
(iii)
|
any incapacity or lack of power, authority or legal personality of or dissolution or a deterioration of the financial condition of any other Obligor; or
|
(iv)
|
any unenforceability, illegality or invalidity of any obligation of any other Obligor under any Finance Document.
|
(c)
|
For the avoidance of doubt nothing in this Clause 24 shall preclude any defences that the Company (in its capacity as Company only) may have against a Finance Party that the guarantee and indemnity does not constitute its legal, valid, binding or enforceable obligations.
|
24.5
|
Immediate recourse
|
24.6
|
Deferral of Company’s rights
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents; and/or
|
(c)
|
to take the benefit (in whole or in part and whether by way of legal subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party.
|
25.1
|
Status
|
(a)
|
It is a corporation, limited liability company or partnership with limited liability, duly incorporated or, in the case of a partnership, established and validly existing under the law of its jurisdiction of incorporation.
|
(b)
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
25.2
|
Binding obligations
|
(a)
|
in respect of Obligors incorporated in Germany and the Netherlands, subject to the Reservations, legal, valid, binding and enforceable obligations; and
|
(b)
|
in respect of Obligors incorporated in jurisdictions other than Germany and the Netherlands, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 5 (
Conditions of Utilisations
) or Clause 30 (
Changes to the Obligors
) legal, valid, binding and enforceable obligations.
|
25.3
|
Non-conflict with other obligations
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its or any of its Subsidiaries’ constitutional documents; or
|
(c)
|
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets;
|
25.4
|
Power and authority
|
25.5
|
Validity and admissibility in evidence
|
(a)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
|
(b)
|
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
|
25.6
|
Governing law and enforcement
|
(a)
|
The choice of German law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.
|
(b)
|
Any judgment obtained in Germany in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
|
25.7
|
Deduction of Tax
|
25.8
|
No Event of Default
|
25.9
|
No misleading information
|
25.10
|
Financial statements
|
(a)
|
were, in the case of the annual audited consolidated financial statements of the Company, prepared in accordance with IFRS consistently applied or, if not consistently applied, with any inconsistency disclosed in the notes thereto;
|
(b)
|
were, in the case of the annual audited unconsolidated financial statements of the Company, prepared in accordance with generally accepted accounting principles of the German Commercial Code (
Handelsgesetzbuch
) consistently applied or, if not consistently applied, with any inconsistency disclosed in the notes thereto;
|
(c)
|
were, in case of other financial statements, prepared in accordance with generally accepted accounting principles in the Relevant Jurisdiction consistently applied or, if not consistently applied, with any inconsistency disclosed in the notes thereto;
|
(d)
|
were, in the case of audited financial statements, accompanied by an unqualified audit opinion which, in the case of the audited consolidated financial statements of the Company, states that the relevant financial statements give a true and fair view of the Group´s results and financial position; and
|
(e)
|
were complete and correct in all material respects and accordingly, as of their respective dates, there were neither any material liabilities, direct or indirect, actual or contingent, of it nor any material unrealised or anticipated losses from any unfavourable commitments not disclosed by, or reserved against in, any such financial statement or in the notes thereto.
|
25.11
|
No Material Adverse Change
|
25.12
|
Pari passu ranking
|
25.13
|
No Insolvency
|
25.14
|
No proceedings pending or threatened
|
25.15
|
Ownership
|
25.16
|
United States Additional Borrower
|
(a)
|
Any Additional Borrower incorporated in the United States of America or any sub-division thereof (an
Additional US Borrower
) is not:
|
(i)
|
a public utility as defined in the United States Federal Power Act of 1935 or subject to regulation thereunder;
|
(ii)
|
required to be registered as an investment company as defined in the United States Investment Company Act of 1940 or subject to regulation thereunder, or
|
(iii)
|
subject to regulation under any United States Federal or State law or regulation that limits its ability to incur or guarantee indebtedness.
|
(b)
|
To the best of its knowledge each Additional US Borrower
|
(i)
|
is not and is not controlled by a Designated Party
|
(ii)
|
has not received funds or other property from a Designated Party; or
|
(iii)
|
is not in material breach of or is the subject of any action or investigation under any Anti-Terrorism Law.
|
(c)
|
Each Additional US Borrower and each of its Affiliates incorporated in the United States of America or any sub-division thereof have taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws.
|
(d)
|
The proceeds of the Facility have been and will be used by each Additional US Borrower only for the purposes described in Clause 4 (
Purpose
).
|
(e)
|
No Additional US Borrower is engaged principally in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations U and X of the Board of Governors of the United States Federal Reserve System), and no portion of any Utilisation has been or will be used, directly or indirectly, to purchase or carry margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
|
(f)
|
No Additional US Borrower is an "investment company" or a company "controlled" by an "investment company", within the meaning of the United States Investment Company Act of 1940, as amended.
|
(g)
|
No Additional US Borrower is a "public utility" within the meaning of, or otherwise subject to regulation under, the United States Federal Power Act.
|
(h)
|
Nothing in this Clause 25.16 shall establish an obligation of, or confer a right to, any Party where to do so or to comply with such obligation would be in violation of any law applicable to such Party and this Clause 25.16 shall be limited and not apply to such extent vis-à-vis such Party.
|
25.17
|
Repetition
|
(a)
|
The Repeated Representations shall be made by the Company on its own behalf and on behalf of the other Obligors (under a power of attorney (
Vollmacht
) granted to it by the other Obligors pursuant to paragraph (c) below) by reference to the facts and circumstances then existing on;
|
(i)
|
the date of each Utilisation Request; and
|
(ii)
|
in the case of an Additional Borrower, the day on which the company becomes (or it is proposed that the company becomes) an Additional Borrower.
|
(b)
|
Each Additional US Borrower makes the representation set out in Clause 25.16 (
United States Additional Borrower
) on the date it becomes an Additional Borrower pursuant to Clause 30 (
Changes to the Obligors
).
|
(c)
|
Each Obligor (other than the Company) hereby empowers (
bevollmächtigt
) the Company to make the Repeated Representations on its behalf as its attorney (
Stellvertreter
). Each Obligor (other than the Company) hereby relieves the Company from the restrictions pursuant to section 181 of the Civil Code (
Bürgerliches Gesetzbuch
) for the purpose of making the Repeated Representations on its behalf as attorney (
Stellvertreter
) to the extent legally permissible.
|
26.1
|
Financial statements
|
(a)
|
as soon as the same become available, but in any event within 180 days after the end of each of its financial years:
|
(i)
|
the audited unconsolidated financial statements of each Obligor; and
|
(ii)
|
the audited consolidated financial statements of the Company for that financial year; and
|
(b)
|
in the case of the Company only, as soon as the same are available, and in any event within 90 days of the end of each first, second and third financial quarter of each of its financial years, its consolidated interim financial statements and all other documents dispatched to its shareholders (or any class of them) at the same time as they are dispatched.
|
26.2
|
Information: proceedings
|
26.3
|
Notification of default, Change of Control Event, Change of Rating
|
(a)
|
The Company shall notify the Agent of any Default and any Change of Control Event promptly upon becoming aware of its occurrence.
|
(b)
|
The Company shall notify the Agent of any change of its Rating and of the date such changed Rating is published promptly upon publication of such changed Rating.
|
26.4
|
Use of websites
|
(a)
|
The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the
Website Lenders
) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Agent (the
Designated Website
) if:
|
(i)
|
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii)
|
both the Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii)
|
the information is in a format previously agreed between the Company and the Agent.
|
(b)
|
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Agent.
|
(c)
|
The Company shall promptly upon becoming aware of its occurrence notify the Agent if:
|
(i)
|
the Designated Website cannot be accessed due to technical failure;
|
(ii)
|
the password specifications for the Designated Website change;
|
(iii)
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv)
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v)
|
the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d)
|
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten Business Days.
|
26.5
|
"Know your customer" checks
|
(a)
|
If:
|
(i)
|
existing law or the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii)
|
any change in the status of an Obligor after the date of this Agreement; or
|
(iii)
|
a proposed assignment or assignment and transfer by way of assumption of contract (
Vertragsübernahme
) by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or assignment and transfer by way of assumption of contract (
Vertragsübernahme
),
|
(b)
|
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
(c)
|
If the accession of an Additional Borrower obliges the Agent, any Swingline Agent, the Issuing Bank or any Lender to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Borrower.
|
26.6
|
Information: miscellaneous
|
27.1
|
Negative Pledge
|
(a)
|
any Security arising in the ordinary course of business or on the basis of customary general business conditions;
|
(b)
|
any Security arising solely by operation of law (or by an agreement evidencing the same);
|
(c)
|
any Security created or permitted to subsist with the prior written consent of the Majority Lenders;
|
(d)
|
any Security arising in connection with any netting or set off arrangement entered into in the ordinary course of business for the purpose of netting debit and credit balances or in connection with customary framework/master agreements relating to derivatives transactions made in the ordinary course of business;
|
(e)
|
any Security existing over newly acquired assets at the time of their acquisition not created in contemplation of such acquisition or over assets of an entity which becomes subject to the provisions of this Clause 27.1 (
Negative Pledge
) after the date of this Agreement;
|
(f)
|
any Security existing or created in order to comply with section 8a of the German Partial Retirement Act (
Altersteilzeitgesetz
) or pursuant to section 7e of the German Social Security Code IV (
Sozialgesetzbuch IV
) or granted to a pension fund (or the respective pension trustee) or contractual trust arrangement initiated by the Group to secure contribution obligations towards such pension fund or contractual trust arrangement;
|
(g)
|
any Security provided under customary export finance or other subsidised loans or to a public financial institution (including the European Investment Bank
and the European Bank for Reconstruction and Development) in accordance with such institution’s published lending policy;
|
(h)
|
any Security arising in connection with the issue of asset-backed securities entered into in the ordinary course of business;
|
(i)
|
any Security arising in connection with any arrangement made within the ordinary course of treasury activities of the Group by which a member of the Group disposes of any marketable securities on terms whereby they are or may be re-acquired by that member of the Group;
|
(j)
|
in relation to a Project Company, Security on the assets and/or the business constituted by that project and/or the shares in any Project Company and/or over loans made to it by members of the Group and/or claims under insurance contracts insuring the assets of the business constituted by that project;
|
(k)
|
in relation to a project finance transaction (entered into by a member of the Group other than Linde) in relation to which the borrower is not a Project Company any Security over project assets (including ancillary rights and any proceeds therefrom), the acquisition, construction or development of which is financed with debt incurred for the purpose of such project finance transaction where the only recourse is to such assets of such borrower (it being understood that a completion guarantee granted by another member of the Group does not constitute recourse for the purpose of the preceding sentence);
|
(l)
|
any Security existing or created over cash accounts held with banks in connection with the local funding needs of foreign members of the Group (back-to-back);
|
(m)
|
any Security over claims under loans made by Linde Finance B.V. to any other member of the Group as security for the repayment of notes, the proceeds of the issuance of which were used by Linde Finance B.V. to make the respective loans;
|
(n)
|
any Security over cash deposits granted in favour of the trustee for the holder of Loan Notes;
|
(o)
|
any Security over cash deposits or cash equivalents using funds drawn hereunder and used in connection with the defeasance of Existing Financial Indebtedness provided that the aggregate amount of the Financial Indebtedness secured hereunder does not exceed EUR 500,000,000 (or its equivalent);
|
(p)
|
in relation to Financial Indebtedness incurred locally for local financing needs if it is customary to provide Security in respect of such Financial Indebtedness provided that the aggregate amount of Financial Indebtedness secured hereunder does not exceed EUR 225,000,000 (or its equivalent);
|
(q)
|
any other Security,
provided
that the aggregate amount of all claims which are at any time outstanding and secured by Security created or existing in reliance on this paragraph (q) (converted into EUR in case a claim is not denominated in EUR) does not exceed EUR 525,000,000 (or its equivalent); and
|
(r)
|
any Security created in favour of the Finance Parties under the Finance Documents.
|
27.2
|
Consents, Licences and Authority
|
27.3
|
Disposals
|
(a)
|
Disposals in the ordinary course of business;
|
(b)
|
Disposals of obsolete or waste assets;
|
(c)
|
Disposals made by one member of the Group to another member of the Group;
|
(d)
|
Disposals in exchange for assets of an identical or similar nature;
|
(e)
|
Disposals of receivables in connection with:
|
(i)
|
factoring arrangements not exceeding EUR 1,000,000,000 (converted into EUR in case not denominated in EUR);
|
(ii)
|
the issuance of asset-backed securities provided that the aggregate amount outstanding thereunder shall not exceed EUR 750,000,000 (or its equivalent);
|
(f)
|
Disposals made with the prior consent of the Majority Lenders;
|
(g)
|
Disposals in connection with sale and lease-back transactions, provided that the aggregate net disposal proceeds received from any such transaction shall not exceed EUR 1.350,000,000 (or its equivalent);
|
(h)
|
Disposals of assets together with the transfer of, or for, the purposes of securing pension liabilities, claims of (former) employees under working time saving arrangements (
Langzeitkonten
) and/or deferred payment arrangements under partial retirement schemes (
Wertguthaben aus Altersteilzeit
) to any pension fund or contractual trust arrangement initiated by the Group;
|
(i)
|
Disposals of assets the net proceeds of which are reinvested in a timely manner in similar or equivalent assets or applied towards the repayment of Financial Indebtedness incurred in connection with the acquisition of such assets; and
|
(j)
|
disposals of assets which are required to be made due to competition authority requirements in the context of an acquisition the net proceeds of which are applied towards the repayment of Financial Indebtedness of the Group; and
|
(k)
|
any other Disposal
provided
that upon receipt of the net proceeds of such disposal a portion of the Total Commitments equal to the net proceeds is cancelled and to the extent the aggregate of Utilisations would exceed Total Commitments after such cancellation, such amount being applied towards a corresponding prepayment of Utilisations.
|
27.4
|
Compliance with laws
|
27.5
|
Pari Passu Ranking
|
27.6
|
Change of Business
|
27.7
|
Merger
|
27.8
|
Borrowings
|
(a)
|
any Borrowings under facilities or issuances existing at the date of this Agreement including any refinancing and replacement thereof;
|
(b)
|
any Borrowings of an entity under facilities or issuances existing at the time such entity becomes a member of the Group after the date of this Agreement including any refinancing and replacement thereof;
|
(c)
|
working capital financings not exceeding EUR 750,000,000 (or its equivalent) in aggregate at any time;
|
(d)
|
any Borrowings incurred locally for local financing needs in cases where it is illegal and/or uneconomical to provide shareholder financing from the Group up to EUR 750,000,000 (or its equivalent) in aggregate outstanding; or
|
(e)
|
Borrowings not permitted by the preceding paragraphs provided that the aggregate amount of Borrowings permitted under this paragraph (e) does not exceed EUR 1,125,000,000 (or its equivalent).
|
27.9
|
Loans out and External Guarantees
|
(a)
|
any such loans and External Guarantees existing at the date of this Agreement (including any refinancing or replacement thereof) to the extent not increased in size;
|
(b)
|
loans made to, or External Guarantees securing Financial Indebtedness of, a Joint Venture to which a member of the Group is a party which are either (i) in satisfaction of any requirement to provide equity or shareholder loans or External Guarantees securing the Financial Indebtedness of such Joint Venture and are made pro rata with the other joint venture partners, or (ii) otherwise where the aggregate of all outstandings under such loans and/or External Guarantees made or given by members of the Group at any time do not exceed EUR 375,000,000 (or its equivalent) at any time;
|
(c)
|
loans made by a member of the Group to an employee or director of any member of the Group;
|
(d)
|
loans made and External Guarantees granted by an entity existing at the time such entity becomes a member of the Group after the date of signing of this Agreement;
|
(e)
|
External Guarantees in connection with the endorsement of negotiable instruments in the ordinary course of trade; and
|
(f)
|
loans and External Guarantees not permitted by the preceding paragraphs provided that the aggregate amount of loans and External Guarantees permitted under this paragraph (f) does not exceed EUR 375,000,000 (or its equivalent) at any time.
|
27.10
|
Letters of Credit upon first demand
|
(a)
|
Taking into account German case law dealing with the validity of an obligation to provide sureties payable upon first demand, the Company and each other Borrower undertake that, in the event obligations are to be secured where the underlying contract is governed by German law, it will only request the issuance of a surety or guarantee payable upon first demand (
auf erstes Anfordern
) under this Agreement if the respective agreement on the secured obligation and the obligation to provide for a surety or guarantee payable upon first demand are agreed upon in an individual agreement (
Individualabrede
) between the relevant counterparties.
|
(b)
|
The Company shall monitor the development of German case law which is generally available and dealing with the validity of an obligation to provide a surety or guarantee payable upon first demand (
auf erstes Anfordern
) and shall comply with any additional requirements identified by such case law as is necessary to make the respective agreement on the obligation to provide a surety or guarantee payable upon first demand legal, valid and binding. If it is not possible at all under German law to make the respective agreement on the obligation to provide a surety or guarantee payable upon first demand legal, valid and binding, no Borrower shall request such a surety or guarantee to be issued under this Agreement.
|
28.1
|
Non-payment
|
28.2
|
Other obligations
|
(a)
|
An Obligor does not comply with any provision of this Agreement (other than the obligation referred to in Clause 28.1 (
Non-payment
)).
|
(b)
|
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within fifteen Business Days of the Agent giving notice of such failure to the Company.
|
28.3
|
Misrepresentation
|
28.4
|
Cross payment default and cross acceleration
|
(a)
|
Any Financial Indebtedness of any Obligor incurred otherwise than under this Agreement and owed to a person which is not a member of the Group:
|
(i)
|
is not paid when due nor within any originally applicable grace period; or
|
(ii)
|
becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(b)
|
No Event of Default will occur under this Clause 28.4 if the aggregate amount of Financial Indebtedness falling within paragraph (a) above is less than EUR 150,000,000 (or its equivalent in any other currency or currencies).
|
28.5
|
Insolvency
|
(a)
|
An Obligor or a Material Subsidiary is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness and, in particular, an Obligor or a Material Subsidiary incorporated in Germany is unable to pay its debts as they fall due (
zahlungsunfähig
) within the meaning of section 17 of the Insolvency Code (
Insolvenzordnung
).
|
(b)
|
An Obligor or a Material Subsidiary incorporated in Germany is overindebted within the meaning of section 19 of the Insolvency Code (
Insolvenzordnung
) and its board of directors is required to file for insolvency or, with respect to any other Obligor or Material Subsidiary, the value of the assets of any Obligor or Material Subsidiary is less than its liabilities (taking into account contingent and prospective liabilities) and, if applicable, its board of directors or equivalent body is required to file for bankruptcy or equivalent proceedings.
|
28.6
|
Insolvency proceedings
|
(a)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or Material Subsidiary other than a solvent liquidation or reorganisation of such Obligor or Material Subsidiary;
|
(b)
|
a general readjustment or rescheduling of the indebtedness of, or a general composition with or a general assignment for the benefit of the creditors of, any Obligor or Material Subsidiary;
|
(c)
|
the appointment of a liquidator (other than in respect of a solvent liquidation of an Obligor or a Material Subsidiary which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor or Material Subsidiary or all, or a substantial part, of its assets,
|
28.7
|
Ownership of the Obligors
|
28.8
|
Consents, Licenses and Authority
|
28.9
|
Unlawfulness
|
28.10
|
Repudiation
|
28.11
|
Acceleration
|
(a)
|
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Company:
|
(i)
|
cancel the Total Commitments and the Ancillary Commitments whereupon they shall immediately be cancelled;
|
(ii)
|
declare that all or part of the Utilisations, together with accrued interest, and all other amounts accrued or outstanding under this Agreement be immediately due and payable, whereupon they shall become immediately due and payable;
|
(iii)
|
declare that full cash cover in respect of each Letter of Credit is immediately due and payable whereupon it shall become immediately due and payable; and/or
|
(iv)
|
declare all or any part of the amounts outstanding under the Ancillary Facilities to be immediately due and payable whereupon they shall become immediately due and payable.
|
(b)
|
Notwithstanding paragraph (a) above, upon the occurrence of an Event of Default in relation to any Obligor under Clause 28.5 (
Insolvency
) arising in relation to any matter or circumstance described therein under the U.S. Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law of the United States of America or any state thereof, the Facility shall cease to be available to such Obligor, all Utilisations outstanding to such Obligor shall become immediately due and payable and cash cover shall be immediately due and payable in respect of each Letter of Credit drawn by it hereunder.
|
28.12
|
Section 490 (1) of the German Civil Code
|
29.1
|
Assignments and transfers by the Lenders
|
(a)
|
Subject to this Clause 29, a Lender (the
Existing Lender
) may:
|
(i)
|
change its Facility Office:
|
(ii)
|
assign any of its rights; or
|
(iii)
|
assign and transfer by assumption of contract (
Vertragsübernahme
) any of its rights and obligations,
|
(b)
|
The minimum participation in respect of Commitments and Utilisations of each Lender shall at all times be an aggregate amount of at least EUR 10,000,000 (or the equivalent in an Optional Currency) or nil.
|
(c)
|
Subject to paragraph (b) above and except for an assignment or an assignment and transfer by assumption of contract (
Vertragsübernahme
) from a Lender Affiliate to the Lender of which it is an Affiliate, an assignment of part of any rights or an assignment and transfer by assumption of contract (
Vertragsübernahme
) or part of any rights and obligations under this Agreement by an Existing Lender must be in a minimum amount of EUR 10,000,000 (or the equivalent in an Optional Currency) or if less its Commitments.
|
29.2
|
Conditions of assignment or assignment and transfer by assumption of contract (
Vertragsübernahme
)
|
(a)
|
The prior written consent of the Company (such consent not to be unreasonably withheld or delayed) is required for an assignment or an assignment and transfer by assumption of contract (
Vertragsübernahme
) by an Existing Lender, unless the assignment or assignment and transfer by assumption of contract (
Vertragsübernahme
) is to another Lender or an Affiliate of a Lender or at any time when an Event of Default is continuing.
|
(b)
|
An assignment will only be effective upon acceptance by the Agent of an otherwise duly completed Assignment Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to the following sentence, as soon as reasonably practicable after receipt by it of a duly completed Assignment Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, accept that Assignment Agreement. The Agent shall only be obliged to accept an Assignment Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c)
|
Notwithstanding any other provision of this Agreement, the consent of each Issuing Bank is required for any assignment or transfer of any Lender's rights and/or obligations under the Facility.
|
(d)
|
An assignment and transfer by assumption of contract (
Vertragsübernahme
) will only be effective if the procedure set out in Clause 29.5 (
Procedure for assignment and transfer by assumption of contract
(
Vertragsübernahme
)) is complied with.
|
(e)
|
If:
|
(i)
|
a Lender assigns or assigns and transfers by assumption of contract (
Vertragsübernahme
) any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii)
|
as a result of circumstances existing at the date the assignment, assignment and transfer by assumption of contract (
Vertragsübernahme
) or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 19 (
Tax gross-up and indemnities
) or Clause 20 (
Increased Costs
),
|
(f)
|
In the event of any assignment or assignment and transfer by assumption of contract (
Vertragsübernahme
) by any Lender which has a Lender Affiliate, such assignment or assignment and transfer by assumption of contract (
Vertragsübernahme
) shall only be permitted if following such assignment or transfer the Lender Affiliates' participation in any Utilisations does not exceed the remaining Commitment of that Lender.
|
(g)
|
In the event of an assignment and transfer by assumption of contract (
Vertragsübernahme
) by any Lender Affiliate, such transfer shall only be permitted to another Affiliate of the relevant Lender or if and to the extent the transferee (or any of its Affiliates) acquires a commitment from the relevant Lender at least equal to the amount of the participation in Utilisations to be transferred by the Affiliate of the Lender.
|
29.3
|
Assignment or transfer fee
|
29.4
|
Limitation of responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(ii)
|
the financial condition of any Obligor;
|
(iii)
|
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(i)
|
accept a re-assignment or a re-assignment and re-transfer by assumption of contract (
Vertragsübernahme
) from a New Lender of any of the rights and obligations assigned or assigned and transferred by assumption of contract (
Vertragsübernahme
) under this Clause 29; or
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
29.5
|
Procedure for assignment and transfer by assumption of contract (
Vertragsübernahme
)
|
(a)
|
Subject to the conditions set out in Clause 29.2 (
Conditions of assignment or assignment and transfer by assumption of contract
(
Vertragsübernahme
)) an assignment and transfer by assumption of contract (
Vertragsübernahme
) is effected in accordance with paragraph (c) below when the Agent accepts an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, accept that Transfer Certificate.
|
(b)
|
The Agent shall only be obliged to accept a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
On the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to assign and transfer by assumption of contract (
Vertragsübernahme
) its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the
Discharged Rights and Obligations
);
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii)
|
the Agent, the Arrangers, each Issuing Bank, the New Lender, the other Lenders and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the assignment and transfer by assumption of contract (
Vertragsübernahme
) and to that extent the Agent, the Arrangers, the Issuing Banks and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and
|
(iv)
|
the New Lender shall become a Party as a "Lender".
|
29.6
|
Additional Lender Affiliates
|
(a)
|
A Lender may request that any of its Affiliates becomes a Lender Affiliate (
Vertragsbeitritt
) by delivering to the Agent a Lender Affiliate Accession Agreement.
|
(b)
|
The Affiliate of the Lender will become a Party to this Agreement as a Lender Affiliate when the Agent notifies the other Finance Parties and the Company that it has received the Lender Accession Agreement in form and substance satisfactory to it. The Agent must give this notification as soon as reasonably practicable provided that the Agent shall not be obliged to give such notification prior to it being satisfied that it has complied with all necessary know your customer requirements or other similar checks under all applicable laws and regulations in relation to the accession of such Lender Affiliate.
|
(c)
|
The Lender Affiliate that accedes to this Agreement must pay to the Agent for its own account, on or before the date the Agent has received the Lender Affiliate Accession Agreement, a fee of EUR 3,500.
|
29.7
|
Copy of Transfer Certificate or Assignment Certificate to Company
|
29.8
|
Disclosure of information
|
(a)
|
to (or through) whom that Lender assigns or assigns and transfers by assumption of contract (
Vertragsübernahme
) (or may potentially assign or assign and transfer by assumption of contract (
Vertragsübernahme
)) all or any of its rights and obligations under this Agreement;
|
(b)
|
with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or any Obligor;
|
(c)
|
to whom or for whose benefit that Lender charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 29.10 (
Central Bank Refinancing
); or
|
(d)
|
to whom, and to the extent that, information is requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or is required to be disclosed by any applicable law or regulation,
|
29.9
|
Pro rata interest settlement
|
(a)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the respective Transfer Date or Assignment Date (
Accrued Amounts
) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b)
|
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i)
|
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 29.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
29.10
|
Central Bank Refinancing
|
29.11
|
Disenfranchisement of a Non-funding Lender
|
(a)
|
For so long as a Non-funding Lender has any Available Commitment, in ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments or the Loans has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Non-funding Lender's Commitments will be reduced by the amount of its Available Commitments.
|
(b)
|
For the purposes of this Clause 29.11, the Agent shall assume that a Non-funding Lender continues to be a Non-funding Lender until it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent).
|
29.12
|
Replacement of a Non-funding Lender
|
(a)
|
If at any time a Lender becomes a Non-funding Lender, then the Company may, whilst the Lender continues to be a Non-funding Lender, on 10 Business Days' prior written notice to the Agent and such Non-funding Lender, replace such Non-funding Lender by requiring such Non-funding Lender to (and such Non-funding Lender shall) transfer pursuant to this Clause 24 (
Changes to the Lenders
) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (a
Replacement Lender
) selected by the Company, and which is acceptable to the Agent (acting reasonably), which confirms its willingness to assume and does assume all the obligations of the transferring Non-funding Lender (including the assumption of the transferring Non-funding Lender's participations on the same basis as the transferring Non-funding Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Non-funding Lender's participation in the outstanding Loans and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.
|
(b)
|
The replacement of a Non-funding Lender pursuant to this Clause 29.12 shall be subject to the following conditions:
|
(i)
|
the Company shall have no right to replace the Agent (in such capacity);
|
(ii)
|
neither the Agent nor the Non-funding Lender shall have any obligation to the Company to find a Replacement Lender;
|
(iii)
|
the replacement must take place no later than 6 months after the date the Non-funding Lender fails to comply with its obligations as set out in paragraph (a) above; and
|
(iv)
|
in no event shall the Non-funding Lender replaced under this Clause 29.12 be required to pay or surrender to the Replacement Lender any of the fees received by such Non-funding Lender pursuant to the Finance Documents.
|
30.1
|
Assignments and transfer by Obligors
|
30.2
|
Additional Borrowers
|
(a)
|
Subject to compliance with the provisions of paragraph (c) of Clause 26.5 (
"Know your customer" checks
), the Company may request that any of its wholly owned Subsidiaries becomes an Additional Borrower (
Vertragsbeitritt
). That Subsidiary shall become an Additional Borrower if:
|
(i)
|
either (A) it is incorporated in Germany, the Netherlands, the UK, Sweden, Switzerland or the US, (B) it is incorporated in the same jurisdiction as an existing Borrower and the Majority Lenders approve the addition of that Subsidiary or (C) if all the Lenders approve the addition of that Subsidiary;
|
(ii)
|
the Company delivers to the Agent a duly completed and executed Borrower Accession Letter;
|
(iii)
|
the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and
|
(iv)
|
the Agent has received all of the documents and other evidence listed in Part B of Schedule 2 (
Conditions precedent
) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent.
|
(b)
|
The Agent shall notify the Company, the Swingline Agents, the Issuing Bank and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part B of Schedule 2 (
Conditions precedent
).
|
30.3
|
Resignation of a Borrower
|
(a)
|
The Company may request that a Borrower ceases to be a Borrower by delivering to the Agent a Resignation Letter.
|
(b)
|
The Agent shall accept a Resignation Letter and notify the Company, and the Lenders of its acceptance if:
|
(i)
|
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and
|
(ii)
|
the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents,
|
30.4
|
Repetition of Representations
|
31.1
|
Appointment of the Agent
|
(a)
|
Each other Finance Party appoints the Agent to act as its agent and attorney (
Stellvertreter
) under and in connection with the Finance Documents.
|
(b)
|
Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c)
|
Each other Finance Party hereby relieves the Agent from the restrictions pursuant to section 181 Civil Code (
Bürgerliches Gesetzbuch
) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Finance Party. A Finance Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly.
|
31.2
|
Duties of the Agent
|
(a)
|
The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(b)
|
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(c)
|
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
(d)
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arrangers) under this Agreement it shall promptly notify the other Finance Parties.
|
(e)
|
The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
31.3
|
Role of the Arrangers
|
31.4
|
No fiduciary duties
|
(a)
|
Nothing in this Agreement constitutes the Agent or the Arrangers as a trustee (
Treuhänder
) of any other person. Neither the Agent nor the Arrangers have any financial or commercial duty of care (
Vermögensfürsorgepflicht
) for any person.
|
(b)
|
Neither the Agent nor the Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
31.5
|
Business with the Group
|
31.6
|
Rights and discretions of the Agent
|
(a)
|
The Agent may rely on:
|
(i)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
(ii)
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
(b)
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 28.1 (
Non-payment
));
|
(ii)
|
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
|
(iii)
|
any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
(d)
|
The Agent may act in relation to the Finance Documents through its personnel and agents.
|
(e)
|
The Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(f)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arrangers are obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
31.7
|
Majority Lenders’ instructions
|
(a)
|
Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
(b)
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
(c)
|
The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
(d)
|
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
(e)
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.
|
31.8
|
Responsibility for documentation
|
(a)
|
are responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Arrangers, an Obligor or any other person given in or in connection with any Finance Document; or
|
(b)
|
are responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document.
|
31.9
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below, the Agent will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
(b)
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause pursuant to section 328 para 1 Civil Code (
Bürgerliches Gesetzbuch
) (
echter berechtigender Vertrag zugunsten Dritter
).
|
(c)
|
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Agent or the Arrangers to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Agent and the Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arrangers.
|
31.10
|
Lenders’ indemnity to the Agent
|
31.11
|
Resignation of the Agent
|
(a)
|
The Agent may resign and appoint one of its Affiliates acting through an office in Germany, Luxembourg or London as successor by giving notice to the other Finance Parties and the Company.
|
(b)
|
Alternatively the Agent may resign by giving notice to the other Finance Parties and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Agent (after consultation with the Company) may appoint a successor Agent acting through an office in Germany, Luxembourg or London by giving notice to the other Finance Parties and the Company.
|
(d)
|
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(e)
|
The Agent’s resignation notice shall only take effect upon the appointment of a successor.
|
(f)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 31. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g)
|
After consultation with the Company, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
|
(h)
|
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under Clause 19.7 (
FATCA
|
(ii)
|
the information supplied by the Agent pursuant to Clause 19.7 (
FATCA
|
(iii)
|
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
31.12
|
Confidentiality
|
(a)
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
31.13
|
Relationship with the Lenders
|
31.14
|
Credit appraisal by the Lenders
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(c)
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
31.15
|
Reference Banks
|
31.16
|
Deduction from amounts payable by the Agent
|
31.17
|
Swingline Agents
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
33.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;
|
(b)
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent or Relevant Swingline Agent (as applicable) and distributed in accordance with Clause 34 (
Payment mechanics
), without taking account of any Tax which would be imposed on the Agent or Relevant Swingline Agent (as applicable) in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Agent or Relevant Swingline Agent (as applicable), pay to the Agent or Relevant Swingline Agent (as applicable) an amount (the
Sharing Payment
) equal to such receipt or recovery less any amount which the Agent or Relevant Swingline Agent (as applicable) determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 34.5 (
Partial payments
).
|
33.2
|
Redistribution of payments
|
33.3
|
Recovering Finance Party’s rights
|
(a)
|
The Finance Parties shall assign to the Recovering Finance Party their rights against the Obligors to the extent such Finance Parties have shared in the distribution by the Agent or Relevant Swingline Agent (as applicable) under Clause 33.2 (
Redistribution of payments
).
|
(b)
|
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
|
33.4
|
Reversal of redistribution
|
(a)
|
each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 33.2 (
Redistribution of payments
) shall, upon request of the Agent or Swingline Agent (as applicable), pay to the Agent or Relevant Swingline Agent (as applicable) for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and
|
(b)
|
that Recovering Finance Party’s rights of assignment in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed and the Recovering Finance Party shall re-assign any claims assigned to it pursuant to paragraph (a) of Clause 33.3 (
Recovering Finance Party’s rights
).
|
33.5
|
Exceptions
|
(a)
|
This Clause 33 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
33.6
|
Ancillary Lenders
|
(a)
|
This Clause 33 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under Clause 28.11 (
Acceleration
).
|
(b)
|
Following service of notice under Clause 28.11 (
Acceleration
), this Clause 33 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction from the Designated Gross Amount for an Ancillary Facility to its Designated Net Amount.
|
34.1
|
Payments to the Agent or Swingline Agent (as applicable)
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) or the Relevant Swingline Agent (as the case may be) for value on the due date at the time and in such funds specified by the Agent or the Relevant Swingline Agent (as the case may be) as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent or the Relevant Swingline Agent (as the case may be) specifies.
|
34.2
|
Distributions by the Agent
|
34.3
|
Distributions to an Obligor
|
34.4
|
Clawback
|
(a)
|
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
34.5
|
Partial payments
|
(a)
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i)
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and any Issuing Bank under the Finance Documents;
|
(ii)
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
(iii)
|
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement and any amount due but unpaid under Clauses 8.3 (
Claims under a Letter of Credit
) and 8.4 (
Indemnities
); and
|
(iv)
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
(b)
|
The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.
|
(c)
|
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
34.6
|
No set-off by Obligors
|
34.7
|
Business Days
|
(a)
|
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
34.8
|
Currency of account
|
(a)
|
Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid Sum shall be made in the currency in which that Utilisation or Unpaid Sum is denominated on its due date.
|
(c)
|
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.
|
(d)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(e)
|
Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.
|
34.9
|
Change of currency
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Company); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
34.10
|
Swingline Agents
|
36.1
|
Communications in writing
|
36.2
|
Addresses
|
(a)
|
in the case of the Company, that identified with its name below;
|
(b)
|
in the case of each Lender, any Issuing Bank or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and
|
(c)
|
in the case of the Agent and each Swingline Agent, that identified with its name below,
|
36.3
|
Delivery
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective when received (
zugegangen
), in particular:
|
(i)
|
if by way of fax, when received in legible form; or
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
(b)
|
Any communication or document to be made or delivered to the Agent or a Swingline Agent (as the case may be) will be effective only when actually received by the Agent or the respective Swingline Agent (as the case may be) and then only if it is expressly marked for the attention of the department or officer identified with the Agent’s or the respective Swingline Agent's (as the case may be) signature below (or any substitute department or officer as the Agent shall specify for this purpose).
|
(c)
|
All notices from or to an Obligor shall be sent through the Agent or the relevant Swingline Agent (as the case may be).
|
(d)
|
Any communication or document by the Finance Parties to the Obligors may be made or delivered to the Company for its own account and for the account of the Obligors. For that purpose each Obligor appoints the Company as its agent of receipt (
Empfangsvertreter
).
|
36.4
|
Notification of address and fax number
|
36.5
|
Electronic communication
|
(a)
|
Any communication to be made between the Agent or a Swingline Agent (as the case may be) and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent or the relevant Swingline Agent (as the case may be) and the relevant Lender:
|
(i)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(ii)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(iii)
|
notify each other of any change to their address or any other such information supplied by them.
|
(b)
|
Any electronic communication made between the Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.
|
36.6
|
English language
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
(i)
|
in English or, in relation to the corporate documents referred to in Schedule 2 (
Conditions Precedent
), in their original language); or
|
(ii)
|
if not in English and not a corporate document referred to in Schedule 2 (
Conditions Precedent
), and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
37.1
|
Accounts
|
37.2
|
Certificates and Determinations
|
37.3
|
Day count convention
|
40.1
|
Required consents
|
(a)
|
Subject to Clause 40.2 (
Exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
|
40.2
|
Exceptions
|
(a)
|
An amendment or waiver that has the effect of changing or which relates to:
|
(i)
|
the definition of
Majority Lenders
in Clause 1.1 (
Definitions
);
|
(ii)
|
an extension to the date of payment of any amount under the Finance Documents;
|
(iii)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
(iv)
|
an increase in or an extension of any Commitment;
|
(v)
|
a change to the Borrowers or the Guarantor other than in accordance with Clause 30 (
Changes to the Obligors
);
|
(vi)
|
any provision which expressly requires the consent of all the Lenders; or
|
(vii)
|
Clause 2.2 (
Finance Parties’ rights and obligations
), Clause 29 (
Changes to the Lenders
) or this Clause 40
|
(b)
|
An amendment or waiver which relates to the rights or obligations of the Agent, any Swingline Agent, an Issuing Bank, an Ancillary Lender or the Arrangers may not be effected without the consent of the Agent, such Swingline Agent, such Issuing Bank, such Ancillary Lender or the Arrangers.
|
(c)
|
An amendment or waiver that has the effect of changing or which relates to paragraph 4 (c) of Part A of Schedule 2 may not be effected without the consent of all Lenders participating in the Existing Revolving Facility.
|
44.1
|
Jurisdiction
|
44.2
|
Service of process
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in Germany):
|
(i)
|
irrevocably appoints the Company (the
Process Agent
) as its agent for service of process in relation to any proceedings before the German courts in connection with any Finance Document;
|
(ii)
|
agrees that failure by a Process Agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and
|
(iii)
|
undertakes to deliver to the Process Agent without undue delay upon execution of this Agreement a process agent appointment letter (the
Process Agent Appointment Letter
) substantially in the form of Schedule 11 (
Form of Process Agent Appointment Letter
) and to send a copy of the executed Process Agent Appointment Letter to the Agent.
|
(b)
|
The Process Agent hereby acknowledges the appointment. The Process Agent shall ensure that documents to be served to an Obligor may validly be served by delivery to the Process Agent. In particular, the Process Agent shall notify the Agent of any change of address, accept any documents delivered to it on behalf of an Obligor and fulfil any requirements of section 171 Code of Civil Procedure (
Zivilprozessordnung
), in particular present the original Process Agent Appointment Letter to any person effecting the service of process as required pursuant to section 171 sentence 2 Code of Civil Procedure (
Zivilprozessordnung
).
|
(a)
|
The Parties to this Agreement may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by means of telecommunication (
telekommunikative Übermittlung
) by way of fax or attached as an electronic photocopy (pdf., tif., etc.) to electronic mail.
|
(b)
|
If the Parties to this Agreement choose to conclude this Agreement in accordance with sub-Clause (a) above, they will transmit the signed signature page(s) of this Agreement to Bettina Steinhauer (bettina.steinhauer@cliffordchance.com) and/or Philipp Kropatscheck (philipp.kropatscheck@cliffordchance.com) (the
Recipients
). The Agreement will be considered concluded once a Recipient has actually received the signed signature page(s) (
Zugang der Unterschriftsseite
(n)) from all Parties to this Agreement and at the time of the receipt of the last outstanding signature page(s).
|
(c)
|
For the purposes of this Clause 45 only, the Parties to this Agreement appoint the Recipients as agents of receipt (
Empfangsvertreter
) and expressly allow (
gestatten
) the Recipients to collect the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of doubt, the Recipients will have no further duties connected with its position as Recipients. In particular, the Recipients may assume the conformity to the authentic original(s) of the signature page(s) transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the signing authority of the signatories.
|
Name of Original Lender
|
|
Commitment
in EUR
|
Barclays Bank PLC
|
|
90,000,000
|
Bayerische Landesbank
|
|
90,000,000
|
Banc of America Securities Limited
|
|
90,000,000
|
Bank of China Limited Zweigniederlassung Frankfurt am Main Frankfurt Branch
|
|
90,000,000
|
BNP Paribas Fortis SA/NV, Niederlassung Deutschland
|
|
90,000,000
|
Citibank N.A. in New York, Filiale Frankfurt
|
|
90,000,000
|
Commerzbank Aktiengesellschaft, Filiale Luxemburg
|
|
90,000,000
|
Crédit Agricole Corporate and Investment Bank Deutschland
|
|
90,000,000
|
Deutsche Bank Luxembourg S.A.
|
|
90,000,000
|
DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main
|
|
90,000,000
|
HSBC Bank plc
|
|
45,000,000
|
HSBC Trinkaus & Burkhardt AG
|
|
45,000,000
|
ING Bank, a branch of ING-Diba AG
|
|
90,000,000
|
Landesbank Baden-Württemberg
|
|
90,000,000
|
Lloyds TSB Bank plc
|
|
90,000,000
|
Mizuho Bank Ltd.
|
|
90,000,000
|
MORGAN STANLEY BANK, N.A.
|
|
90,000,000
|
Royal Bank of Canada
|
|
90,000,000
|
SEB AG
|
|
90,000,000
|
Standard Chartered Bank
|
|
90,000,000
|
Sumitomo Mitsui Banking Corporation
|
|
90,000,000
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Düsseldorf Branch
|
|
90,000,000
|
TD Bank Europe Limited
|
|
90,000,000
|
UniCredit Luxembourg S.A.
|
|
90,000,000
|
Australia and New Zealand Banking Group Limited
|
|
43,000,000
|
CommBank Europe Limited
|
|
43,000,000
|
INTESA SANPAOLO S.p.A., Frankfurt Branch
|
|
43,000,000
|
JPMorgan Chase Bank, N.A.
|
|
43,000,000
|
Landesbank Hessen-Thüringen Girozentrale
|
|
43,000,000
|
Riyad Bank London Branch
|
|
43,000,000
|
SOCIETE GENERALE, FRANKFURT BRANCH
|
|
43,000,000
|
The Bank of New York Mellon
|
|
43,000,000
|
Wells Fargo Bank International
|
|
43,000,000
|
Westpac Banking Corporation
|
|
43,000,000
|
Total
|
|
2,500,000,000
|
|
|
|
Name of Original Lender
|
Swingline Commitment
in EUR
|
Affiliate for Swingline Loans in US Dollar (if any)
|
Barclays Bank PLC
|
22,727,272.72
|
|
Bayerische Landesbank
|
22,727,272.72
|
Bayerische Landesbank New York Branch
|
Banc of America Securities Limited
|
22,727,272.72
|
Bank of America, N.A.
|
BNP Paribas Fortis SA/NV, Niederlassung Deutschland
|
22,727,272.72
|
|
Citibank N.A. in New York, Filiale Frankfurt
|
22,727,272.80
|
Citibank, N.A.
|
Commerzbank Aktiengesellschaft, Filiale Luxemburg
|
22,727,272.72
|
Commerzbank AG, New York and Grand Cayman Branches
|
Crédit Agricole Corporate and Investment Bank Deutschland
|
22,727,272.72
|
|
Deutsche Bank Luxembourg S.A.
|
22,727,272.72
|
|
DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main
|
22,727,272.72
|
DZ BANK AG New York Branch
|
HSBC Bank plc
|
22,727,272.72
|
|
ING Bank, a branch of ING-Diba AG
|
22,727,272.72
|
ING Bank N.V., Dublin Branch
|
Landesbank Baden-Württemberg
|
22,727,272.72
|
Landesbank Baden-Württemberg, New York Branch
|
Lloyds TSB Bank plc
|
22,727,272.72
|
|
Mizuho Bank Ltd.
|
22,727,272.72
|
|
MORGAN STANLEY BANK, N.A.
|
22,727,272.72
|
|
Royal Bank of Canada
|
22,727,272.72
|
Royal Bank of Canada, New York Branch
|
SEB AG
|
22,727,272.72
|
SEB AG
|
Standard Chartered Bank
|
22,727,272.72
|
Standard Chartered Bank
|
Sumitomo Mitsui Banking Corporation
|
22,727,272.72
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Düsseldorf Branch
|
22,727,272.72
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch
|
TD Bank Europe Limited
|
22,727,272.72
|
|
UniCredit Luxembourg S.A.
|
22,727,272.80
|
.
|
Total
|
500,000,000
|
|
(a)
|
In relation to the Company an up-to-date commercial register extract (
Handelsregisterauszug
) and a copy of the Company's articles of association (
Satzung
), certified by two authorised signatories of the Company to be a true copy.
|
(b)
|
A certificate signed by two duly authorised signatories of the Company (as evidenced by the commercial register extract referred to in (a) above) setting out the names and signatures of the persons authorised to sign, on behalf of the Company, any documents to be delivered by it pursuant to this Agreement (such certificate being subject to such amendments as may be notified to the Agent by the Company from time to time).
|
(a)
|
A certified extract of the entry in the Commercial Trade Register of the Amsterdam Chamber of Commerce relating to Linde Finance B.V.
|
(b)
|
A copy, certified a true copy by authorised signatories of Linde Finance B.V., of its deed of incorporation and its articles of association.
|
(c)
|
A copy of the resolution of the board of managing directors of Linde Finance B.V. resolving to enter this Agreement and to enter into such further agreements and to take such further steps as may deemed useful or necessary for the company's participation in this Agreement, and a copy of the resolution of the board of supervisory directors of Linde Finance B.V. approving the aforementioned resolution of the board of managing directors of Linde Finance B.V.
|
(d)
|
A certificate executed by authorised signatories of Linde Finance B.V. setting out the names and signatures of the persons authorised to sign, on behalf of Linde Finance B.V., any documents to be delivered by Linde Finance B.V. pursuant to this Agreement (such certificate being to such amendments as may be notified to the Agent by Linde Finance B.V. from time to time).
|
(a)
|
A legal opinion of Clifford Chance Partnerschaftsgesellschaft, legal advisers to the Arrangers and the Agent in Germany, substantially in the form distributed to the Original Lenders prior to signing this Agreement.
|
(b)
|
A legal opinion in respect of German law of Freshfields Bruckhaus Derringer LLP, legal advisers to the Company in Germany, substantially in the form distributed to the Original Lenders prior to signing this Agreement.
|
(c)
|
A legal opinion in respect of Dutch law of Freshfields Bruckhaus Derringer LLP, legal advisers to the Company in the Netherlands, substantially in the form distributed to the Lenders prior to signing this Agreement.
|
(a)
|
A copy of the executed Process Agent Appointment Letter executed by Linde Finance B.V.
|
(b)
|
The Original Financial Statements of each Original Obligor.
|
(c)
|
Evidence that the facilities under the Existing Facility Agreement have been or will be prepaid and/or cancelled in full on or before the day falling 10 Business Days after the date of this Agreement and, in any case, simultaneously with the first Utilisation.
|
(d)
|
Evidence that the fees, costs and expenses then due from the Company pursuant to Clause 18 (
Fees
) and Clause 23 (
Costs and expenses
) have been paid or will be paid by the first Utilisation Date.
|
(a)
|
approving the terms of, and the transactions contemplated by, the Borrower Accession Letter and the Finance Documents and resolving that it execute the Borrower Accession Letter;
|
(b)
|
authorising a specified person or persons to execute the Borrower Accession Letter on its behalf; and
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents.
|
1.
|
We wish to borrow a Swingline Loan in [EUR]/[USD] on the following terms:
|
Proposed Utilisation Date:
|
|
[ ] (or, if that is not a [TARGET Day]/[New York Business Day], the next [TARGET Day]/[New York Business Day])
|
|
|
|
Currency:
|
|
[EUR]/[USD]
|
Amount:
|
|
[ ] or, if less, the Available Swingline Facility
|
|
|
|
Interest Period:
|
|
[ ]
|
2.
|
We confirm that each condition specified in Clause 9.4(b) (
Swingline Lenders' participation
) is satisfied on the date of this Utilisation Request.
|
3.
|
The proceeds of this Swingline Loan should be credited to [account].
|
4.
|
This Utilisation Request is irrevocable.
|
1.
|
We wish to arrange for a Letter of Credit to be issued by [insert name of relevant Issuing Bank] on the following terms:
|
Borrower:
|
|
|
|
Proposed Utilisation Date:
|
[ ] (or, if that is not a Business Day, the next Business Day)
|
|
|
Currency:
|
[ ]
|
|
|
Amount:
|
[ ] or, if less, the Available Facility
|
|
|
Beneficiary:
|
|
|
|
Term or Expiry Date:
|
[ ]
|
2.
|
We confirm that each condition specified in Clause 7.6(b) (
Issue of Letters of Credit
) is satisfied on the date of this Utilisation Request.
|
3.
|
We attach a copy of the proposed Letter of Credit.
|
4.
|
This Utilisation Request is irrevocable.
|
1.
|
We refer to the Agreement. This is an Assignment Certificate. Terms defined in the Agreement have the same meaning in this Assignment Certificate unless given a different meaning in this Assignment Certificate.
|
2.
|
We refer to Clause 29.2(b) (
Conditions of assignment or assignment and transfer by assumption of contract
(
Vertragsübernahme
)) of the Agreement:
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender assigning all or part of the Existing Lender’s rights referred to in the Schedule.
|
(b)
|
The proposed Assignment Date is [ ].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 36.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
3.
|
The New Lender confirms that it will assume the same obligations to the other Finance Parties as it would have been subject to if the New Lender would have been an Original Lender to the extent such obligations relate to the assigned claims including, without limitation, any obligations under Clause 33 (
Sharing among the Finance Parties
) of the Agreement.
|
4.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 29.4 (
Limitation of responsibility of Existing Lenders
) of the Agreement.
|
5.
|
The New Lender notifies the Agent that on the date of this Assignment Certificate [it is] [it is not] a Non-Acceptable L/C Lender.
|
[6.
|
The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of any Advance under a Finance Document is a Lender falling within paragraph (b) of the definition of "Qualifying Lender (UK)" in the Agreement.]
|
[[6/7].
|
This Assignment Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.]
|
[6/7/8].
|
This Assignment Certificate is governed by German law.
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
This Assignment Certificate is accepted by the Agent on [_______].
|
|
[Agent]
|
|
By:
|
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender assigning and transferring to the New Lender by assumption of contract (
Vertragsübernahme
) all or part of the Existing Lender’s Commitment, rights and obligations referred to in the Schedule in accordance with Clause 29.5 (
Procedure for assignment and transfer by assumption of contract
(
Vertragsübernahme
)) of the Agreement.
|
(b)
|
The proposed Transfer Date is [ ].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 36.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
(a)
|
no Default is continuing or would result from the acceptance of this request; and
|
(b)
|
[ ]*
|
1.
|
The obligations expressed to be assumed under the Finance Documents are subject to the limitations arising from the laws relating to bankruptcy, insolvency and all other laws affecting the rights of creditors generally.
|
2.
|
Any enforcement of the Finance Documents will be subject to generally applicable laws as applied by the courts or other competent authority of Germany.
|
3.
|
General German law requirements of fair dealing (
Treu und Glauben
) and public policy may lead to the application of general principles of German law being upheld in German courts or may render contracts or commitments void, voidable, not enforceable in accordance with their terms, or unenforceable.
|
4.
|
Where contractual or legal consequences are attached to the occurrence or non-occurrence of an event a German court would have discretion to decide (upon evidence being brought to it) whether such event has occurred.
|
5.
|
Any provision in the Finance Documents providing that certain certifications or determinations will be conclusive, binding and authoritative will not necessarily prevent judicial enquiry into the merits of any claim by any aggrieved party.
|
6.
|
Any provision in the Finance Documents stating that a notice or other expression of an intention or instruction or power of attorney is irrevocable may be open to challenge in circumstances where there have been material changes in the underlying situation.
|
7.
|
Where under the provisions of the Finance Documents any party is vested with a discretion or may determine a matter in its opinion, the laws of Germany may require that such a discretion is exercised reasonably or that such opinion is based on reasonable grounds.
|
8.
|
If a German court considers it impossible or unduly burdensome for an obligation to be performed the debtor is discharged from performing such obligation; the debtor may however be held liable for damages.
|
9.
|
A contractual requirement that notices or amendments must be made in writing may be complied with by electronic means of communication only if the email or fax address of the recipient has been made available by the recipient to the sender for such purpose.
|
10.
|
As regards payments made by a German resident to a non-resident, a notification has to be made to Deutsche Bundesbank for statistical purposes pursuant to section 59 et seq. German Foreign Trade and Payment Regulation (
Außenwirtschaftsverordnung
). The notification has to be filed by the relevant payor. Any omission of such notification may trigger an administrative fine (
Bußgeld
) under the Foreign Trade and Payment Regulation, but will neither affect the validity or enforceability of this Agreement nor otherwise cause disadvantageous legal consequences for non-resident legal entities or individuals receiving such payment.
|
11.
|
Obligations where any of the lenders is or will be deemed the direct or indirect shareholder of a German GmbH, will rank behind the general indebtedness of the German GmbH in its insolvency.
|
12.
|
These principles will, in principle, apply
mutatis mutandis
to a stock corporation (
Aktiengesellschaft
) if the relevant shareholder is under a financing liability (
Finanzierungsverantwortung
) for the corporation.
|
13.
|
If and to the extent that a claim of a Finance Party against a Borrower is subordinated pursuant to the criteria set out in item 11 above, upon rescission (
Anfechtung
) such Finance Party will be obliged to repay any payments on its subordinated claim received within the last year prior to the opening of insolvency proceedings of the relevant Borrower.
|
14.
|
Pursuant to section 489 of the German Civil Code (
Bürgerliches Gesetzbuch (BGB)
) any borrower may repay a loan facility with a variable interest rate at any time with three months' notice and may repay any loan facility with a fixed interest rate at the end of each period for which the interest is fixed, in each case without having to pay prepayment or breakage costs.
|
15.
|
Within the scope of section 354a of the German Commercial Code (
Handelsgesetzbuch (HGB)
), an assignment of monetary claims which are governed by German law would be valid even where this Agreement states that a claim shall not be assignable.
|
16.
|
If the performance of an obligation is contrary to the exchange control regulations of a member state of the International Monetary Fund, that obligation may be unenforceable in Germany by reason of paragraph 2 (b) of Article VIII of the International Monetary Fund Agreement.
|
1.
|
The obligations under the Finance Documents are subject to and limited by the provisions of any applicable bankruptcy, insolvency, moratorium, suspension of payments, emergency and other similar rules and laws of general application relating to or affecting generally the enforcement of creditors’ rights and remedies from time to time in effect.
|
2.
|
The validity or enforceability of the Finance Documents or any legal act forming part thereof or contemplated thereby are subject to and limited by the protection afforded by Netherlands law to creditors whose interests have been adversely affected pursuant to the rules of Netherlands law relating to (x) unlawful acts based on section 6:162 et seq. of the Netherlands Civil Code and (y) fraudulent conveyance or preference (
actio pauliana
) within the meaning of section 3:45 of the Netherlands Civil Code and/or section 42
et seq.
of the Netherlands Bankruptcy Act.
|
3.
|
Any enforcement of the Finance Documents and foreign judgments in the Netherlands will be subject to the rules of civil procedure as applied by the courts of the Netherlands; service of process for any proceedings before the courts of the Netherlands must be performed in accordance with Netherlands rules of civil procedure; the taking of concurrent proceedings in more than one jurisdiction in which Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Council Regulation), the Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters of 27 September 1968 (as amended), or the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (together the
Conventions
), is applicable, may be precluded by Article 27 of the Council Regulation or Article 21 of the Conventions; as regards jurisdiction generally, the courts of the Netherlands have powers to stay proceedings if concurrent proceedings are brought elsewhere; furthermore, the ability of any party to assume control over another party’s proceedings before the courts of the Netherlands may be limited by Netherlands rules of civil procedure.
|
4.
|
It is uncertain under Netherlands law whether, upon the enforcement of a money judgment expressed in a foreign currency against assets situated in the Netherlands by way of an enforced sale, proceeds can be obtained in such foreign currency.
|
5.
|
If insolvency proceedings would be opened under Netherlands law, claims of which payment is sought from the estate (and not from the enforcement of collateral security) in any currency other than euro must be valued on the basis of the exchange rate prevailing on the date on which such insolvency proceedings are opened.
|
6.
|
A Dutch Obligor may in certain circumstances have to comply with reporting requirements in connection with payments made to and by the Dutch Obligor under the Finance Documents pursuant to the Financial Foreign Relations Act 1994 and the rules promulgated thereunder.
|
7.
|
A power of attorney or mandate (i) can under Netherlands law only be made irrevocable to the extent its object is the performance of juridical acts in the interest of the representative appointed thereby or of a third party (and subject to the power of the court to amend or disapply the provisions by which it is made irrevocable for serious reasons and (ii) will terminate or become ineffective upon insolvency proceedings being opened under Netherlands law with respect to the issuer thereof (irrespective of the law applicable to the power of attorney).
|
8.
|
The amount of any payment under the Finance Documents which is in the nature of a liquidated damage payment may be mitigated by order of the court if this is manifestly required in the interest of fairness.
|
9.
|
Any assets of a Dutch Obligor that are destined for use in the public service are immune from attachment; furthermore, no attachment may be made on books and records required for the Dutch Obligor’s business.
|
10.
|
The courts of the Netherlands may (i) apply Netherlands law in a situation where those rules are mandatory irrespective of the law otherwise applicable to that Finance Document, (ii) give effect to the mandatory rules or the law of any other country with which the situation has a close connection, if and insofar as, under law of such country, those rules must be applied whatever the law applicable to that Finance Document, (iii) refuse the application of a rule of the law of any country otherwise applicable to that Finance Document, if such application is manifestly incompatible with the public policy ("ordre public") of the Netherlands and (iv) have regard to the laws of the country in which performance takes place as to the manner of performance and the steps to be taken in the event of defective performance.
|
|
[insert name of Potential Lender]
|
EUR 2,500,000,000 Syndicated Multi-Currency Revolving Credit Facility Agreement
between, inter alia, Linde AG and Deutsche Bank Luxembourg S.A. as Agent (the "Facility") dated [ ] |
(i)
|
to keep the Confidential Information confidential and not to disclose it to anyone except as provided for by paragraph 2 below and to ensure that the Confidential Information is protected with security measures and a degree of care that would apply to your own confidential information;
|
(ii)
|
to keep confidential and not disclose to anyone the fact that the Confidential Information has been made available or that discussions or negotiations are taking place or have taken place between us in connection with the Facility;
|
(iii)
|
to use the Confidential Information only for the Permitted Purpose; and
|
(iv)
|
to use all reasonable endeavours to ensure that any person to whom you pass any Confidential Information (unless disclosed under paragraph 2(ii) below) acknowledges and agrees to comply with the provisions of this letter as if that person were also a party to it.
|
(i)
|
to members of the Participant Group and their officers, directors, employees and professional advisers to the extent necessary for the Permitted Purpose and to any auditors of members of the Participant Group;
|
(ii)
|
(i) where requested or required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body, (ii) where required by the rules of any stock exchange on which the shares or other securities of any member of the Participant Group are listed or (iii) where required by the laws or regulations of any country with jurisdiction over the affairs of any member of the Participant Group; or
|
(iii)
|
with the prior written consent of us and the Borrower.
|
3.
|
Notification of Required or Unauthorized Disclosure
You agree (to the extent permitted by law) to inform the Borrower and us as soon as becoming aware thereof of the full circumstances of any disclosure under paragraph 2(ii) or upon becoming aware that Confidential Information has been disclosed in breach of this letter.
|
4.
|
Return of Copies
If we or the Borrower so request in writing, you shall return all Confidential Information supplied to you by us and/or by or on behalf of the Borrower or any other member of the Group and destroy or permanently erase all copies of Confidential Information made by you and use all reasonable endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or permanently erases such Confidential Information and any copies made by them, in each case save to the extent that you or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph 2(ii) above. Any Confidential Information not to be returned, destroyed or erased pursuant to the preceding sentence shall be kept confidential until it may be returned, destroyed or erased.
|
5.
|
Continuing Obligations
The obligations in this letter are continuing and, in particular, shall survive the termination of any discussions or negotiations between you and us and/or the Borrower or any other member of the Group. Notwithstanding the previous sentence, the obligations in this letter shall cease (a) if you become a party to the agreement documenting the Facility or (b) twelve months after you have returned all Confidential Information supplied to you by us and/or by or on behalf of the Borrower or any other member of the Group and destroyed or permanently erased all copies of Confidential Information made by you (other than any such Confidential Information or copies which have been disclosed under paragraph 2 above (other than sub-paragraph 2(i)) or which, pursuant to paragraph 4 above, are not required to be returned or destroyed).
|
(i)
|
neither we nor any member of the Group nor any of our or their officers, employees or advisers (each a "Relevant Person") (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by us or any member of the Group or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by us or any member of the Group or be otherwise liable to you or any other person in respect to the Confidential Information or any such information (in the case of the relevant members of the Group, in each case without prejudice to any related representation and warranty that may be given in the agreement documenting the Facility); and
|
(ii)
|
we or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person may be granted an injunction for specific performance for any threatened or actual breach of the provisions of this letter by you.
|
7.
|
No Waiver; Amendments, etc.
This letter sets out the full extent of your obligations of confidentiality owed to us, the Borrower and each member of the Group in relation to the information the subject of this letter. No failure or delay in exercising any right, power or privilege under this letter will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privileges under this letter. The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between us, subject in each case to the prior written consent of the Borrower.
|
8.
|
Inside Information
You acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation relating to insider dealing and you undertake not to use any Confidential Information for any unlawful purpose
.
|
9.
|
Nature of Undertakings
The acknowledgements and undertakings given by you under this letter are given to us and (without implying any fiduciary obligations on our part) are also given for the benefit of the Borrower and each other member of the Group in the form of a contract in favour of the Borrower and each other member of the Group as third party beneficiaries pursuant to §328(1) of the German Civil Code.
|
11.
|
Governing Law and Jurisdiction
This letter (including the agreement constituted by your acknowledgement of its terms) shall be governed by and construed in accordance with the laws of Germany and the parties submit to the non-exclusive jurisdiction of the courts of Frankfurt am Main.
|
|
Loans in Euro
|
Loans in GBP
|
Loans in USD
|
Loans in other currencies
|
|
Company submits request for a currency to be approved under paragraph (a)(ii) of Clause 5.3 (
Conditions relating to Optional Currencies
) as an Optional Currency to the Agent
|
n.a.
|
n.a.
|
n.a.
|
U-6
|
|
Agent notifies the Company if a currency is approved as an Optional Currency in accordance with Clause 5.3 (
Conditions relating to Optional Currencies
)
|
n.a.
|
n.a.
|
n.a.
|
U-4
|
|
Delivery of a duly completed Utilisation Request (Clause 6.1 (
Delivery of a Utilisation Request
)
|
U-3
2.30 p.m.
|
U-3
11.00 a.m.
|
U-3
11.00 a.m.
|
U-3
11.00 a.m.
|
|
Agent determines (in relation to a Utilisation) the Base Currency Amount of the Loan, if required under Clause 6.4(c) (
Lenders’ participation
) and notifies the Lenders of the Loan in accordance with Clause 6.4(c) (
Lenders’ participation
)
|
U-3
|
U-3
|
U-3
|
U-3
|
|
Agent receives a notification from a Lender under Clause 11.2 (
Unavailability of a currency
)
|
n.a.
|
n.a.
|
n.a.
|
Quotation Day
9.00 a.m. |
|
Agent gives notice in accordance with Clause 11.2 (
Unavailability of a currency
)
|
n.a.
|
n.a.
|
n.a.
|
Quotation Day
9.30 a.m.
|
|
Agent determines amount of the Loan in an Optional Currency in accordance with Clause 34.9 (
Change of currency
)
|
n.a.
|
Quotation Day for the second Interest Period
|
Quotation Day for the second Interest Period
|
Quotation Day for the second Interest Period
|
|
EURIBOR or LIBOR is fixed
|
Quotation Day as of 11:00 am in respect of EURIBOR
|
Quotation Day as of 11:00 a.m. (London time) in respect of LIBOR
|
Quotation Day as of 11:00 a.m. (London time) in respect of LIBOR
|
Quotation Day as of 11:00 a.m. (London time) in respect of LIBOR
|
|
Loans in Euro
|
Loans in GBP
|
Loans in USD
|
Loans in other currencies
|
Delivery of a duly completed Utilisation Request (Clause 9.2 (
Delivery of a Utilisation Request for Swingline Loans
))
|
U
9.30 a.m.
|
n.a.
|
U
9.30 a.m.
New York time
|
n.a.
|
Relevant Agent notifies each Swingline Lender of the amount of its participation in the Swingline Loan pursuant to Clause 9.4(d) (
Swingline Lenders' participation
)
|
U
10.30 a.m.
|
n.a.
|
U
10.30 a.m.
New York time
|
n.a.
|
Relevant Agent determines Relevant Swingline Rate under Clause 10.4 (
Interest
)
|
U
11.00 a.m.
|
n.a.
|
U
11.00 a.m.
New York time
|
n.a.
|
Delivery of a duly completed Utilisation Request (Clause 7.3 (
Delivery of a Utilisation Request for Letters of Credit
))
|
U-3
9.30 a.m.
|
|
|
Issuing Bank informs the Agent and the relevant Borrower whether it intends to issue or to refuse the requested Letter of Credit (paragraph (a) of Clause 7.6 (
Issue of Letters of Credit
))
|
U-2
12.00 noon
|
|
|
If the Issuing Bank has informed the Agent that it intends to issue the requested Letter of Credit, Agent determines (in relation to a Utilisation) the Base Currency Amount of the Letter of Credit, if required under Clause 7.6 (
Issue of Letters of Credit
) and notifies the Issuing Bank and the Lenders of the Letter of Credit in accordance with 7.6 (
Issue of Letters of Credit
)
|
U-2
3.00 pm
|
|
|
Delivery of a duly completed Renewal Request (Clause 7.7 (
Renewal of a Letter of Credit
)
|
U-3
9.30 a.m.
|
Address:
|
Buitenveldertselaan 106
1081 AB Amsterdam The Netherlands |
Name:
|
Roger Cosby
Director |
Name:
|
Mr. Takashi Fukuzumi Mr. Maximilian Knappertsbusch
Deputy General Manager Department Head Corporate Banking
Division For EMEA, Düsseldorf |
Name:
|
Mr. Takashi Fukuzumi Mr. Maximilian Knappertsbusch
Deputy General Manager Department Head Corporate Banking Division For EMEA, Düsseldorf |
Address:
|
International Loans and Agency Services
2, Boulevard Konrad Adenauer L-1115 Luxembourg Luxembourg |
Address:
|
5022 Gate Parkway, Suite 200
Jacksonville, FL 322 56 USA |
Address:
|
International Loans and Agency Services
2, Boulevard Konrad Adenauer L-1115 Luxembourg Luxembourg |
Name:
|
Mr. Takashi Fukuzumi Mr. Maximilian Knappertsbusch
Deputy General Manager Department Head Corporate Banking Division For EMEA, Düsseldorf |
Praxair, Inc.
|
||
|
||
By
|
|
|
|
Name:
|
|
|
Title:
|
|
Linde plc
|
||
|
||
By
|
|
|
|
Name:
|
|
|
Title:
|
|
1.
|
Grant of Option
. The Company hereby grants to Participant, as of the Grant Date, a Nonqualified Stock Option to purchase all or any part of the aggregate of
(insert number)
Shares (the “Option Shares”) at the Option Price of
$ (insert strike price)
per Share. This Award will be exercisable only as hereinafter provided.
|
2.
|
Expiration Date
. Except as otherwise provided herein, this Award shall expire on the tenth anniversary of the Grant Date and in no event may this Award be exercised on or after such date.
|
3.
|
Exercisability; Treatment upon Termination of Service
.
|
a.
|
Exercisability Generally
. Except as otherwise provided in either the Plan or this Section 3, this Award shall become exercisable as to
(insert fraction)
of the Option Shares on
(insert dates)
. Once this Award has become exercisable, it shall continue to be exercisable until the earlier of its expiration date or the termination of the Participant’s rights hereunder pursuant to either the Plan or this Award. In the event that the number of Option Shares is not evenly divisible by
(insert)
, the remaining amount shall be added to the last vesting period. Notwithstanding the foregoing, this Award shall become immediately vested and exercisable as to all of the Option Shares upon the occurrence of the Participant’s death or Total and Permanent Disability, in either case occurring while the Participant remains actively employed by Linde and shall become vested and exercisable in the event of a Change in Control in accordance with Section 3.b.v. below. For purposes of this Award, the Participant shall be “Totally and Permanently Disabled” if the Participant is determined to be unable to engage in any substantial gainful activity because of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months.
|
b.
|
Termination of Employment
. This Award is exercisable by the Participant only while the Participant is in active employment with Linde and will be immediately forfeited upon the effective date of the Participant’s termination of employment with Linde (an individual who is employed by a Subsidiary shall be deemed to have terminated employment for purposes of this Award at such time as the employing entity ceases to be a Subsidiary), except that this Award shall continue to be exercisable following the effective date of the Participant’s termination of employment with Linde as follows:
|
i.
|
Death
. In the event the Participant’s employment terminates by reason of his or her death, this Award shall continue to be exercisable by the Participant’s executor, administrator, or legal representative at any time prior to the earlier of the first anniversary of the Participant’s death or the Award’s expiration date and thereafter shall be forfeited.
|
ii.
|
Total and Permanent Disability
. In the event the Participant becomes Totally and Permanently Disabled while employed by Linde, this Award shall continue to be exercisable at any time prior to the earlier of the first anniversary of the date the Participant is determined to be Totally and Permanently Disabled or the Award’s expiration date and thereafter shall be forfeited.
|
iii.
|
Termination After Satisfying Age/Service Requirement
. In the case of the Participant’s termination of employment with Linde for any reason other than for cause, and not due to the Participant’s death or Total and Permanent Disability, after: (A) attaining age 65; or (B) attaining age 55 and completing at least 10 years of employment with Linde (collectively, the “Age/Service Requirement”), this Award shall continue to be exercisable at any time prior to its expiration date;
provided, however,
that following the Participant’s satisfaction of the Age/Service Requirement, this Award shall only become exercisable in accordance with Section 3.a. ; and
provided further,
that in the event of the Participant’s termination of employment with Linde prior to the first anniversary of the Grant Date, regardless of satisfying the Age/Service Requirement, this Award shall never become vested and exercisable and shall be immediately forfeited upon the effective date of the Participant’s termination of employment with Linde.
|
iv.
|
Termination by Action of Linde Other than for Cause
. In the event of the Participant’s termination of employment by action of Linde other than for cause prior to the Participant’s satisfaction of the Age/Service Requirement and not due to the Participant’s death or Total and Permanent Disability, this Award shall continue to be exercisable by the Participant at any time prior to the earlier of the third anniversary of the effective date of the Participant’s termination or the Award’s expiration date and thereafter shall be forfeited;
provided, however,
that following such termination of the Participant’s employment, this Award shall only become exercisable in accordance with Section 3.a.; and
provided further,
that in the event such termination of the Participant’s employment by Linde occurs prior to the first anniversary of the Grant Date, this Award shall never become exercisable and shall be immediately forfeited upon the effective date of such termination of the Participant’s employment. For purposes of this Award only, the Participant’s termination by action of Linde for cause, shall include, but not be limited to, the Participant’s termination by action of Linde for violation of Linde’s Code of Business Integrity (or any superseding integrity policy) or poor performance.
|
v.
|
Termination following a Change in Control
. Notwithstanding any other provision of this Award to the contrary, in the event the Participant’s employment with Linde or any successor thereto is terminated (a) by action of Linde other than for Cause or (b) by Participant with Good Reason, in each case, within two (2) years following the Change in Control, this Award shall become immediately vested and exercisable as to all of the Option Shares and shall continue to be exercisable by the Participant at any time prior to the earlier of the first anniversary of the effective date of the Participant’s termination or the Award’s expiration date and thereafter shall be forfeited.
|
(A)
|
For purposes of this Section 3.b.v., “Cause” shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of any such agreement or in the event that such agreement does not contain a definition of “Cause,” Cause shall include, but not be limited to, violation of Linde’s Standards of Business Integrity (or any superseding integrity policy) or poor performance.
|
(B)
|
For purposes of this Section 3.b.v., “Good Reason” shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of such any such agreement or in the event that such agreement does not contain a definition of “Good Reason,” Good Reason shall mean, without the Participant’s express written consent, (a) a reduction in the annual rate of base salary as in effect immediately prior to the date of the Change in Control or as the same may be increased from time to time thereafter, unless such reduction is part of a policy, program or arrangement that is applicable on a nondiscriminatory basis to the Participant and other similarly situated executives employed by Linde or its successors or (b) the assignment of any duties or responsibilities or diminution of duties or responsibilities which in the Participant’s reasonable judgment are inconsistent with the Participant’s status or position with Linde in effect immediately prior to the Change in Control, provided, however, that Good Reason shall not exist unless the Participant provides Linde with a notice of termination not later than 60 days after the occurrence of the event giving rise to Good Reason and Linde fails to remedy such condition to the Participant’s reasonable satisfaction within 30 days of such notice.
|
4.
|
Transferability
.
|
a.
|
This Award is not transferable other than:
|
i.
|
in the event of the Participant’s death, in which case this Award shall be transferred to the Participant’s executor, administrator, or legal representative, or
|
ii.
|
if the Participant has met the Company’s stock ownership guidelines applicable to him/her at the time of such proposed transfer, by the Participant, as a gift and without consideration, in whole or in parts to;
|
(A)
|
the Participant’s spouse, children (including by adoption), stepchildren or grandchildren (“immediate family members”),
|
(B)
|
a partnership in which such immediate family members are the only partners, or
|
(C)
|
a trust for the exclusive benefit of such immediate family members; or
|
iii.
|
in the case of a transferee’s or distributee’s death, to his/her estate, in which case this Award may be exercised only by the executor or administrator of such estate and shall not be subject to further transfer; or
|
iv.
|
pursuant to a domestic relations order.
|
b.
|
Any transfer of this Award, in whole or in part, is subject to acceptance by the Company in its sole discretion and shall be affected according to such procedures as the Company’s Chief Human Resources Officer may establish.
|
c.
|
The provisions of this Award, relating to the Participant, shall apply to this Award notwithstanding any transfer to a third party.
|
5.
|
Exercise of Option.
|
a.
|
Notice of Exercise
. This Award may be exercised by the delivery of a notice of exercise to the Company or an agent designated by the Company in a form specified or accepted by the Committee, or by complying with any alternative procedures which may be authorized by the Committee, setting forth the number of Option Shares with respect to which the Award is to be exercised, accompanied by full payment for the Option Shares. The Award may be exercised only in a whole number of Shares.
|
b.
|
Exercise Price Payment
. A condition of the issuance of the Shares as to which this Award is exercised shall be the payment of the Option Price. The Option Price shall be payable to the Company in full either: (i) in cash or its equivalent; (ii) by tendering (either by actual delivery or attestation) previously acquired Shares having an aggregate Market Price at the time of exercise equal to the Option Price (provided that the Shares that are tendered may be subject to a minimum holding period, as determined by the Committee in its discretion, prior to their tender to satisfy the Option Price if acquired under this Plan or any other compensation plan maintained by the Company or have been purchased on the open market); (iii) by having the Company withhold Shares that otherwise would be delivered to the exerciser pursuant to the exercise of the Option having a value equaling the aggregate Option Price due; (iv) by a combination of (i), (ii) and/or (iii); or (v) any other method approved or accepted by the Committee in its sole discretion. Unless otherwise determined by the Committee, all payments under all of the methods indicated above shall be paid in United States dollars.
|
c.
|
Taxes
. To enable Linde to meet any applicable federal, state, city, local or foreign withholding tax requirements arising as a result of the exercise of the Award, the exerciser shall pay Linde the amount of tax to be withheld, if any, in cash or by having Linde withhold Shares that would otherwise be delivered pursuant to the exercise of the Award, provided that, if Shares are so withheld, they shall be withheld only up to the minimum required tax withholding rates or such other rate that will not trigger a negative accounting impact on Linde. The value of any Shares so withheld shall be the Share price at the time of exercise. Linde reserves the right to (i) disapprove an exerciser’s election to utilize any of the alternatives under this Section, and (ii) to delay the completion of any exercise of this Award until the applicable withholding tax has been paid.
|
d.
|
Delivery of Shares
. Upon the exercise of an Award with respect to a part or all of the Option Shares in the manner and within the time herein provided, the Company shall issue and deliver to the exerciser, the number of Shares with respect to which the Award was exercised. Notwithstanding any provision of the Plan or this Award to the contrary, such Shares shall be subject to applicable Linde policies as from time to time in effect, including but not limited to, Linde’s insider trading and Executive Stock Ownership Policies.
|
6.
|
Other Terms and Conditions
. It is understood and agreed that the Award evidenced hereby is subject to the following terms and conditions:
|
a.
|
No Right to Continued Employment
. This Award shall not confer upon the Participant any right with respect to continuance of employment by Linde nor shall this Award interfere with the right of Linde to terminate the Participant’s employment.
|
b.
|
No Right to Future Awards
. The selection of recipients of Awards under the Plan is determined annually on the basis of several factors, including job responsibilities and anticipated future job performance. The Participant’s selection to receive this Award shall in no way entitle him/her to receive, or otherwise obligate the Company to provide the Participant, any future option Award or other award under the Plan or otherwise.
|
c.
|
Cancellation of Award
. Notwithstanding any other provision of this Award, the Committee may, in its sole discretion, cancel, rescind, suspend, withhold, or otherwise limit or restrict this Award, and/or recover any gains realized by the Participant in connection with this Award, in the event of any actions by the Participant are determined by the Committee to (a) constitute a conflict of interest with Linde, (b) be prejudicial to Linde’s interests, or (c) violate any non-compete agreement or obligation of the Participant to Linde, any confidentiality agreement or obligation of the Participant to Linde, Linde’s applicable policies, or the Participant’s terms and conditions of employment.
|
d.
|
Clawback
. This Award shall be subject to the clawback or recapture policy, if any, that Linde may adopt from time to time to the extent provided in such policy and, in accordance with such policy, may be subject to the requirement that this Award be repaid to Linde after it has been distributed or paid to the Participant.
|
e.
|
Governing Law
. This Award shall be governed by and construed in accordance with the laws of Connecticut, without giving effect to principles of conflict of laws.
|
f.
|
No Third Party Beneficiaries
. Except as expressly provided in the Plan or herein, neither the Plan nor this Award will confer on any person other than Linde and the Participant any rights or remedies under the Plan or hereunder.
|
Linde plc
|
|
|
|
By
|
|
|
David Strauss
Chief Human Resources Officer |
|
|
1.
|
Award of Restricted Stock Units.
The Participant is hereby granted an award of
(insert #)
notional RSUs (the “Award”). Each RSU represents a bookkeeping entry which is equal in value to a single Share.
|
2.
|
Vesting of Award; Treatment upon Termination of Service or Change in Control.
|
a.
|
Vesting Generally
. Except as otherwise provided in this Section 2, this Award shall vest on
(insert date)
, if the Participant has remained continuously employed by Linde at all times from the Grant Date through
(insert date)
(a Participant who is employed by a Subsidiary shall be deemed to have terminated employment by action of Linde other than for cause for purposes of this Award at such time as the employing entity ceases to be a Subsidiary), and as soon as practicable thereafter, shall be settled by payment to the Participant of a number of Shares equal to the number of RSUs subject to this Award.
|
b.
|
Death or Disability
. Notwithstanding any provision of this Section 2 to the contrary, if after the Grant Date but prior to
(insert date)
:
|
(i)
|
the Participant’s employment with Linde terminates by reason of the Participant’s death; or
|
(ii)
|
the Participant becomes Totally and Permanently Disabled while employed by Linde,
|
c.
|
Termination by Action of Linde Other than for Cause, or Termination After Attaining Certain Age and Service Requirements
. Notwithstanding any provision of this Section 2 to the contrary, in the event the Participant’s employment with Linde terminates on or after the first anniversary of the Grant Date, but prior to
(insert date)
, by reason of the Participant’s:
|
(i)
|
termination of employment by action of Linde other than for cause and not due to the Participant’s Total and Permanent Disability; or
|
(ii)
|
termination of employment with Linde other than for cause and not due to the Participant’s Death or Total and Permanent Disability, after: (a) attaining age 65; or (b) attaining age 55 and completing at least ten (10) years of employment with Linde,
|
d.
|
Change in Control
. Notwithstanding any provision of this Section 2 to the contrary, in the event the Participant’s employment with Linde or any successor thereto is terminated (a) by action of Linde other than for Cause or (b) by the Participant with Good Reason, in each case, within two (2) years following the Change in Control but prior to
(insert date)
, this Award shall become immediately vested (y) if the effective date of such termination is prior to the first anniversary of the Grant Date, as to
(insert fraction)
of the RSUs subject to this Award (rounded down in the event of fractional Shares), and the remaining RSUs shall be immediately forfeited, or (z) if the effective date of such termination is on or after the first anniversary of the Grant Date, as to all of the RSUs subject to this Award, and as soon as practicable thereafter, shall be settled by payment to the Participant of a number of Shares (or such other form of payment having an equivalent value as may be authorized by the Committee in its sole discretion) equal to the number of RSUs vesting under this Award.
|
(i)
|
For purposes of this Section 2.d., “Cause” shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of any such agreement or in the event that such agreement does not contain a definition of “Cause,” Cause shall include, but not be limited to, violation of Linde’s Code of Business Integrity (or any superseding integrity policy) or poor performance.
|
(ii)
|
For purposes of this Section 2.d., “Good Reason” shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of such any such agreement or in the event that such agreement does not contain a definition of “Good Reason,” Good Reason shall mean, without the Participant’s express written consent, (a) a reduction in the annual rate of base salary as in effect immediately prior to the date of the Change in Control or as the same may be increased from time to time thereafter, unless such reduction is part of a policy, program or arrangement that is applicable on a nondiscriminatory basis to the Participant and other similarly situated executives employed by Linde or its successors or (b) the assignment of any duties or responsibilities or diminution of duties or responsibilities which in the Participant’s reasonable judgment are inconsistent with the Participant’s status or position with Linde in effect immediately prior to the Change in Control, provided, however, that Good Reason shall not exist unless the Participant provides Linde with a notice of termination not later than 60 days after the occurrence of the event giving rise to Good Reason and Linde fails to remedy such condition to the Participant’s reasonable satisfaction within 30 days of such notice.
|
e.
|
Forfeiture of Award
. In the event the Participant’s employment with Linde terminates for any reason other than those specifically set forth in Sections 2.b., c. or d. prior to
(insert date)
, this Award shall be immediately forfeited. In the event this Award is forfeited for any reason, no payment shall be made in settlement of the Award.
|
3.
|
Other Terms and Conditions.
It is understood and agreed that the Award of RSUs evidenced hereby is subject to the following terms and conditions:
|
a.
|
Rights of Participant
. Except as provided in Section 3.d., the Participant shall have no right to transfer, pledge, hypothecate or otherwise encumber the Award. Prior to the payment of Shares in satisfaction of this Award, the Participant shall have none of the rights of a stockholder of the Company with respect to the Award, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents. Notwithstanding any provision of the Plan or this Award to the contrary, Shares delivered in satisfaction of this Award shall be subject to applicable Linde policies as from time to time in effect, including but not limited to, Linde’s insider trading and Executive Stock Ownership policies.
|
b.
|
No Right to Continued Employment
. This Award shall not confer upon the Participant any right with respect to continuance of employment by Linde nor shall this Award interfere with the right of Linde to terminate the Participant’s employment.
|
c.
|
No Right to Future Awards
. The selection of recipients of RSUs and other Awards under the Plan is determined annually on the basis of several factors, including job responsibilities and anticipated future job performance. The Participant’s selection to receive this Award shall in no way entitle him/her to receive, or otherwise obligate Linde to provide the Participant, any future RSUs or other awards under the Plan or otherwise.
|
d.
|
Transferability
. This Award is not transferable other than:
|
(i)
|
in the event of the Participant’s death, in which case this Award shall be transferred to the Participant’s executor, administrator, or legal representative; or
|
(ii)
|
pursuant to a domestic relations order.
|
e.
|
Cancellation of Award
. Notwithstanding any other provision of this Award, the Committee may, in its sole discretion, cancel, rescind, suspend, withhold, or otherwise limit or restrict this Award, and/or recover any gains realized by the Participant in connection with this Award, in the event any actions by the Participant are determined by the Committee to (i) constitute a conflict of interest with Linde, (ii) be prejudicial to Linde’s interests, or (iii) violate any non-compete agreement or obligation of the Participant to Linde, any confidentiality agreement or obligation of the Participant to Linde, Linde’s applicable policies, or the Participant’s terms and conditions of employment.
|
f.
|
Clawback
. This Award shall be subject to the clawback or recapture policy, if any, that Linde may adopt from time to time to the extent provided in such policy and, in accordance with such policy, may be subject to the requirement that this Award be repaid to Linde after it has been distributed or paid to the Participant.
|
4.
|
Tax Withholding.
Upon the date of payment of the Award, Linde will deduct from the number of Shares (or other form of payment, if applicable) otherwise due the Participant, Shares (or other form of payment, if applicable) having a Fair Market Value (or fair market value in the event of payment other than in Shares) sufficient to discharge all applicable federal, state, city, local or foreign taxes of any kind required to be withheld with respect to such payment, provided that, if Shares are so withheld, they shall be withheld only up to the minimum required tax withholding rates or such other rate that will not trigger a negative accounting impact on Linde. In the alternative, Linde shall have the right to require the Participant to pay cash to satisfy any applicable withholding taxes as a condition to the payment of the Award. Notwithstanding the foregoing, to the extent any employment or other taxes are due in respect of the Award prior to the payment of the Award, Linde shall have the right to require the value of such taxes to either be withheld by deducting Shares underlying the Award (as described above) or by requiring the Participant to pay cash to satisfy such applicable withholding.
|
5.
|
References.
References herein to rights and obligations of the Participant shall apply, where appropriate, to the Participant’s legal representative or estate without regard to whether specific reference to such legal representative or estate is contained in a particular provision of this Award.
|
6.
|
Governing Law.
This Award shall be governed by and construed in accordance with the laws of Connecticut, without giving effect to principles of conflict of laws.
|
7.
|
No Third Party Beneficiaries.
Except as expressly provided in the Plan or herein, neither the Plan nor this Award will confer on any person other than Linde and the Participant any rights or remedies under the Plan or hereunder
|
Linde plc
|
|
|
|
By
|
|
|
David Strauss
Chief Human Resources Officer
|
|
|
1.
|
Award of Performance Share Units, Performance Measure and Performance Period.
The Participant is hereby granted an Award of
(insert #)
notional “Performance Share Units” (the “Award”). A Performance Share Unit is a bookkeeping entry which is intended to be equal in value to a single Share. For purposes of this Award,
(insert #)
Performance Share Units are considered the Participant’s “Target Amount.” Except as otherwise provided herein, the payment due in settlement of the Participant’s vested Award shall be made in the form of Shares, with the number of Shares payable determined by reference to the Company’s average annual return on capital (“ROC”) for the three-year period commencing on January 1, 20
xx
and ending on December 31, 20
xx
(the “Performance Period”) as set forth below. For purposes of this Award, ROC shall mean the Company’s after-tax return on capital as reported in its quarterly and annual Consolidated Financial Statements and the related Notes, which may be adjusted in the discretion of the Committee as it deems appropriate to eliminate the after-tax effects of any acquisition, divestiture, restructuring, other corporate transaction, accounting charges or any other extraordinary, unusual or non-recurring item, in each case, occurring during the Performance Period.
|
2.
|
Vesting of Award; Treatment upon Termination of Service; Change in Control.
|
a.
|
Vesting Generally
. Except as otherwise provided in this Section 2, this Award shall vest on
(insert date)
, provided that: (i) the Participant has remained continuously employed by Linde at all times from the Grant Date through
(insert date)
(a Participant who is employed by a Subsidiary shall be deemed to have terminated employment by action of Linde other than for cause for purposes of this Award at such time as the employing entity ceases to be a Subsidiary); and (ii) the Company’s average annual ROC for the Performance Period meets the minimum threshold Performance Goal for payout set forth in Section 3.a. Payment with respect to such vested Award shall be determined and made in accordance with Section 3.a.
|
b.
|
Death or Disability
. Notwithstanding any provision of this Section 2 to the contrary, if after the Grant Date, but prior to
(insert date)
:
|
(i)
|
the Participant’s employment with Linde terminates by reason of the Participant’s death; or
|
(ii)
|
the Participant becomes Totally and Permanently Disabled while employed by Linde;
|
c.
|
Termination by Action of Linde Other than for Cause, or
Termination After Attaining Certain Age and Service Requirements
. Notwithstanding any provision of this Section 2 to the contrary,
in the event the Participant’s employment with Linde terminates on or after
(insert date)
, but prior to
(insert date)
,
by reason of the Participant’s:
|
(i)
|
termination of employment by action of Linde other than for cause and not due to the Participant’s Total and Permanent Disability; or
|
(ii)
|
termination of employment with Linde, other than for cause and not due to the Participant’s death or Total and Permanent Disability, after: (a) attaining age 65; or (b) attaining age 55 and completing at least ten (10) years of employment with Linde,
|
d.
|
Change in Control
. Notwithstanding any provision of this Section 2 to the contrary, in the event of a Change in Control occurring prior to
(insert date)
, payment with respect to this Award shall be determined and made in accordance with Section 3.c. and this Award shall be subject to time-based vesting through
(insert date)
, provided, however, that in the event the Participant’s employment with Linde or any successor thereto is terminated (a) by action of Linde other than for Cause or (b) by the Participant with Good Reason, in each case, within two (2) years following the Change in Control, this Award, to the extent not previously vested, shall become immediately vested.
|
(i)
|
For purposes of this Section 2.d., “Cause” shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of any such agreement or in the event that such agreement does not contain a definition of “Cause,” Cause shall include, but not be limited to, violation of Linde’s Code of Business Integrity (or any superseding integrity policy) or poor performance.
|
(ii)
|
For purposes of this Section 2.d., “Good Reason shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of such any such agreement or in the event that such agreement does not contain a definition of “Good Reason,” Good Reason shall mean, without the Participant’s express written consent, (a) a reduction in the annual rate of base salary as in effect immediately prior to the date of the Change in Control or as the same may be increased from time to time thereafter, unless such reduction is part of a policy, program or arrangement that is applicable on a nondiscriminatory basis to the Participant and other similarly situated executives employed by Linde or its successors or (b) the assignment of any duties or responsibilities or diminution of duties or responsibilities which in the Participant’s reasonable judgment are inconsistent with the Participant’s status or position with Linde in effect immediately prior to the Change in Control, provided, however, that Good Reason shall not exist unless the Participant provides Linde with a notice of termination not later than 60 days after the occurrence of the event giving rise to Good Reason and Linde fails to remedy such condition to the Participant’s reasonable satisfaction within 30 days of such notice.
|
e.
|
Forfeiture of Award
.
|
(i)
|
In the event the Participant’s employment with Linde terminates for any reason other than those specifically set forth in Sections 2.b. or 2.c. prior to
(insert date)
and before the occurrence of a Change in Control, this Award shall be immediately forfeited.
|
(ii)
|
Absent the occurrence of a Change in Control occurring prior to
(insert date)
, and to the extent not previously forfeited pursuant to Section 2.e.(i), this Award shall be immediately forfeited as of the end of the Performance Period if the Company’s average annual ROC for the Performance Period does not meet the minimum threshold Performance Goal for payout set forth in Section 3.a.
|
(iii)
|
In the event this Award is forfeited for any reason, no payment shall be made in settlement of the Award.
|
3.
|
Payment of Vested Award.
|
a.
|
Performance Goal and Determination of Amount of Payment
. Except as otherwise provided in this Section 3, the number of Shares payable in settlement of the Participant’s vested Award shall be determined by reference to the Linde plc’s average annual ROC for the Performance Period in accordance with the table below, and may range from 0% to 200% of the Participant’s Target Amount. Each Performance Share Unit is equivalent to one Share. Payouts will be interpolated if the average annual ROC attained for the Performance Period falls between the Threshold and Maximum percentages specified in the table, and will be rounded down to the nearest whole number of Shares. The payment of Shares pursuant to this Section 3.a. will be made as soon as practicable after the date the Award becomes vested, but in no event later than December 31, 20
xx
.
|
b.
|
Determination of Amount of Payment Following Death or Total and Permanent Disability
. In the event the Participant becomes vested in this Award by reason of his or her death or Total and Permanent Disability in accordance with Section 2.b., this Award shall be settled by payment of a number of Shares equal to the product of (i) the Participant’s Target Amount, times (ii) a fraction having a numerator equal to the number of days elapsed from the Grant Date through the date the Participant’s death or Total and Permanent Disability (as applicable), and a denominator equal to
(insert # of days in vesting period)
, as soon as practicable following the date the Award becomes vested, but in no event later than March 15
th
of the year following the year in which the Award becomes vested.
|
c.
|
Determination of Amount of Payment Following a Change in Control
. In the event of a Change in Control occurring prior to
(insert date)
,
the amount payable in settlement of this Award shall be the Participant’s Target Amount, or if greater, the percentage of the Participant’s Target Amount determined based on the achievement of the applicable performance goals as of the effective date of the Change in Control, as determined by the Committee in its sole discretion, and this Award shall vest in accordance with Section 2.d. Payment will be made as soon as practicable following the earlier of (i) the date the Participant’s employment is terminated by action of Linde other than for Cause or by Participant with Good Reason or (ii)
(insert date)
. Notwithstanding any provision of this Award to the contrary, any amounts paid in settlement of this Award pursuant to this Section 3.c. shall be paid in Shares or such other form having a value equivalent to the Award amount payable, as may be authorized by the Committee in its sole discretion. All references to the Committee in this Section 3.c. shall mean the Committee as constituted immediately before the Change in Control.
|
4.
|
Other Terms and Conditions.
It is understood and agreed that the Award evidenced hereby is subject to the following terms and conditions:
|
a.
|
Rights of Participant
. Except as provided in Section 4.d., the Participant shall have no right to transfer, pledge, hypothecate or otherwise encumber the Award. Prior to the payment of Shares in satisfaction of this Award, the Participant shall have none of the rights of a stockholder of the Company with respect to the Award, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents. Notwithstanding any provision of the Plan or this Award to the contrary, Shares delivered in satisfaction of this Award shall be subject to applicable Linde policies as from time to time in effect, including but not limited to, Linde’s insider trading and Executive Stock Ownership Policies.
|
b.
|
No Right to Continued Employment
. This Award shall not confer upon the Participant any right with respect to continuance of employment by Linde nor shall this Award interfere with the right of Linde to terminate the Participant’s employment.
|
c.
|
No Right to Future Awards
. The selection of recipients of Awards under the Plan is determined annually on the basis of several factors, including job responsibilities and anticipated future job performance. The Participant’s selection to receive this Award shall in no way entitle him/her to receive, or otherwise obligate Linde to provide the Participant, any future Performance Share Unit Award or other award under the Plan or otherwise.
|
d.
|
Transferability
. This Award is not transferable other than:
|
(i)
|
in the event of the Participant’s death, in which case this Award shall be transferred to the Participant’s executor, administrator, or legal representative, or
|
(ii)
|
pursuant to a domestic relations order.
|
e.
|
Cancellation of Award
. Notwithstanding any other provision of this Award, the Committee may, in its sole discretion, cancel, rescind, suspend, withhold, or otherwise limit or restrict this Award, and/or recover any gains realized by the Participant in connection with this Award, in the event any actions by the Participant are determined by the Committee to (i) constitute a conflict of interest with Linde, (ii) be prejudicial to Linde’s interests, or (iii) violate any non-compete agreement or obligation of the Participant to Linde, any confidentiality agreement or obligation of the Participant to Linde, Linde’s applicable policies, or the Participant’s terms and conditions of employment.
|
f.
|
Clawback
. This Award shall be subject to the clawback or recapture policy, if any, that Linde may adopt from time to time to the extent provided in such policy and, in accordance with such policy, may be subject to the requirement that this Award be repaid to Linde after it has been distributed or paid to the Participant.
|
5.
|
Tax Withholding.
Upon the date of payment of the Award, Linde will deduct from the number of Shares (or other form of payment, if applicable) otherwise due the Participant, Shares (or other form of payment, if applicable) having a Fair Market Value (or fair market value in the event of payment other than in Shares) sufficient to discharge all applicable federal, state, city, local or foreign taxes of any kind required to be withheld with respect to such payment, provided that, if Shares are so withheld, they shall be withheld only up to the minimum required tax withholding rates or such other rate that will not trigger a negative accounting impact on Linde. In the alternative, Linde shall have the right to require the Participant to pay cash to satisfy any applicable withholding taxes as a condition to the payment of the Award.
|
6.
|
References.
References herein to rights and obligations of the Participant shall apply, where appropriate, to the Participant’s legal representative or estate without regard to whether specific reference to such legal representative or estate is contained in a particular provision of this Award.
|
7.
|
Governing Law.
This Award shall be governed by and construed in accordance with the laws of Connecticut, without giving effect to principles of conflict of laws.
|
8.
|
No Third Party Beneficiaries.
Except as expressly provided in the Plan or herein, neither the Plan nor this Award will confer on any person other than Linde and the Participant any rights or remedies under the Plan or hereunder.
|
Linde plc
|
|
|
|
By
|
|
|
David Strauss
Chief Human Resources Officer |
|
|
1.
|
Award of Performance Share Units, Performance Measure and Performance Period.
|
a.
|
Award
. The Participant is hereby granted an Award of
(insert #)
notional “Performance Share Units” (the “Award”). A Performance Share Unit is a bookkeeping entry which is intended to be equal in value to a single Share. For purposes of this Award,
(insert #)
Performance Share Units are considered the Participant’s “Target Amount.” Except as otherwise provided herein, the payment due in settlement of the Participant’s vested Award shall be made in the form of Shares, with the number of Shares payable determined by reference to the Company’s Total Shareholder Return (“TSR”) relative to the TSR of the Peer Index (“Relative TSR”) over the three-year period commencing on January 1, 20
xx
and ending on December 31, 20
xx
(the “Performance Period”) as set forth below.
|
b.
|
Applicable Definitions
. For purposes of this Award:
|
(i)
|
“Total Shareholder Return” or “TSR” shall mean the percentage equal to the appreciation in the underlying company’s stock price from the beginning to the end of the Performance Period plus the value of dividends paid on such stock during the Period (which shall be deemed to have been reinvested in the underlying company’s stock effective as of the “ex-dividend” date based on the then closing price of such company). The stock prices at the beginning and end of the Performance Period will be determined using the trailing average stock price over the 20 trading days prior to the beginning and end of the Performance Period, as applicable.
|
(ii)
|
“Relative TSR” shall mean the Company’s TSR for the Performance Period relative to that of the TSR for the Performance Period of each member company on the Peer Index, expressed as a percentile rank.
|
(iii)
|
“Peer Index” shall mean a weighted combination of the S&P 500 Index excluding Financial sector companies(weighted 67%) and the Eurofirst 300 (weighted 33%). For purposes of the Relative TSR determination, the companies that comprise the S&P 500 Index and the Eurofirst 300, respectively, on the first day of the Performance Period (each a “Peer Company” and collectively , the “Peer Companies”) will remain constant throughout the performance period. As a result, at the end of the Performance Period, the actual number of Peer Companies used to calculate Relative TSR is expected to be fewer than at the beginning of the Performance Period. In determining Relative TSR, the Committee may, in its discretion, make adjustments to the list of Peer Companies and assumptions with respect to any such Peer Company’s TSR to reflect events that occur during the Performance Period, including, but not limited to, acquisitions, divestitures, spin-offs, bankruptcy, insolvency and other extraordinary events.
|
2.
|
Vesting of Award; Treatment upon Termination of Service; Change in Control.
|
a.
|
Vesting Generally
. Except as otherwise provided in this Section 2, this Award shall vest on
(insert date)
, provided that: (i) the Participant has remained continuously employed by Linde at all times from the Grant Date through
(insert date)
(a Participant who is employed by a Subsidiary shall be deemed to have terminated employment by action of Linde other than for cause for purposes of this Award at such time as the employing entity ceases to be a Subsidiary); and (ii) the Company’s Relative TSR meets the minimum threshold Performance Goal for payout set forth in Section 3.a. Payment with respect to such vested Award shall be determined and made in accordance with Section 3.a.
|
b.
|
Death or Disability
. Notwithstanding any provision of this Section 2 to the contrary, if after the Grant Date, but prior to
(insert date)
:
|
(i)
|
the Participant’s employment with Linde terminates by reason of the Participant’s death; or
|
(ii)
|
the Participant becomes Totally and Permanently Disabled while employed by Linde;
|
c.
|
Termination by Action of Linde Other than for Cause, or
Termination After Attaining Certain Age and Service Requirements
. Notwithstanding any provision of this Section 2 to the contrary,
in the event the Participant’s employment with Linde terminates on or after
(insert date)
, but prior to
(insert date)
,
by reason of the Participant’s:
|
(i)
|
termination of employment by action of Linde other than for cause and not due to the Participant’s Total and Permanent Disability; or
|
(ii)
|
termination of employment with Linde, other than for cause and not due to the Participant’s death or Total and Permanent Disability, after: (a) attaining age 65; or (b) attaining age 55 and completing at least ten (10) years of employment with Linde,
|
d.
|
Change in Control
. Notwithstanding any provision of this Section 2 to the contrary, in the event of a Change in Control occurring prior to
(insert date)
, payment with respect to this Award shall be determined and made in accordance with Section 3.c. and this Award shall be subject to time-based vesting through
(insert date)
, provided, however, that in the event the Participant’s employment with Linde or any successor thereto is terminated (a) by action of Linde other than for Cause or (b) by the Participant with Good Reason, in each case, within two (2) years following the Change in Control, this Award, to the extent not previously vested, shall become immediately vested.
|
(i)
|
For purposes of this Section 2.d., “Cause” shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of any such agreement or in the event that such agreement does not contain a definition of “Cause,” Cause shall include, but not be limited to, violation of Linde’s Code of Business Integrity (or any superseding integrity policy) or poor performance.
|
(ii)
|
For purposes of this Section 2.d., “Good Reason shall have the meaning set forth in the Participant’s employment agreement or severance compensation agreement, in either case, as in effect immediately before the Change in Control, provided, however, that in the absence of such any such agreement or in the event that such agreement does not contain a definition of “Good Reason,” Good Reason shall mean, without the Participant’s express written consent, (a) a reduction in the annual rate of base salary as in effect immediately prior to the date of the Change in Control or as the same may be increased from time to time thereafter, unless such reduction is part of a policy, program or arrangement that is applicable on a nondiscriminatory basis to the Participant and other similarly situated executives employed by Linde or its successors or (b) the assignment of any duties or responsibilities or diminution of duties or responsibilities which in the Participant’s reasonable judgment are inconsistent with the Participant’s status or position with Linde in effect immediately prior to the Change in Control, provided, however, that Good Reason shall not exist unless the Participant provides Linde with a notice of termination not later than 60 days after the occurrence of the event giving rise to Good Reason and Linde fails to remedy such condition to the Participant’s reasonable satisfaction within 30 days of such notice.
|
e.
|
Forfeiture of Award
.
|
(i)
|
In the event the Participant’s employment with Linde terminates for any reason other than those specifically set forth in Sections 2.b. or 2.c. prior to
(insert date)
and before the occurrence of a Change in Control, this Award shall be immediately forfeited.
|
(ii)
|
Absent the occurrence of a Change in Control occurring prior to
(insert date)
, and to the extent not previously forfeited pursuant to Section 2.e.(i), this Award shall be immediately forfeited as of the end of the Performance Period if the Company’s Relative TSR does not meet the minimum threshold Performance Goal for payout set forth in Section 3.a.
|
(iii)
|
In the event this Award is forfeited for any reason, no payment shall be made in settlement of the Award.
|
3.
|
Payment of Vested Award.
|
a.
|
Performance Goal and Determination of Amount of Payment
. Except as otherwise provided in this Section 3, the number of Shares payable in settlement of the Participant’s vested Award shall be determined by reference to the Linde plc’s Relative TSR in accordance with the table below, and may range from 0% to 200% of the Participant’s Target Amount. Each Performance Share Unit is equivalent to one Share. Payouts will be interpolated if the Relative TSR attained falls between the Relative TSR Rank percentiles specified in the table, and will be rounded down to the nearest whole number of Shares. The payment of Shares pursuant to this Section 3.a. will be made as soon as practicable after the date the Award becomes vested, but in no event later than December 31, 20
xx
.
|
b.
|
Determination of Amount of Payment Following Death or Total and Permanent Disability
. In the event the Participant becomes vested in this Award by reason of his or her death or Total and Permanent Disability in accordance with Section 2.b., this Award shall be settled by payment of a number of Shares equal to the product of (i) the Participant’s Target Amount, times (ii) a fraction having a numerator equal to the number of days elapsed from the Grant Date through the date the Participant’s death or Total and Permanent Disability (as applicable), and a denominator equal to
(insert # of days in vesting period)
, as soon as practicable following the date the Award becomes vested, but in no event later than March 15
th
of the year following the year in which the Award becomes vested.
|
c.
|
Determination of Amount of Payment Following a Change in Control
. In the event of a Change in Control occurring prior to
(insert date)
,
the amount payable in settlement of this Award shall be the Participant’s Target Amount, or if greater, the percentage of the Participant’s Target Amount determined based on the achievement of the applicable performance goals as of the effective date of the Change in Control, as determined by the Committee in its sole discretion, and this Award shall vest in accordance with Section 2.d. Payment will be made as soon as practicable following the earlier of (i) the date the Participant’s employment is terminated by action of Linde other than for Cause or by Participant with Good Reason or (ii)
(insert date)
. Notwithstanding any provision of this Award to the contrary, any amounts paid in settlement of this Award pursuant to this Section 3.c. shall be paid in Shares or such other form having a value equivalent to the Award amount payable, as may be authorized by the Committee in its sole discretion. All references to the Committee in this Section 3.c. shall mean the Committee as constituted immediately before the Change in Control.
|
4.
|
Other Terms and Conditions.
It is understood and agreed that the Award evidenced hereby is subject to the following terms and conditions:
|
a.
|
Rights of Participant
. Except as provided in Section 4.d., the Participant shall have no right to transfer, pledge, hypothecate or otherwise encumber the Award. Prior to the payment of Shares in satisfaction of this Award, the Participant shall have none of the rights of a stockholder of the Company with respect to the Award, including, but not limited to, voting rights and the right to receive or accrue dividends or dividend equivalents. Notwithstanding any provision of the Plan or this Award to the contrary, Shares delivered in satisfaction of this Award shall be subject to applicable Linde policies as from time to time in effect, including but not limited to, Linde’s insider trading and Executive Stock Ownership Policies.
|
b.
|
No Right to Continued Employment
. This Award shall not confer upon the Participant any right with respect to continuance of employment by Linde nor shall this Award interfere with the right of Linde to terminate the Participant’s employment.
|
c.
|
No Right to Future Awards
. The selection of recipients of Awards under the Plan is determined annually on the basis of several factors, including job responsibilities and anticipated future job performance. The Participant’s selection to receive this Award shall in no way entitle him/her to receive, or otherwise obligate Linde to provide the Participant, any future Performance Share Unit Award or other award under the Plan or otherwise.
|
d.
|
Transferability
. This Award is not transferable other than:
|
(i)
|
in the event of the Participant’s death, in which case this Award shall be transferred to the Participant’s executor, administrator, or legal representative, or
|
(ii)
|
pursuant to a domestic relations order.
|
e.
|
Cancellation of Award
. Notwithstanding any other provision of this Award, the Committee may, in its sole discretion, cancel, rescind, suspend, withhold, or otherwise limit or restrict this Award, and/or recover any gains realized by the Participant in connection with this Award, in the event any actions by the Participant are determined by the Committee to (i) constitute a conflict of interest with Linde, (ii) be prejudicial to Linde’s interests, or (iii) violate any non-compete agreement or obligation of the Participant to Linde, any confidentiality agreement or obligation of the Participant to Linde, Linde’s applicable policies, or the Participant’s terms and conditions of employment.
|
f.
|
Clawback
. This Award shall be subject to the clawback or recapture policy, if any, that Linde may adopt from time to time to the extent provided in such policy and, in accordance with such policy, may be subject to the requirement that this Award be repaid to Linde after it has been distributed or paid to the Participant.
|
5.
|
Tax Withholding.
Upon the date of payment of the Award, Linde will deduct from the number of Shares (or other form of payment, if applicable) otherwise due the Participant, Shares (or other form of payment, if applicable) having a Fair Market Value (or fair market value in the event of payment other than in Shares) sufficient to discharge all applicable federal, state, city, local or foreign taxes of any kind required to be withheld with respect to such payment, provided that, if Shares are so withheld, they shall be withheld only up to the minimum required tax withholding rates or such other rate that will not trigger a negative accounting impact on Linde. In the alternative, Linde shall have the right to require the Participant to pay cash to satisfy any applicable withholding taxes as a condition to the payment of the Award.
|
6.
|
References.
References herein to rights and obligations of the Participant shall apply, where appropriate, to the Participant’s legal representative or estate without regard to whether specific reference to such legal representative or estate is contained in a particular provision of this Award.
|
7.
|
Governing Law.
This Award shall be governed by and construed in accordance with the laws of Connecticut, without giving effect to principles of conflict of laws.
|
8.
|
No Third Party Beneficiaries.
Except as expressly provided in the Plan or herein, neither the Plan nor this Award will confer on any person other than Linde and the Participant any rights or remedies under the Plan or hereunder.
|
Linde plc
|
|
|
|
By
|
|
|
David Strauss
Chief Human Resources Officer |
|
|
Linde plc Subsidiaries
|
Place of Incorporation
|
Zamalight Holdco LLC
|
USA
|
Zamalight Subco, Inc.
|
USA
|
Linde Holding GmbH
|
Germany
|
Linde Intermediate Holding AG
|
Germany
|
Praxair, Inc. Subsidiaries
|
Place of Incorporation
|
10 Riverview Drive LLC
|
Delaware
|
Acetylene Oxygen Company
|
Texas
|
Almacenes Geneva S.A.
|
Panama
|
Argyle Welding Supply Company, Inc.
|
New Mexico
|
Beijing Praxair Huashi Carbon Dioxide Co., Ltd.
|
China
|
Beijing Praxair, Inc.
|
China
|
Coatec Gesellschaft fϋr Oberflächenveredelung mbH
|
Germany
|
Consultora Rynuter S.A.
|
Uruguay
|
Dablioeme Participacoes Ltda.
|
Brazil
|
Distribuciones Invegas S.C.A.
|
Venezuela
|
Famex Comercio Atacadista de Gas Carbonico Ltda.
|
Brazil
|
Gama Gases Especiais Ltda.
|
Brazil
|
Gases de Ensenada S.A.
|
Argentina
|
Gases Industriales, S.A.
|
Panama
|
Gases Tachira S.A.
|
Venezuela
|
GNC Matao Compressao de Gas Natural Ltda.
|
Brazil
|
GNL Gemini Comercializacao e Logistica de Gas Ltda.
|
Brazil
|
Great Lakes Street, Inc.
|
Delaware
|
Helium Centre Pte Ltd.
|
Singapore
|
Industria Venezoelana de Gas INVEGAS, S.C.A.
|
Venezuela
|
Inpagas S.R.L.
|
Paraguay
|
Ipes Industria de Produtos e Equipamentos de Solda Ltda.
|
Brazil
|
Joint Stock Company "Volgograd Oxygen Plant"
|
Russia
|
Kelvin Finance Company Limited
|
Ireland
|
Kosmoid Finance Unlimited Company
|
Ireland
|
Kunshan Praxair Co., Ltd.
|
China
|
Limited Liability Company Praxair Azot Togliatti
|
Russia
|
Limited Liability Company Praxair Rus
|
Russia
|
Limited Liability Company Praxair Titanium Valley
|
Russia
|
Limited Liability Company Praxair Volgograd
|
Russia
|
Liquid Carbonic Corporation
|
Delaware
|
Liquid Carbonic del Paraguay S.A.
|
Paraguay
|
Liquido Carbonico Colombiana S.A.
|
Colombia
|
Madco Welding Supply Co., Inc.
|
California
|
Madison Gas LLC
|
Delaware
|
Malaysian Industrial Gas Company Sdn. Bhd.
|
Malaysia
|
Mastercrio Transportes Ltda.
|
Brazil
|
Medical Gases SRL
|
Argentina
|
Nanjing Praxair Nanlian Industrial Gases Co., Ltd.
|
China
|
Nitropet, S.A. de C.V.
|
Mexico
|
NoxBox Ltd
|
United Kingdom
|
NuCo2 Inc.
|
Delaware
|
NUCO2 LLC
|
Delaware
|
NuCO2 Management LLC
|
Delaware
|
NuCO2 Supply LLC
|
Delaware
|
Old Danford S.A.
|
Uruguay
|
Oxigenos de Colombia Ltda.
|
Colombia
|
Oxygene Industriel Girardin, Inc.
|
Canada
|
PG Technologies Pte Ltd.
|
Singapore
|
Praxair Holdings International, Inc.
|
Delaware
|
Praxair (Anhui) Industrial Gases Co., Ltd.
|
China
|
Praxair (Beijing) Industrial Gases Co., Ltd.
|
China
|
Praxair (Beijing) Semiconductor Gases Co., Ltd.
|
China
|
Praxair (China) Investment Co., Ltd.
|
China
|
Praxair (Guangxi) Gases Co., Ltd.
|
China
|
Praxair (Guangzhou) Industrial Gases Co., Ltd.
|
China
|
Praxair (Hainan) Industrial Gases Co., Ltd.
|
China
|
Praxair (Hefei) Industrial Gases Co., Ltd.
|
China
|
Praxair (Huizhou) Industrial Gases Limited
|
China
|
Praxair (Jiaxing) Industrial Gases Co., Ltd.
|
China
|
Praxair (Jining) Industrial Gases Co., Ltd.
|
China
|
Praxair (Nanjing) Carbon Dioxide Co. Ltd.
|
China
|
Praxair (Shanghai) Co., Ltd.
|
China
|
Praxair (Shanghai) Electronic Gases Co., Ltd.
|
China
|
Praxair (Shanghai) Industrial Gases Co., Ltd.
|
China
|
Praxair (Shanghai) Semiconductor Gases Co., Ltd.
|
China
|
Praxair (Taiwan) Co., Ltd.
|
Taiwan
|
Praxair (Thailand) Company Limited
|
Thailand
|
Praxair (Wuhan), Inc.
|
China
|
Praxair (Yangzhou) Application Technology Co., Ltd.
|
China
|
Praxair (Yangzhou) Industrial Gases Co., Ltd.
|
China
|
Praxair (Zhengjing) Industrial Gas Co. Ltd.
|
China
|
Praxair Argentina S.r.l.
|
Argentina
|
Praxair Asia, Inc.
|
Delaware
|
Praxair Bahrain B.S.C.
|
Kingdom of Bahrain
|
Praxair Bolivia Srl
|
Bolivia
|
Praxair Canada Inc.
|
Canada
|
Praxair Chemax Semiconductor Materials Co.
|
Taiwan
|
Praxair Chile Gases Limitada
|
Chile
|
Praxair Chile Ltda.
|
Chile
|
Praxair Colonia Limitada
|
Uruguay
|
Praxair Consultoria y Administracion S de RL de CV
|
Mexico
|
Praxair Costa Rica S.A.
|
Costa Rica
|
Praxair Distribution, Inc.
|
Delaware
|
Praxair do Brasil Ltda.
|
Brazil
|
Praxair Euroholding, BV
|
Netherlands
|
Praxair Fray Bentos S.C.A.
|
Uruguay
|
Praxair Gases Industriales Ltda.
|
Colombia
|
Praxair Gulf Industrial Gases LLC
|
Abu Dhabi
|
Praxair Holding Latinoamerica SARL
|
Luxembourg
|
Praxair Holdings International, Inc.
|
Delaware
|
Praxair Huayi (Chongqing) Industrial Gases Co. Ltd.
|
China
|
Praxair Hydrogen Supply, Inc.
|
Delaware
|
Praxair India Private Limited
|
India
|
Praxair International Finance Unlimited Company
|
Ireland
|
Praxair Inversiones SRL
|
Peru
|
Praxair Investments B.V.
|
Netherlands
|
Praxair K.K.
|
Japan
|
Praxair Korea Company Limited
|
South Korea
|
Praxair Latin America Holdings LLC
|
Delaware
|
Praxair Luxembourg S.a.r.L.
|
Luxembourg
|
Praxair Meishan (Nanjing) Industrial Gases Co., Ltd.
|
China
|
Praxair Mexico, S. de R.L. de C.V.
|
Mexico
|
Praxair MRC S.A.S.
|
France
|
Praxair Offshore Services Limited
|
United Kingdom
|
Praxair Pacific Ltd.
|
Mauritius
|
Praxair Partnership
|
Partnership
|
Praxair Peru S.R.L.
|
Peru
|
Praxair PHP S.A.S.
|
France
|
Praxair Plainfield, Inc.
|
Delaware
|
Praxair Puerto Rico B. V.
|
Netherlands
|
Praxair Puerto Rico LLC
|
Delaware
|
Praxair Qingdao Co., Ltd.
|
China
|
Praxair Republica Domincana, SRL
|
Dominican Republic
|
Praxair S.r.l.
|
Italy
|
Praxair S.T. Technology, Inc.
|
Delaware
|
Praxair Samara LLC
|
Russia
|
Praxair Services (UK) Limited
|
United Kingdom
|
Praxair Services Canada Inc.
|
Canada
|
Praxair Services, Inc.
|
Texas
|
Praxair Shanghai Meishan Inc.
|
China
|
Praxair Shaogang Co., Ltd.
|
China
|
Praxair Ship II AS
|
Norway
|
Praxair Surface Technologies (Changzhou) Co. Ltd.
|
China
|
Praxair Surface Technologies (Europe) S.A.
|
Switzerland
|
Praxair Surface Technologies Co., Ltd.
|
Korea
|
Praxair Surface Technologies do Brasil Ltda.
|
Brazil
|
Praxair Surface Technologies G.m.b.h.
|
Germany
|
Praxair Surface Technologies K.K.
|
Japan
|
Praxair Surface Technologies Limited
|
United Kingdom
|
Praxair Surface Technologies Montreal L.P.
|
New Brunswick
|
Praxair Surface Technologies Pte Ltd.
|
Singapore
|
Praxair Surface Technologies S.A.S.
|
France
|
Praxair Surface Technologies, Inc.
|
Delaware
|
Praxair Switzerland GmbH
|
Switzerland
|
Praxair Technology, Inc.
|
Delaware
|
Praxair Uruguay Ltda.
|
Uruguay
|
Production Praxair Canada Inc.
|
Canada
|
Sermatech International Canada Corp.
|
Delaware
|
Sermatech International Canada GP LLC
|
Delaware
|
Sermatech Korea Ltd.
|
Korea
|
Shanghai Praxair Baoshan Inc.
|
China
|
Shanghai Praxair-Yidian, Inc.
|
China
|
Tecnogas S/A
|
Peru
|
Thai Carbonic Company Ltd.
|
Thailand
|
The Welding Center, Inc.
|
Illinois
|
Tongling Praxair Co., Ltd.
|
China
|
Topaz Consultora S.A.
|
Uruguay
|
Vision Energy Group LLC
|
Oklahoma
|
Westair Cryogenics Company
|
Delaware
|
Westair Gas and Equipment, L.P.
|
Texas
|
White Martins e White Martins Comércio e Servicos SARL
|
Luxembourg
|
White Martins Gases Industriais do Nordeste Limitada.
|
Brazil
|
White Martins Gases Industriais do Norte Limitada
|
Brazil
|
White Martins Gases Industriais Ltda.
|
Brazil
|
White Martins Pecem Gases Industriais Ltda.
|
Brazil
|
WM Transporte de Gases Ltda.
|
Brazil
|
Wyandotte Welding Supply, Inc.
|
Michigan
|
Yateem Oxygen W.L.L.
|
Bahrain
|
Linde AG Subsidiaries
|
Place of Incorporation
|
177470 CANADA INC.
|
Canada
|
177472 CANADA INC.
|
Canada
|
44001 ONTARIO LIMITED
|
Canada
|
AB Held
|
Sweden
|
Abelló Linde, S.A.U.
|
Spain
|
African Oxygen Limited
|
South Africa
|
AFROX - África Oxigénio, Limitada
|
Angola
|
AFROX (LESOTHO) (PTY) LTD
|
Lesotho
|
AFROX (PROPRIETARY) LIMITED
|
South Africa
|
AFROX AFRICAN INVESTMENTS (PTY) LIMITED
|
South Africa
|
AFROX GAS & ENGINEERING SUPPLIES (BOTSWANA) (PTY) LIMITED
|
Botswana
|
AFROX INTERNATIONAL LIMITED
|
Mauritius
|
Afrox Malawi Limited
|
Malawi
|
Afrox Moçambique, Limitada
|
Mozambique
|
AFROX PROPERTIES (PTY) LIMITED
|
South Africa
|
AFROX ZAMBIA LIMITED
|
Zambia
|
AGA A/S
|
Denmark
|
AGA Aktiebolag
|
Sweden
|
AGA AS
|
Norway
|
AGA Fastighet Göteborg AB
|
Sweden
|
AGA Gas Aktiebolag
|
Sweden
|
AGA Industrial Gas Engineering Aktiebolag
|
Sweden
|
AGA International Investment Aktiebolag
|
Sweden
|
AGA Medical Aktiebolag
|
Sweden
|
AGA S.A.
|
Uruguay
|
AGA SIA
|
Latvia
|
Agatronic AB
|
Sweden
|
Agua y Gas de Sillunchi S.A.
|
Ecuador
|
AHP Alliance of Columbia
|
South Carolina
|
AHP Delmarva, LLP
|
Maryland
|
AHP Home Care Alliance of Gainesville
|
Florida
|
AHP Home Care Alliance of Tennessee
|
Tennessee
|
AHP Home Care Alliance of Virginia
|
Virginia
|
AHP Home Medical Equipment Partnership of Texas
|
Texas
|
AHP Knoxville Partnership
|
Tennessee
|
AHP-MHR Home Care, LLP
|
Nebraska
|
AIRCO COATING TECHNOLOGY LIMITED
|
United Kingdom
|
ALBOC (JERSEY) LIMITED
|
Jersey
|
ALLWELD INDUSTRIAL AND WELDING SUPPLIES LIMITED
|
United Kingdom
|
ALPHA RESPIRATORY INC.
|
Delaware
|
AMALGAMATED GAS AND WELDING (PTY) LIMITED
|
South Africa
|
AMALGAMATED WELDING AND CUTTING HOLDINGS (PROPRIETARY) LIMITED
|
South Africa
|
American HomePatient Arkansas Ventures, Inc.
|
Delaware
|
American HomePatient Delaware Ventures, Inc.
|
Delaware
|
American HomePatient of Kingstree, LLC
|
South Carolina
|
American HomePatient of New York, Inc.
|
New York
|
American HomePatient of Sanford, LLC
|
North Carolina
|
American HomePatient of Texas, LLC
|
Texas
|
American HomePatient of Unifour, LLC
|
North Carolina
|
American HomePatient Tennessee Ventures, Inc.
|
Delaware
|
American HomePatient Ventures, Inc.
|
Tennessee
|
AMERICAN HOMEPATIENT, INC.
|
Delaware
|
American HomePatient, Inc.
|
Delaware
|
American HomePatient, Inc. (f/k/a AHP NV Corp.)
|
Nevada
|
Anhui JuLan Industrial Gases Co., Ltd.
|
China
|
AO "Linde Gas Rus"
|
Russia
|
AO "Linde Uraltechgaz"
|
Russia
|
Aries 94 s.r.o.
|
Slovakia
|
AS Eesti AGA
|
Estonia
|
ASIA UNION (SHANGHAI) ELECTRONIC CHEMICAL COMPANY LIMITED
|
China
|
ASIA UNION ELECTRONIC CHEMICAL CORPORATION
|
Taiwan
|
ASIA UNION ELECTRONIC CHEMICALS - RENO, INC.
|
Nevada
|
AUECC (BVI) HOLDINGS LIMITED
|
British Virgin Islands
|
AUECC Shanghai (Baoshan) Co. Ltd.
|
China
|
AUECC Shanghai (Fengxian) Co. Ltd.
|
China
|
AUSCOM HOLDINGS PTY LIMITED
|
Australia
|
AWCE (PROPRIETARY) LIMITED
|
South Africa
|
B.V. Nederlandse Pijpleidingmaatschappij
|
Netherlands
|
Baptist Ventures - AHP Homecare Alliance of Montgomery
|
Alabama
|
BATAAN INDUSTRIAL GASES, INC.
|
Philippines
|
Blue LNG Beteiligungsgesellschaft mbH
|
Germany
|
Blue LNG GmbH & Co. KG
|
Germany
|
Blue Ridge Home Care
|
North Carolina
|
BOC (China) Holdings Co., Ltd.
|
China
|
BOC (PHILS.) HOLDINGS, INC.
|
Philippines
|
BOC (TRADING) LIMITED
|
Ireland
|
BOC AIP Limited Partnership
|
Australia
|
BOC Australia Pty Limited
|
Australia
|
BOC AUSTRALIAN FINANCE LIMITED
|
Jersey
|
BOC CHILE HOLDINGS LIMITED
|
United Kingdom
|
BOC CUSTOMER ENGINEERING PTY LTD
|
Australia
|
BOC de Chile S.A.
|
Chile
|
BOC DISTRIBUTION SERVICES LIMITED
|
United Kingdom
|
BOC DUTCH FINANCE
|
United Kingdom
|
BOC Europe Holdings B.V.
|
Netherlands
|
BOC Gases (Suzhou) Co., Ltd.
|
China
|
BOC Gases (Tianjin) Company Limited
|
China
|
BOC GASES ARUBA N.V.
|
Aruba
|
BOC GASES DE MEXICO, S.A. DE C.V.
|
Mexico
|
BOC GASES FINANCE LIMITED
|
Australia
|
BOC GASES IRELAND HOLDINGS LIMITED
|
Ireland
|
BOC Gases Ireland Limited
|
Ireland
|
BOC GASES LIMITED
|
United Kingdom
|
BOC GASES MOZAMBIQUE LIMITED
|
Mozambique
|
BOC Gases Nigeria Plc
|
Nigeria
|
BOC GASES SOLOMON ISLANDS LIMITED
|
Solomon Islands
|
BOC GIST INC
|
Philippines
|
BOC GROUP PTY LIMITED
|
Australia
|
BOC HEALTHCARE LIMITED
|
United Kingdom
|
BOC HELEX
|
United Kingdom
|
BOC HOLDINGS
|
United Kingdom
|
BOC Intressenter AB
|
Sweden
|
BOC INVESTMENT HOLDING COMPANY (IRELAND) LIMITED
|
Ireland
|
BOC INVESTMENT HOLDINGS LIMITED
|
United Kingdom
|
BOC INVESTMENTS (LUXEMBOURG) LIMITED
|
United Kingdom
|
BOC Investments Ireland Unlimited Company
|
Ireland
|
BOC INVESTMENTS NO.1 LIMITED
|
United Kingdom
|
BOC INVESTMENTS NO.5
|
United Kingdom
|
BOC INVESTMENTS NO.7
|
United Kingdom
|
BOC JAPAN
|
United Kingdom
|
BOC Kenya plc
|
Kenya
|
BOC KOREA HOLDINGS LIMITED
|
United Kingdom
|
BOC LIENHWA (BVI) HOLDING Co., Ltd.
|
British Virgin Islands
|
BOC Limited
|
Australia
|
BOC LIMITED
|
New Zealand
|
BOC LIMITED
|
United Kingdom
|
BOC LUXEMBOURG FINANCE
|
United Kingdom
|
BOC NETHERLANDS HOLDINGS LIMITED
|
United Kingdom
|
BOC NEW ZEALAND HOLDINGS LIMITED
|
New Zealand
|
BOC NO. 1 LIMITED
|
Guernsey
|
BOC NO. 2 LIMITED
|
Guernsey
|
BOC NOMINEES LIMITED
|
United Kingdom
|
BOC Papua New Guinea Limited
|
Papua New Guinea
|
BOC PENSION SCHEME TRUSTEES LIMITED
|
United Kingdom
|
BOC PENSIONS LIMITED
|
United Kingdom
|
BOC PREFERENCE LIMITED
|
Jersey
|
BOC RSP TRUSTEES LIMITED
|
United Kingdom
|
BOC SEPS TRUSTEES LIMITED
|
United Kingdom
|
BOC SERVICES LIMITED
|
United Kingdom
|
BOC Tanzania Limited
|
Tanzania
|
BOC Uganda Limited
|
Uganda
|
BOC Zimbabwe (Private) Limited
|
Zimbabwe
|
BOCLH Industrial Gases (Chengdu) Co., Ltd
|
China
|
BOCLH Industrial Gases (DaLian) Co., Ltd.
|
China
|
BOCLH Industrial Gases (Shanghai) Co., Ltd.
|
China
|
BOCLH Industrial Gases (Songjiang) Co., Ltd.
|
China
|
BOCLH Industrial Gases (Suzhou) Co., Ltd.
|
China
|
BOCLH Industrial Gases (Waigaoqiao) Co., Ltd.
|
China
|
BOCLH Industrial Gases (Xiamen) Co., Ltd.
|
China
|
BOGGY CREEK PTY LIMITED
|
Australia
|
BOTSWANA OXYGEN COMPANY (PTY) LIMITED
|
Botswana
|
BOTSWANA STEEL ENGINEERING (PTY) LIMITED
|
Botswana
|
BRITISH INDUSTRIAL GASES LIMITED
|
United Kingdom
|
BRITISH OXYGEN (HONG KONG) LIMITED
|
Hong Kong
|
CARING RESPONDERS LLC
|
Delaware
|
Catholic Health Home Respiratory, LLC
|
New York
|
Ceylon Oxygen Ltd.
|
Sri Lanka
|
CIGC CORPORATION
|
Philippines
|
Coastal Home Care
|
South Carolina
|
Colorado Home Medical Equipment Alliance, LLC
|
Colorado
|
Commercium Immobilien- und Beteiligungs-GmbH
|
Germany
|
Compañía de Nitrógeno de Cantarell, S.A. de C.V.
|
Mexico
|
Compañía de Operaciones de Nitrógeno, S.A. de C.V.
|
Mexico
|
Complete Infusion Services, LLC
|
Michigan
|
CONFEDERATE TECHNOLOGY COMPANY LIMITED
|
Taiwan
|
CONVACARE SERVICES, INC.
|
Indiana
|
COOPER CRYOSERVICE LIMITED
|
Ireland
|
CPAP SUPPLY USA LLC
|
Delaware
|
CRYO Aktiebolag
|
Sweden
|
CRYO INDUSTRIAL GASES, INC.
|
Philippines
|
CRYOGENIC MEDICAL GASES, A LTD. LIABILITY CO.
|
Colorado
|
Cryostar Cryogenic Equipments (Hangzhou) Co. Ltd.
|
China
|
Cryostar do Brasil Equipamentos Rotativos & Criogenicos Ltda.
|
Brazil
|
CRYOSTAR LIMITED
|
United Kingdom
|
CRYOSTAR SAS
|
France
|
Cryostar Singapore Pte Ltd
|
Singapore
|
Cryostar USA LLC
|
Delaware
|
DAVAO OXYGEN CORPORATION
|
Philippines
|
Designated Companies, Inc.
|
New York
|
DeVine Products, Inc.
|
Delaware
|
DME Supply USA, LLC
|
Delaware
|
EHVIL DISSENTIENTS LIMITED
|
United Kingdom
|
ELGAS AUTOGAS PTY LIMITED
|
Australia
|
ELGAS LIMITED
|
Australia
|
ELGAS LIMITED
|
New Zealand
|
ELGAS RETICULATION PTY LIMITED
|
Australia
|
Eurogaz-Gdynia Sp. z o.o.
|
Poland
|
EXPRESS INDUSTRIAL & WELDING SUPPLIES LIMITED
|
United Kingdom
|
FAR EASTERN INDUSTRIAL GASES COMPANY LIMITED
|
Taiwan
|
Flaskgascentralen i Malmö Aktiebolag
|
Sweden
|
FLUOROGAS LIMITED
|
United Kingdom
|
FUTURE INDUSTRIAL AND WELDING SUPPLIES LTD.
|
United Kingdom
|
Fuzhou Linde Lienhwa Gases Co., Ltd
|
China
|
G.L BAKER (TRANSPORT) LIMITED
|
United Kingdom
|
GAFFNEY INDUSTRIAL & WELDING SUPPLIES LTD
|
United Kingdom
|
Gamma Acquisition Inc.
|
Delaware
|
GAS & GEAR LIMITED
|
United Kingdom
|
Gas & More GmbH
|
Germany
|
Gas Pentru Gaze Si Aparatura S.R.L.
|
Romania
|
General Gases of the Virgin Islands, Inc.
|
Virgin Islands, U.S.
|
GI/LINDE ALGERIE SPA
|
Algeria
|
Gist Containers B.V.
|
Netherlands
|
Gist Distribution Limited
|
Ireland
|
GIST FRANCE S.A.R.L.
|
France
|
Gist Holding B.V.
|
Netherlands
|
GIST LIMITED
|
United Kingdom
|
Gist Nederland B.V.
|
Netherlands
|
Gist Österreich GmbH
|
Austria
|
Gist USA LLC
|
Delaware
|
GISTRANS Czech Republic s.r.o.
|
Czech Republic
|
GRANDPLAINS PROPERTIES, INC.
|
Philippines
|
Grupo Linde Gas Argentina S.A.
|
Argentina
|
HANDIGAS (BOTSWANA) (PTY) LIMITED
|
Botswana
|
HANDIGAS LIMITED
|
United Kingdom
|
HANDIGAS SWAZILAND (PTY) LIMITED
|
Swaziland
|
Hangzhou Linde International Trading Co., Ltd.
|
China
|
HEALTH CARE SOLUTIONS AT HOME INC.
|
Delaware
|
HealthCare Solutions IV LLC
|
Delaware
|
HEAT GAS (PTY) LIMITED
|
Botswana
|
HICK, HARGREAVES AND COMPANY LIMITED
|
United Kingdom
|
HKO DEVELOPMENT COMPANY LIMITED
|
Hong Kong
|
Holox Inc.
|
Georgia
|
HOME-CARE EQUIPMENT NETWORK INC.
|
Delaware
|
Homelink Home Health Care
|
Arkansas
|
Hydromotive GmbH & Co. KG
|
Germany
|
Hydromotive Verwaltungs-GmbH
|
Germany
|
IGL (PTY) LIMITED
|
Namibia
|
IGL PROPERTIES (PTY) LIMITED
|
Namibia
|
INDONESIA POWER HOLDINGS LIMITED
|
United Kingdom
|
INDUSTRIAL & WELDING SUPPLIES (NORTH WEST) LIMITED
|
United Kingdom
|
INDUSTRIAL AND WELDING MANAGEMENT LIMITED
|
United Kingdom
|
INDUSTRIAL SUPPLIES & SERVICES LIMITED
|
United Kingdom
|
ISAGA ehf.
|
Iceland
|
ISAS TRUST
|
South Africa
|
ITO Industries International SA
|
Romania
|
IWS (INDUSTRIAL & WELDING SUPPLIES) LIMITED
|
United Kingdom
|
Jianyang Linde Medical Gases Company Limited
|
China
|
KEY PROOF INVESTMENTS LIMITED
|
British Virgin Islands
|
KIDDO INVESTMENTS (PTY) LIMITED
|
Botswana
|
Kiinteistö Oy Karakaasu
|
Finland
|
Kiinteistö Oy Karaportti
|
Finland
|
KTPV (THAILAND) LIMITED
|
Thailand
|
KunShan Asia Union Electronic Chemical Corp. Co., Ltd.
|
China
|
LAG Methanol LLC
|
Delaware
|
LANSING GROUP LIMITED
|
United Kingdom
|
LEEN GATE INDUSTRIAL & WELDING SUPPLIES (SCOTLAND) LIMITED
|
United Kingdom
|
LEENGATE INDUSTRIAL & WELDING SUPPLIES (LINCOLN) LIMITED
|
United Kingdom
|
LEENGATE INDUSTRIAL & WELDING SUPPLIES (NORTH EAST) LIMITED
|
United Kingdom
|
LEENGATE INDUSTRIAL & WELDING SUPPLIES (NOTTINGHAM) LIMITED
|
United Kingdom
|
LEENGATE INDUSTRIAL & WELDING SUPPLIES LIMITED
|
United Kingdom
|
LESOTHO OXYGEN COMPANY (PTY) LIMITED
|
Lesotho
|
LIEN CHIA INDUSTRIAL GASES COMPANY LIMITED
|
Taiwan
|
LIEN CHUAN INDUSTRIAL GASES COMPANY LIMITED
|
Taiwan
|
LIEN FUNG PRECISION TECHNOLOGY DEVELOPMENT CO., LTD
|
Taiwan
|
LIEN HWA COMMONWEALTH CORPORATION
|
Taiwan
|
LIEN HWA INDUSTRIAL GASES (HK) LIMITED
|
Hong Kong
|
LIEN HWA LOX CRYOGENIC EQUIPMENT CORPORATION
|
Taiwan
|
LIEN SHENG INDUSTRIAL GASES COMPANY LIMITED
|
Taiwan
|
LIEN TONG GASES COMPANY LIMITED
|
Taiwan
|
LIEN YANG INDUSTRIAL GASES COMPANY LIMITED
|
Taiwan
|
LINCARE EQUIPMENT LLC
|
Delaware
|
LINCARE HOLDINGS INC.
|
Delaware
|
LINCARE INC.
|
Delaware
|
LINCARE LEASING LLC
|
Delaware
|
LINCARE LICENSING INC.
|
Delaware
|
LINCARE OF CANADA ACQUISITIONS INC.
|
Delaware
|
LINCARE OF CANADA INC.
|
Ontario
|
LINCARE OF NEW YORK, INC.
|
New York
|
LINCARE PHARMACY SERVICES INC.
|
Delaware
|
LINCARE PROCUREMENT INC.
|
Delaware
|
LINCARE PULMONARY REHAB MANAGEMENT, LLC
|
Delaware
|
Lincare Pulmonary Rehab Services of Missouri, LLC
|
Missouri
|
LINCARE PULMONARY REHAB SERVICES OF OHIO, LLC
|
Ohio
|
Linde (Australia) Pty. Ltd.
|
Australia
|
Linde (Quanzhou) Carbon Dioxide Co. Ltd.
|
China
|
Linde (Thailand) Public Company Limited
|
Thailand
|
Linde Air Chemicals Limited
|
Thailand
|
Linde Aktiengesellschaft
|
Germany
|
Linde Arabian Contracting Co., Ltd.
|
Saudi Arabia
|
Linde Arooxy (Xi'an) Life Science Co., Ltd.
|
China
|
Linde Bangladesh Limited
|
Bangladesh
|
LINDE CANADA HOLDINGS LIMITED
|
United Kingdom
|
Linde Canada Limited
|
Canada
|
Linde Carbonic (Wuhu) Company Ltd.
|
China
|
Linde Carbonic Company Ltd., Shanghai
|
China
|
Linde Colombia S.A.
|
Colombia
|
LINDE CRYOGENICS LIMITED
|
United Kingdom
|
LINDE CRYOPLANTS LIMITED
|
United Kingdom
|
Linde Delaware Investments Inc.
|
Delaware
|
Linde Ecuador S.A.
|
Ecuador
|
Linde Electronics & Specialty Gases (Suzhou) Co Ltd.
|
China
|
Linde Electronics B.V.
|
Netherlands
|
Linde Electronics GmbH
|
Austria
|
Linde Electronics GmbH & Co. KG
|
Germany
|
LINDE ELECTRONICS SAS
|
France
|
Linde Electronics Verwaltungs GmbH
|
Germany
|
LINDE ELECTRONICS, S.L.
|
Spain
|
LINDE ENERGY SERVICES S.A.S. E.S.P.
|
Colombia
|
Linde Energy Services, Inc
|
Delaware
|
Linde Engineering (Dalian) Co. Ltd.
|
China
|
Linde Engineering (Hangzhou) Co. Ltd.
|
China
|
Linde Engineering (Malaysia) Sdn. Bhd.
|
Malaysia
|
Linde Engineering India Private Limited
|
India
|
Linde Engineering Middle East LLC
|
United Arab Emirates
|
Linde Engineering North America Inc.
|
Delaware
|
Linde Engineering South Africa (Pty) Ltd.
|
South Africa
|
Linde EOX Sdn. Bhd.
|
Malaysia
|
LINDE FINANCE
|
United Kingdom
|
Linde Finance B.V.
|
Netherlands
|
Linde France S.A.
|
France
|
Linde Gas (H.K.) Limited
|
Hong Kong
|
Linde Gas a.s.
|
Czech Republic
|
Linde Gas Algerie S.p.A.
|
Algeria
|
Linde Gas Asia Pte Ltd
|
Singapore
|
Linde Gas Belgium NV
|
Belgium
|
Linde Gas Benelux B.V.
|
Netherlands
|
LINDE GAS BITOLA DOOEL Skopje
|
The former Yugoslav Republic of Macedonia
|
Linde Gas Bulgaria EOOD
|
Bulgaria
|
Linde Gas Chile S.A.
|
Chile
|
Linde Gas Cryoservices B.V.
|
Netherlands
|
Linde Gas Curaçao N.V.
|
Curaçao
|
LINDE GAS DOMINICANA, S.R.L.
|
Dominican Republic
|
Linde Gas GmbH
|
Austria
|
LINDE GAS HOLDINGS LIMITED
|
United Kingdom
|
Linde Gas Italia S.r.l.
|
Italy
|
Linde Gas k.s.
|
Slovakia
|
LINDE GAS MIDDLE EAST LLC
|
United Arab Emirates
|
Linde Gas Ningbo Ltd.
|
China
|
Linde Gas North America LLC
|
Delaware
|
Linde Gas Perú S.A.
|
Peru
|
Linde Gas Products Malaysia Sdn. Bhd.
|
Malaysia
|
Linde Gas Produktionsgesellschaft mbH & Co. KG
|
Germany
|
Linde Gas Puerto Rico, Inc.
|
Puerto Rico
|
Linde Gas Shenzhen Ltd.
|
China
|
Linde Gas Singapore Pte. Ltd.
|
Singapore
|
Linde Gas Southeast (Xiamen) Ltd.
|
China
|
LINDE GAS SRBIJA Industrija gasova a.d. Bečej
|
Serbia
|
Linde Gas Therapeutics Benelux B.V.
|
Netherlands
|
Linde Gas Therapeutics GmbH
|
Germany
|
Linde Gas Tunisie S.A.
|
Tunisia
|
Linde Gas Verwaltungs GmbH
|
Germany
|
Linde Gas Vietnam Limited
|
Vietnam
|
Linde Gas Xiamen Ltd.
|
China
|
Linde Gas Zhenhai Ltd.
|
China
|
Linde Gases (Changzhou) Company Limited
|
China
|
Linde Gases (Chengdu) Co., Ltd.
|
China
|
Linde Gases (Fushun) Co., Ltd.
|
China
|
Linde Gases (Hefei) Co., Ltd.
|
China
|
Linde Gases (Huizhou) Co., Ltd.
|
China
|
Linde Gases (Langfang) Co., Ltd.
|
China
|
Linde Gases (Meishan) Co., Ltd.
|
China
|
Linde Gases (Nanjing) Company Limited
|
China
|
Linde Gases (Shanghai) Co., Ltd.
|
China
|
Linde Gases (Suzhou) Company Limited
|
China
|
Linde Gases (Taixing) Co., Ltd.
|
China
|
Linde Gases (Xuzhou) Company Limited
|
China
|
Linde Gases (Yantai) Co., Ltd.
|
China
|
Linde Gases (Zhangzhou) Co., Ltd.
|
China
|
Linde Gases Daxie Company Limited
|
China
|
Linde Gases Ltda.
|
Brazil
|
Linde Gases Moçambique, Limitada
|
Mozambique
|
Linde Gaz Anonim Şirketi
|
Turkey
|
Linde Gáz Magyarország Zrt.
|
Hungary
|
LINDE GAZ POLSKA Spółka z o.o.
|
Poland
|
LINDE GAZ ROMANIA S.R.L.
|
Romania
|
Linde Global IT Services s. r. o.
|
Slovakia
|
LINDE GLOBAL SERVICES PHILIPPINES, INC.
|
Philippines
|
LINDE GLOBAL SERVICES PORTUGAL, UNIPESSOAL LDA
|
Portugal
|
Linde Global Support Services Private Limited
|
India
|
LINDE HADJIKYRIAKOS GAS LIMITED
|
Cyprus
|
Linde Healthcare AB
|
Sweden
|
LINDE HEALTHCARE MIDDLE EAST LLC
|
United Arab Emirates
|
LINDE HELIUM HOLDINGS LIMITED
|
United Kingdom
|
LINDE HELIUM M E FZCO
|
United Arab Emirates
|
Linde Hellas Monoprosopi E.P.E.
|
Greece
|
Linde Hidrógeno, S.A. de C.V.
|
Mexico
|
Linde HKO Limited
|
Hong Kong
|
Linde Holdings Netherlands B.V.
|
Netherlands
|
Linde Holdings Netherlands No. 2 B.V.
|
Netherlands
|
Linde Holdings New Zealand Limited
|
New Zealand
|
Linde Holdings SAS
|
France
|
Linde Holdings, LLC
|
Delaware
|
Linde Homecare Belgium SPRL
|
Belgium
|
Linde Homecare Benelux B.V.
|
Netherlands
|
LINDE HOMECARE FRANCE SAS
|
France
|
Linde Huachang (Zhangjiagang) Gas Co. Ltd.
|
China
|
Linde HyCO Limited
|
Thailand
|
Linde HyCO LLC
|
Delaware
|
Linde Hydrogen Concepts GmbH
|
Germany
|
LINDE INDIA LIMITED
|
India
|
LINDE INDUSTRIAL GASES (MALAYSIA) SDN. BHD.
|
Malaysia
|
LINDE INVESTMENTS FINLAND OY
|
Finland
|
LINDE INVESTMENTS LLC
|
Delaware
|
LINDE INVESTMENTS No.1 LIMITED
|
United Kingdom
|
Linde Jubail Industrial Gases Factory LLC
|
Saudi Arabia
|
Linde Korea Co., Ltd.
|
Republic of Korea
|
Linde Kryotechnik AG
|
Switzerland
|
Linde Lienhwa China Holding Co., Ltd.
|
China
|
Linde Lienhwa Gases (BeiJing) Co., Ltd.
|
China
|
Linde Lienhwa Gases (Chengdu) Co., Ltd.
|
China
|
Linde Lienhwa Gases (Wuhan) Co., Ltd
|
China
|
Linde Lienhwa Industrial Gases (Xianyang) Co., Ltd.
|
China
|
LINDE LIENHWA INDUSTRIAL GASES CO. LTD.
|
Taiwan
|
Linde LLC
|
Delaware
|
LINDE MALAYSIA HOLDINGS BERHAD
|
Malaysia
|
LINDE MALAYSIA SDN. BHD.
|
Malaysia
|
Linde Médica, S.L.
|
Spain
|
LINDE MEDICALE Srl
|
Italy
|
LINDE MEDICINAL, S.L.
|
Spain
|
Linde Merchant Production, LLC
|
Delaware
|
Linde Nanjing Chemical Industrial Park Gases Co., Ltd.
|
China
|
LINDE NORTH AMERICA HOLDINGS LIMITED
|
United Kingdom
|
Linde North America, Inc.
|
Delaware
|
Linde Österreich Holding GmbH
|
Austria
|
LINDE PHILIPPINES (SOUTH), INC.
|
Philippines
|
LINDE PHILIPPINES, INC.
|
Philippines
|
LINDE PORTUGAL, LDA
|
Portugal
|
Linde Process Plants Canada Inc.
|
Canada
|
Linde Qiangsheng Gases (Nanjing) Co., Ltd.
|
China
|
LINDE ROC SDN. BHD.
|
Malaysia
|
Linde RSS LLC
|
Delaware
|
Linde Salud S.A.
|
Argentina
|
LINDE SAÚDE, LDA
|
Portugal
|
Linde Schweißtechnik GmbH
|
Germany
|
Linde Services LLC
|
Delaware
|
Linde Sokolovská s.r.o.
|
Czech Republic
|
LINDE TREASURY ASIA PACIFIC PTE.LTD.
|
Singapore
|
LINDE UK HOLDINGS LIMITED
|
United Kingdom
|
LINDE UK PRIVATE MEDICAL TRUSTEES LIMITED
|
United Kingdom
|
Linde Vietnam Limited Company
|
Vietnam
|
Linde Welding GmbH
|
Germany
|
LINDE WELDING PRODUCTS SDN. BHD.
|
Malaysia
|
LINDE-BOC GASES LIMITADA
|
Brazil
|
LindeGas Holding Sweden AB
|
Sweden
|
LINDE-SINOCHEM (QUANZHOU) GASES CO., LTD
|
China
|
LPM, S.A. de C.V.
|
Mexico
|
LUCK STREAM Co., Ltd.
|
Taiwan
|
mdINR, LLC
|
Delaware
|
MED 4 HOME INC.
|
Delaware
|
MediLink HomeCare, Inc.
|
New Jersey
|
MEDIMATICS LLC
|
Delaware
|
MEDISHIELD
|
United Kingdom
|
MEDISPEED
|
United Kingdom
|
MidSouth Distribution, Inc.
|
Texas
|
MIG Production Company Limited
|
Thailand
|
MRB ACQUISITION CORP.
|
Florida
|
MTA GmbH Medizin-Technischer-Anlagenbau
|
Germany
|
Murray Hill LLC
|
Delaware
|
Naamloze Vennootschap Linde Gas Benelux
|
Netherlands
|
NAMOX Namibia (PTY) LIMITED
|
Namibia
|
NASIONALE SWEISWARE (PTY) LTD
|
South Africa
|
Nauticor Beteiligungs-GmbH
|
Germany
|
Nauticor GmbH & Co. KG
|
Germany
|
NEW SINO GASES COMPANY LIMITED
|
Hong Kong
|
NICOWELD (PTY) LIMITED
|
South Africa
|
NORLIC AB
|
Sweden
|
Northeast Pennsylvania Alliance, LLC
|
Pennsylvania
|
Northwest Washington Alliance, LLC
|
Washington
|
OCAP CO2 B.V.
|
Netherlands
|
OCT Pharmacy, L.L.C.
|
Michigan
|
OOO "Linde Engineering Rus"
|
Russia
|
OPTIGEN, INC.
|
Florida
|
Oy AGA Ab
|
Finland
|
P.T. Gresik Gases Indonesia
|
Indonesia
|
P.T. Gresik Power Indonesia
|
Indonesia
|
P.T. Townsville Welding Supplies
|
Indonesia
|
PACIFIC ENGINEERING SUPPLIES PTY LIMITED
|
Australia
|
PanGas AG
|
Switzerland
|
Patient Support Services, Inc.
|
Texas
|
PENNINE INDUSTRIAL & WELDING SUPPLIES LIMITED
|
United Kingdom
|
Piedmont Medical Equipment
|
South Carolina
|
PREMIER MEDICAL CORPORATION
|
Colorado
|
PRIESTLEY COMPANY LIMITED
|
Bermuda
|
Private Joint Stock Company "Linde Gas Ukraine"
|
Ukraine
|
PROVISIS Gase & Service GmbH
|
Austria
|
PS Chem Co., Ltd.
|
Republic of Korea
|
PSG Co., Ltd.
|
Republic of Korea
|
PT. LINDE INDONESIA
|
Indonesia
|
PULMOREHAB LLC
|
Delaware
|
PURE QUALITY TECHNOLOGY LIMITED
|
British Virgin Islands
|
RAYONG ACETYLENE LIMITED
|
Thailand
|
Raytel Cardiac Services, Inc.
|
Delaware
|
RCS MANAGEMENT CORPORATION
|
Delaware
|
RCS MANAGEMENT HOLDING COMPANY
|
Delaware
|
RDC GASES & WELDING (DRL) LIMITED
|
The Democratic Republic of the Congo
|
REMEO HEALTHCARE LIMITED
|
United Kingdom
|
REMEO Medical Services S.A.S.
|
Colombia
|
REMEO MEDICALE SRL
|
Italy
|
REPTILE INVESTMENT NINE (PTY) LIMITED
|
Namibia
|
REPTILE INVESTMENT TEN (PTY) LIMITED
|
Namibia
|
ROCK INDUSTRIAL & WELDING SUPPLIES LIMITED
|
United Kingdom
|
Rodmir Expert SA
|
Romania
|
ROYAL SOUTHMEADOWS, INC.
|
Philippines
|
RRS (FEBRUARY 2004) LIMITED
|
United Kingdom
|
RYVAL GAS LIMITED
|
United Kingdom
|
Sam Kwang Gas Tech Co., Ltd.
|
Republic of Korea
|
Saudi Industrial Gas Company
|
Saudi Arabia
|
Selas-Linde GmbH
|
Germany
|
SERVICIOS DE OPERACIONES DE NITRÓGENO, S.A. DE C.V.
|
Mexico
|
Shanghai BOC Gases Co., Ltd.
|
China
|
Shanghai BOC Huayang Carbon Dioxide Co., Ltd.
|
China
|
Shanghai Linhua Gas Transportation Co., Ltd.
|
China
|
Shared Care of West Branch, LLC
|
Michigan
|
Shenzhen Feiying Industrial Gases Company Limited
|
China
|
SHINE SKY INTERNATIONAL COMPANY LIMITED
|
British Virgin Islands
|
SKTY (Thailand) Limited
|
Thailand
|
SKY WALKER GROUP LIMITED
|
British Virgin Islands
|
Sleepcair, Inc.
|
Kansas
|
SMS HOLDINGS (DELAWARE), INC.
|
Delaware
|
SMS HOLDINGS, INC.
|
Delaware
|
SOUTH PACIFIC WELDING GROUP PTY LIMITED
|
Australia
|
SPALDING HAULAGE LIMITED
|
United Kingdom
|
SPECIALIZED MEDICAL SERVICES, INC.
|
Delaware
|
Spectra Gases (Shanghai) Trading Co., LTD.
|
China
|
Spectra Gases Limited
|
United Kingdom
|
STORESHIELD LIMITED
|
United Kingdom
|
Svenska Aktiebolaget Gasaccumulator
|
Sweden
|
Svets Gas Aktiebolag
|
Sweden
|
SWAZI OXYGEN (PTY) LIMITED
|
Swaziland
|
T.I.G. TRADING LIMITED
|
Thailand
|
The BOC Group B.V.
|
Netherlands
|
THE BOC GROUP LIMITED
|
United Kingdom
|
The Boc Group S.A.S.
|
France
|
THE BRITISH OXYGEN COMPANY LIMITED
|
United Kingdom
|
The National Medical Rentals, Inc.
|
Arkansas
|
TIAMONT PTY LIMITED
|
Australia
|
TK-Teollisuuskaasut Oy
|
Finland
|
TOO Linde Gaz Kazakhstan
|
Kazakhstan
|
TOO Linde Technical Gases Temirtau
|
Kazakhstan
|
Total Home Care of East Alabama, L.L.C.
|
Alabama
|
TRANSHIELD
|
United Kingdom
|
TUNG BAO CORPORATION
|
Taiwan
|
|
1.
|
I have reviewed this Annual Report on Form 10-K of Linde plc;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
March 18, 2019
|
|
By: /s/ Stephen F. Angel
|
|
|
|
|
|
|
|
Stephen F. Angel
|
|
|
|
Chief Executive Officer
|
|
|
1.
|
I have reviewed this Annual Report on Form 10-K of Linde plc;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
March 18, 2019
|
|
By: /s/ Matthew J. White
|
|
|
|
|
|
|
|
Matthew J. White
|
|
|
|
Chief Financial Officer
|
|
|
March 18, 2019
|
|
By: /s/ Stephen F. Angel
|
|
|
|
|
|
|
|
Stephen F. Angel
|
|
|
|
Chief Executive Officer
|
|
|
March 18, 2019
|
|
By: /s/ Matthew J. White
|
|
|
|
|
|
|
|
Matthew J. White
|
|
|
|
Chief Executive Officer
|
|