UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 2, 2024

CARRIER GLOBAL CORPORATION
(Exact name of registrant as specified in its charter)

Delaware
001-39220
83-4051582
(State or other jurisdiction of incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)

13995 Pasteur Boulevard
Palm Beach Gardens, Florida 33418
(Address of principal executive offices, including zip code)

(561) 365-2000
(Registrant’s telephone number, including area code)

N/A
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:

Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock ($0.01 par value)
CARR
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 


Introductory Note

Completion of the Acquisition of Viessmann Climate Solutions SE

As previously disclosed, on April 25, 2023, Carrier Global Corporation (“Carrier”) and Johann Purchaser GmbH (“Purchaser”), a wholly owned subsidiary of Carrier, entered into a Share Purchase Agreement (the “Purchase Agreement”) with Viessmann Group GmbH & Co. KG (“Seller”), providing for the acquisition by Purchaser (the “Acquisition”) of Seller’s climate solutions business (the “Business”) through the acquisition of Viessmann Climate Solutions SE (“Climate Solutions”). On January 2, 2024, Carrier completed the Acquisition. Pursuant to the Purchase Agreement, the purchase price paid by Purchaser to Seller consisted of (i) EUR 10.2 billion in cash (the “Cash Consideration”) and (ii) 58,608,959 common shares, par value $0.01, of Carrier (“Carrier Common Stock” and such consideration, the “Share Consideration”).

Item 1.01
Entry into a Material Definitive Agreement.

Investor Rights Agreement

In connection with the completion of the Acquisition, on January 2, 2024, Carrier and Seller entered into an Investor Rights Agreement (the “Investor Rights Agreement”), pursuant to which Seller has the right to nominate one member of the Carrier Board of Directors (the “Board”) for a period of ten years following the closing of the transactions contemplated by the Purchase Agreement (the “Closing”), provided that Seller, together with its permitted transferees, continues to hold at least 50% of the Share Consideration. Seller has designated Maximilian Viessmann as its initial designee to the Board. The Investor Rights Agreement further provides that, for the time periods specified therein, Seller and its affiliates are subject to customary standstill, lockup and transfer restrictions and agree to vote their shares of Carrier Common Stock in favor of director nominees and other customary matters as recommended by the Board. The Investor Rights Agreement also provides for customary resale, demand and piggyback registration rights. In addition, the Investor Rights Agreement provides for a waiver of the corporate opportunities doctrine in favor of Seller and its affiliates, which was approved by the Board.
 
Bridge Credit Agreement
 
In connection with the completion of the Acquisition, on January 2, 2024, Carrier entered into a 60-day term loan credit agreement (the “Bridge Credit Agreement”) with JPMorgan Chase Bank, N.A., as administrative agent, under which it incurred a 60-day senior unsecured bridge term loan consisting of a euro-denominated tranche in an aggregate amount of €113 million and a USD-denominated tranche in an aggregate amount of $349 million, the proceeds of which were used to fund a portion of the Cash Consideration (the “Bridge Loan”).

The Bridge Loan bears interest at, in the case of borrowings denominated in USD, the Term SOFR Rate plus 0.10% and a ratings-based margin or alternatively at the Base Rate plus a ratings-based margin, and in the case of borrowings denominated in euro, the EURIBOR Rate plus a ratings-based margin.


The Bridge Credit Agreement contains customary representations and warranties for investment grade financings, certain customary affirmative covenants and certain negative covenants that generally restrict, subject to various exceptions, Carrier from taking certain actions, including, without limitation, incurring certain liens and certain fundamental changes, and customary events of default for financings of this type.
 
All terms used but not defined in this “Bridge Credit Agreement” section of Item 1.01 of this Current Report on Form 8-K (this “Report”) are as defined in the Bridge Credit Agreement.

Additional Agreements
 
In connection with the completion of the Acquisition, Carrier, Seller and Carrier Innovative Technologies GmbH (“Licensee”) entered into a License Agreement (the “License Agreement”), pursuant to which Seller has granted to Licensee an exclusive, worldwide license to use the “Viessmann” trademarks in connection with the Business. Licensee is required to pay an annual royalty of €12 million for the first five years of the term of the License Agreement and thereafter is required to pay royalties on net sales of licensed products sold by Licensee and its affiliates for the remainder of the term.
 
The foregoing description of each of the Investor Rights Agreement, the License Agreement, and the Bridge Credit Agreement is not complete and is qualified in its entirety by reference to the full text of the Investor Rights Agreement, the License Agreement and the Bridge Credit Agreement, copies of which are attached hereto as Exhibit No. 10.1, Exhibit No. 10.2 and Exhibit No. 10.3, respectively, and each of which is incorporated herein by reference.

Item 2.01
Completion of Acquisition or Disposition of Assets.

The information set forth in the section titled “Introductory Note” and in Item 1.01 of this Report is incorporated herein by reference.

The descriptions of the effects of the Purchase Agreement and the transactions contemplated by the Purchase Agreement do not purport to be complete and are subject to, and qualified in their entirety by reference to, the full text of the Purchase Agreement, which was filed as Exhibit 2.1 to Carrier’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on April 25, 2023 and which is incorporated herein by reference.

Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under the section titled “Bridge Credit Agreement” in Item 1.01 of this Report is incorporated herein by reference.
 
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Effective as of the Closing, on January 2, 2024, Maximilian Viessmann was appointed as a member of the Board, with a term expiring at Carrier’s 2024 annual meeting of shareowners. The Board also appointed Mr. Viessmann to the Board’s Technology and Innovation Committee. Mr. Viessmann was appointed pursuant to the terms of the Investor Rights Agreement, as described in Item 1.01 of this Report.


Mr. Viessmann has been the Co-Chief Executive Officer and a member of the board of directors of Seller since 2018.

In connection with his service on the Board, Mr. Viessmann will receive the same compensation currently payable to Carrier’s non-employee directors, including for service on committees and as committee chairpersons, as described in the definitive proxy statement filed with the SEC by Carrier on March 7, 2023 in connection with Carrier’s 2023 annual meeting of shareowners.

Mr. Viessmann, together with other members of the Viessmann family, owns a majority of the capital stock of Seller and accordingly, upon the completion of the Acquisition, Seller became a “related party” of Carrier. In connection with the Closing, Carrier and its affiliates entered into certain agreements with Seller, including the License Agreement and the Investor Rights Agreement, descriptions of which are included in Item 1.01 to this Report and are incorporated herein by reference. Additionally, in connection with the Closing, Carrier, Seller and Climate Solutions entered into a Transitional Services Agreement pursuant to which each of Carrier and Seller will provide to the other on an interim, transitional basis, various services, agreed-upon charges for which services are generally intended to allow the servicing party to charge a price comprised of costs and expenses, including reasonably allocable overhead expenses. Following the Closing, Carrier and its affiliates intend to enter into or maintain certain additional commercial agreements, including framework agreements and lease agreements, with Seller and its affiliates.

Item 7.01
Regulation FD Disclosure.

On January 2, 2024, Carrier issued a press release announcing the completion of the Acquisition and Mr. Viessmann’s appointment to the Board. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.

The press release issued on January 2, 2024 is furnished herewith as Exhibit No. 99.1 to this Report, and shall not be deemed filed for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section and shall not be deemed to be incorporated by reference into any filing by Carrier under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.


Item 9.01
Financial Statements and Exhibits.

(a)
Financial Statements of Business Acquired

The audited combined financial statements of the Business at and for the year ended December 31, 2022, the notes related thereto and the Report of Independent Auditors thereon, and the unaudited combined financial statements of the Business at and for the nine months ended September 30, 2023, and the notes related thereto, are filed as Exhibits 99.2 and 99.3, respectively, to this Report and incorporated by reference herein.

(b)
Pro Forma Financial Information

The unaudited pro forma condensed combined financial information of Carrier and the Business at and for the nine months ended September 30, 2023 and for the year ended December 31, 2022, and the notes related thereto, is filed as Exhibit 99.4 to this Report and incorporated by reference herein.

The pro forma financial information included as Exhibit 99.4 to this Report has been presented for informational purposes only, as required by Form 8-K, and does not purport to represent the actual results of operations that Carrier and the Business would have achieved had Carrier and the Business combined at and during the periods presented in the pro forma financial information, and is not intended to project the future results of operations that the combined company may achieve following the Acquisition.

(d)
Exhibits

Share Purchase Agreement dated as of April 25, 2023 (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed on April 26, 2023).
License Agreement dated as of January 2, 2024, by and among Viessmann Group GmbH & Co. KG, Viessmann Climate Solutions SE and Carrier Global Corporation.
Investor Rights Agreement dated as of January 2, 2024, by and between Carrier Global Corporation and Viessmann Group GmbH & Co. KG.
Bridge Loan Agreement dated as of January 2, 2024, by and among Carrier Global Corporation, JPMorgan Chase Bank, N.A., BofA Securities, Inc. and Bank of America, N.A.
23.1
Consent of PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft
Press release dated January 2, 2024 announcing completion of the Acquisition and the appointment of Maximilian Viessmann to the Board.
Audited Combined Financial Statements of the Climate Solutions Business of Viessmann Climate Solutions SE at and for the year ended December 31, 2022, the notes related thereto and the Report of Independent Auditors contained therein (incorporated by reference to Exhibit 99.1 of the Current Report on Form 8-K furnished on November 13, 2023).
Unaudited Combined Financial Statements of the Climate Solutions Business of Viessmann Climate Solutions SE at and for the nine months ended September 30, 2023, and the notes related thereto (incorporated by reference to Exhibit 99.2 of the Current Report on Form 8-K furnished on November 13, 2023).
Unaudited Pro Forma Condensed Combined Financial Information of Carrier and the Climate Solutions Business of Viessmann Climate Solutions SE at and for the nine months ended September 30, 2023 and for the year ended December 31, 2022, and the notes related thereto.
104
Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.

* Certain exhibits and schedules to this Exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request.
+ Certain portions of this exhibit have been omitted in accordance with Item 601(b)(2)(ii) of Regulation S-K. The registrant agrees to furnish supplementally an unredacted copy of this exhibit to the Securities and Exchange Commission upon its request.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 
CARRIER GLOBAL CORPORATION
   
Date:  January 2, 2024
By:
 /s/ Patrick Goris
   
Patrick Goris
   
Senior Vice President and Chief Financial Officer




EXHIBIT 10.1
 

CERTAIN INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED BY MEANS OF REDACTING A PORTION OF THE TEXT AND REPLACING IT WITH [***] BECAUSE IT IS BOTH: (I) NOT MATERIAL AND (II) THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
 
LICENSE AGREEMENT
 

TABLE OF CONTENTS
 
   
Page
     
1.
Interpretation and Definitions
3
2.
Grant and Scope of License
7
3.
Sublicenses
8
4.
Website Architecture and Social Media
9
5.
Core Brand Strategy and Brand Guidelines
10
6.
Further Specifics of Use
11
7.
Quality Assurance and Critical Incidents
12
8.
Brand Team, Brand Committee and Escalation Process
13
9.
Royalties
15
10.
Maintenance and Third Party Challenges with Regard to Licensed Trademarks
17
11.
Enforcement against Third-Party Infringements
18
12.
Attacks on Use of Licensed Trademarks; Product Liability
19
13.
Representations and Warranties; Limitation of Liability
20
14.
Term and Termination
21
15.
Effects of Expiry and Termination
23
16.
Compliance; No Agency or Partnership
24
17.
Additional Intellectual Property Matters
24
18.
[***]
25
19.
Miscellaneous
25
20.
Severability
29

i

This License Agreement (“Agreement”) is made on 2 January 2024
 
by and between
 
1.
Viessmann Group GmbH & Co. KG, registered with the commercial register of the local court of Marburg, Germany, under number HRA 3389, Viessmannstraße 1, 35108 Allendorf (Eder)
 
“Licensor”
 
and
 
2.
Carrier Innovation Technologies GmbH, registered with the commercial register of the canton of Luzern, under number CHE-346.248.440, Am Mattenhof 2d, 6010 Kriens, Switzerland
 
“Licensee”
 
and
 
3.
Carrier Global Corporation, a corporation incorporated under the laws of Delaware, U.S.A., with file number: 7286518, with its principal executive offices located at 13995 Pasteur Boulevard, Palm Beach Gardens, Florida 33418, U.S.A.
 
“Parent”
 
regarding the use of the trademark “Viessmann” and further trademarks owned by Licensor - Licensor, Licensee and Parent also referred to individually as a “Party” and collectively as “Parties
 

RECITALS
 
(A)
WHEREAS, on April 25, 2023, Licensor as seller and Blitz F23-620 GmbH (meanwhile renamed Johann Purchaser GmbH as purchaser a wholly-owned subsidiary of Parent have entered into a share purchase agreement (the “Share Purchase Agreement”) regarding the sale and purchase of all of the outstanding shares in Viessmann Climate Solutions SE (“CS Company” and collectively with its subsidiaries existing at the Effective Date of this Agreement, “CS Group”).
 
(B)
WHEREAS, Licensor owns and will own during the term of this Agreement current and future trademarks consisting of or containing the term “Viessmann” and further trademarks currently being used for the Licensed Business and also for other business divisions of Licensor which will not be acquired by Johann Purchaser GmbH. CS Group owns certain CS Trademarks which include trademarks that are currently being used exclusively for the Licensed Business.
 
(C) WHEREAS, Licensee is an indirect wholly-owned subsidiary of Parent.

(D)
WHEREAS, Licensor is willing to grant Licensee an exclusive license with regard to certain trademarks consisting of or containing the term “Viessmann” and further trademarks limited to the Licensed Business.
 
(E)
WHEREAS, the Parties, together with CS Group, envisage a long-term successful commercial relationship. The purpose of this Agreement is to enable Licensee and CS Group to provide premium products, solutions and services of the Licensed Business under the trademarks to be licensed under this Agreement.
 
(F)
WHEREAS, the Parties acknowledge the perception of “Viessmann” as a premium brand with respect to the Licensed Business and other business areas of Licensor and the Affiliates of Licensor. Licensee is committed to ensuring the premium quality of the products, services and solutions that are sold under the trademarks to be licensed under this Agreement.
 
NOW, THEREFORE, the Parties agree as follows:
 
2

1.
Interpretation and Definitions
 
1.1
Interpretation
 
1.1.1
Capitalized terms used in this Agreement shall have the meaning assigned to the respective term in any section of this Agreement or, if the term is not assigned a meaning in this Agreement, the Share Purchase Agreement.  Certain terms are defined in Section 1.2.  For reference purposes, Section 1.3 contains a list of terms defined in this Agreement.
 
1.1.2
The Exhibits to this Agreement are an integral part of this Agreement and any reference to this Agreement includes this Agreement and the Exhibits as a whole.
 
1.1.3
The headings of the Sections and subsections in this Agreement are for convenience purposes only and shall not affect the interpretation of any of the provisions hereof.
 
1.1.4
Terms to which a German translation has been added shall be interpreted as having the meaning assigned to them by the German translation.
 
1.1.5
Unless expressly defined and used with an initial capital letter, words shall have their generally accepted meanings.  Terms defined in this Agreement, when used in the singular shall have a comparable meaning when used in the plural and vice versa.  The word “shall” is mandatory, the word “may” is permissive, the word “or” is not exclusive and the words “e.g.”, “includes” and “including” shall mean “including, without limitation”.  Words such as “hereof”, “herein” or “hereunder” refer (unless otherwise required by the context) to this Agreement as a whole and not to a specific provision of this Agreement.
 
1.2
Certain Definitions
 
For the purpose of this Agreement, the following terms shall have the following meaning:
 
Affiliate/s of Licensee
shall mean any company of CS Group as well as any company that, directly or indirectly, Controls or is Controlled by Licensee, or is under common Control with Licensee.

Affiliate/s of Licensor
shall mean any company or person (including, for the avoidance of doubt, [***] and [***]), (other than CS Group) that, directly or indirectly, Controls or is Controlled by Licensor, or is under common Control with Licensor; for purposes hereof, in relation to any person qualifying as Affiliate of Licensor, also the following shall qualify as Affiliate of Licensor: [***].

3

Agreement
shall mean this trademark license agreement, including all exhibits hereto, as amended from time to time.

Control
(including the correlative terms “Controlling”, “Controlled by” and “under common Control with”) shall mean the direct or indirect holding of more than 50% of the capital and the voting rights.

CS Trademarks
shall mean the trademarks which are currently owned by CS Group and which are exclusively used in the Licensed Business, including any future trademarks The CS Trademarks do not include any of the Licensed Trademarks

Customer
shall mean third parties taking ownership of Licensed Products for their own use or for further resale to third parties, and shall not include Affiliates of Licensee.

Escalation Process
shall mean the escalation process set forth in Section 8.3.

Exclusive Trademarks
shall mean those Licensed Trademarks that are, as of the Effective Date, exclusively used in the Licensed Business as set out in Exhibit 1.2..

Existing License Agreement[s]
shall mean (i) any agreement existing as of the Effective Date pursuant to which any entity of CS Group grants to any third party a license or other right to use under any of the Licensed Trademarks in the Licensed Business and (ii) the trademark license agreement[s] listed in Exhibit 1.2/2.

Intellectual Property Rights
shall mean inventions, patents, utility models, trademarks, trade names, domain names, designs, copyrights and use rights for copyrights, rights in software and databases, trade secrets, know-how and any other rights of a similar kind, whether registered or not, including applications for, and rights to apply for, the registration of such rights.

4

Licensed Business
shall mean for residential, commercial and light commercial: (i) heating, (ii) comfort cooling, (iii) ventilation and indoor air quality, (iv) heating and/or storage of sanitary water, (v) energy storage, energy management, fuel cells and integrated green electricity generation, (vi) digital platforms, digital offerings, intelligent and sensing technologies in connection with each of the foregoing and (vii) controls and automation and auxiliary products in conjunction with digital and value-added services in connection with each of the foregoing.

Licensed Products
shall mean products, solutions and services of the Licensed Business which originate from Licensee or sublicensed Affiliates of Licensee.

Licensed Trademarks
shall mean the trademarks consisting of or containing the term “Viessmann” as well as certain further trademarks protected for Licensor as set out in Exhibit 1 2/3, and any other trademarks subsequently filed in any country in accordance with the terms of this Agreement

Net Sales
[***].

Share Purchase Agreement
shall have the meaning as set forth in Recital (A).

Territory
shall mean all countries of the world.

VAT
shall mean (i) such tax as may be levied by any member state of the European Union (EU) on the basis of Directive 2006/112/EC (as amended from time to time) and (ii) comparable taxes under the laws of any other jurisdiction outside the European Union.

“Viessmann Generations Trademarks”
shall mean any current and future trademarks consisting of or containing the terms “Viessmann Generation” or “Viessmann Generations”, including the trademarks listed in Exhibit 1.2/4.

VS Group’s Refrigeration Business
shall mean any and all refrigeration solution business activities of (a) Licensor and Licensor’s Affiliates as conducted on the Effective Date, and (b) of the legal entities contributed [or to be contributed] directly or indirectly by the Affiliate of Licensor, Viessmann Refrigeration Solutions GmbH to Epta Central Europe B,V., as conducted as of immediately prior to the contribution of such legal entities to Epta Central Europe B,V., including (i) any natural extensions thereof and (ii) with respect to clean rooms and cool rooms (unless primarily used to cool people), all extensions (including extensions by way of a merger, acquisition or other combination with the business of a third party) and (iii) solutions combining commercial cooling displays and Shop cooling, such as marketed under ESyCOOL, and all extensions of such combined solutions (including extensions by way of a merger, acquisition or other combination with the business of a third party).

5

1.3
Further Definitions
 
The following list contains capitalized terms defined in this Agreement.
 
Affiliate/s of Licensee
as defined in Section 1.2
Affiliate/s of Licensor
as defined in Section 1.2
Agreement
as defined in Section 1.2
Allowed Co-Branding
as defined in Section 6.4
Brand Committee
as defined in Section 8.2.1
Brand Guidelines
as defined in Section 5.2
Brand Strategy Check-Ins
as defined in Section 5.5
Brand Team
as defined in Section 8.1.1
Confidential Information
as defined in Section 19.2.1
Control
as defined in Section 1.2
Core Brand Strategy
as defined in Section 5.1
CS Company
as defined in Recital A
CS Country Specific Sub-Channels
as defined in Section 4.3
CS Group
as defined in Recital A
CS Trademarks
as defined in Section 1.2
CSPI
as defined in Section 7.2.1
Customer
as defined in Section 1.2
Domain Names
as defined in Section 2.5
Effective Date
as defined in Section 14.1
Escalation Process
as defined in Section 1.2
Exclusive Trademarks
as defined in Section 1.2
Existing License Agreement[s]
as defined in Section 1.2
Final Quality Assurance Guidelines
as defined in Section 7.1.3
[***] Royalty Report
as defined in Section 9.2.3
Force Majeure Event
as defined in Section 18.6
[***]
as defined in Section 9.5.2
Initial Quality Assurance Guidelines
as defined in Section 7.1.3
Initial Term
as defined in Section 14.1
Intellectual Property Rights
as defined in Section 1.2
License
as defined in Section 2.1
Licensed Business
as defined in Section 1.2
[***]
as defined in Exhibit 17.1
Licensed Products
as defined in Section 1.2
Licensed Trademarks
as defined in Section 1.2
Licensed Trademarks for Sale
as defined in Section 19.5.4
Licensee
as defined in List of Parties
[***]
as defined in Exhibit 17.1
[***]
as defined in Exhibit 17.1
[***]
as defined in Exhibit 17.1
Licensor
as defined in List of Parties
[***]
as defined in Exhibit 17.1
[***]
as defined in Exhibit 17.1
[***]
as defined in Exhibit 17.1
Licensor Own Social Media Accounts
as defined in Section 4.3
Material Competitors
as defined in Section 19.5.4
Net Sales
as defined in Section 1.2
Parent
as defined in List of Parties
Parties
as defined in List of Parties
Party
as defined in List of Parties
Product Liability Claims
as defined in Section 12.2.1
Renewal Period
as defined in Section 14.1
Royalty Payment
as defined in Section 9.1
Royalty Period
as defined in Section 9.2.1
Royalty Report
as defined in Section 9.2.2
Share Purchase Agreement
as defined in Section 1.2
Sport Sponsoring Contracts
as defined in Section 5.3
Sublicensee
as defined in Section 3.1
Successor
as defined in Section 1.2
Term
as defined in Section 14.1
Termination Period
as defined in Section 14.3
Territory
as defined in Section 1.2
VAT
as defined in Section 1.2
Viessmann Generations Trademarks
as defined in Section 1.2
VS Group’s Refrigeration Business
as defined in Section 1.2

6

2.
Grant and Scope of License
 
2.1
Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee for the term stipulated in Section 14 a non-assignable and non-transferable (except as permitted pursuant to Section 19.5), subject to Section 3, sublicensable, subject to Section 9, royalty-bearing, exclusive (except as permitted pursuant to Section 2.2) license to the Licensed Trademarks (i) to develop, manufacture, commercialize, service and distribute Licensed Products, (ii) to use the Licensed Trademarks in connection with the marketing and advertising of Licensed Products and (iii) to use the Domain Names and the associated websites as stipulated in Sections 4.1 and 4.2 and (iv) to use the Licensed Trademarks in social media accounts as stipulated in Section 4.3, in each case of clauses (i)-(iv), in the Licensed Business in the Territory and including corresponding “have-made” rights (the “License”).
 
2.2
The License is limited to the Licensed Business.  The License does not extend to any activity outside the Licensed Business and is non-exclusive in respect to the overlap between the Licensed Business and the VS Group’s Refrigeration Business.  To the extent the Parties expressly agree to extend the scope of the License beyond the Licensed Business, the terms of this Agreement will apply to such extension.
 
2.3
At the earliest after [***] following the Effective Date, and thereafter every [***] or at any other time when such a need arises, Licensee may request from Licensor the review of the Licensed Business definition to evaluate whether there is a reasonable need to extend the scope of the License to technologic, economic and market developments.  Licensor may decide in its sole discretion whether there should be any such amendment to the definition of Licensed Business.  If Licensor agrees that the definition of Licensed Business should be amended, then the Parties will enter into good faith negotiations to try to reach an agreement on an amendment of this Agreement reflecting such requirements, in particular including the determination of the royalties payable by Licensee to Licensor as a consequence of such amendments.  If Licensor agrees to an extension or amendment to the Licensed Business, all costs and expenses to cover such extension or amendment of the Licensed Business shall be borne by [***], including costs and expenses associated with any adaptation of the Licensed Trademarks, including costs and expenses for clearance, registration, renewal, maintenance and dealing with infringements.
 
2.4
Although the Viessmann Generations Trademarks are not licensed under this Agreement, Licensee shall be entitled to use the term “generation” and “generations” in connection with the Licensed Products in a descriptive way, but not as a trade mark, company name or business designation (Geschäftsbezeichnung).  Licensor shall not use the Viessmann Generations Trademarks in the Licensed Business.
 
2.5
Licensee is entitled to sublicense to CS Group to use the Licensed Trademarks (i) as, or as part of, the corporate name of the companies of CS Group and (ii) as, or as part of, email addresses of the companies of CS Group, in each case of (i) and (ii), if and as long as the companies of CS Group are exclusively engaged in the Licensed Business.  Licensee is allowed to sublicense to CS Group to use (x) the legend “manufactured by [name of Licensee or Licensee’s Affiliate engaged in the Licensed Business] under license from Viessmann Group GmbH & Co.  KG” or a legend with similar sense as required by applicable law, and (y) those domain names owned by Licensor on the Effective Date that are listed in Exhibit 2.5 (“Domain Names”), in each case for the Licensed Business pursuant to Section 4.
 
7

2.6
[***] may apply to register the License at [***] expense.  [***] shall render all statements and declarations and perform all actions which will be necessary to effect such registration, and [***] shall reimburse [***] for any resulting costs and expenses.
 
2.7
Licensee hereby undertakes not to, and to cause all Affiliates of Licensee and all Sublicensees not to, use the Licensed Trademarks for products other than Licensed Products and not to use, apply for or register trademarks which are similar to or resemble the Licensed Trademarks.
 
2.8
Licensee acknowledges Licensor’s ownership in the Licensed Trademarks and further acknowledges that the Licensed Trademarks are unique and original to Licensor.  Any use of the Licensed Trademarks under this Agreement and any goodwill arising from any use of the Licensed Trademarks shall be solely for the benefit of Licensor and shall be deemed to be solely the property of Licensor.
 
2.9
Licensee shall not pledge the rights to which it is entitled under this Agreement or make them subject of any other right in rem.
 
2.10
Licensor and the CS Company are entitled to refer in their business communication to the fact that the Licensed Trademarks are licensed or sublicensed by Licensor to Licensee or the CS Company, as applicable.
 
2.11
Licensor shall not, and shall cause its Affiliates not to, use or permit any third party to use the Exclusive Trademarks.  In connection with the Licensed Business, Licensor shall not, and shall cause its Affiliates not to, use or permit any third party to use the Licensed Trademarks or any designation that is identical to, resemble or is confusingly similar to the Licensed Trademarks, other than for the VS Group’s Refrigeration Business.
 
3.
Sublicenses
 
3.1
Licensee may grant sublicenses under the License (i) to any Affiliates of Licensee and (ii) with the prior written consent of Licensor to third parties (which consent shall – and irrespective of Section 6.1 – be in Licensor’s free discretion), such consent to set forth any specific rules applicable and in particular the agreement applicable to royalties as well as reporting requirements (any such sublicensee under (i) and (ii), a “Sublicensee”), provided that any Sublicensee declares in writing for Licensor’s benefit, as a direct contract for the benefit of a third party (echter Vertrag zu Gunsten Dritter), that it will adhere to the terms and conditions of this Agreement.  Licensee shall notify Licensor of any sublicenses granted or terminated (for whatever cause, including expiry) within [***].  Any notification of a sublicense grant shall include a copy of the Sublicensee’s declaration according to sentence 1 of this Section 3.1.
 
3.2
Licensee shall procure that the use of the Licensed Trademarks by any Sublicensee pursuant to Section 3.1 above is at all times in accordance with the terms and conditions of this Agreement (for the avoidance of doubt, Section 9 only applies to Licensee), and any breach by any Sublicensee shall be considered a breach by Licensee under this Agreement.
 
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3.3
Any sublicense granted by Licensee under Section 3.1(i) above shall automatically terminate once Licensee or the respective Sublicensee (i) ceases to be an Affiliate of CS Company or (ii) voluntarily or involuntarily suffers restructuring, becomes insolvent or a petition in bankruptcy is filed or any insolvency proceedings are instituted by or against it, or if it is placed in the hands of a receiver or sequestrator, or liquidates its business, and with regard to all sublicenses granted pursuant to Sections 3.1(i) and (ii) above, in case of expiration or termination of this Agreement.  Licensee shall include a respective provision in the sublicense agreement with the respective Sublicensee.
 
3.4
CS Company and any of its Affiliates may have their designated distributors and contract manufacturers, including dealers and installers, use, reproduce and display Licensed Trademarks for the distribution, marketing and manufacture of Licensed Products within the ordinary course of business and for providing related services without entering into a separate sublicense agreement.  Sections 3.2 and 3.3 shall apply accordingly; provided that Licensor may not terminate this Agreement pursuant to Section 14.4 for [***].
 
3.5
Licensee is not liable for any Existing License Agreement that Licensor previously concluded to the extent that the provisions in such Existing License Agreement conflict with Licensee’s or the CS Group’s obligations in this Agreement.
 
4.
Website Architecture and Social Media
 
4.1
Licensee and the CS Company shall be entitled to operate under the Domain Names.  Licensor will operate (i) under domain names other than the Domain Names, such as and including the domain names “viessmann family”, “viessmann.io“ and “viessmann net” and (ii) under the “viessmann.com“ domain name.  “viessmann.com“ shall also be used as a landing page where visitors can navigate either to a Domain Name designated by Licensee or other domain names operated by Licensor or third-party licensees of Licensor with respect to Licensor’s retained businesses and “viessmann.io“ and “viessmann.net“ shall be linked to such landing page.  If Licensee or the CS Company do not use certain domain names which are part of the Domain Names for a period of [***], Licensee shall no longer be entitled to use the respective domain names and they shall be deemed deleted from the list of Domain Names in Exhibit 2.5.  Licensee shall regularly inform Licensor on the actual use of the Domain Names.  For a period of two years, the CS Group may continue to use, within the current scope of use, the “@viessmann.com“ email addresses, and for a period of five years, the CS Group may continue to use, within the current scope of use and on a non-exclusive basis (only internal use), the “[***]” and “[***]” email addresses.  Following such transition periods, the CS Group will transition to different email addresses; provided that the CS Group’s new email addresses may contain “viessmann” with another separated distinguisher (e.g., [***]).
 
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4.2
Licensee and the CS Company will have freedom to operate its respective websites at its own cost in accordance with the Brand Guidelines and will have full responsibility for their content.  As the technical implementation of the landing page and Licensor’s websites on a stand-alone basis, to which the landing page refers, will not be completed until the Effective Date, Licensee or any of the Affiliates of Licensee will provide Licensor and the Affiliates of Licensor with an interim solution under a transitional services agreement on website services.
 
4.3
Each of Licensor, Licensee and the CS Company will use their own social media accounts.  Own social media accounts of Licensor pursuant to the forgoing sentence are, in particular, the social media accounts listed in Exhibit 4.3/1 (“Licensor Own Social Media Accounts”).  Except for the the country specific sub-channels listed in Exhibit 4.3/2 (“CS Country Specific Sub-Channels”), the social media accounts existing at the Effective Date will continue to be used solely by Licensor. The CS Country Specific Sub-Channels may be used by Licensee and the CS Company, provided that the term “Climate Solutions” is added in each account name. The Parties shall coordinate such addition to the respective account name with the establishment by Licensor of new accounts to allow for a simultaneous implementation preventing third parties to interfere and claim relevant account names. Licensee and the CS Company may create further own social media accounts (LinkedIN, Instagram, Facebook, etc.) under the Licensed Trademarks in accordance with the Brand Guidelines.
 
5.
Core Brand Strategy and Brand Guidelines
 
5.1
The core brand strategy of Licensor defining the brand identity (purpose, values) and key brand attributes (premium positioning, use for high-quality products, solutions and services and striving further to green energy production) of the “Viessmann” brand (“Core Brand Strategy”) is attached as Exhibit 5.1.  The Parties will follow the Core Brand Strategy.
 
5.2
Licensee shall comply with the Viessmann brand guidelines attached as Exhibit 5.2 (“Brand Guidelines”) when using the Licensed Trademarks.  The Brand Guidelines govern the appearance, design, communication, tonality as well as fostering the positioning of the “Viessmann” brand and the Licensed Trademarks as well as the use of the accompanying claims to ensure Licensee’s compliance with the Core Brand Strategy (including premium brand and use for high-quality products, solutions and services).  If Licensor grants licenses to the Licensed Trademarks to parties that are not Affiliates of Licensor, Licensor shall oblige such third parties to use the Licensed Trademarks in a manner to maintain the recognition and quality of the Licensed Trademark.
 
5.3
The Brand Guidelines include guidance to be complied with by Licensee with regard to sport sponsoring as an important marketing tool beneficial for both Licensor and Licensee and to be continued in future.  Licensee shall cause the applicable member of the CS Group to continue the sport sponsoring [***].
 
5.4
Licensor may decide on future amendments of the Brand Guidelines after having consulted with the Brand Committee, provided that any material changes, including any changes in the form or appearance (including brand recognition) of the Licensed Trademarks, require the prior consent of the Brand Committee.  Licensee and CS Company shall have a transition period of [***] to implement such amendments and may sell off any Licensed Products already produced and continue using existing business and marketing materials.  If any future amendment of the Brand Guidelines or the form and appearance of the Licensed Trademarks leads to the registration of a modification of any of the Licensed Trademarks, such modified Licensed Trademark shall automatically become a Licensed Trademark under this Agreement upon registration.
 
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5.5
Every [***] during the Term, commencing on the [***] of the Effective Date of this Agreement, the Brand Committee shall convene a special meeting to discuss and align on Brand Guidelines, changes in the Core Brand Strategy, if any, and, more broadly, Licensee’s role as a brand steward and Licensor’s role as brand captain; provided however, that the core elements of the form and appearance of the Licensed Trademarks shall, subject to Section 5.4, remain untouched (“Brand Strategy Check-Ins”).  If the Brand Committee is unable to reach alignment with respect to any matters during the Brand Strategy Check-Ins, such matters will be escalated to the Escalation Process pursuant to Section 8.3.
 
5.6
During the term of the License, both Licensor and Licensee will, within their respective scope of use of the Licensed Trademarks, maintain, protect, enforce and foster the Licensed Trademarks in accordance with the terms of this Agreement.
 
6.
Further Specifics of Use
 
6.1
Licensee is obliged either by itself or through its Sublicensees to use the Licensed Trademarks in all countries where Licensed Trademarks are both registered and used by the CS Group immediately prior to the Effective Date.  Such use has to be sufficient to fulfill the use requirement under applicable trademark law and to secure registration of the Licensed Trademarks.  Licensee shall inform Licensor from time to time, but at least [***], about its use of the Licensed Trademarks on a country-by-country basis.  Licensee shall keep detailed evidence of use of any of the Licensed Trademarks for a period of [***] and hand over such evidence of use to Licensor upon request.
 
6.2
Licensee must inform Licensor in writing of its intention to cease using the Licensed Trademarks in a particular country at least [***] prior to the end of the period in which the Licensed Trademarks have to be used in such country in order to keep the registration.
 
6.3
Licensee may use the Licensed Trademarks only (i) in their registered form and appearance, and (ii) in accordance with the Core Brand Strategy and the Brand Guidelines.  Any use of the Licensed Trademarks by Licensee that deviates from their registered form or appearance is impermissible even if the deviations do not alter the identifying characteristics of the Licensed Trademarks.
 
6.4
Licensee shall use the Licensed Trademarks on the Licensed Products stand-alone and not together with any other words or devices.  As an exception to the foregoing, Licensee and the CS Company are allowed to use the CS Trademarks existing as of the Effective Date and future CS Trademarks approved by the Brand Committee together with the Licensed Trademarks on Licensed Products in accordance with the Brand Guidelines (“Allowed Co-Branding”).  Licensee and the CS Company may also use product names together with the Licensed Trademarks in a descriptive manner in catalogues, brochures, price lists and similar marketing and sales material with respect to Licensed Products.
 
6.5
Licensee shall inform Licensor from time to time, but at least [***], about all forms of use of the Licensed Trademarks and the marketing of the Licensed Products under the Licensed Trademarks and provide Licensor with visual material regarding such use and marketing.
 
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7.
Quality Assurance and Critical Incidents
 
7.1
Quality Assurance
 
7.1.1
Licensee shall, and shall cause the CS Company to, conduct the Licensed Business in a manner that does not adversely affect the reputation of Licensor or any of the Licensed Trademarks.
 
7.1.2
Licensee shall procure that the Licensed Products are manufactured and distributed in compliance with applicable product safety laws and regulations.
 
7.1.3
Licensee shall ensure that (i) the Licensed Products placed on the market under the Licensed Trademarks and (ii) the solutions and services rendered in the Licensed Business under the Licensed Trademarks are, in the case of both (i) and (ii), of uniform and consistent premium quality in accordance with the initial guidelines annexed to this Agreement as Exhibit 7.1.3 (the “Initial Quality Assurance Guidelines”).  After the Effective Date, Licensor and Licensee shall work on a migration from the Initial Quality Assurance Guidelines to either Parent’s quality assurance guidelines or any other quality assurance guidelines on which they mutually agree and which shall replace the Initial Quality Assurance Guidelines in Exhibit 7.1.3 (the “Final Quality Assurance Guidelines”).
 
7.1.4
[***] Licensee shall report to Licensor in writing any product recalls and major quality issues that have occurred during the [***].
 
7.1.5
Upon request, Licensee shall provide Licensor with free-of-charge samples of the Licensed Products manufactured or marketed under the Licensed Trademarks to the extent required for purposes of quality assurance.  If the provision of a free-of-charge sample of a Licensed Product is not reasonable due to the nature of the Licensed Product, the Parties agree that Licensee will grant Licensor a right to inspect the respective Licensed Product for quality control; the details of such inspection shall be reasonably agreed by the Parties.  If Licensor objects to the quality of the Licensed Products, it shall inform Licensee of the objections in writing and give Licensees the opportunity to remedy the quality defects within [***].
 
7.2
Critical Incidents
 
7.2.1
After any of the Parties have received knowledge of a Critical Serious Public Incident (as defined in the Quality Assurance Guidelines) or any event resulting in a significant and sustaining critical serious public incident (each of these, a “CSPI”) of any nature in connection with this Agreement, including any incidents relating to the Licensed Trademarks, the Licensed Products or the Licensed Business, the Parties have to, as promptly as possible, inform the other Party.  The Parties shall as promptly as possible share all information to ensure that the CSPI can be solved professionally.
 
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7.2.2
As the Licensed Trademark’s and the Parties’ reputation can be significantly harmed by the delay or inappropriate handling of the CSPI, both Parties need to align quickly in case of a CSPI.  If the Parties cannot quickly agree on a joint strategy to handle the CSPI, Licensee will take action in compliance with applicable law and consistent with the Quality Assurance Guidelines, including response strategy and messaging.  Each of the Parties have to ensure that their employees, who are responsible for handling such incidents, are available on short notice.
 
8.
Brand Team, Brand Committee and Escalation Process
 
8.1
Brand Team
 
8.1.1
Licensor and Licensee shall establish in a timely manner after the Effective Date a brand team for the coordination of all matters relating to the Licensed Trademarks, including the use of domain names and social media (“Brand Team”).
 
8.1.2
The Brand Team shall consist of [***] members, [***] members appointed by Licensor and [***] members appointed by Parent.  The members of each side shall consist of representatives of each of the Parties with knowledge, expertise and experience in trademark and marketing matters.
 
8.1.3
The Brand Team shall be a discussion forum for the Parties with regard to brand related questions and brand usage; prepare proposals for the topics to be decided by the Brand Committee pursuant to Section 8.2; and represent the first escalation level in cases of non-compliance with the Brand Guidelines.  The Brand Team shall have the authority to render binding decisions with respect to day-to-day trademark and marketing matters.  Decisions of the Brand Team are taken with [***].  In case (i) the Brand Team cannot reach an agreement, (ii) the matter goes beyond the day-to-day level, or (iii) of the preparation of the agenda for the Brand Committee, including the Brand Strategy Check-Ins pursuant to Section 5.5, the Brand Team shall prepare a proposal and pass on the matter to the Brand Committee.
 
8.1.4
The Brand Team shall meet on a regular basis, at least every [***] during the [***] of the Initial Term.  Thereafter, the Brand Team shall meet [***] or as mutually agreed.  The Brand Team members may [***].  Minutes shall be taken of the meetings.
 
8.2
Brand Committee
 
8.2.1
Licensor and Licensee shall establish in a timely manner the brand committee with [***] voting rights of Licensor and Licensee (“Brand Committee”).  The Brand Committee shall have [***] members who shall be (i) [***] members who are [***] from, and designated by, Parent and (ii) [***] members who are [***] from, and designated by, Licensor.
 
8.2.2
The Licensor has the role as brand captain, meaning that Licensor is taking the initiative to the development of the brand, and the Licensee is the brand steward, meaning that Licensee will duly care for the brand.  Thus, Licensor shall take the lead in respect of the Brand Guidelines as set forth in Section 5.4.
 
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8.2.3
The Brand Committee shall decide on the following:
 

(a)
on all questions in relation to the Brand Strategy Check-Ins pursuant Section 5.5;
 

(b)
on material changes of the form and appearance of the Licensed Trademarks;
 

(c)
on amendments to the Brand Guidelines materially affecting the form and appearance of the Licensed Trademarks;
 

(d)
on matters that the Brand Team has passed on to the Brand Committee in its function as escalation level pursuant to Section 8.1.3;
 

(e)
on matters relating to the termination of this Agreement for cause (außerordentliche Kündigung) pursuant to Section 14.4 or Section 14.5;
 

(f)
on any disputes regarding this Agreement; and
 

(g)
on the website architecture and social media demarcation between the Parties with respect to websites with domain names that use any Licensed Trademark and social media accounts that use any Licensed Trademark in the account name or handle.
 
Decisions of the Brand Committee are taken with [***], provided that decisions pursuant to subsections (b) and (c) require a [***].
 
8.2.4
The Brand Committee shall meet (i) for the Brand Strategy Check-Ins and (ii) with reasonable prior written notice at the initiative of either Party in urgent or business-critical matters relative to Section 8.2.3, (iii) if the Parties otherwise have a dispute with respect to this Agreement, or (iv) if the Brand Team has not been able to resolve an issue.
 
8.2.5
The Brand Committee shall try to reach an agreement on submitted matters.  The Brand Committee shall attempt to reach an agreement as soon as possible, but not later than [***] after a matter has been submitted to the Brand Committee.  In case that the Brand Committee cannot reach an agreement after good faith discussions within [***], the Parties will proceed with the Escalation Process as further stipulated in Section 8.3, unless any of the Parties asks for an extension of further [***] to reach an agreement in which case the period to reach an agreement will be [***] in total.
 
8.3
Escalation Process
 
8.3.1
All matters that cannot be resolved by the Brand Committee after good faith discussions pursuant to Section 8.2.5 will be escalated immediately, first, to the [***] of Parent and the applicable representative from the Licensor as designated by Licensor to resolve such matter.
 
8.3.2
In case that an agreement cannot be reached pursuant to Section 8.3.1 after good faith discussions within [***] after it has been escalated, the respective matter will be further escalated to the [***] of Parent and the [***] of Licensor, but either Party shall be entitled to escalate the matter already after [***] if it is of the opinion that a further discussion on this level will likely not be successful.
 
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8.3.3
If the respective matter cannot be resolved by the [***] of Parent and the [***] of Licensor in good faith discussions pursuant to Section 8.3.2 within [***] (which may be extended by mutual agreement), (i) where proposed changes to the Brand Guidelines that require consent or the Core Brand Strategy are concerned, [***] and (ii) where a dispute over this Agreement is concerned, either Party may initiate the Dispute Resolution process pursuant to Section 19.7.2.
 
8.3.4
The right of a Party to terminate this Agreement for cause (außerordentliche Kündigung) pursuant to Section 14.4 and Section 14.5, remains unaffected.
 
9.
Royalties
 
9.1
Running Royalties
 
9.1.1
As consideration for the grant of the License, Licensee shall pay to Licensor the following royalties [***]: for the [***] through [***] following the Effective Date: [***];
 
9.1.2
[***].
 
9.1.3
Licensee shall also pay to Licensor such royalties from Sublicensees, other than Affiliates of Licensee, as agreed upon by the Parties in connection with Licensor’s approval of a Sublicense in accordance with the terms of Section 3.1; all payments under these Sections 9.1.1, 9.1.2 and 9.1.3 the “Royalty Payments
 
9.2
[***]
 
Royalty Payments become due for, and Licensee shall include in the Royalty Report, the Net Sales [***].  With respect to [***] or [***], Licensee will [***].
 
Licensee and its Affiliates will not structure a “go to market” strategy in a manner, the purpose of which is to avoid paying royalties on Licensed Products marketed under the Licensed Trademarks.
 
9.3
Payment and Royalty Reports
 
9.3.1
If not otherwise stipulated in this Agreement, any Royalty Payments under this Section 9 shall be due and payable within [***] following Licensee’s receipt of Licensor’s invoice as stipulated in Section 9.3.4 after the end of each [***] in which the Royalty Payments have accrued (each of such [***] “Royalty Period”), provided that the first Royalty Period shall for the purposes of this Agreement begin on the Effective Date and end on [***].
 
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9.3.2
Within [***] after the end of each Royalty Period, Licensee shall prepare and issue to Licensor verified reports for the Royalty Period in the English language in accordance with the form annexed hereto as Exhibit 9.3.2 or such other form agreed in writing between Licensor and Licensee (a “Royalty Report”) derived from the Net Sales which shall be [***] plus the associated royalty calculations with respect to any third-party Sublicensees which shall be separately listed in the Royalty Report.  [***], [***].  The Royalty Report shall show the Net Sales in the [***].  Where [***] financial statements are available, they shall be used, otherwise a fair estimate, in each case subject [***].  Licensor may request additional documents from Licensee.
 
9.3.3
Within [***] after [***], Licensee shall prepare and issue to Licensor [***] report, that is substantiated by underlying documents (“[***] Royalty Report”) to confirm or correct the Net Sales previously reported in such [***] Royalty Reports.  Within [***] of receipt of the [***] Royalty Report Licensee shall pay to Licensor any shortfall with respect to the royalty payments, and respectively Licensor shall reimburse Licensee any overpayment of royalties for the respective [***].
 
9.3.4
Licensor will issue an invoice for the Royalty Payments payable for each Royalty Period by Licensee to Licensor based on Licensee’s Royalty Reports as further stipulated in Section 9.3.2.  Where sales are reported in other currencies than [***], they shall be converted into [***] using the average exchange rate for such Royalty Period, as provided by the [***], or any replacement thereof.
 
9.3.5
All Royalty Payments by Licensee to Licensor shall be made in [***] and be transferred [***] as Licensor may direct, and shall be clearly designated as payments under this Agreement.
 
9.3.6
Royalty Payments provided for in this Section 9, when overdue, shall bear interest at a rate of [***] the base rate (Basiszinssatz) of the German Central Bank (Deutsche Bundesbank) [***] for the time period from the payment’s due date until and including the date payment is received by Licensor.
 
9.3.7
For a period of [***] after each payment by Licensee pursuant to this Section 9.3.7, Licensee shall keep, and obtain from any Sublicensees, separate records in sufficient detail to permit the determination of the Royalty Payments payable under this Agreement and shall, upon Licensor’s request upon [***] prior written notice, but not more than [***], permit an accredited and reputable independent auditor, selected by Licensor and reasonably acceptable to Licensee, to have access and examine, at any time during ordinary business hours in a manner that does not interfere with the normal business activities of Licensee or its Sublicensees, such records as may be necessary to verify or determine Royalty Payments paid or payable under this Agreement.  All costs and expenses in connection with such examination shall be borne by [***], provided however, that if such examination reveals a [***] in any Royalty Payments of [***] than [***] per [***], then [***] shall reimburse [***] for all reasonable costs incurred by [***] in connection with such examination.  Licensee’s obligation to pay interest pursuant to Section 9.3.6 remains unaffected.
 
9.3.8
If Licensee or Licensor believes the result of the examination by the independent auditor pursuant to Section 9.3.7 to be incorrect, Licensor, Licensee and the independent auditor shall jointly review the relevant information and any additional information considered relevant by any of them in an effort to find an amicable solution.  If Licensor and Licensee cannot agree within a period of [***], the original determination by the independent auditor pursuant to Section 9.3.7 shall become binding between the Parties.
 
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9.4
Value-Added Tax
 
All Royalty Payments made by Licensee to Licensor under this Agreement [***] VAT.  [***] VAT [***].
 
9.5
[***]
 
9.5.1
Any Royalty Payments shall be made in full and [***], [***].
 
9.5.2
If [***], [***].
 
9.5.3
To the extent [***], if [***], [***].  [***].
 
9.5.4
The Parties shall [***], including [***].
 
10.
Maintenance and Third Party Challenges with Regard to Licensed Trademarks
 
10.1
Maintenance
 
10.1.1
Licensor shall maintain the Domain Names and the Licensed Trademarks to the extent necessary for maintaining trademark protection for the Licensed Products in the respective classes in the Licensed Business in the Territory.  [***] shall bear the costs of the maintenance of the Domain Names, the domain name “viessmann.com“ and the Licensed Trademarks, if not otherwise stipulated in Section 10.1.2.  The costs for the maintenance of the landing page under “viessmann.com“ shall be [***].
 
10.1.2
Upon request of Licensee, Licensor shall file and maintain in its own name new trademark registrations for the trademarks that include “Viessmann” for the Licensed Business.  Licensor has the right to reject such requests if Licensor determines in good faith that (i) such registration does not belong to the Licensed Business after consultation with the Brand Committee and satisfaction of the Escalation Process, or (ii) the new trademarks may interfere with rights of third parties, or (iii) such registrations may suffer demonstrable material legal obstacles or (iv) such registrations may contravene law.  The foregoing applies accordingly in the event that Licensee wishes to extend trademark protection to countries in the Territory where the Licensed Trademarks are not yet protected.  [***] shall bear the costs of registration and maintenance of any such new trademark.  Licensor shall notify Licensee without undue delay if a Licensed Trademark is not available for registration or use in a particular country.  Any new trademark registered in accordance with this Section 10.1.2 shall automatically become a Licensed Trademark under this Agreement upon registration.
 
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10.2
Defense against Cancellation of Trademarks
 
[***] shall defend the Licensed Trademarks against cancellation, revocation or invalidation to the extent necessary for maintaining sufficient trademark protection for the Licensed Products in the respective classes in the Licensed Business in the Territory.  [***] shall inform [***] about any attempt to cancel, revoke or invalidate any such Licensed Trademark without undue delay.  If any Licensed Trademark is subject to any cancellation, revocation or invalidation, [***], upon [***]’s reasonable written request, shall, not later than [***] after receipt of [***]’s request, either (i) inform [***] that [***] will defend the Licensed Trademark with the reasonable assistance of [***] or (ii) duly authorize [***] to conduct the defense [***].  Irrespective of the option selected and implemented by [***], [***] shall bear all reasonable costs associated with the defense.  Each Party will provide such assistance as required or useful under the respective circumstances.
 
10.3
Opposition against Third-Party Trademarks
 
[***] may decide, at its sole discretion, whether or not to oppose third-party trademarks which are identical or confusingly similar to the Licensed Trademarks.  If the third-party trademarks might affect [***]’s interests regarding [***], [***] shall, upon [***]’s reasonable written request, either (i) bring opposition proceedings against the third-party trademarks with any reasonable assistance of [***] or (ii) duly authorize [***] to bring opposition proceedings against the third-party trademarks on behalf of [***].  Irrespective of the option selected and implemented by [***], [***] shall bear all reasonable costs associated with the defense.  Each Party will provide such assistance as required or useful under the respective circumstances.
 
11.
Enforcement against Third-Party Infringements
 
11.1
Infringement Notice
 
In the event that either Party becomes aware of any infringement of the Licensed Trademarks in the Licensed Business by a third party, it shall promptly notify the other Parties hereto in writing.
 
11.2
Enforcement by [***]
 
11.2.1
[***] shall have the first right, but not the obligation, to institute, prosecute and control any action or proceeding with respect to the infringement of the Licensed Trademarks in its own name and cost against infringers, both out of court and in court.  [***] shall at [***], cooperate with [***] in pursuing or defending any action with respect to the Licensed Trademarks, including joining as a party plaintiff and executing such documents as may be reasonably necessary.
 
11.2.2
If [***] does not inform [***] that it will take action within [***] as of receiving notice pursuant to Section 11.1, or [***] does not take immediate action after providing such notice to [***], or if it is impossible for [***] to take action in its own name in a particular country due to [***], [***] can take action.  The Parties will [***].
 
11.3
Enforcement by [***]
 
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11.3.1
In the event that [***] does not institute legal proceedings to cease an infringement pursuant to Section 11.2, [***] shall have the right to initiate an action to cease such infringement at [***].  [***] shall prosecute and control any action or proceeding with respect to such infringement, using counsel of its choice, provided that [***], including any obligation regarding the Licensed Trademarks.  The Parties shall cooperate at [***]’s expense, in pursuing any such action, including joining as a party plaintiff and executing such documents as may be reasonably necessary.
 
11.3.2
[***] shall always timely and fully inform [***] about all developments in litigation initiated pursuant to Section 11.3.1 above.
 
11.4
Allocation of Proceeds from Enforcement
 
All damages or other compensations of any kind recovered through proceedings for the infringement of the Licensed Trademarks shall be allocated in the following order: (i) first, to reimburse the Party bringing the legal action or proceeding for any reasonable costs incurred with respect to such action or proceeding, (ii) second, to reimburse the Party not bringing such action or proceeding for reasonable costs incurred by it at the request of the other Party taking such action or proceeding and (iii) finally, any remaining amount of such recovered damages or other compensations shall be provided to [***].  Any such remaining amount that is attributable to the loss of sales with respect to any Licensed Product shall be [***].  [***].
 
12.
Attacks on Use of Licensed Trademarks; Product Liability
 
12.1
Attacks on Use of Licensed Trademarks
 
If a third party asserts that Licensee’s or the CS Company’s use of the Licensed Trademarks in accordance with this Agreement infringes its rights from a prior mark, [***] shall promptly notify [***] thereof.  Within a reasonable time, [***] shall then select one of the following options and notify [***] accordingly: (i) [***] shall take control of the defense at [***], including choice of counsel, litigation strategy and settlement, and indemnify and hold harmless (freistellen) [***] against the infringement claims asserted by the third party or (ii) [***] shall take control of the defense at [***], including choice of counsel, litigation strategy and settlement.  Irrespective of the option selected by [***], the respective Party not in control of the defense shall render the controlling party all assistance reasonably helpful for conducting the defense at [***] cost.
 
12.2
Indemnification; Product Liability
 
12.2.1
Licensee shall indemnify and hold harmless (freistellen) Licensor and any of its Affiliates and its respective directors, officers, employees, and agents from any (including past, present or future, contingent, known or unknown) claims, suits, lawsuits, damages, costs, expenses and liabilities to the extent they directly or indirectly arise out of or relate to, whether directly or indirectly, Licensee’s, its Sublicensee’s (either by themselves or through a third party (including its designated distributors, contract manufacturers, dealers and installers)) use of the Licensed Trademarks, Domain Names and the social media accounts pursuant to this Agreement, including third-party claims according to § 4 of the German Product Liability Code (Produkthaftungsgesetz) and similar claims in other jurisdictions (“Product Liability Claims”).  This indemnification obligation does not extend to any claims to the extent they (a) have arisen before the Effective Date; (b) have been caused by actions of Licensor or Licensor’s Affiliates; (c) are third-party claims that are brought against Licensee alleging that Licensee’s or any of its Affiliate’s or their Sublicensee’s use of the Licensed Trademarks in accordance with this Agreement infringes any third party’s intellectual property rights; or (d) are a result of Licensor’s express instructions.
 
19

12.2.2
Licensee shall notify Licensor about any Product Liability Claims and any claims of customers in connection with a claim for a product recall brought against Licensee or the CS Group and about any incident which may give rise to a product recall.  Licensee shall and the CS Group [***], in each case consistent with the requirements to preserve attorney-client privilege.
 
12.2.3
Licensor shall indemnify and hold harmless (freistellen) Licensee and any of its Affiliates and its respective directors, officers, employees, and agents from any (including past, present or future, contingent, known or unknown) claims, suits, lawsuits, damages, costs, expenses and liabilities to the extent they directly or indirectly arise out of or relate to, whether directly or indirectly, Licensor’s or its Affiliates’ or their other Licensees’ use of the Licensed Trademarks, Domain Names and the social media accounts in Licensor’s and its Affiliates’ respective businesses.  This indemnification obligation does not extend to any claims to the extent they (a) have arisen before the Effective Date or (b) have been caused by actions of Licensee or Licensee’s Affiliates or (c) are a direct result of Licensee’s express requests.
 
13.
Representations and Warranties; Limitation of Liability
 
13.1
Representations and Warranties by Licensor
 
Licensor represents and warrants by way of an independent guarantee (selbstständiges Garantieversprechen) within the meaning of § 311 para.  1 BGB that it has full and valid title in the Licensed Trademarks listed in Exhibit 1.2/3 and obtained all corporate authorizations required to enter into and perform its obligations under this Agreement.
 
13.2
No further Representations and Warranties by Licensor
 
13.2.1
Except as explicitly stated in Section 13.1 Licensor makes no representations or warranties.  In particular, Licensor makes no representation or warranty:
 

(a)
as to the validity of the Licensed Trademarks; or
 

(b)
that the exercise of this Agreement will not result in the infringement of intellectual property rights of third parties.
 
13.2.2
Unless expressly stated otherwise in this Agreement, [***].
20

13.3
Representations and Warranties by Licensee
 
Licensee represents and warrants by way of an independent guarantee (selbstständiges Garantieversprechen) within the meaning of § 311 para.  1 BGB that:
 

(a)
it has obtained all corporate authorizations required to enter into and perform its obligations under this Agreement; and
 

(b)
it and the CS Company will promote, market, sell and distribute Licensed Products as a premium quality brand under the Licensed Trademarks in the Licensed Business.
 
14.
Term and Termination
 
14.1
This Agreement shall enter into effect upon signature by the Parties (the “Effective Date”).  Subject to earlier termination in accordance with this Section 14 or Section 19.5.4, this Agreement shall continue for an initial term of forty (40) years (“Initial Term”) and after the Initial Term, it shall be automatically renewed for periods of five (5) years (each of these periods the “Renewal Period” and together with the Initial Term, the “Term”).
 
14.2
The Parties envisage a long-term successful commercial relationship.  The Parties will therefore discuss in good faith a further fixed extension of the term of the license fifteen (15) years before the expiry of the Initial Term and every five (5) years thereafter, e.g., as part of the Brand Strategy Check-Ins.
 
14.3
Effective as of the expiry of the Initial Term or any Renewal Period, either Party may ordinarily terminate this Agreement (ordentliche Kündigung) with five (5) years’ prior written notice (“Termination Period”).  Prior to delivery of any termination notice under this Section 14.3, the Party intending to terminate shall provide written notice of this intent to the other Party, and, upon request of the other Party, the [***] of Parent and of Licensor shall discuss the arguments of the other Party and consider in good faith whether there is an appropriate solution other than the termination.
 
14.4
Each Party may terminate this Agreement for cause (aus wichtigem Grund) with [***] – or with effect from such other later effective date as may be chosen by the terminating Party – by written notice to the other Party, in particular, if, in the case of termination by Licensor, Licensee breached its material obligations under this Agreement set forth below and such breach is so material and severe that, taking into account all the circumstances of the specific breach and weighing the interests of both Parties, the terminating Party cannot reasonably be expected to continue this Agreement:
 

(a)
if Licensee commits multiple breaches of the scope of the License as stipulated in Section 2; or
 

(b)
if Licensee commits multiple breaches of the use requirements set out in Section 6.3 (use in the registered form and appearance) or Section 6.4 (stand-alone use); or
 

(c)
if Licensee materially breaches any of the provisions (i) under Sections 7.1.2 or 7.1.3 (Quality Assurance) in a manner that creates a risk to health and safety and as a consequence thereof the Viessmann brand is significantly impacted or (ii) under Section 7.2 (Critical Incidents); or
 
21


(d)
if Licensee (i) at any time knowingly makes a false Royalty Report or (ii) habitually makes inaccurate Royalty Reports as determined pursuant to Section 9.3.2; or
 

(e)
if Licensee repeatedly fails to pay royalties that have become due pursuant to Section 9 on the due date; or
 

(f)
if Licensee, any of its Sublicensees or Affiliates attacks, or instructs or actively supports a third party in attacking the validity of any of the Licensed Trademarks by cancellation proceedings, opposition or otherwise; or
 

(g)
if Licensee [***]; or
 

(h)
if Licensee fails to materially comply with the Brand Guidelines in a manner that seriously harms the value of the Licensed Trademarks as a whole; or
 

(i)
if the activities of Licensee or any of its Sublicensees in connection with this Agreement subjects Licensor or any of Licensor’s Affiliates to material criminal liability.
 
Any termination pursuant to this Section 14.4 requires that such breach (i) has not been cured within [***] following receipt of a written notice from the terminating Party specifying the breach; provided that if Licensee is using good faith efforts to cure such breach during such [***] cure period, such cure period shall be extended for another [***] period and (ii) has not been resolved in accordance with either Section 8.2.3(e) by the Brand Committee or Section 8.3 via the Escalation Process.
 
14.5
In addition to Section 14.4 above, Licensor may terminate this Agreement for cause (aus wichtigem Grund) with [***] – or with effect from such other later effective date as it may choose – by written notice to Licensee, without further requirements:
 

(a)
if Parent, Licensee or any member of the CS Group voluntarily or involuntarily suffers restructuring, becomes insolvent or a petition in bankruptcy is filed or any insolvency proceedings are instituted by or against it, or if it is placed in the hands of a receiver or sequestrator, or liquidates its business; or
 

(b)
if and to the extent (i) Licensee or any of Affiliates of Licensee using the Licensed Trademarks ceases to be Controlled by Parent, or (ii) Parent divests the CS Group as a whole, or (iii) Parent divests or otherwise ceases to control all, substantially all or material parts of the Licensed Business, in each case unless the [***] of Parent and Licensor have agreed on another appropriate solution.  In order to allow for such [***] discussion, prior to any change of control in the meaning of (i) through (iii) above, Parent shall provide written notice to Licensor of its intent to divest, and the [***] of Parent and Licensor shall discuss in good faith whether this Agreement should be terminated upon the change of control or if there is another appropriate solution.  If the [***] agree on another appropriate solution, Licensor shall not terminate this Agreement.  In the event only parts of, but not all, of the CS Group or its businesses within the Licensed Business cease to be controlled by Parent, any such termination pursuant to this Section 14.5 shall be limited to such parts of the CS Group or such businesses that are no longer controlled by Parent.
 
22

14.6
Any negotiations and discussions as well as the Escalation Process that aim at avoiding termination of this Agreement for cause (aus wichtigem Grund) will not act as a bar to such termination if the issue cannot be resolved despite these negotiations and the Escalation Process.  Each Party waives its right to oppose termination for cause (aus wichtigem Grund) on the basis that the termination trigger occurred too long ago.
 
14.7
This Agreement shall automatically terminate if the Share Purchase Agreement is rescinded or unwound.
 
14.8
This Agreement will, in any case, expire with the legally binding cancellation of all of the Licensed Trademarks in all countries of the Territory.
 
14.9
If the License expires or is terminated in accordance with this Section 14, all sublicenses granted by Licensee under the License shall automatically terminate, and Licensee shall procure that they automatically terminate by including into any sublicense agreement a suitable provision to that effect and Section 15 shall apply accordingly.
 
15.
Effects of Expiry and Termination
 
15.1
Upon expiry or termination of this Agreement in accordance with Section 14:
 

(a)
all rights and obligations of the Parties under this Agreement shall terminate; provided that: Sections 1, 13.2.2, 15.1(a), 15.2, 17 (and Exhibit 17.1), 19.1, 19.2, 19.4, 19.7 and 20 shall remain in full force and effect.
 

(b)
Licensee hereby transfers, and shall cause each Sublicensee to transfer, to Licensor, subject to the condition precedent of expiry or termination of this Agreement occurring, any and all intellectual property rights (including any goodwill) it has and they have accrued with respect to the Licensed Trademarks during the Term.  Upon request by Licensor, Licensee and any Sublicensee shall execute any instrument necessary or appropriate to accomplish the foregoing.
 

(c)
Except for any records as may be required by any national or local laws, rules or regulations to be kept, Licensee shall without undue delay transfer to Licensor or, at Licensor’s discretion, destroy or mark over all documents regarding the Licensed Trademarks, whether recorded in electronic or any other form, and all such materials, including any promotional or advertising materials, in the possession or under the control of Licensee, Licensee’s Affiliates or any third parties acting on its behalf.  Licensee may retain [***] for evidentiary purposes only and [***] of computer records or files containing such documents and materials that have been created pursuant to automatic archiving or back-up procedures that cannot be reasonably be destroyed or deleted.  Licensee shall, if applicable, promptly confirm destruction pursuant to this Section 15.1(c) in writing to Licensor.
 
23

15.2
Termination or expiry of this Agreement (i) will not relieve the Parties of any obligation that has accrued prior to such termination or expiry and (ii) is without prejudice to the Parties’ rights to claim for damages under statutory law.
 
15.3
During the Termination Period, Licensee, Sublicensees and business partners are allowed to use the Licensed Trademarks together with another trademark owned by Parent in the Licensed Business and on Licensed Products; provided that such trademark owned by Parent shall be a premium brand and the Parties shall agree on which trademark owned by Parent may be co-branded with the Licensed Trademark (such agreement not to be unreasonably withheld).  The Parties shall cooperate in good faith on the co-branding strategy and any other details to facilitate the smooth and flexible transition off the Viessmann brand and replacing it by other brands owned by the Parent group.
 
16.
Compliance; No Agency or Partnership
 
16.1
Compliance
 
In exercising its rights and obligations under this Agreement, (i) Licensee shall comply with, and shall procure that the Affiliates of Licensee and its Sublicensees comply with, all applicable national and local laws, rules and regulations, including (but not limited to) any relevant laws, rules or regulations concerning the research, development, manufacture, delivery, transport, import, advertising, packaging, labelling, storage, sale or use of the Licensed Products under the Licensed Trademarks in the Licensed Business in the Territory and (ii) Licensor shall comply with, and shall procure that its Affiliates comply with, and Licensor shall obligate its licensees of the Licensed Trademarks to comply with, all applicable national and local laws, rules and regulations, including (but not limited to) any relevant laws, rules or regulations concerning the research, development, manufacture, delivery, transport, import, advertising, packaging, labelling, storage, sale or use of any and all products and services sold or offered for sale under any Licensed Trademarks outside the Licensed Business in the Territory.
 
16.2
No Agency or Partnership
 
This Agreement shall not constitute or create any relationship of agency, partnership, silent participation, sub-participation, joint venture or any other similar ongoing relationship or undertaking between the Parties or with any third person (including for any applicable tax purposes) and no Party shall make any filing or take any action inconsistent with the foregoing.  Licensee sells the Licensed Products under the Licensed Trademarks in its own name, for its own account, and at its own risk, and acts as independent trader.
 
17.
Additional Intellectual Property Matters
 
17.1
Exhibit 17.1 sets forth additional matters with respect to Intellectual Property.
 
24

18.
[***]
 
19.
Miscellaneous
 
19.1
Notices
 
Unless explicitly stated otherwise in this Agreement, all notices, requests and other communications hereunder shall be made in writing in the English language and delivered by hand, by courier, or email to the person at the address set forth below, or such other person or address as may be designated by the respective Party to the other Party in the same manner.  Any notice, request or other communication made in the electronic form (Section 127 para.  3 of the German Civil Code (BGB)) shall be deemed to be in writing for all purposes of this Agreement:
 
To Licensor:
 
Viessmann Group GmbH & Co.  KG
Attn.: [***]
[***]
Email: [***]
 
with a copy to: [***]
 
Attn.  [***]
Email: [***]
 
To Licensee:
 
Viessmann Climate Solutions SE
Attn.: [***]
[***]
Email: [***]
 
with a copy to: [***]
 
Attn.  [***]
Email: [***]
 
To Parent:
 
Carrier Global Corporation
Attn.: [***]
[***]
Email: [***]
 
with a copy to: [***]
 
25

Attn.: [***]
Email: [***]
 
or to such other recipients and addresses which may be notified by any Party to the other Party in the future in writing.  The requirement to provide copies to certain parties shall be for convenience purposes only and failure to send such copies shall not affect the validity of service of any notice.
 
19.2
Confidentiality
 
19.2.1
The terms of this Agreement and all confidential and non-public information (collectively, the “Confidential Information”), whether written or oral, furnished by either Party to the other Party or any Affiliate of such other Party in connection with the preparation, negotiation and execution of this Agreement shall be maintained by each Party and their respective Affiliates in strict confidence.
 
19.2.2
Disclosure by a Party shall not be in violation of Section 19.2.1 above to the extent that (i) the relevant facts are publicly known or (ii) such disclosure is required by law or a court or administrative authority; provided that, with respect to clause (ii), such Party shall give the other Party prior written notice of such disclosure and an opportunity to contest such disclosure or obtain confidential treatment of such disclosure.
 
19.2.3
Each Party shall be entitled to reveal Confidential Information covered by Section 19.2.2 above to internal advisors who are under a professional or contractual duty of confidentiality which is at least as restrictive as the confidentiality obligation under this Section 19.2.
 
19.2.4
Licensee or any of its Affiliates (including Parent) may disclose the terms of this Agreement to the extent such disclosure is, in the opinion of Licensee’s or such applicable Affiliate’s legal counsel, required by applicable law or the rules of a stock exchange on which the securities of Licensee or its applicable Affiliate are listed.
 
19.3
Costs and Expenses
 
19.3.1
All fees (including notarial fees), registration duties or other charges related to any regulatory requirements and other charges and costs payable in connection with the execution of this Agreement and the implementation of the transactions contemplated hereby shall be borne by [***].
 
19.3.2
Each Party shall pay its own expenses, including the costs of its advisors, incurred in connection with this Agreement.
 
19.4
Binding Effect; Entire Agreement; Amendments and Waivers
 
19.4.1
This Agreement (including all Exhibits hereto) contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings with respect thereto.
 
26

19.4.2
Any provision of this Agreement (including this Section 19.4) may be amended or waived only if such amendment or waiver is by written instrument executed by all Parties and explicitly refers to this Agreement.
 
19.5
Assignments
 
19.5.1
Except as expressly set forth in this Agreement, no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other Party.
 
19.5.2
Licensee may, without Licensor’s consent, assign this Agreement in its entirety to any of the Affiliates of Licensee such that the assignee replaces the Licensee as a party to this Agreement (Vertragsübernahme); provided that the Agreement is automatically re-assigned to Licensee or any of the Affiliates of Licensee if the assignee ceases to be an Affiliate of Licensee.
 
19.5.3
Licensor may, without Licensee’s consent, transfer all of the Licensed Trademarks and/or this Agreement to any Affiliate of Licensor, provided that (i) the Licensed Trademarks and/or this Agreement, as the case may be, are automatically re-assigned to Licensor or any of the Affiliates of Licensor if the assignee ceases to be an Affiliate of Licensor, and (ii) Licensor shall procure (e.g., by way of an appropriate power of attorney being issued) that the exercise of rights under the License vis-à-vis Licensee remains concentrated in one entity only, and such entity shall also be the only addressee for any exercise by Licensee of its rights and Licensee may fulfill its obligations under this Agreement towards such entity.
 
19.5.4
Subject to the provisions of this Section 19.5.4, Licensor may, without Licensee’s consent, transfer any or all of the Licensed Trademarks (“Licensed Trademarks for Sale”) to a third party, provided that: (i) if the transfer also includes the Licensed Trademarks for the Licensed Business, Licensor has first invited Licensee to make an offer for all of the Licensed Trademarks for Sale for the Licensed Business and (A) Licensee has not made an offer during a period of [***] or (B) if Licensee has made an offer during such period, the offer has been [***]; and (ii) Licensor shall procure that the third party assumes all rights and obligations under this Agreement if the third party also acquires the Licensed Trademarks for Sale for the Licensed Business, subject to [***] and (iii) Licensor shall procure (e.g., by way of an appropriate power of attorney being issued) that the exercise of rights under the License vis-à-vis Licensee remains concentrated in one entity only, and such entity shall also be the only addressee for any exercise by Licensee of its rights and Licensee may fulfill its obligations under this Agreement towards such entity.
 
27

In the case of (i)(A) above, Licensor is free to sell and assign the Licensed Trademarks for Sale for the Licensed Business to a third party within [***] from having made the invite for an offer to Licensee.  In the case of (i)(B) above, Licensor may only sell and assign the Licensed Trademarks for Sale for the Licensed Business to a third party within [***] from having received the offer from Licensee if (x) the offer of such third party is [***] in respect of the Licensed Trademarks for Sale for the Licensed Business than the offer made by Licensee or (y) Licensor has again invited Licensee to purchase the Licensed Trademarks for Sale for the Licensed Business and Licensee has not accepted, within a period of [***], to acquire the Licensed Trademarks for Sale for the Licensed Business for a price [***].  If Licensor sells trademarks other than the Licensed Trademarks for Sale for the Licensed Business together with the Licensed Trademarks for Sale for the Licensed Business, the benchmark for Licensee’s right to [***] pursuant to (i)(B) above, shall be [***], on the one hand, and [***], on the other hand.
 
If Licensee accepts to purchase the Licensed Trademarks for Sale for the Licensed Business [***], Licensor shall sell and assign the Licensed Trademarks for Sale for the Licensed Business to Licensee and this Agreement shall automatically terminate.
 
If the [***] period for a sale to the third party elapses without Licensor having sold and assigned the Licensed Trademarks for Sale for the Licensed Business to the third party, any new attempt by Licensor to sell and assign the Licensed Trademarks for Sale for the Licensed Business requires a new invitation to Licensee to make an offer and the process as set out above is to be repeated.
 
In no event may Licensor sell or transfer the Licensed Trademarks for Sale for the Licensed Business to any material competitor of Parent or the CS Business listed in Exhibit 19.5.4/2 (“Material Competitors”), as the same may be updated by Licensee from time to time beginning [***] after the Effective Date, subject to Licensor’s consent, not to be unreasonably withheld or delayed, to reflect the landscape of material competitors at such time.  Such updates shall be on the same basis that Exhibit 19.5.4/2 was compiled at the Effective Date, including with respect to [***].
 
The rights of Licensee under this Section 19.5.4 may not be avoided by selling any entity that owns the Licensed Trademarks for Sale for the Licensed Business where the Licensed Trademarks for Sale for the Licensed Business represent [***], provided that the foregoing shall not restrict any change of control of Licensor.
 
19.5.5
Licensor may, without Licensee’s consent, assign this Agreement in its entirety to any Affiliate of Licensor such that the assignee replaces Licensor as a party to this Agreement (Vertragsübernahme); provided that (i) Licensor shall procure that the assignee is in a position to grant the License; and (ii) the Agreement is automatically re-assigned to Licensor or any of the Affiliates of Licensor if the assignee ceases to be an Affiliate of Licensor.
 
19.6
Force Majeure
 
The Parties hereto shall not be liable for failure of or delay in performing any obligation under this Agreement if such failure or delay is due to force majeure or any other cause beyond the reasonable control of the affected Party (including natural events, any new pandemic-related situations (in particular COVID-19), any yet unknown pandemic or epidemic or outbreak of any disease, terrorist and other attacks (each, a “Force Majeure Event”); provided, however, that the Party affected shall promptly notify the other Party of the Force Majeure Event and shall exert all reasonable efforts to eliminate, cure or overcome any such causes and to resume performance of its obligations with all possible speed.
 
28

19.7
Governing Law; Dispute Resolution
 
19.7.1
This Agreement is solely governed, in form and substance, by and construed in accordance with the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the principles of international private law.
 
19.7.2
Any dispute arising out of or relating to this Agreement, the formation or the breach, termination or invalidity hereof, shall be finally settled, under exclusion of any state court’s competence (except for proceedings for temporary or interlocutory relief), by arbitration in accordance with the arbitration rules of Deutsche Institution für Schiedsgerichtsbarkeit e.V.  (DIS), as in effect from time to time.  The arbitral tribunal shall consist of [***] arbitrators.  Each arbitrator shall be eligible for [***].  The place of arbitration shall be [***].  The language to be used in the arbitration proceedings shall be English; provided that no Party shall be under an obligation to provide to the arbitral tribunal English translations of any documents in the German language that are submitted for evidence purposes.
 
19.7.3
Parent and Licensee hereby appoint each partner of Linklaters LLP admitted to the German bar, as its agent for service of process (Zustellungsbevollmächtigter) for all legal proceedings involving Parent or Licensee arising out of or in connection with this Agreement.  This appointment shall only terminate upon the appointment of another agent for service of process domiciled in Germany, provided that the agent for service of process is an attorney admitted to the German bar (in Deutschland zugelassener Rechtsanwalt) and his appointment has been notified to and approved in writing by Licensor (which approval shall not be unreasonably withheld or delayed).  Parent and Licensee, respectively, shall promptly after the Signing Date and upon the appointment of any new agent for service of process (as the case may be) issue to the agent a written power of attorney (Vollmachtsurkunde) and shall irrevocably instruct the agent to submit such deed in connection with any service of process under this Agreement.
 
20.
Severability
 
Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby.  The invalid or unenforceable provision shall be substituted by arrangement of the Parties by a suitable and equitable provision which, to the extent legally permissible, comes as close as possible to the intent and purpose of the invalid or unenforceable provision.  The same shall apply (i) if the Parties have, unintentionally, failed to address a certain matter in this Agreement (Regelungslücke); in this case a suitable and equitable provision shall be agreed upon which comes as close as possible to what the Parties, in the light of the intent and purpose of this Agreement, would have agreed upon if they had considered the matter; or (ii) if any provision of this Agreement is invalid because of the scope of any time period or performance stipulated herein; in this case a legally permissible time period or performance shall be deemed to have been agreed which comes as close as possible to the stipulated time period or performance.  The provisions of this Section 20 shall not be construed as merely shifting the burden of proof, but shall apply absolutely.
 
[Signature page to follow]
 
29

[Signature Page of Viessmann Group GmbH & Co. KG to License Agreement]
 
Viessmann Group GmbH & Co. KG
Viessmann Group GmbH & Co. KG
   
/s/ Ulrich Hüllmann
/s/ Hans-Jörg Harth
Name: Ulrich Hüllmann
Name: Hans-Jörg Harth


Place: Zug, Date: 2 January 2024

   
Viessmann Climate Solutions SE
Viessmann Climate Solutions SE
   
/s/ Ulrich Hüllmann
/s/ Hans-Jörg Harth
Name: Ulrich Hüllmann
Name: Hans-Jörg Harth


[Signature Page of Carrier Global Corporation to License Agreement]
 
Date: 2 January 2024

Carrier Global Corporation
 
/s/ Francesca Sara Campbell
Name: Francesca Sara Campbell
Function: Vice President, Secretary




EXHIBIT 10.2
 
INVESTOR RIGHTS AGREEMENT
 
Dated as of January 2, 2024


TABLE OF CONTENTS
 
  Page
   
ARTICLE I GOVERNANCE MATTERS
1
   
1.1
Composition of the Parent Board at the Closing
 
1.2
Composition of the Parent Board Following the Closing
 
1.3
Eligibility Criteria
 
1.4
Committee Representation
 
1.5
Confidentiality
 
1.6
Voting Agreements
 
1.7
Parent Board Obligations
 
1.8
Corporate Opportunities
 
1.9
Organizational Documents
 
1.10
Information Rights
 
     
ARTICLE II TRANSFERS; STANDSTILL
8
   
2.1
Transfer Restrictions
 
2.2
Standstill Provisions
 
     
ARTICLE III REPRESENTATIONS AND WARRANTIES
12
   
3.1
Representations and Warranties of the Investor
 
3.2
Representations and Warranties of Parent
 
     
ARTICLE IV REGISTRATION
13
   
4.1
Demand Registrations
 
4.2
Piggyback Registrations
 
4.3
Shelf Registration Statement
 
4.4
Holdback Agreements
 
4.5
Registration Procedures
 
4.6
Registration Expenses
 
4.7
Miscellaneous
 
4.8
Registration Indemnification
 
     
ARTICLE V DEFINITIONS
27
   
5.1
Defined Terms
 
5.2
Other Defined Terms
 
5.3
Interpretation
 

i

ARTICLE VI MISCELLANEOUS
34
   
6.1
Term
 
6.2
Notices
 
6.3
Amendments and Waivers
 
6.4
Successors and Assigns
 
6.5
Severability
 
6.6
Counterparts
 
6.7
Entire Agreement
 
6.8
Governing Law; Jurisdiction; WAIVER OF JURY TRIAL
 
6.9
Specific Performance
 
6.10
No Third-Party Beneficiaries
 

ii

INVESTOR RIGHTS AGREEMENT, dated as of January 2, 2024 (this “Agreement”), by and between Carrier Global Corporation, a corporation incorporated under the laws of Delaware (“Parent”) and Viessmann Group GmbH & Co. KG, a limited partnership organized under the laws of Germany, registered in the commercial register of the local court (Amtsgericht) of Marburg under register no. HRA 3389 (the “Investor”).
 
W I T N E S S E T H:
 
WHEREAS, on 25 April 2023, Parent, Johann Purchaser GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany and wholly owned Subsidiary of Parent (the “Purchaser”) and Investor entered into a Share Purchase Agreement (as it may be amended, supplemented or otherwise modified from time to time, the “Share Purchase Agreement”), pursuant to which, among other things, Investor agreed to sell, and Purchaser agreed to purchase, all of the outstanding shares in Viessmann Climate Solutions SE, a European stock company (Societas Europaea) incorporated under the laws of Germany and registered in the commercial register of the local court (Amtsgericht) of Marburg under registration no. HRB 7562 (the “Company”), on the terms and subject to the conditions set forth in the Share Purchase Agreement;
 
WHEREAS, pursuant to and subject to the terms and conditions of the Share Purchase Agreement, in connection with the closing of the share purchase transaction contemplated thereby (the “Closing”), the Investor has received cash and shares of common stock, par value $0.01 per share, of Parent (the “Parent Common Stock”); and

WHEREAS, in connection with and pursuant to the Share Purchase Agreement, each of the parties hereto wishes to set forth in this Agreement certain terms and conditions regarding certain governance matters and the Investor’s ownership of the Shares and to establish certain rights, restrictions and obligations of Parent and the Investor with respect to the Shares.
 
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
 
ARTICLE I
 
GOVERNANCE MATTERS
 
Section 1.1           Composition of the Parent Board at the Closing.  As of the Closing, Parent and the Board of Directors of Parent (the “Parent Board”) have taken all action necessary to cause (i) the number of directors that comprise the Parent Board to be increased by one (1), and (ii) Maximilian Viessmann, as designated by the Investor, to be appointed to fill such newly created vacancy on the Parent Board as the initial Investor Designee hereunder.
 
Section 1.2           Composition of the Parent Board Following the Closing.  From the Closing and until the date that is ten (10) years after the Closing; and provided, at all times, that the Investor Parties, collectively, continue to Beneficially Own, in the aggregate, at least 50% of the number of Shares Beneficially Owned by the Investor as of the Closing:
 

(a)          Parent and the Parent Board shall take all necessary actions to ensure that, at all times when any Investor Director is eligible to be designated, nominated and/or elected pursuant hereto, there is a vacancy on the Parent Board to permit such designation, nomination and/or election.
 
(b)          At each annual or special meeting of the shareholders of Parent at which directors are to be elected to the Parent Board, Parent and the Parent Board shall nominate and use its reasonable best efforts to cause the election to the Parent Board (which reasonable best efforts shall, for the avoidance of doubt, include Parent and the Parent Board (1) recommending that Parent’s shareholders vote in favor of the election of the applicable Investor Designee and (2) otherwise supporting such applicable Investor Designee in a manner substantially the same in all material respects as the manner in which Parent and the Parent Board supports other Parent and Parent Board director nominees) of a slate of directors which includes the Investor Director.
 
(c)          The Investor shall have the right to cause any Investor Director to resign from his or her directorship on the Parent Board at any time.
 
(d)          The Investor shall notify Parent of the identity of each proposed Investor Designee, in writing, on or before the time such information is reasonably requested, in writing, by the Parent Board or the Governance Committee of the Parent Board for inclusion in a proxy statement for a meeting of shareholders, together with all information about each proposed Investor Designee as shall be reasonably requested by the Parent Board or the Governance Committee of the Parent Board; provided, that in the event the Investor fails to provide any such notice, the applicable individual then serving as the Investor Director shall be deemed to be the Investor Designee for such meeting.  For the avoidance of doubt, the Investor shall not be required to comply with any other advance notice provisions generally applicable to the nomination of directors by Parent so long as the Investor complies with this Section 1.2(d).
 
(e)          In the event of the death, disability, resignation or removal of an Investor Director or if an Investor Director ceases to serve on the Parent Board for any other reason, Parent and the Parent Board shall take all action necessary to promptly appoint to the Parent Board, and to all committees on which such Investor Director served, respectively, a replacement Investor Director designated by the Investor to fill the resulting vacancy, subject to and in accordance with the procedures set forth in Section 1.3; provided, that if an Investor Director is removed for cause, the replacement Investor Director shall not be the same individual who was removed.
 
(f)          In the event that an Investor Designee fails to be elected to the Parent Board following any annual or special meeting of the shareholders at which the Investor Designee stood for election but was nevertheless not elected, Parent and the Parent Board will promptly appoint a replacement Investor Director designated by the Investor to the Parent Board, and such individual shall then be deemed an Investor Director for all purposes hereunder.
 
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(g)          For the avoidance of doubt, each Investor Director shall be entitled (i) to the same retainer, equity compensation and other fees or compensation, including travel and expense reimbursement, paid to the other non-employee directors of Parent for their service on the Parent Board, including any service on any committee of the Parent Board, and (ii) to indemnification rights no less favorable than those generally provided to other non-employee directors of Parent (including entering into an indemnification agreement that is no less favorable than that provided to any other non-employee director in the event that Parent enters into any such agreement with another non-employee director) and in any event no less favorable than as in effect as of the Closing.  Parent shall maintain in full force and effect directors’ and officers’ liability insurance and each Investor Director shall be covered thereby in such a manner as to provide each Investor Director in his or her capacity as a director of Parent with rights and benefits under all directors’ and officers’ insurance policies no less favorable than those generally provided to other non-employee directors of Parent.  Parent acknowledges and agrees that Parent is the indemnitor of first resort with respect to any Investor Director (i.e., its obligations to such Investor Director pursuant to this Section 1.2(g) are primary and any obligation of any other Persons to which such Investor Director may have rights to advancement of expenses or to indemnification for the same expenses or liabilities incurred by such Investor Director are secondary) with respect to the matters set forth in this Section 1.2(g).
 
Section 1.3          Eligibility Criteria.
 
(a)          Each Investor Director shall (i) not be or have been the subject of a conviction or proceeding enumerated in Item 2(d) or (e) of Schedule 13D under the Exchange Act, (ii) not be or have been a party to a proceeding, or be subject to an order, judgment or decree, of the type enumerated in Item 401(f) of Regulation S-K in the five (5) year period preceding the date of determination or be subject to any order, decree or judgment of any court or agency prohibiting service as a director of any United States public company, (iii) satisfy all applicable requirements and standards imposed by Applicable Law, the New York Stock Exchange (“NYSE”) or any other national securities exchange on which shares of Parent Common Stock are then listed, (iv) be reasonably acceptable to the Governance Committee of the Parent Board, taking into account, among other things, the terms of this Agreement and the other Transaction Documents and (v) be “independent” pursuant to the listing standards of the NYSE or other national securities exchange on which shares of Parent Common Stock are then listed (provided that in no event shall any Investor Designee be deemed not to satisfy this clause (v) by virtue of the relationship between the Investor and its Affiliates, on the one hand, and the Company and its Affiliates, on the other hand, including Investor’s ownership of Equity Interests of the Company prior to the Closing or the fact that such Investor Designee is an employee, officer, director, agent or other representative of the Investor or any of its Affiliates) (collectively, the “Eligibility Criteria”); it being understood and agreed by the parties that Maximilian Viessmann meets the foregoing Eligibility Criteria.  Notwithstanding anything to the contrary in this Article I, the Investor will not be entitled to designate any individual to the Parent Board or any committee of the Parent Board pursuant to this Article I if such individual does not satisfy the Eligibility Criteria, and the Investor agrees to cause any Investor Director then serving on the Parent Board to resign from such position promptly upon written notice, setting forth the relevant facts upon which such notice is based, from Parent to the Investor (which notice and facts underlying such notice are not disputed by the Investor) of such Investor Designee’s failure to satisfy any of the eligibility criteria set forth in clause (i), (ii), (iii), or (iv) of the first sentence of this Section 1.3.
 
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(b)          In the event that the Investor designates any Investor Designee other than Maximilian Viessmann and the Parent Board or the Governance Committee of the Parent Board determines in good faith that such Investor Designee fails to satisfy the Eligibility Criteria, (1) the Parent Board or the Governance Committee of the Parent Board shall notify the Investor within ten (10) Business Days of such designation by written notice, setting forth the relevant facts upon which such notice is based, and (2) the Investor may propose another individual as a replacement therefor, whose appointment shall be subject to satisfaction of the Eligibility Criteria described above.
 
Section 1.4          Committee Representation.  Following the Closing and at any time at which an Investor Designee is serving as a member of the Parent Board, the Investor Designee shall be entitled to serve as a member of, and Parent and the Parent Board shall take all action necessary to promptly appoint the Investor Director to, two (2) committees of the Parent Board; provided, that with respect to each such committee the Investor Director shall, in addition to satisfying the Eligibility Criteria, satisfy and comply with all requirements regarding service as a member of such committee as provided under Applicable Law, the listing requirements and corporate governance rules of NYSE or any national securities exchange on which shares of Parent Common Stock are then listed (including any heightened independence requirements for service on such committee) and the practices and policies of such committee, in each case, applicable generally to its members (provided that the Parent Board shall not, and Parent shall cause the Parent Board not to, implement or maintain any practices, policies or requirements that disproportionately and adversely impact the Investor’s rights hereunder or any Investor Director).  Without prejudice to the foregoing sentence, the parties agree that for so long as Maximilian Viessmann is and remains the Investor Designee hereunder, he shall be entitled to serve as a member of the Technology & Innovation Committee of the Parent Board as one of the two (2) committee appointments to which he is entitled pursuant to the foregoing sentence (and that he satisfies any and all requirements regarding service as a member of such committee as of the date hereof).  If and to the extent that any Investor Director is unable to serve as a voting member of one or both of the committees to which he or she is entitled to be appointed under this Section 1.4 as a result of any requirement regarding service as a member of any such committee provided under Applicable Law or the listing requirements and corporate governance rules of NYSE or any national securities exchange on which shares of Parent Common Stock are then listed (including any heightened independence requirements for service on any such committee), then to the extent permitted by such Laws, requirements and rules, the Parent Board shall, and Parent shall cause the Parent Board to, take all action necessary to promptly appoint such Investor Director to serve as an observer on the relevant committee(s).  To the extent permitted by such Laws, requirements and rules, any Investor Director so designated to serve as an observer shall have the right to attend, contribute to and observe, but not vote at, meetings of the relevant committee(s) and Parent shall provide, or cause to be provided, to such observer all notices and written materials provided to voting members of such committee(s), and the minutes of, and resolutions passed at, all meetings of such committee(s), in each case, at the same time and in the same manner provided to voting members of such committee(s).
 
Section 1.5          Confidentiality.
 
(a)         The Investor hereby agrees that all Confidential Information with respect to Parent, its Subsidiaries and its and their businesses, finances and operations shall be kept confidential by the Investor and each Investor Director and shall not be disclosed by the Investor or any Investor Director in any manner whatsoever, except as expressly permitted by this Section 1.5(a).  Notwithstanding the preceding sentence or anything else to the contrary in this Agreement, any Confidential Information may be disclosed:
 
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(i)          by an Investor Director to the Investor or any of its Affiliates;
 
(ii)         by the Investor to any of its Affiliates or any Investor Director;
 
(iii)        by (x) an Investor Director to any of its authorized representatives (including attorneys, accountants, consultants, bankers and financial advisors) or (y) the Investor to its or any of its Affiliates’ respective directors, officers, employees and authorized representatives (including attorneys, accountants, consultants, bankers and financial advisors thereof) (each of the Persons described in the foregoing clauses (x) and (y), a “Representative”), in each case, solely if and to the extent any Representative needs to be provided such Confidential Information to enable or assist the Investor Director or the Investor (or any of its Affiliates) in evaluating or reviewing its investment in Parent, including in connection with the disposition thereof, and such Confidential Information shall only be used by the Investor Director or the Investor (or any of its Affiliates) and their respective Representatives for that purpose.  Each Representative shall be deemed to be bound by the provisions of this Section 1.5(a) and the Investor shall be responsible for any breach of this Section 1.5(a) by the Investor Director, any of the Investor’s Affiliates or any Representative to the same extent as if such breach had been committed by the Investor; provided, that each of the Investor Director and the Investor shall (and Investor shall cause its Affiliates to) direct their respective Representatives to maintain adequate procedures to prevent any Confidential Information from being used in connection with the purchase or sale of securities of Parent in violation of Applicable Law;
 
(iv)        by the Investor Director, Investor or any of the Investor’s Affiliates, or any of their respective Representatives to the extent Parent consents in writing to such disclosure; and
 
(v)         by the Investor Director, Investor or any of the Investor’s Affiliates, or any of their respective Representatives to the extent that any such Person has received advice from its counsel (which may be internal counsel) that it is legally compelled to do so or is required to do so to comply with Applicable Law or legal process; provided, that prior to making such disclosure, the Person intending to make such disclosure uses its commercially reasonable efforts to preserve the confidentiality of the Confidential Information to the extent permitted by Applicable Law, including, to the extent permitted by Applicable Law and reasonably practicable under the circumstances, by (A) consulting with Parent regarding such disclosure and (B) if requested by Parent, reasonably cooperating with Parent (at Parent’s sole cost and expense) in seeking a protective order to limit the scope of the required disclosure; and provided, further, that the Person making such disclosure shall use its commercially reasonable efforts to disclose only that portion of the Confidential Information as is, based on the advice of its counsel, legally required or compelled and to obtain assurances that confidential treatment will be afforded to any Confidential Information so disclosed.
 
(b)          For the avoidance of doubt, in the event of a breach or threatened breach of the obligations under this Section 1.5 by the Investor Director, Investor or any of their respective Representatives, Parent, in addition to all other available remedies, shall be entitled to seek specific performance to enforce the provisions of this Section 1.5 in accordance with Section 6.9.
 
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Section 1.6           Voting Agreements.
 
(a)          At all times during the Standstill Period and all times in which the Investor is a 10.15% Shareholder, Investor shall, and shall cause each of its Affiliates to, cause all Voting Securities Beneficially Owned by it to be counted as present for purposes of establishing a quorum;
 
(b)          Investor shall, and shall cause each of its Affiliates to, cause to be voted by proxy (returned sufficiently in advance of the deadline for proxy voting for Parent to have the reasonable opportunity to verify receipt) on or in accordance with the proxy card mailed by Parent to the shareholders of Parent in connection with the solicitation of any proxy (including, if applicable, through the execution of one or more written consents if shareholders of Parent are requested to vote through the execution of an action by written consent in lieu of any such annual or special meeting of shareholders of Parent), in the following manner:
 
(i)          At all times during the Standstill Period and at all times in which the Investor is a 10.15% Shareholder, (w) in favor of all those persons nominated to serve as directors of Parent by the Parent Board or the Governance Committee of the Parent Board, (x) in favor of Parent’s proposal for ratification of the appointment of Parent’s independent registered public accounting firm, (y) in favor of Parent’s “say-on-pay” proposal and any proposal by Parent relating to equity compensation that has been approved by the Compensation Committee of the Parent Board and (z) in accordance with the recommendation of the Parent Board with respect to any proposal brought by any stockholder of Parent (including any proposal pursuant to Rule 14a-8 under the Exchange Act), and
 
(ii)        At all times in which the Investor is a 15% Shareholder, in accordance with the recommendation of the Parent Board with respect to (A) all matters referenced in clauses (w) through (z) of Section 1.6(b)(i) and (B) all matters relating to any merger, acquisition or business combination transaction involving Parent or any of its Subsidiaries or equity issuance of Parent;
 
in the case of each of clause (i) and (ii) above, to the extent such matters are to be voted upon by the shareholders of Parent (including through action by written consent), in accordance with the recommendation of the Parent Board.  Except as set forth in this Section 1.6(b), none of the Investor, any of its Affiliates, the Investor Director or any of their respective Representatives shall be under any obligation by virtue of this Agreement to vote in the same manner as recommended by the Parent Board or any other Person, or in any other manner, other than in its sole discretion.
 
(c)          The obligations set forth in this Section 1.6 shall not apply during any Material Parent Breach Period; it being understood, for the avoidance of doubt, that the obligations set forth in this Section 1.6 shall apply from and after termination of any Material Parent Breach Period by reason of a cure of the material breach giving rise to such Material Parent Breach Period.
 
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Section 1.7          Parent Board Obligations.  Any breach by the Parent Board, or any committee of the Parent Board, of its obligations under this Article I shall be deemed a breach by Parent of its obligations hereunder.
 
Section 1.8          Corporate Opportunities.  Except as otherwise expressly set forth in the Share Purchase Agreement or any other Transaction Document, the Investor and its Affiliates may freely offer to any other Person or effect on behalf of itself or any other Person any investment or business opportunity or prospective economic advantage (which may include investments or activities relating to competitors of, or businesses competitive with, Parent or its Subsidiaries (including the Company and its Subsidiaries)), or other transactions in which Parent, its Subsidiaries (including the Company and its Subsidiaries), any member of the Parent Board or any holder of Parent’s securities may have an interest or expectancy, including as a result of any fiduciary duties applicable to such Person, in each case without any prior Parent, Parent Board or stockholder notification or approval; provided, that if Parent and the Investor (or any of the Investor’s Affiliates) are, to the Investor’s knowledge, considering the same transaction, the Investor will promptly notify Parent of its (or its relevant Affiliate’s) interest in such transaction and, if requested by the Parent Board, cause the Investor Director to recuse himself or herself from all Parent Board discussions and activities relating to such transaction.
 
Section 1.9          Organizational Documents.  Parent and the Parent Board shall take or cause to be taken all lawful action necessary to ensure at all times that Parent’s certificate of incorporation, bylaws, committee charters, director qualification standards and all other rules, policies and guidelines applicable to members of the Parent Board are consistent in all but de minimis respects with the provisions of this Agreement.
 
Section 1.10        Information Rights.  Following the Closing and for so long as the Investor Parties, collectively, continue to Beneficially Own, in the aggregate, at least 25% of the number of Shares Beneficially Owned by the Investor as of the Closing, Parent shall provide to the Investor:
 
(a)         within 90 days after the end of each fiscal year of Parent, (i) an audited, consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Parent and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Parent files its annual report on Form 10-K for the applicable fiscal year with the SEC;
 
(b)         within 45 days after the end of each of the first three quarters of each fiscal year of Parent, (i) an unaudited, consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Parent and its Subsidiaries for such fiscal quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Parent files its quarterly report on Form 10-Q for the applicable fiscal quarter with the SEC;
 
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(c)          any other financial, tax and other information or documentation reasonably requested from time to time by the Investor to facilitate the preparation by the Investor or any of its Affiliates of its or their respective periodic financial statements or as may be reasonably required by Investor or any of its Affiliates to facilitate compliance by the Investor or any such Affiliate with its of their financial, tax and reporting requirements under any Applicable Law including, for the avoidance of doubt, any filing, election, return or any other requirements of any accounting, revenue or tax authority, provided that Parent shall not be required to provide the Investor with “material nonpublic technical information,” as such term is defined in section 800.232 of Title 31 of the U.S. Code of Federal Regulations.
 
ARTICLE II
 
TRANSFERS; STANDSTILL
 
Section 2.1          Transfer Restrictions.
 
(a)         Other than in the case of a Permitted Transfer, from the Closing Date to the date that is two (2) years from the Closing Date (such period, the “Restricted Period”) no Investor Party shall Transfer or publicly announce any intention to Transfer any Voting Securities; provided that on the twelve (12)-month anniversary of the Closing Date, a number of Voting Securities equal to 25% of the total number of Voting Securities held by the Investor as of the Closing shall be released from, and shall be deemed not to be subject to, the prohibition on Transfer set out in this Section 2.1(a).
 
(b)         Permitted Transfer” means a Transfer of all or any portion of or any interest in any Voting Securities by any Investor Party to any Permitted Transferee, or between or amongst Permitted Transferees; provided, that any such Permitted Transferee shall agree in writing for the benefit of Parent (in such customary form and substance reasonably acceptable to Parent) to be bound by the terms of this Agreement.
 
(c)          Prior to any Transfer of Voting Securities during the Restricted Period, the Investor Party intending to make such Transfer shall provide written notice to Parent at least three (3) Business Days in advance of such Transfer, which notice shall state (i) the expected date of the Transfer, (ii) the total number of Voting Securities to be transferred and (iii) the identity of the Transferee.
 
(d)          Notwithstanding anything to the contrary contained herein, including Article IV hereof and the expiration or inapplicability of the Restricted Period, no Investor Party shall Transfer any Voting Securities:
 
(i)          in any Transfer or series of related Transfers in which any Person or Group purchases from the Investor Parties 2% or more of the outstanding Voting Securities; or
 
(ii)         to any Person or Group if, after giving effect to such Transfer, such Person or Group would, to such Investor Party’s knowledge, Beneficially Own 5% or more of the outstanding Voting Securities;
 
(iii)        on any given day in an amount greater than 20% of the average daily trading volume of Parent Common Stock for the 20-trading day period immediately preceding the date of such Transfer; or
 
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(iv)        to any Activist Stockholder or material competitor of Parent or the Climate Solutions Business (as defined in the Share Purchase Agreement);

except, in each case, in a Transfer effected solely through a bona fide Underwritten Offering pursuant to an exercise of the registration rights provided in Article IV of this Agreement (including any “block trade” registered under the Securities Act) or one or more open market transactions pursuant to Rule 144 under the Securities Act, as long as the Investor Party making such Transfer does not have knowledge that the Transfer would otherwise violate any of the foregoing clauses (i), (ii) (iii) or (iv).
 
(e)          The restrictions set forth in Section 2.1(a) and 2.1(d) shall not apply to Transfers of Voting Securities (1) to Parent or its Subsidiaries, (2) in any tender offer or exchange offer that has been at any time recommended by, or approved by, the Parent Board or (3) pursuant to any sale, merger, consolidation, acquisition (including by way of tender offer or exchange offer or share exchange), recapitalization or other business combination in one or a series of related transactions (i) involving Parent or any of its Affiliates pursuant to which more than 50% of the Voting Securities or the consolidated total assets of Parent and its Affiliates, taken as a whole, would be acquired or received by any Person (other than Parent or its Subsidiaries) or (ii) involving the Investor or any Affiliate of the Investor pursuant to which more than 50% of the consolidated total assets of the Investor and its Affiliates, taken as a whole, would be acquired or received by any Person (other than the Investor or its Subsidiaries).
 
(f)           The Investor agrees to use its commercially reasonable efforts to provide written notification to Parent within five (5) Business Days after the end of each calendar quarter in which any Investor Party has transferred any Voting Securities the number of Voting Securities transferred by the Investor Parties during such quarter and (other than in the case of a Transfer effected solely through a bona fide Underwritten Offering pursuant to an exercise of the registration rights provided in Article IV (including any “block trade” registered under the Securities Act) or one or more open market transactions pursuant to Rule 144 under the Securities Act in which the identity of the Transferees is not reasonably ascertainable) the identity of any Transferee; provided, that any public disclosure (including pursuant to the Exchange Act or the Securities Act) regarding a Transfer will be deemed to have satisfied such notification obligations pursuant to this sentence with respect to such Transfer.
 
(g)          The right of any Investor Party to Transfer Voting Securities Beneficially Owned by such Person is subject to the restrictions set forth in this Section 2.1, and no Transfer by any Person of Voting Securities Beneficially Owned by such Person may be effected except in compliance with this Section 2.1.  Any Transfer or attempted Transfer of Voting Securities in violation of this Agreement shall be of no effect and null and void ab initio, regardless of whether the purported Transferee has any actual or constructive knowledge of the Transfer restrictions set forth in this Agreement, and Parent shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register of Parent.
 
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Section 2.2          Standstill Provisions.
 
(a)         From the Closing Date until the termination of the Standstill Period, neither the Investor nor any of its Affiliates shall (or shall permit any of their respective Representatives, acting on the behalf of or at the direction of any of them), directly or indirectly:
 
(i)          acquire, agree to acquire, propose or offer to acquire, facilitate the acquisition or ownership of, or solicit the acquisition of, by purchase, tender or exchange offer, through the acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other Group, through the use of a derivative instrument or voting agreement, or otherwise, Beneficial Ownership of any Voting Securities, or securities of Parent that are convertible, exchangeable or exercisable into Voting Securities, other than (A) as a result of any stock split, stock dividend, subdivision, recapitalization or similar reorganization of Voting Securities effected by Parent, (B) as a result of issuances by Parent of Voting Securities or options, warrants or other rights to acquire Voting Securities (or the exercise thereof) to any Investor Director as compensation for his or her membership on the Parent Board; provided that, in the event of any offer, sale or issuance of Parent Common Stock or other Equity Interests of Parent following the Closing Date, this clause (i) shall not prohibit any Investor Party from acquiring securities of Parent so long as the Beneficial Ownership of Voting Securities by the Investor Parties, taken as a whole, does not, as a result of any such acquisition of securities, exceed the Investor Percentage Interest as of the Closing Date and (C) in an aggregate amount not to exceed (except with the prior consent of the Parent Board), in the aggregate, 13.5% of the Voting Securities at any time outstanding (which, for the avoidance of doubt, shall be in addition to those Shares Beneficially Owned by the Investor as of the Closing);
 
(ii)          deposit any Voting Securities into a voting trust or similar Contract or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement or other Contract, or grant any proxy with respect to any Voting Securities (other than to Parent or a Person specified by Parent in a proxy card provided to shareholders of Parent by or on behalf of Parent);
 
(iii)         enter, agree to enter, publicly propose or offer to enter into, or make any public announcement with respect to, any merger, business combination, recapitalization, restructuring, change in control transaction, sale of all or a material portion of the assets of Parent or any of its Subsidiaries or other similar extraordinary transaction involving Parent or any of its Subsidiaries (unless such transaction is affirmatively publicly recommended by the Parent Board and there has otherwise been no breach of this Section 2.2 in connection with or relating to such transaction);
 
(iv)         make, or knowingly and publicly facilitate, encourage or otherwise participate or engage in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) to vote, or advise or knowingly influence any Person with respect to the voting of, any Voting Securities;
 
(v)          call, or seek to call, a meeting of the shareholders of Parent or initiate any shareholder proposal for action by shareholders of Parent, including action by written consent;
 
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(vi)         form, join or in any way participate in a Group (other than a Group which consists solely of the Investor and one or more of its Affiliates), with respect to any Voting Securities;
 
(vii)        otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of Parent (provided, that this clause (vii) shall in no way limit the activities of any Investor Director taken in good faith in his or her capacity as a Director);
 
(viii)       sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Voting Securities to any third party; or
 
(ix)         publicly disclose any intention, plan, arrangement or other Contract prohibited by, or inconsistent with, the foregoing;
 
provided that, notwithstanding anything to the contrary in this Section 2.2(a), (1) the Investor and any of its Affiliates may at any time (A) initiate and engage in private discussions with, and submit non-public, confidential proposals to, the Parent Board (or any committee or other designee thereof) or (B) make a confidential request to Parent seeking an amendment or waiver of this Section 2.2(a), in each case so long as such proposals or requests do not require public disclosure and the making of such proposal or request would not reasonably be expected to require Parent to make a public announcement of its receipt and (2) for the avoidance of doubt, (A) (x) the consummation of the transactions contemplated by the Share Purchase Agreement and (y) the Investor’s exercise of its rights or the performance of its obligations under any other Transaction Document shall not be deemed violations of this Section 2.2(a) and (B) nothing in this Section 2.2(a) shall limit the ability of any Investor Director to take any action in such Investor Director’s capacity as a member of the Parent Board (or any committee thereof).
 
(b)          The Investor further agrees that, during the Standstill Period, neither the Investor nor any of its Affiliates shall (or shall permit any of their respective Representatives, acting on the behalf of or at the direction of any of them), directly or indirectly (x) publicly request Parent to amend or waive any provision of this Section 2.2 (including this sentence) or (y) take any action that would reasonably be expected to require Parent to make a public announcement regarding the possibility of a business combination, merger or other type of transaction or any other matter described in this Section 2.2.
 
(c)          Notwithstanding the foregoing, this Section 2.2 shall not prevent, limit or affect in any matter whatsoever, the Investor from designating any Investor Designee in accordance with this Agreement or taking any action to cause such Investor Designee to be appointed to the Parent Board (or any committee of the Parent Board).
 
(d)          The restrictions in this Section 2.2 shall not apply during any Material Parent Breach Period; it being understood, for the avoidance of doubt, that the restrictions in this Section 2.2 shall apply from and after termination of any Material Parent Breach Period by reason of a cure of the material breach giving rise to such Material Parent Breach Period.
 
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Section 2.3          Section 16 Matters.  If Parent becomes a party to a consolidation, merger or other similar transaction that may result in the Investor, any of its Affiliates or any Investor Director being deemed to have made a disposition of Equity Interests of Parent or derivatives thereof for purposes of Section 16 of the Exchange Act, and if any Investor Director is serving on the Parent Board at such time or has served on the Parent Board during the preceding six months (i) the Parent Board will pre-approve such disposition of Equity Interests or derivatives thereof for the express purpose of exempting the Investor’s, its Affiliates’ and any Investor Director’s (to the extent the Investor or its Affiliates may be deemed to be “directors by deputization”) interests in such transaction from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder and (ii) if the transaction involves (A) a merger or consolidation to which Parent is a party and the Equity Interests in Parent are, in whole or in part, converted into or exchanged for Equity Interests of a different issuer, (B) a potential acquisition by the Investor, any of its Affiliates, or any Investor Director of Equity Interests of such other issuer or derivatives thereof and (C) an Affiliate or other designee of the Investor or its Affiliates will serve on the board of directors (or its equivalent) of such other issuer, then if Parent requires that the other issuer pre-approve any acquisition of Equity Interests or derivatives thereof for the express purpose of exempting the interests of any director or officer of Parent or any of its Subsidiaries in such transactions from Section 16(b) of the Exchange Act pursuant to Rule 16b- 3 thereunder, Parent shall require that such other issuer pre-approve any such acquisitions of Equity Interests or derivatives thereof for the express purpose of exempting the Investor’s, its Affiliates’ and any Investor Director’s (for the Investor and its Affiliates, to the extent such persons may be deemed to be “directors by deputization” of such other issuer) interests in such transactions from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.
 
ARTICLE III
 
REPRESENTATIONS AND WARRANTIES
 
Section 3.1          Representations and Warranties of the Investor.  The Investor hereby represents and warrants to Parent as follows:
 
(a)         The Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  The Investor has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.
 
(b)         The execution and delivery by the Investor of this Agreement and the performance by the Investor of its obligations under this Agreement do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (except for any such consents or approvals which have been obtained) under, (x) Applicable Law, (y) its organizational documents or (z) any material contract or agreement to which it is a party.
 
(c)         The execution and delivery by the Investor of this Agreement and the performance by the Investor of its obligations under this Agreement have been duly authorized by all necessary corporate or other analogous action on its part and does not require any corporate or other action on the part of any trustee or beneficial or record owner of any equity interest in it, other than those which have been obtained prior to the date hereof and are in full force and effect.
 
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(d)         This Agreement has been duly executed and delivered by the Investor and, assuming the due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.
 
Section 3.2           Representations and Warranties of Parent.  Parent hereby represents and warrants to the Investor as follows:
 
(a)          Parent is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation.  Parent has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.
 
(b)          The execution and delivery by Parent of this Agreement and the performance by Parent of its obligations under this Agreement do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (except for any such consents or approvals which have been obtained) under, (x) Applicable Law, (y) its organizational documents or (z) any material contract or agreement to which it is a party.
 
(c)          The execution and delivery by Parent of this Agreement and the performance by Parent of its obligations under this Agreement have been duly authorized by all necessary corporate action on its part and does not require any corporate or other action on the part of any trustee or beneficial or record owner of any equity interest in it, other than those which have been obtained prior to the date hereof and are in full force and effect.
 
(d)          This Agreement has been duly executed and delivered by Parent and, assuming the due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.
 
ARTICLE IV

REGISTRATION
 
Section 4.1          Demand Registrations.
 
(a)         From and after the expiration of the Restricted Period, subject to the terms and conditions hereof (x) solely during any period that Parent is then ineligible under Applicable Law to register Registrable Securities on Form S-3 pursuant to Section 4.3 or (y) following the expiration of Parent’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(b), but only if there is no Shelf Registration Statement then in effect, the Holder or Holders of a majority of the Registrable Securities shall be entitled to make an unlimited number of written requests of Parent (each, a “Demand”) for registration under the Securities Act of an amount of Registrable Securities then held by such Holder or Holders that equals or is greater than the Registrable Amount (a “Demand Registration”); provided that the Holders collectively shall not be entitled to make more than two (2) Demands during any twelve (12) month period.  Thereupon Parent will, subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
 
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(i)          the Registrable Securities which Parent has been so requested to register by the Holders for disposition in accordance with the intended method of disposition stated in such Demand; and
 
(ii)         all shares of Parent Common Stock which Parent may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1;
 
but, in each case, subject to Section 4.1(f), and to the extent necessary to permit the orderly disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional shares of Parent Common Stock, if any, to be so registered; provided, that Parent may use a registration statement on Form S-3 or any successor form thereto if Parent would qualify to use such form within thirty (30) days after the date on which the Demand Registration is given and Parent shall not be required to file such registration statement until it is so qualified.
 
(b)          A Demand shall specify: (i) the number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known, including whether such Demand Registration will be an Underwritten Offering, (iii) the intended timing of disposition in connection with such Demand Registration and (iv) the estimated gross proceeds of such Demand Registration, which may not be less than the Registrable Amount.
 
(c)          A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least ninety (90) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder or have ceased being Registrable Securities (provided, that such period shall be extended for a period of time equal to the period any Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of Parent or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to ninety (90) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority such that no sales are possible thereunder for a period of ten (10) consecutive days or more, other than by reason of any act or omission by any Holder.
 
(d)         Demand Registrations shall be on such appropriate registration form of the Commission as shall be reasonably selected by Parent and reasonably acceptable to each Holder.
 
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(e)          Parent shall not be obligated to (i) subject to Section 4.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than ninety (90) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which the Holders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least 75% of the number of Registrable Securities requested by the Holders to be included in such Demand Registration were included and sold, (B) within three (3) months of the completion of any other Demand Registration (including any Underwritten Offering pursuant to any Shelf Registration Statement), (C) if, in Parent’s reasonable judgment, it is not feasible for Parent to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or other required information; provided, that Parent shall use its commercially reasonable efforts to obtain such financial statements or information as promptly as practicable or (D) for an amount that is less than the Registrable Amount.
 
(f)          If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) Parent that, in its (their) good faith opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would adversely affect the price, timing or distribution of the securities offered, the market for the securities offered or the success of such Demand Registration, then Parent shall include in such registration statement only such securities as Parent is advised by such lead managing underwriter(s) can be sold without such an adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Holders, which, in the opinion of the lead managing underwriter(s), can be sold without such an effect; (ii) second, securities Parent proposes to sell; and (iii) third, all other securities of Parent duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by Parent.
 
(g)         Any time that a Demand Registration involves an Underwritten Offering, the Holder or Holders of a majority of the Registrable Securities to be sold in such Underwritten Offering shall select the investment banker(s) and manager(s) that will serve as managing underwriter(s) (including which such managing underwriter(s) will serve as lead or co-lead) and underwriter(s) with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be acceptable to Parent (such acceptance not to be unreasonably withheld, conditioned or delayed).
 
(h)         Any Holder may, by written notice to Parent, withdraw its Registrable Securities from a Demand Registration at any time prior to the effectiveness of the applicable registration statement.  Upon receipt of notice from a Holder to such effect, or if such withdrawal shall reduce the number of Registrable Securities sought to be included in such Demand Registration below the Registrable Amount, Parent shall cease all efforts to seek effectiveness of the applicable registration statement, unless Parent intends to effect a primary offering of securities or a Piggyback Registration pursuant to such registration statement.  In any such event, such Demand Registration shall count as a Demand Registration for purposes of the limitations set forth in Section 4.1(a).
 
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Section 4.2          Piggyback Registrations.
 
(a)         From and after the expiration of the Restricted Period, subject to the terms and conditions hereof, whenever Parent proposes to register any Parent Common Stock under the Securities Act (other than a registration by Parent (i) on Form S-4 or any successor form thereto (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (ii) on Form S-8 or any successor form thereto (or other registration solely relating to an offering or sale to employees or directors of Parent pursuant to any employee stock plan or other employee benefit arrangement), (iii) on a Shelf Registration Statement, (iv) in connection with any dividend or distribution reinvestment or similar plan, (v) incidental to an issuance of debt securities under Rule 144A or (vi) pursuant to Section 4.1) (such registration other than those referred to in the immediately preceding parenthetical, a “Piggyback Registration”), whether for its own account or for the account of others, Parent shall give each Holder prompt written notice thereof (but not less than fifteen (15) Business Days prior to the filing by Parent with the Commission of any registration statement with respect thereto).  Such notice (a “Piggyback Notice”) shall specify the number of shares of Parent Common Stock proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by Parent of the proposed minimum offering price of such shares of Parent Common Stock, in each case to the extent then known.  Subject to Section 4.2(b), Parent shall include in each such Piggyback Registration all Registrable Securities held by the Holders with respect to which Parent has received a written request (which written request shall specify the number of Registrable Securities requested to be disposed of by each Holder) for inclusion therein within ten (10) Business Days after such Piggyback Notice is received by each Holder.
 
(b)          If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advises Parent that, in its opinion, the inclusion of all the shares of Parent Common Stock sought to be included in such Piggyback Registration by (i) Parent, (ii) other Persons who have sought to have shares of Parent Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Holders and (iv) any other proposed sellers of shares of Parent Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the price, timing or distribution of the securities offered, the market for the securities offered or the success of such Piggyback Registration, then Parent shall include in the registration statement applicable to such Piggyback Registration only such shares of Parent Common Stock as Parent is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
 
(i)          if the Piggyback Registration relates to an offering for Parent’s own account, then (A) first, the shares of Parent Common Stock to be sold by Parent, and (B) second, the Registrable Securities of the Holders and shares of Parent Common Stock sought to be registered by Other Demanding Sellers and by Other Proposed Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by the Holders and the number of shares of Parent Common Stock proposed to be sold by such Other Demanding Sellers and by such Other Proposed Sellers; or
 
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(ii)         if the Piggyback Registration relates to an offering other than for Parent’s own account, then (A) first, the Registrable Securities of the Holders and shares of Parent Common Stock sought to be registered by the Other Demanding Sellers and any Other Proposed Sellers, pro rata on the basis of the number of shares of Parent Common Stock proposed to be sold by the Holders and the number of shares of Parent Common Stock proposed to be sold by such Other Demanding Sellers and Other Proposed Sellers, and (B) second, the shares of Parent Common Stock to be sold by Parent.
 
(c)           In connection with any Underwritten Offering under this Section 4.2, Parent shall not be required to include the Registrable Securities of any Holder in the Underwritten Offering unless such Holder accepts the terms of the underwriting as agreed upon between Parent and the lead managing underwriter(s), which shall be selected in good faith by Parent.
 
(d)           If, at any time after giving written notice of its intention to register any shares of Parent Common Stock as set forth in this Section 4.2, Parent shall determine for any reason not to register such shares of Parent Common Stock, Parent may, at its election, give written notice of such determination to each Holder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration.
 
Section 4.3           Shelf Registration Statement.
 
(a)          Parent shall use its commercially reasonable efforts to prepare and file, as soon as reasonably practicable following the expiration of the Restricted Period, a registration statement covering the sale or distribution from time to time by any Investor Party holding Registrable Securities (each such Investor Party, a “Holder”), on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, of all of the Registrable Securities of such Holder on Form S-3 or any successor form thereto (“Form S-3”) (except if Parent is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by each Holder in accordance with any reasonable method of distribution elected by such Holder) (the “Shelf Registration Statement”) and shall further use its commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the filing thereof (it being agreed that the Shelf Registration Statement shall be an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is then available to Parent).
 
(b)          Subject to Section 4.3(c), Parent will use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective under the Securities Act until such time as all Registrable Securities covered by the Shelf Registration Statement have been sold or otherwise cease to be Registrable Securities.  Parent shall supplement and amend any Shelf Registration Statement if required by the Securities Act or the rules, regulations or instructions applicable to the registration form used by Parent for such Shelf Registration Statement.
 
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(c)          At any time that a Shelf Registration Statement is effective, if any Holder delivers a notice to Parent (a “Take-Down Notice”) stating that it intends to sell all or part of its Registrable Securities included by it on the Shelf Registration Statement in an Underwritten Offering (a “Shelf Offering”), then Parent shall promptly amend or supplement the Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Offering; provided, that Parent shall not be obligated to effect more than three (3) Shelf Offerings during any twelve (12) month period or to effect any Shelf Offering for less than the Registrable Amount.
 
(d)          In connection with any Shelf Offering, if the lead managing underwriter(s) advises Parent and each Holder participating in such Shelf Offering that, in its opinion, the inclusion of all of the securities sought to be sold in connection with such Shelf Offering would adversely affect the price, timing or distribution of the securities offered, the market for the securities offered or the success of such Shelf Offering, then there shall be included in such Shelf Offering only such securities as the lead managing underwriter(s) advises can be sold without such adverse effect, and such number of Registrable Securities shall be allocated in the same manner as described in Section 4.1(f).  Except as otherwise expressly specified in this Section 4.3, any Shelf Offering shall be subject to the same requirements, limitations and other provisions of this Article IV as would be applicable to a Demand Registration (i.e., as if such Shelf Offering were a Demand Registration), including Section 4.1(e)(ii), Section 4.1(g) and Section 4.1(h).
 
(e)          If any of the Registrable Securities is to be sold in a Shelf Offering initiated by a Holder, the Holder or Holders of a majority of the Registrable Securities to be sold in such Shelf Offering shall select the investment banker(s) and manager(s) that will serve as managing underwriter(s) (including which such managing underwriter(s) will serve as lead or co-lead) and underwriter(s) with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be acceptable to Parent (such acceptance not to be unreasonably withheld, conditioned or delayed).
 
(f)          If a Person entitled to the benefits of this Agreement becomes a Holder of Registrable Securities after a Shelf Registration Statement becomes effective under the Securities Act, Parent shall, as promptly as is reasonably practicable following delivery of written notice to Parent of such Person becoming a Holder and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration Statement:
 
(i)          if required and permitted by Applicable Law, file with the SEC a supplement to the related prospectus or a post-effective amendment to the Shelf Registration Statement so that such Holder is named as a selling securityholder in the Shelf Registration Statement and the related prospectus in such a manner as to permit such Holder to deliver a prospectus to purchasers of the Registrable Securities in accordance with Applicable Law; provided, however, that Parent shall not be required to file more than one post-effective amendment or a supplement to the related prospectus for such purpose in any 30-day period; and
 
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(ii)         if, pursuant to the foregoing clause (i), Parent shall have filed a post-effective amendment to the Shelf Registration Statement that is not automatically effective, use its commercially reasonable efforts to cause such post-effective amendment to become effective under the Securities Act as promptly as is reasonably practicable and notify such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to this clause (ii).
 
Section 4.4          Holdback Agreements.  In connection with any Underwritten Offering, each Holder shall enter into customary agreements restricting the public sale or distribution of Equity Interests of Parent (including sales pursuant to Rule 144 under the Securities Act) to the extent required by the lead managing underwriter(s) with respect to an applicable Underwritten Offering during the period commencing on the date of the request (which shall be no earlier than seven (7) days prior to the expected “pricing” of such Underwritten Offering) and continuing for not more than ninety (90) days after the date of the “final” prospectus (or “final” prospectus supplement if the Underwritten Offering is made pursuant to a Shelf Registration Statement), pursuant to which such Underwritten Offering shall be made, or such lesser period and permitted exceptions as is otherwise agreed by the lead managing underwriter(s) of such Underwritten Offering.  If any Demand Registration or Shelf Offering involves an Underwritten Offering, Parent will not effect any public sale or distribution of any common equity (or securities convertible into or exchangeable or exercisable for common equity) (other than as part of such Underwritten Offering, a registration statement on Form S-4, Form S-8 or any successor forms thereto or in connection with any dividend or distribution reinvestment or similar plan) for its own account, within sixty (60) days after the effective date of such registration except as may otherwise be agreed between Parent and the lead managing underwriter(s) of such Underwritten Offering.
 
Section 4.5          Registration Procedures.
 
(a)          If and whenever Parent is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 4.1 or Section 4.3, Parent shall as promptly as reasonably practicable:
 
(i)          prepare and file with the Commission a registration statement to effect such registration in accordance with the intended method or methods of distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Article IV; provided, however, that Parent may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing such registration statement or any amendments thereto, Parent will furnish to each Holder, counsel to each Holder and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed, which documents will be subject to the review and reasonable comment of the Holders and such counsel, and other documents reasonably requested by any Holder or such counsel, including any comment letter from the Commission, and, if requested by any Holder or such counsel, provide such counsel reasonable opportunity to participate in the preparation of such registration statement and each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to Parent’s books and records, officers, accountants and other advisors; provided, that Parent shall not have any obligation to modify any information if Parent reasonably expects that so doing would cause (i) the registration statement to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the prospectus to contain an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
 
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(ii)          prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article IV, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement;
 
(iii)         if requested by the lead managing underwriter(s), if any, or the Holder of any Registrable Securities to be sold an Underwritten Offering, as promptly as reasonably practicable, include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such Holder may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after Parent has received such request; provided, however, that Parent shall not be required to take any actions under this Section 4.5(a)(iii) that are not, in the opinion of counsel for Parent, in compliance with Applicable Law;
 
(iv)         furnish to each Holder and each underwriter, if any, of the securities being sold such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as any Holder or the underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities;
 
(v)          use commercially reasonable efforts to register or qualify or cooperate with each Holder, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of the Registrable Securities covered by such registration statement under such other securities laws or “blue sky” laws of such jurisdictions as any Holder and any underwriter of the securities being sold shall reasonably request, and to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any other action which may be necessary to enable the Holders and underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Securities, except that Parent shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (v) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
 
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(vi)          use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by Parent are then listed;
 
(vii)         use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;
 
(viii)        enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and use its commercially reasonable efforts to take all such other actions reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Securities;
 
(ix)          in connection with an Underwritten Offering, use commercially reasonable efforts to obtain for each Holder and underwriter(s), if any, (A) opinions of counsel for Parent, covering the legal matters customarily covered in opinions requested of legal counsel to issuers in underwritten secondary offerings and (B) “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AS 6101 published by the Public Company Accounting Oversight Board (PCAOB), an “agreed upon procedures” letter) signed by the independent public accountants who have certified Parent’s financial statements and, to the extent required, any other financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
 
(x)           make available for inspection by each Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by any Holder or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and instruments of Parent and other relevant information of Parent (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility; provided, however, that Parent shall not be required to provide any information under this clause (x) if (A) Parent believes, after consultation with counsel for Parent, that to do so would cause Parent to forfeit an attorney-client or other applicable privilege that was applicable to such information or (B) if either (1) Parent has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) Parent reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless, prior to furnishing any such information with respect to clause (1) or (2), each Holder enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to Parent; provided, further, that each Holder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to Parent and allow Parent, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
 
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(xi)          as promptly as practicable notify each Holder and the underwriter(s), if any, of the following events: (a) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective; (b) any request by the Commission or any other U.S. or state governmental authority for amendments or supplements to the registration statement or the prospectus or for additional information; (c) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (d) the receipt by Parent of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (e) if at any time the representations and warranties of Parent contained in any underwriting agreement contemplated by Section 4.5(a)(viii) cease to be true and correct in any material respect; and (f) upon becoming aware of the happening of any event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, prospectus or documents so that, in the case of the registration statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Holder, promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
 
(xii)          use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest reasonable practicable date, except that Parent shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (xii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
 
(xiii)        cooperate with each Holder and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under Applicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or any Holder may request and keep available and make available to Parent’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
 
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(xiv)         cooperate with each Holder and each underwriter or agent participating in the disposition of any Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and (xv)         have appropriate officers of Parent prepare and make presentations at a reasonable and customary number of “road shows” and before analysts and rating agencies, as the case may be, and other information meetings reasonably organized by the underwriter(s) and otherwise use its commercially reasonable efforts to cooperate as reasonably requested by any Holder and the underwriter(s) in the offering, marketing or selling of the Registrable Securities.
 
(b)          Parent may require each Holder and each underwriter, if any, to furnish Parent in writing such information regarding such Holder or underwriter and the distribution of such Registrable Securities as Parent may from time to time reasonably request in writing to complete or amend the information required by such registration statement.
 
(c)           Each Holder shall as promptly as practicable notify in writing Parent and the underwriter(s), if any, with respect to any registered offering of Registrable Securities if at any time the representations and warranties of such Holder contained in any underwriting agreement cease to be true and correct in any material respect and upon becoming aware of the happening of any event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference, to the extent based on information provided by such Holder, untrue in any material respect or that requires the making of any changes in such registration statement, prospectus or documents so that, in the case of the registration statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent based on information provided by such Holder.
 
(d)           Each Holder agrees that upon receipt of any notice from Parent of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 4.5(a)(xi), such Holder shall forthwith discontinue its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until it receives copies of the supplemented or amended prospectus contemplated by Section 4.5(a)(xi), or until it is advised in writing by Parent that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus; provided, however, that Parent shall extend the time periods under Section 4.1(c) with respect to the length of time that the effectiveness of a registration statement must be maintained by the amount of time such Holder is required to discontinue disposition of such securities.
 
(e)           With a view to making available to the Holders the benefits of Rule 144 under the Securities Act and any other rule or regulation of the Commission that may at any time permit a Holder to sell securities of Parent to the public without registration or pursuant to a registration on Form S-3 (or any successor form), Parent shall:
 
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(i)          use commercially reasonable efforts to make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
 
(ii)         use commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required of Parent under the Exchange Act, at any time when Parent is subject to such reporting requirements; and
 
(iii)        furnish to any Holder, promptly upon request, a written statement by Parent as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of Parent, and such other reports and documents so filed or furnished by Parent with the Commission as such Holder may reasonably request in connection with the sale of Registrable Securities without registration (in each case to the extent not readily publicly available).
 
Section 4.6          Registration Expenses.  All fees and expenses incident to Parent’s performance of its obligations under this Article IV, including (a) all registration and filing fees, including all fees and expenses of compliance with securities and “blue sky” laws and all fees and expenses associated with filings required to be made with FINRA (including, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in FINRA Rule 5121), (b) all printing (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with the Depository Trust Company and of printing prospectuses if the printing of prospectuses is requested by any Holder) and copying expenses, (c) all messenger, telephone and delivery expenses, (d) all fees and expenses of Parent’s independent certified public accountants and counsel (including with respect to “comfort” letters and opinions) and (e) expenses of Parent incurred in connection with any “road show”, shall be borne solely by Parent whether or not any registration statement is filed or becomes effective.  Each Holder shall pay (i) all underwriters’, brokers’ or dealers’ discounts or commissions and transfer taxes, if any, relating to the sale of such Holder’s Registrable Securities pursuant to any registration and (ii) the legal fees and expenses of its counsel.
 
Section 4.7          Miscellaneous.
 
(a)         Not less than five (5) Business Days before the expected filing date of each registration statement pursuant to this Agreement, Parent shall notify each Holder, if such Holder has timely provided the requisite notice hereunder entitling it to register Registrable Securities in such registration statement, of the information, documents and instruments from such Holder that Parent or any underwriter reasonably requests in connection with such registration statement, including a questionnaire, custody agreement, power of attorney, lock-up letter and underwriting agreement (the “Requested Information”).  If Parent has not received, on or before the second (2nd) Business Day before the expected filing date, the Requested Information from any Holder, Parent may file the registration statement without including Registrable Securities of such Holder.  The failure to so include in any registration statement the Registrable Securities of a Holder (with regard to that registration statement) shall not result in any liability on the part of Parent to such Holder.
 
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(b)         Notwithstanding anything in this Article IV to the contrary, Parent shall be entitled on up to two (2) occasions in any twelve (12) month period, for a period of time not to exceed ninety (90) days in the aggregate in any twelve (12) month period to (x) defer any registration of Registrable Securities and shall have the right not to file and not to cause the effectiveness of any registration covering any Registrable Securities, (y) suspend the use of any prospectus and registration statement covering any Registrable Securities and (z) require the Holders to suspend any offerings or sales of Registrable Securities pursuant to a registration statement, if Parent delivers to each Holder a certificate signed by an executive officer certifying that such registration and offering would (i) require Parent to make an Adverse Disclosure or (ii) materially interfere with any bona fide material financing, acquisition, disposition or other similar transaction involving Parent or any of its Subsidiaries then under consideration.  Such certificate shall contain a statement of the reasons for such suspension and an approximation of the anticipated length of such suspension.  Each Holder shall keep the information contained in such certificate confidential subject to the same terms set forth in Section 1.5.
 
Section 4.8          Registration Indemnification.
 
(a)         Parent agrees to indemnify and hold harmless, to the fullest extent permitted by Applicable Law, each Holder and its Affiliates and their respective current and former officers, directors, employees, accountants, attorneys and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such Holder or such other indemnified Person and the current and former officers, directors, employees, accountants, attorneys and agents of each such controlling Person (collectively, the “Parent Indemnified Parties”) from and against all losses, claims, damages, liabilities, costs, expenses (including reasonable expenses of investigation and reasonable and documented attorneys’ fees and expenses), judgments, fines, penalties, charges and amounts paid in settlement and other liabilities, joint or several (or actions in respect thereof) (collectively, the “Losses”), as incurred, arising out of or resulting from any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus or preliminary prospectus or Free Writing Prospectus filed pursuant to this Agreement or any amendment or supplement thereto or any omission (or alleged omission) of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (without limitation of the preceding portions of this Section 4.8(a)) will reimburse each Parent Indemnified Party for any reasonable and documented legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, Loss, damage, liability or action, except in each case insofar as the same are caused by any information furnished to Parent by any other party expressly for use therein.
 
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(b)         To the fullest extent permitted by Applicable Law, each Holder will, if Registrable Securities held by such Holder are included in securities as to which registration is being effected, indemnify and hold harmless Parent and its Affiliates and their respective current and former officers, directors, employees, accountants, attorneys and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) Parent or such other indemnified Person and the current and former officers, directors, employees, accountants, attorneys and agents of each such controlling Person (collectively, the “Holder Indemnified Parties”), from and against all Losses, as incurred, arising out of or resulting from any untrue statement (or alleged untrue statement) of material fact contained in any registration statement, prospectus or preliminary prospectus or Free Writing Prospectus filed pursuant to this Agreement or any amendment or supplement thereto or any omission (or alleged omission) of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (without limitation of the preceding portions of this Section 4.8(b)) will reimburse each Holder Indemnified Party for any reasonable and documented legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, Loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement or omission is made in such registration statement, prospectus or preliminary prospectus or Free Writing Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information furnished to Parent by the Holder expressly for inclusion in such registration statement, prospectus or preliminary prospectus or Free Writing Prospectus or any amendment or supplement thereto; provided, however, that in no event shall any indemnity under this Section 4.8(b) payable any Holder exceed an amount equal to the net proceeds received by such Holder in respect of the Registrable Securities sold pursuant to the relevant registration statement.  The indemnity agreement contained in this Section 4.8(b) shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the prior written consent of the applicable Holder (which consent shall not be unreasonably withheld or delayed).
 
(c)          Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, however, that the failure to give such notice shall not release the indemnifying party from its obligation, except to the extent that the indemnifying party has been actually and materially prejudiced by such failure to provide such notice on a timely basis.
 
(d)          In any case in which an action is brought against any indemnified party under this Section 4.8, the indemnifying party will be entitled to participate therein, and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof and acknowledging the obligations of the indemnifying party with respect to such proceeding, the indemnifying party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this paragraph) be liable to such indemnified party hereunder for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, supervision and monitoring (unless (i) such indemnified party (based upon advice of its counsel) reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party and, as a result, a conflict of interest exists or (ii) the indemnifying party shall have failed within a reasonable period of time to assume such defense and the indemnified party is or would reasonably be expected to be materially prejudiced by such delay, in either event the indemnified party shall be promptly reimbursed by the indemnifying party for the reasonable expenses incurred in connection with retaining one separate legal counsel (for all indemnified parties in connection therewith)).  Notwithstanding any such assumption by an indemnifying party, the indemnified party shall have the right to employ separate counsel in any such matter and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party except as provided in the previous sentence.  An indemnifying party shall not be liable for any settlement of an action or claim effected without its consent.  No matter shall be settled by an indemnifying party without the consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned or delayed), unless such settlement (x) includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation, (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party and (z) does not involve any injunctive or equitable relief that would be binding on the indemnified party or any payment that is not covered by the indemnification hereunder.
 
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(e)          The indemnification provided for under this Agreement shall survive the Transfer of the Registrable Securities and the termination of this Agreement.
 
(f)           If recovery is not available under the foregoing indemnification provisions for any reason or reasons other than as specified therein, any Person who would otherwise be entitled to indemnification by the terms thereof shall nevertheless be entitled to contribution with respect to any Losses with respect to which such Person would be entitled to such indemnification but for such reason or reasons, in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.  The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, the Persons’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and other equitable considerations appropriate under the circumstances.  It is hereby agreed that it would not necessarily be equitable if the amount of such contribution were determined by pro rata or per capita allocation.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation.  Notwithstanding the foregoing, in no event shall any contribution payable by any Holder under this Section 4.8(f) exceed an amount equal to the net proceeds received by such Holder in respect of the Registrable Securities sold pursuant to the registration statement giving rise to such obligation to contribute.
 
ARTICLE V

DEFINITIONS
 
Section 5.1          Defined Terms.  Capitalized terms when used in this Agreement have the following meanings:
 
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Activist Stockholder” means, as of any date of determination, a Person (other than the Investor, Parent and their respective Affiliates (and, in the case of Investor, Investor’s Permitted Transferees)) that has, directly or indirectly through its Affiliates, whether individually or as a member of a group, within the three (3) year period immediately preceding such date of determination (i) called or publicly sought to call a meeting of the stockholders or other equityholders of any Person not publicly approved (at the time of the first such action) by the board of directors or similar governing body of such Person, (ii) publicly initiated any proposal for action by stockholders or other equityholders of any Person initially publicly opposed by the board of directors or similar governing body of such Person, (iii) publicly sought election to, or to place a director or representative on, the board of directors or similar governing body of a Person, or publicly sought the removal of a director or other representative from such board of directors or similar governing body, in each case which election or removal was not recommended or approved publicly (at the time such election or removal is first sought) by the board of directors or (iv) publicly disclosed any intention, plan or arrangement to do any of the foregoing.
 
Adverse Disclosure” means public disclosure of material non-public information that, in the good faith judgment of Parent (after consultation with legal counsel): (a) would be required to be made in any registration statement filed with the SEC by Parent so that such registration statement would not be materially misleading; (b) would not be required to be made at such time but for the filing, effectiveness or continued use of such registration statement; and (c) the Parent has a bona fide business purpose for not disclosing publicly.
 
Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person.  For purposes of this definition, “control” when used with respect to any Person, unless otherwise specified, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have correlative meanings; provided, however, that the Investor shall not be deemed an Affiliate of Parent or any of its Subsidiaries for purposes of this Agreement (it being understood and agreed, for the avoidance of doubt, that the Company and its Subsidiaries following the Closing will cease to be Affiliates of the Investor and will be Affiliates of Parent).
 
Applicable Law” means, with respect to any Person, all applicable U.S., non-U.S. or transnational federal, state or local Laws.
 
Beneficial Owner”, “Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance).
 
Business Day” means a day, other than a Saturday or Sunday or public holiday in New York, New York on which banks are open in New York, New York for general commercial business.
 
Change in Control” means the occurrence of any of the following events:
 
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(a)          the sale or disposition, in one or a series of related transactions, of all or substantially all, of the assets of Parent to any Person or Group;
 
(b)          any Person or Group is or becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the Voting Securities of Parent (or any Person which controls Parent or which is a successor to all or substantially all of the assets of Parent), including by way of merger, recapitalization, reorganization, redemption, issuance of capital stock, consolidation, tender or exchange offer or otherwise; or
 
(c)          a merger of Parent with or into another Person in which the holders of Voting Securities of Parent as of immediately prior to such merger cease to hold at least 50% of the outstanding equity or voting securities of Parent (or the surviving corporation in such merger or the ultimate parent thereof) immediately following such merger.
 
Closing Date” means the date of the Closing.
 
Commission” means the Securities and Exchange Commission or any other federal agency administering the Securities Act.
 
Company” has the meaning set forth in the Preamble.
 
Confidential Information” means all confidential and/or non-public information (irrespective of the form of communication, and irrespective of whether obtained prior to or after the date hereof) obtained by or on behalf of the Investor or its Representatives from or on behalf of Parent or its Representatives, other than information which (i) was or becomes generally available to the public other than as a result of a breach of this Agreement by the Investor or any of its Representatives, (ii) was or becomes available to the Investor or any of its Representatives on a non-confidential basis from a source other than Parent or its Representatives; provided that the source thereof is not known by the Investor or its Representatives to be bound by an obligation of confidentiality to Parent or its Subsidiaries in respect of such information, or (iii) is independently developed by the Investor or its Representatives without the use of or reference to any such information that would otherwise be Confidential Information hereunder.
 
Contract” means any written or oral contract, agreement, obligation, understanding or instrument, lease or license.
 
Equity Interest” means any share of capital stock or other class of equity securities of a Person, whether voting or non-voting.
 
Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
FINRA” means the Financial Industry Regulatory Authority, Inc.
 
Governmental Authority” means any federal, national, state, local, cantonal, municipal, international or multinational government or political subdivision thereof, governmental department, commission, board, bureau, agency, taxing or regulatory authority, instrumentality or judicial or administrative body, or arbitrator or SRO, having jurisdiction over the matter or matters in question.
 
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Group” has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act.
 
Identified Viessmann Familymembers” means Professor Martin Viessmann and Maximilian Viessmann.
 
Investor Designee” means an individual designated in writing by the Investor for election or appointment to the Parent Board.
 
Investor Director” means an Investor Designee who has been elected or appointed to the Parent Board.
 
Investor Parties” means the Investor and each Permitted Transferee of the Investor to whom Voting Securities are transferred pursuant to and in accordance with Section 2.1.
 
Investor Percentage Interest” means the percentage calculated by dividing (x) the number of Voting Securities that are, as of the date of such calculation, Beneficially Owned by the Investor Parties, in the aggregate, by (y) the number of issued and outstanding Voting Securities as of the date of such calculation.
 
Laws” means laws, statutes, binding Orders, rules, and regulations, ordinances, directives, treaties, rules of common law and rules of any applicable SRO.
 
Material Parent Breach Period” means a period in which Parent is in material breach of any of its obligations under Section 1.1, 1.2, 1.3, or 1.4 hereof and such breach continues for, and is not cured within, ten (10) Business Days after Parent has received written notice thereof from the Investor and such breach has not been waived in writing by the Investor; provided, that such a period shall be deemed to have commenced on the date upon which Parent received written notice thereof from the Investor and shall terminate upon the cure of any such material breach giving rise to the commencement of such Material Parent Breach Period.
 
Order” means any order, writ, decree, judgment, award, decision, injunction, ruling, settlement, verdict, consent decree, compliance order, civil or administrative order, or stipulation issued, promulgated, made, rendered or entered into by or with any Governmental Authority or arbitrator (in each case, whether temporary, preliminary or permanent).
 
Person” an individual, firm, body corporate (wherever incorporated), partnership, limited liability company, association, joint venture, trust, foundation, works council or employee representative body (whether or not having separate legal personality) or other entity or organization, including a Governmental Authority.
 
Permitted Transferee” means:
 
(a)          any Affiliate of the Investor; and
 
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(b)          any member, stockholder, partner or other holder of Equity Interests of any Affiliate of the Investor that, in each case, is an “accredited investor”, as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act (including, for the avoidance of doubt, any Identified Viessmann Familymember); provided, that, in relation to any Person identified in the foregoing clauses (a) and (b), the term “Permitted Transferee” shall also mean (i) such Person’s estate upon the death of such Person, (ii) any ancestor, descendant, sibling or spouse of such Person or any trust, foundation, partnership, custodianship or other fiduciary vehicle or account with respect to which any ancestor, descendant, sibling or spouse of such Person is a beneficiary, (iii) any vehicle or account established by any such Person for bona fide tax planning purposes, and (iv) any charitable trust, foundation or other Person established or controlled by such Person.
 
Registrable Amount” means an amount of Registrable Securities having an aggregate value of at least $50 million (based on the anticipated offering price (as reasonably determined in good faith by Parent)), without regard to any underwriting discount or commission, or such lesser amount of Registrable Securities as would result in the disposition of all of the Registrable Securities Beneficially Owned by the Investor.
 
Registrable Securities” means any shares of Parent Common Stock issued to the Investor pursuant to the Share Purchase Agreement and any other securities issued or issuable by Parent or any of its successors or assigns in respect of any such shares of Parent Common Stock received (including in connection with any stock split or subdivision, stock dividend, distribution or similar transaction, together with any Equity Interests acquired by the Investor in connection with the exercise of the Investor’s rights under Section 2.2(a)(i), or by way of any conversion, exchange, merger, consolidation, sale of assets or other reorganization) or acquired (including in open market or other purchases before or after the Effective Date) or held by (or deemed to be held by) any Investor Party (and, if applicable, any transferee of any Investor Party that receives “restricted securities” in connection with a transfer of Parent Common Stock or such other securities other than pursuant to an effective Registration Statement or Rule 144); provided, that any such shares of Parent Common Stock or other securities shall cease to be Registrable Securities when (i) they are sold pursuant to an effective registration statement under the Securities Act, (ii) they are sold pursuant to Rule 144 under the Securities Act, (iii) they become eligible for sale pursuant to Rule 144 under the Securities Act without volume or manner-of-sale restrictions or (iv) they shall have ceased to be outstanding.
 
Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
Shares” means the shares of Parent Common Stock issued to the Investor pursuant to the Share Purchase Agreement (as adjusted for any stock split, reverse stock split, stock dividend, subdivision, reclassification, recapitalization, exchange or similar reorganization of shares).
 
10.15% Shareholder” means when referring to the Investor, that the Investor Parties and their Permitted Transferees, collectively hold Voting Securities (and derivative instruments convertible, exchangeable or exercisable into Voting Securities) that collectively constitute 10.15% or more of the Voting Securities outstanding at such time.
 
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15% Shareholder” means when referring to the Investor, that the Investor Parties and their Permitted Transferees, collectively hold Voting Securities (and derivative instruments convertible, exchangeable or exercisable into Voting Securities) that collectively constitute 15% or more of the Voting Securities outstanding at such time.
 
SRO” means (i) any “self-regulatory organization” as defined in Section 3(a)(26) of the Exchange Act, (ii) any other United States or foreign securities exchange, futures exchange, commodities exchange or contract market, or (iii) any other securities exchange.
 
Standstill Period” means the period beginning on the Closing and ending on the later of (1) the date that is twelve (12) months from the Closing Date, and (2) the date on which the Investor Director ceases to serve on the Parent Board, no replacement Investor Designee is designated by the Investor to fill the resulting vacancy in accordance with this Agreement and Investor does not have the right (or has irrevocably relinquished the right) to designate a director to the Parent Board in accordance with this Agreement.
 
Subsidiary” means, with respect to any Person, another Person with respect to which the first Person holds, directly or indirectly, (a) an amount of the voting securities, other voting ownership or voting partnership interests sufficient to elect at least a majority of its board of directors or other governing body or (b) more than fifty (50%) of the equity interests.
 
Transaction Document” means this Agreement, the Share Purchase Agreement, the Transitional Services Agreement (as defined in the Share Purchase Agreement) and the License Agreement (as defined in the Share Purchase Agreement).
 
Transfer” means (i) any direct or indirect offer, sale, lease, assignment, encumbrance, pledge, hypothecation, disposition or other transfer (by operation of law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, lease, assignment, encumbrance, pledge, hypothecation, disposition or other transfer (by operation of law or otherwise), of any capital stock or interest in any capital stock or (ii) in respect of any capital stock or interest in any capital stock, entry into any swap, put option, derivative, or any other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such capital stock or interest in capital stock, whether any such swap, derivative, put option, agreement, transaction or series of transaction is to be settled by delivery of securities, in cash or otherwise; provided that a “Transfer” will not include (A) the granting of a pledge, lien or other security interest over any capital stock or interest in any capital stock to a nationally recognized bank or broker-dealer in connection with any bona fide financing arrangements (including any bona fide margin loan transaction) entered into with any such nationally recognized bank or broker-dealer, or the ability of such a bank or broker-dealer to foreclose on and Transfer such capital stock or interest in any capital stock and any foreclosure or Transfer by such a bank or broker-dealer, as long as such bank or broker-dealer agrees with the relevant Transferee (with Parent as an express third party beneficiary of such agreement) that following such foreclosure it shall not directly or indirectly Transfer (other than pursuant to a broadly distributed public offering or a sale effected through a broker dealer) any such foreclosed capital stock or interest in any capital stock without Parent’s prior written consent, or the enforcement of any rights related thereto or (B) any indirect Transfer of Equity Interests of Parent by virtue of an issuance of a direct or indirect Equity Interest in the Investor, any of its Affiliates or any of their respective securityholders.  “Transferor” means a Person that Transfers or proposes to Transfer; and “Transferee” means a Person to whom a Transfer is made or is proposed to be made.
 
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Underwritten Offering” means a sale of securities of Parent, in an amount no less than the Registrable Amount, to an underwriter or underwriters for reoffering to the public.
 
Voting Securities” means shares of Parent Common Stock and any other securities of Parent entitled to vote generally in the election of directors of Parent.
 
Section 5.2           Other Defined Terms.
 
Term
Section
   
Agreement
Preamble
Closing
Recitals
Company
Recitals
Demand
4.1(a)
Demand Registration
5.1(a)
Eligibility Criteria
1.3(a)
Form S-3
4.3(a)
Free Writing Prospectus
4.5(a)(iv)
Holder
4.3(a)
Holder Indemnified Party
4.8(b)
Inspectors
4.5(a)(x)
Investor
Preamble
Investor Related Parties
1.2(h)
Losses
4.8(a)
NYSE
1.3(a)
Other Demanding Sellers
4.2(b)
Other Proposed Sellers
4.2(b)
Parent
Preamble
Parent Board
1.1
Parent Common Stock
Recitals
Parent Indemnified Party
4.8(a)
Permitted Transfer
2.1(b)
Permitted Transferee
2.1(b)
Piggyback Notice
4.2(a)
Piggyback Registration
4.2(a)
Proposed Securities
2.4(a)(i)
Records
4.5(a)(x)
Representatives
1.9(a)(iii)
Requested Information
4.7(a)
Restricted Period
2.1(a)
Share Purchase Agreement
Recitals
Shelf Notice
4.3(a)
Shelf Offering
4.3(d)
Shelf Registration Statement
4.3(a)
Standstill Period
2.2(d)
Take-Down Notice
4.3(d)

33

Section 5.3          Interpretation.  Whenever used: the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” and the words “hereof,” “hereunder” and “herein” and similar words shall be construed as references to this Agreement as a whole and not limited to the particular provision of the Article or Section in which the reference appears.  Unless the context otherwise requires, references herein: (x) to Articles and Sections mean the Articles and Sections of this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute, rule or regulation means such statute, rule or regulation as amended or supplemented from time to time and includes any successor legislation thereto and any rules or regulations promulgated thereunder.  References to “$” or “dollars” means United States dollars.  Any reference in this Agreement to any gender shall include all genders.  The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.  The headings and captions herein are for convenience of reference only and do not affect the construction or interpretation of any of the provisions hereof.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends and such phrase shall not mean “if.” The word “or” when used in this Agreement is not exclusive.  If, and as often as, there is any change in the outstanding shares of Parent Common Stock by reason of any stock split, reverse stock split, stock dividend, subdivision, reclassification, recapitalization or exchange or similar reorganization of shares, appropriate adjustment shall be made in the provisions of this Agreement so as to fairly and equitably preserve, as far as practicable, the rights and obligations set forth herein that continue to be applicable on the date of such change.  Any reference to “written” or “in writing” refers to printing, typing and other means of reproducing words (including electronic media) in a visible form, including e-mail.  To the extent that this Agreement requires an Affiliate or Subsidiary of any party to take or omit to take any action, such covenant or agreement includes the obligation of such party to cause such Affiliate or Subsidiary to take or omit to take such action.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.  References to any Person include the successors and permitted assigns of that Person.  References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.  The word “party” is to be deemed to refer to a party hereto, unless the context requires otherwise.
 
ARTICLE VI

MISCELLANEOUS
 
Section 6.1          Term.  This Agreement will be effective as of the date hereof and, except as otherwise set forth herein, will continue in effect thereafter until the first date on which the Investor ceases to Beneficially Own any Voting Securities; provided, however, that (a) the provisions contained in Article IV of this Agreement, except Section 4.8, shall survive so long as there are, and shall automatically terminate when there are no longer, any Registrable Securities outstanding and (b) Section 1.5, the representations and warranties of the Investor and Parent in Section 3.1 and Section 3.2, respectively, the indemnity and contribution provisions contained in Section 4.8, Article V, and this Article VI shall survive any termination of this Agreement.
 
34

Section 6.2          Notices.
 
(a)          Notices and other statements in connection with this Agreement shall be in writing in the English language and shall be delivered by hand, email or overnight courier to the recipient’s address as set forth below or to such other address as a party hereto may notify to the other parties hereto from time to time and shall be given:
 

(i)
if to Parent, to:
 

Name:
Carrier Global Corporation

Address:
13955 Pasteur Boulevard
Palm Beach Gardens
Florida 33418
United States of America


Attention:


Email:

with a copy to (which shall not be considered notice):
 

Name:
Paul, Weiss, Rifkind Wharton & Garrison LLP

Address:
1285 Avenue of the Americas
New York
New York, 10019
United States of America


Attention:


Email:
 
 
(ii)
if to the Investor, to:
 

Name:
Viessmann Group GmbH & Co. KG

Address:
Viessmannstraße 1
35108 Allendorf (Eder)
Germany


Attention:


Email:
 
with a copy to (which shall not be considered notice):
 

Name:
Davis Polk & Wardwell London LLP

Address:
5 Aldermanbury Square
London EC2V 7HR
United Kingdom
 
35



Attention:


Email:
 

Name:
Hengeler Mueller Partnerschaft von
Rechtsanwälten mbH

Address:
Benrather Straße 18-20
40213 Düsseldorf
Germany


Attention:


Email:
 
(b)          A notice shall be effective upon receipt and shall be deemed to have been received: (i) at the time of delivery, if delivered by hand, or overnight courier; or (ii) at the time of transmission if sent by email (receipt confirmation requested).
 
Section 6.3           Amendments and Waivers.  Each of the parties hereto agrees that no provision of this Agreement may be amended or modified unless such amendment or modification is in writing and signed by Parent and the Investor.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.
 
Section 6.4           Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, that, except in connection with a Change in Control, no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other party hereto.
 
Section 6.5           Severability.  It is the intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under Applicable Law and public policies applied in each jurisdiction in which enforcement is sought.  If any particular provision or portion of this Agreement shall be adjudicated to be invalid or unenforceable, such provision or portion thereof shall be deemed amended to the minimum extent necessary to render such provision or portion valid and enforceable, and such amendment will apply only with respect to the operation of such provision or portion in the particular jurisdiction in which such adjudication is made.
 
Section 6.6           Counterparts.  This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that each party need not sign the same counterpart.  This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of electronic signature or by e-mail delivery of an electronic data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  No party hereto or to any such agreement or instrument shall raise the use of electronic signature or e-mail delivery of an electronic data file to deliver a signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of electronic signature or e-mail delivery of an electronic data file as a defense to the formation of a contract and each party hereto forever waives any such defense.
 
36

Section 6.7           Entire Agreement.  This Agreement (including the documents and the instruments referred to in this Agreement) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement.
 
Section 6.8           Governing Law; Jurisdiction; WAIVER OF JURY TRIAL.
 
(a)          This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state that would cause the law of any other jurisdiction to apply.
 
(b)          The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought exclusively in the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such dispute, the United States District Court for the District of Delaware; provided, that if such court does not have jurisdiction, any such action shall be brought exclusively in any other state court sitting in the State of Delaware, so long as such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6.2 shall be deemed effective service of process on such party.
 
(c)          EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
 
37

Section 6.9           Specific Performance.  The parties hereto agree that irreparable damage would occur, and that the parties would not have any adequate remedy at law, in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce the terms and provisions of this Agreement, without proof of actual damages or otherwise, in addition to any other remedy to which any party is entitled at law or in equity.  Each party agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.  The parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy.
 
Section 6.10         No Third-Party Beneficiaries.  Nothing in this Agreement shall confer any rights upon any Person other than the parties hereto and each such party’s respective heirs, successors and permitted assigns; provided, that the Parent Indemnified Parties and the Holder Indemnified Parties are intended third party beneficiaries of Section 4.8.
 
The remainder of this page intentionally left blank
 
38

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized representatives as of the date first above written.
 

CARRIER GLOBAL CORPORATION




By: /s/ Francesca Campbell


Name: Francesca Campbell


Title: Vice President, Secretary

[Signature Page to Investor Rights Agreement]


IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized representatives as of the date first above written.
 

VIESSMANN GROUP GMBH & CO. KG

by its sole general partner, VIESSMANN KOMPLEMENTÄR B.V.




By: /s/ Ulrich Hüllmann


Name: Ulrich Hüllmann




By: /s/ Hans-Jörg Harth


Name: Hans-Jörg Harth

[Signature Page to Investor Rights Agreement]




Exhibit 10.3

EXECUTION VERSION

60-DAY TERM LOAN CREDIT AGREEMENT

dated as of January 2, 2024,

among

CARRIER GLOBAL CORPORATION,

the SUBSIDIARY BORROWERS party hereto,

the LENDERS party hereto

and

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent

JPMORGAN CHASE BANK, N.A.,
and
BOFA SECURITIES, INC.,

as Joint Lead Arrangers and Joint Bookrunners

BANK OF AMERICA, N.A., as Syndication Agent


TABLE OF CONTENTS

Page

ARTICLE I
 
DEFINITIONS AND ACCOUNTING TERMS
 
SECTION 1.01
Defined Terms
1
SECTION 1.02
Classification of Loans and Borrowings
35
SECTION 1.03
Terms Generally
35
SECTION 1.04
Accounting Terms; GAAP; Pro Forma Calculations
36
SECTION 1.05
Interest Rates; Benchmark Notification
37
SECTION 1.06
Divisions
37
SECTION 1.07
Currency Translation
37

ARTICLE II

AMOUNTS AND TERMS OF THE LOANS

SECTION 2.01
Loans
38
SECTION 2.02
Notice of Borrowings
39
SECTION 2.03
[Reserved]
39
SECTION 2.04
Notice to Lenders; Funding of Loans
39
SECTION 2.05
Fees
40
SECTION 2.06
Termination of Commitments
40
SECTION 2.07
Repayment of Loans
41
SECTION 2.08
Interest on Loans
41
SECTION 2.09
Conversion and Subsequent Interest Period Elections for Loans
41
SECTION 2.10
Prepayments of Loans
43
SECTION 2.11
Increased Costs
44
SECTION 2.12
Break Funding Payments
46
SECTION 2.13
Payments and Computations
47
SECTION 2.14
Taxes
48
SECTION 2.15
Sharing of Payments, Etc.
53
SECTION 2.16
Defaulting Lenders
53
SECTION 2.17
Alternate Rate of Interest
54
SECTION 2.18
Mitigation Obligations; Replacement of Lenders
58
SECTION 2.19
Subsidiary Borrowers
59
 
ARTICLE III
 
CONDITIONS OF LENDING
 
SECTION 3.01
Conditions to Effectiveness and Closing
61
SECTION 3.02
Conditions to Initial Borrowing by Each Designated Subsidiary Borrower
63

i

ARTICLE IV
 
REPRESENTATIONS AND WARRANTIES
 
SECTION 4.01
Representations and Warranties of the Company
64
SECTION 4.02
Representations and Warranties of each Subsidiary Borrower
66
 
ARTICLE V
 
COVENANTS OF THE COMPANY
 
SECTION 5.01
Affirmative Covenants
67
SECTION 5.02
Negative Covenants
69
 
ARTICLE VI
 
EVENTS OF DEFAULT
 
SECTION 6.01
Events of Default
74
SECTION 6.02
Lenders’ Rights upon an Event of Default
76
 
ARTICLE VII
 
THE AGENTS
 
SECTION 7.01
Authorization and Action
77
SECTION 7.02
Agents’ Reliance, Etc.
77
SECTION 7.03
Delegation of Duties
78
SECTION 7.04
Agents and Affiliates
79
SECTION 7.05
Lender Credit Decision
79
SECTION 7.06
[Reserved]
80
SECTION 7.07
Successor Administrative Agent
80
SECTION 7.08
Arrangers and Syndication Agent
80
SECTION 7.09
Administrative Agent May File Proofs of Claim
80
SECTION 7.10
Certain ERISA Matters
81
SECTION 7.11
Recovery of Erroneous Payments
82
 
ARTICLE VIII
 
MISCELLANEOUS
 
SECTION 8.01
Amendments, Etc.
83
SECTION 8.02
Notices, Etc.
84
SECTION 8.03
No Waiver; Remedies
86
SECTION 8.04
Expenses; Indemnity; Damage Waiver
86
SECTION 8.05
Binding Effect; Survival
88
SECTION 8.06
Optional Assignments; Participations
88
SECTION 8.07
Confidentiality
90

ii

SECTION 8.08
Records of Administrative Agent
91
SECTION 8.09
Governing Law; Consent to Service of Process; Waiver of Jury Trial
92
SECTION 8.10
Execution in Counterparts; Integration; Electronic Execution
93
SECTION 8.11
Severability
93
SECTION 8.12
Headings
93
SECTION 8.13
Interest Rate Limitation
93
SECTION 8.14
No Advisory or Fiduciary Responsibility
94
SECTION 8.15
USA PATRIOT Act Notice and Beneficial Ownership Regulation
94
SECTION 8.16
Acknowledgment and Consent to Bail-In of Affected Financial Institutions
95
SECTION 8.17
Conversion of Currencies
95
SECTION 8.18
Permitted Reorganization
96
 
ARTICLE IX
 
COMPANY GUARANTEE
 
SECTION 9.01
The Guarantee
97
SECTION 9.02
Guarantee Unconditional
97
SECTION 9.03
Discharge; Reinstatement in Certain Circumstances
98
SECTION 9.04
Waiver by the Company
99
SECTION 9.05
Taxes
99
     
SCHEDULES
 
Schedule 1.01A — NORESCO Project Finance Debt
Schedule 2.01 — Commitments
Schedule 5.02(a) — Liens
Schedule 5.02(c) — Sale and Leaseback Transactions
 
EXHIBITS
 
Exhibit A — Form of Assignment and Assumption
Exhibit B — Form of Borrowing Request
Exhibit C — Form of Compliance Certificate
Exhibit D — Form of Ineligible Subsidiary Designation Notice
Exhibit E — Form of Interest Election Request
Exhibit F — Form of Subsidiary Borrower Agreement
Exhibit G-1 —
Form of U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes and Foreign Lenders that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is not a Partnership)
Exhibit G-2 —
Form of U.S. Tax Certificate (For Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes and Participants that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is not a Partnership)

iii

Exhibit G-3 —
Form of U.S. Tax Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes and Participants that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is a Partnership)
Exhibit G-4 —
Form of U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes and Foreign Lenders that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is a Partnership)
Exhibit H —
Form of Solvency Certificate

iv

60-DAY TERM LOAN CREDIT AGREEMENT dated as of January 2, 2024, among CARRIER GLOBAL CORPORATION, a Delaware corporation, each SUBSIDIARY BORROWER party hereto, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as administrative agent.

The Company (such term and each other capitalized term used and not otherwise defined herein having the meaning assigned to it in Article I) has requested the Lenders to extend Commitments in the amount of €500,000,000, under which the Borrowers may obtain Loans in Euros or US Dollars. The Lenders are willing to extend such credit to the Borrowers on the terms and subject to the conditions set forth herein.

Accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01       Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

2020 Offering Notes” means the Company’s (i) 2.242% Notes due 2025, (ii) 2.493% Notes due 2027, (iii) 2.722% Notes due 2030, (iv) 2.700% Notes due 2031, (v) 3.377% Notes due 2040 and (vi) 3.577% Notes due 2050, in each case, issued pursuant to and governed by that certain Indenture, dated as of February 27, 2020 (as supplemented by Supplemental Indenture No. 1, dated as of February 27, 2020, and Supplemental Indenture No. 2, dated as of June 19, 2020, and as further supplemented, amended, extended, restated or otherwise modified from time to time, or as refinanced or replaced with any other notes or indenture, as applicable), between the Company and The Bank of New York Mellon Trust Company, N.A.

2022 JPY Term Loan Credit Agreement” means the Term Loan Credit Agreement, dated as of July 15, 2022, among the Company, the lenders party thereto and MUFG Bank Ltd., as administrative agent, as amended, extended, restated or otherwise modified from time to time, or as refinanced or replaced with any other credit agreement.

2023 364-Day Revolving Credit Agreement” means the 364-Day Revolving Credit Agreement, dated as of May 19, 2023, among the Company, the other borrowers party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the other parties party thereto, as amended, extended, restated or otherwise modified from time to time, or as refinanced or replaced with any other credit agreement.

2023 5-Year Revolving Credit Agreement” means the Revolving Credit Agreement, dated as of May 19, 2023, among the Company, the other borrowers party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, and the other parties party thereto, as amended, extended, restated or otherwise modified from time to time, or as refinanced or replaced with any other credit agreement.


2023 Offering Notes” means the Company’s (i) 5.800% Notes due 2025, (ii) 5.900% Notes due 2034, (iii) 6.200% Notes due 2054, (iv) 4.375% Notes due 2025, (v) 4.125% Notes due 2028 and (vi) 4.500% Notes due 2032, in each case, issued pursuant to and governed by that certain Indenture, dated as of November 29, 2023 (as supplemented by Supplemental Indenture No. 1, dated as of November 29, 2023, and Supplemental Indenture No. 2, dated as of November 30, 2023, and as further supplemented, amended, extended, restated or otherwise modified from time to time, or as refinanced or replaced with any other notes or indenture, as applicable), between the Company and Deutsche Bank Trust Company Americas.

2023 Term Loan Credit Agreement” means the Term Loan Credit Agreement, dated as of May 19, 2023, among the Company, the other borrowers party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, and the other parties party thereto, as amended, extended, restated or otherwise modified from time to time, or as refinanced or replaced with any other credit agreement.

ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

Acquisition” means the acquisition by the Company, through its wholly-owned subsidiary, of all of the equity interests of Viessmann Climate Solutions SE pursuant to the Acquisition Agreement.

Acquisition Agreement” means that certain Share Purchase Agreement, dated as of April 25, 2023, entered into among the Company, Viessmann Group GmbH & Co. KG, a limited partnership (Kommanditgesellschaft) incorporated under the laws of Germany, registered in the commercial register of the local court (Amtsgericht) of Marburg under register no. HRA 3389, with its business address at Viessmannstraße 1, 35108 Allendorf/Eder, Germany, represented by its sole general partner, Viessmann Komplementär B.V., a limited liability company (besloten venootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, registered with the Netherlands Chamber of Commerce (Kamer van Koophandel) under number 63726033 and having its registered seat in Venlo, the Netherlands, and its registered address at Viessmannstraße 1, 35108 Allendorf/Eder, Germany, and Blitz F23-620 GmbH (to be renamed Johann Purchaser GmbH), a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany, registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main under HRB 130044 with its business address at c/o Linklaters LLP, Taunusanlage 8, 60329 Frankfurt am Main (Attn: Dr. Timo Engelhardt), as amended, amended and restated, supplemented or otherwise modified from time to time.

Acquisition Agreement Representations” means the representations made by Viessmann Group GmbH & Co. KG with respect to the Target Companies (as defined in the Acquisition Agreement) in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Company (or a subsidiary of the Company) has the right to terminate its (or its affiliates’) obligations under the Acquisition Agreement as a result of the breach of such representations in the Acquisition Agreement, or the accuracy of such representations in the Acquisition Agreement is a condition to the Company’s (or its affiliates’) obligations to consummate the Acquisition pursuant to the Acquisition Agreement.

2

Acquisition Indebtedness” means any Debt of the Company or any of its Subsidiaries that has been issued for the purpose of financing, in whole or in part, the Acquisition and any related transactions or series of related transactions (including for the purpose of refinancing or replacing all or a portion of any pre-existing indebtedness of the Company, any of its Subsidiaries or the Person(s) or assets to be acquired); provided that (a) the release of the proceeds thereof to the Company and its Subsidiaries is contingent upon the consummation of the Acquisition and, pending such release, such proceeds are held in escrow (and, if the Acquisition Agreement is terminated prior to the consummation of the Acquisition or if the Acquisition is otherwise not consummated by the date specified in the definitive documentation relating to such Debt, such proceeds shall be promptly applied to satisfy and discharge all obligations of the Company and its Subsidiaries in respect of such Debt) or (b) such Debt contains a “special mandatory redemption” provision (or other similar provision) or otherwise permits such Debt to be redeemed or prepaid if the Acquisition is not consummated by the date specified in the Acquisition Agreement (and if the Acquisition Agreement is terminated in accordance with its terms prior to the consummation of the Acquisition or the Acquisition is otherwise not consummated by the date specified in the definitive documentation relating to such Debt, such Debt is so redeemed or prepaid within 90 days of such termination or such specified date, as the case may be).

Adjusted Daily Simple SOFR” means, with respect to any RFR Borrowing denominated in US Dollars, an interest rate per annum equal to (a) the Daily Simple SOFR for US Dollars, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

Adjusted EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated in US Dollars for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent hereunder, and its successors in such capacity as provided in Article VII. Unless the context otherwise requires, the term “Administrative Agent” shall include any Affiliate of JPMorgan Chase Bank, N.A. through which it shall perform any of its obligations in such capacity hereunder.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

3

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affiliate” means, with respect to any Person, another Person that directly or indirectly, through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Agent” means any of the Administrative Agent or the Syndication Agent.

Agent Parties” has the meaning assigned to that term in Section 8.02(c).

Agreed Currencies” means US Dollars and Euros.

Agreement” means this 60-Day Term Loan Credit Agreement, as amended, supplemented or otherwise modified from time to time, including by any Subsidiary Borrower Agreement or any Ineligible Subsidiary Designation Notice.

Agreement Currency” has the meaning assigned to that term in Section 8.17(b).

Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or, if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.17 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.17(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1%, such rate shall be deemed to be 1% for purposes of this Agreement.

Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the Company or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

Applicable Creditor” has the meaning assigned to that term in Section 8.17(b).

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Applicable Rate” means, for any day, with respect to any Term Benchmark Loan, any RFR Loan or any ABR Loan, as the case may be, the applicable rate per annum set forth below under the caption “Term Benchmark Spread”, “RFR Spread”, “ABR Spread” or “CBR Spread”, as the case may be, in each case based upon the Ratings applicable on such date:


Level

Ratings
(S&P / Moody’s)

Term
Benchmark
Spread, RFR
Spread and
CBR Spread
(basis points
per annum)

ABR Spread
(basis points
per annum)
1

BBB/Baa2 or higher

125.0

25.0
2

BBB-/Baa3

137.5

37.5
3

Lower than BBB-/Baa3 or unrated

150.0

50.0

For purposes of the foregoing, (a) if either Moody’s or S&P shall not have in effect a Rating (other than by reason of the circumstances referred to in the last sentence of this definition), then such rating agency shall be deemed to have established a Rating in Level 3; (b) if the Ratings established or deemed to have been established by Moody’s and S&P shall fall within different Levels, the Applicable Rate shall be based upon the higher Rating unless the Ratings differ by two or more Levels, in which case the Applicable Rate will be based upon the Level one below that corresponding to the higher Rating; and (c) if the Ratings established or deemed to have been established by Moody’s and S&P shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Administrative Agent shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency (it being understood that, in the discretion of the Administrative Agent, any such negotiation on the part of the Administrative Agent may be subject to prior consultation with one or more Lenders and any consent by the Administrative Agent to any such amendment may be subject to the Administrative Agent having obtained consent thereto from the Required Lenders), and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.

Arrangers” means JPMorgan Chase Bank, N.A. and BofA Securities, Inc., in their capacities as the joint lead arrangers and joint bookrunners for the credit facility provided for herein.

Asset Sale” means the sale or other disposition of any property to third parties (including the sale of equity interests of a Subsidiary to third parties or any equity issuance to third parties by a Subsidiary) of the Company or any of its Subsidiaries (excluding Viessmann Climate Solutions SE and its Subsidiaries prior to the Closing Date), including any condemnation or other taking of any such property, except Excluded Asset Sales.

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Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, with the consent of any Person whose consent is required by Section 8.06, and accepted by the Administrative Agent, substantially in the form of Exhibit A or any other form approved by the Administrative Agent and the Company.

Attributable Debt” means, as to any particular lease under which any Person is at the time liable for a term of more than 12 months, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such lease during the remaining term thereof (excluding any subsequent renewal or other extension options held by the lessee), discounted at the interest rate implicit in the terms of the relevant lease in accordance with GAAP. The net amount of rent required to be paid under any such lease for any such period shall be the aggregate amount of the rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, services, insurance, taxes, assessments, water rates and similar charges and contingent rents (such as those based on sales). In the case of any lease which is terminable by the lessee upon the payment of a penalty in an amount which is less than the total discounted net amount of rent required to be paid from the later of the first date upon which such lease may be so terminated or the date of the determination of such net amount of rent, as the case may be, such net amount shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated.

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.17.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of any Affected Financial Institution.

Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their Affiliates (other than through liquidation, administration or other insolvency proceedings).

Benchmark” means, initially, with respect to any Term Benchmark Loan or RFR Loan, the applicable Relevant Rate for such Agreed Currency; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.17.

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Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in Euros, “Benchmark Replacement” shall mean the alternative set forth in (2) below:

(1)          in the case of any Loan denominated in Dollars, the Adjusted Daily Simple SOFR;

(2)         the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States; provided that the Borrower may give due consideration to United States Treasury Regulations Section 1.1001-3 and 1.1001-6(b), and (b) the related Benchmark Replacement Adjustment;

If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time; provided that the Borrower may give due consideration to United States Treasury Regulations Section 1.1001-3 and 1.1001-6(b).

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Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan denominated in US Dollars, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “RFR Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines in its reasonable discretion (and in consultation with the Borrower) that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:

(1)         in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(2)        in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

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(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.17 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.17.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

BHC Act Affiliate” of a party means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Board of Governors” means the Board of Governors of the Federal Reserve System of the United States.

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Borrower” means the Company or any Subsidiary Borrower.

Borrower Materials” has the meaning assigned to that term in Section 5.01.

Borrowing” means Loans of the same Type and currency and to the same Borrower made, converted or continued on the same date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.

Borrowing Minimum” means (a) in the case of a Borrowing denominated in Euros, €25,000,000 and (b) in the case of a Borrowing denominated in US Dollars, US$25,000,000.

Borrowing Multiple” means (a) in the case of a Borrowing denominated in Euros, €5,000,000 and (b) in the case of a Borrowing denominated in US Dollars, US$5,000,000.

Borrowing Request” means a request by a Borrower (or the Company on behalf of a Subsidiary Borrower) for a Borrowing in accordance with Section 2.02, which shall be substantially in the form of Exhibit B or any other form approved by the Administrative Agent and the Company.

 “Business Day” means any day that is not a Saturday or a Sunday or any other day on which commercial banks in New York City are authorized or required by law to remain closed under the laws of the State of New York; provided that, in addition to the foregoing, a Business Day shall be (a) in relation to Loans denominated in Euros and in relation to the calculation or computation of EURIBOR, any day which is a TARGET Day and (b) in relation to RFR Loans or Loans referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loans or Loans referencing the Adjusted Term SOFR Rate or any other dealings of such RFR Loans or Loans referencing the Adjusted Term SOFR Rate, any such day that is a U.S. Government Securities Business Day.

Capitalized Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP (subject to Section 1.04); and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP (subject to Section 1.04).

CBR Loan” means a Loan that bears interest at a rate determined by reference to the Central Bank Rate.

CBR Spread” means the Applicable Rate, applicable to such Loan that is replaced by a CBR Loan.

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Central Bank Rate” means, the greater of (I)(A) for any Loan denominated in Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the participating member states, as published by the European Central Bank (or any successor thereto) from time to time; plus (B) the applicable Central Bank Rate Adjustment and (II) the Floor.

Central Bank Rate Adjustment” means, for any day, for any Loan denominated in Euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted EURIBOR Rate for the five most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted EURIBOR Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period. For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) the EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate, on such day at approximately the time referred to in the definition of such term for deposits in the applicable Agreed Currency for a maturity of one month.

Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any “person” or “group” (as such terms are defined in Section 13(d)(3) of the Exchange Act), other than (i) the Company or its Subsidiaries, or (ii) any employee benefit plan of the Company or its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, of equity interests in the Company representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding equity interests in the Company or (b) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who are not Continuing Directors.

Notwithstanding the foregoing, a “person” or “group” shall not be deemed to beneficially own equity interests subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the applicable equity interests in connection with the transactions contemplated by such agreement.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption of any rule, regulation, treaty or other law, (b) any change in any rule, regulation, treaty or other law or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law, but if not having the force of law, one which applies generally to the class or category of financial institutions of which any Lender or the Administrative Agent forms a part and compliance with which is in accordance with the general practice of those financial institutions) of any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.

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Charges” has the meaning assigned to that term in Section 8.13.

 “Closing Date” means the date on which the conditions specified in Section 3.01 are satisfied (or waived in accordance with Section 8.01).

CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).

Code” means the Internal Revenue Code of 1986, as amended from time to time.

Commitment” means, with respect to each Lender, the commitment of such Lender to make Loans hereunder, expressed as an amount representing the maximum principal amount of the Loans to be made by such Lender hereunder, as such commitment may be reduced from time to time pursuant to Section 2.06 or 8.06. The amount of each Lender’s Commitment on the Closing Date is set forth on Schedule 2.01, and the aggregate amount of all such Lenders’ Commitments on the Closing Date is €500,000,000. The Commitments shall terminate in full on the Closing Date upon the Borrowing of the Loans on the Closing Date.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Company” means Carrier Global Corporation, a Delaware corporation.

Company Guarantee” has the meaning assigned to that term in Section 9.01.

Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C or any other form approved by the Administrative Agent and the Company.

Consolidated” refers to the consolidation of the accounts of a Person and its Subsidiaries in accordance with GAAP.

Consolidated EBITDA” means, for any period, Consolidated Net Income for such period, plus

(a)          without duplication and to the extent deducted in determining such Consolidated Net Income, the sum for such period of:

(i)          Consolidated interest expense (including imputed interest expense in respect of Capitalized Lease Obligations);

(ii)         Consolidated income tax expense;

(iii)        depreciation and amortization expense;

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(iv)       non-cash charges or losses, including non-cash compensation expense, impairment charges and any write-offs or write-downs of assets, but excluding (A) any non-cash charge that results from an accrual of a reserve for cash charges to be taken in any future period, (B) an amortization of a prepaid cash expense that was paid and not expensed in a prior period or (C) write-down or write-off with respect to accounts receivable (including any addition to bad debt reserves or bad debt expense);

(v)        restructuring, extraordinary, unusual or non-recurring charges or losses, including transaction fees, costs and expenses (including financing fees, financial and other advisory fees, accounting and consulting fees and legal fees) incurred in connection with Material Acquisitions and Material Dispositions;

(vi)        any unrealized losses attributable to the application of “mark to market” accounting in respect of Hedge Agreements;

(vii)       any net after-tax loss attributable to the early extinguishment of Debt or obligations under Hedge Agreements;

(viii)      the cumulative effect for such period of a change in accounting principles; minus

(b)         without duplication and to the extent included in determining such Consolidated Net Income, the sum for such period of:

(i)          any non-cash gains or items of income (other than the accrual of revenue), but excluding any such items in respect of which cash was received in a prior period or will be received in a future period;

(ii)         extraordinary, unusual or nonrecurring gains or items of income;

(iii)        any unrealized gains attributable to the application of “mark to market” accounting in respect of Hedge Agreements;

(iv)        any net after-tax gain attributable to the early extinguishment of Debt or obligations under Hedge Agreements; and

(v)         the cumulative effect for such period of a change in accounting principles;

provided that Consolidated EBITDA shall be calculated so as to exclude the effect of any gain or loss that represents after-tax gains or losses attributable to any sale, transfer or other disposition (other than sales, transfers or other dispositions in the ordinary course of business). For the purposes of calculating Consolidated EBITDA for any period, if at any time during such period the Company or any Subsidiary shall have consummated a Material Acquisition (including the Acquisition) or a Material Disposition, Consolidated EBITDA for such period shall be determined giving pro forma effect thereto in accordance with Section 1.04(b); provided that the Company shall not be required to calculate Consolidated EBITDA on a pro forma basis with respect to any Material Acquisition or any Material Disposition if the Company determines in its reasonable discretion that it does not have reasonably and readily identifiable information to make such pro forma calculation.

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Consolidated Leverage Ratio” means, as of any date, the ratio of (a) Consolidated Total Net Debt as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Company most recently ended on or prior to such date.

Consolidated Net Income” means, for any period, the net income (or loss) of the Company and its Consolidated Subsidiaries for such period determined in conformity with GAAP.

Consolidated Net Tangible Assets” means the total amount of assets of the Company and its Consolidated Subsidiaries (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent Consolidated balance sheet of the Company and its Consolidated Subsidiaries and computed in accordance with GAAP (which calculation shall give pro forma effect to any Material Acquisition (including the Acquisition) or Material Disposition consummated by the Company or its Consolidated Subsidiaries since the date of such Consolidated balance sheet and on or prior to the date of determination, as if such Material Acquisition or Material Disposition had occurred on the date of such Consolidated balance sheet).

Consolidated Total Net Debt” means, as of any date, (a) the sum, without duplication, of (i) the aggregate principal amount of Debt of the Company and its Consolidated Subsidiaries outstanding as of such date, (ii) the aggregate amount of Capitalized Lease Obligations of the Company and its Consolidated Subsidiaries as of such date and (iii) the aggregate principal amount of the purchase money indebtedness of the Company and its Consolidated Subsidiaries outstanding as of such date, minus (b) the aggregate amount of Unrestricted Cash as of such date.

Continuing Director” means a director who (a) was a member of the Company’s board of directors on the Closing Date, (b) becomes a member of the Company’s board of directors subsequent to the Closing Date and whose appointment, election or nomination for election by the Company’s stockholders is duly approved by a majority of the directors referred to in clause (a) above constituting at the time of such appointment, election or nomination at least a majority of that board or (c) becomes a member of the Company’s board of directors subsequent to the Closing Date and whose appointment, election or nomination for election by the Company’s stockholders is duly approved by a majority of the directors referred to in clauses (a) and (b) above constituting at the time of such appointment, election or nomination at least a majority of that board.

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

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Conversion Minimum” means (a) in the case of a Borrowing denominated in Euros, €10,000,000, and (b) in the case of a Borrowing denominated in US Dollars, US$10,000,000.

Conversion Multiple” means (a) in the case of a Borrowing denominated in Euros, €1,000,000, and (b) in the case of a Borrowing denominated in US Dollars, US$1,000,000.

Corresponding Tenor” means, with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding any business day adjustment) as such Available Tenor.

Covered Entity” means any of the following:

(i)          a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

(ii)         a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

(iii)        a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

Covered Party” has the meaning assigned to it in Section 9.06.

Daily Simple SOFR means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five RFR Business Days prior to (i) if such SOFR Rate Day is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Company.

Debt” has the meaning assigned to that term in Section 5.02(a).

Debt Issuance” means the incurrence of Debt (including debt securities), in each case, by the Company or any of its Subsidiaries, except Excluded Debt.

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default” means any event or condition that constitutes, or upon notice, lapse of time or both would constitute, an Event of Default.

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Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed, within three Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans or (ii) to pay to the Administrative Agent or any Lender any other amount required to be paid by it hereunder (unless, in the case of an obligation to fund a Loan, such Lender notifies the Company and the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Event of Default) has not been satisfied); (b) has notified the Company, the Administrative Agent or any Lender in writing that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder (unless such notice or public statement relates to such Lender’s obligation to fund a Loan hereunder and indicates that such position is based on such Lender’s good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Event of Default) has not been satisfied) or generally under other agreements in which it commits to extend credit; (c) has failed, within three Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations as of the date of certification) to fund prospective Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written certification by the Administrative Agent; (d) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action; or (e) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 “Domestic Subsidiary” means, with respect to any Person, any Subsidiary of such Person incorporated or organized under the laws of any State of the United States or the District of Columbia.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above or (c) any financial institution established in an EEA Member Country that is a Subsidiary of an institution described in clause (a) or (b) above and is subject to consolidated supervision with its parent.

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EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Electronic Signature” means an electronic signature, sound, symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Eligible Assignee” means any Person, other than (a) a natural person, (b) a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of, a natural person, (c) the Company, (d) any Subsidiary of the Company, (e) any Affiliate of the Company or (f) any Defaulting Lender.

Environmental Laws” means all laws, rules, regulations, codes, ordinances, directives, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any toxic or hazardous substance or waste, or health and safety matters.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, attorneys’ and consultants’ fees, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Issuance” means the issuance of any equity securities or equity-linked securities of the Company in excess of $100,000,000 in the aggregate to any Person except (a) any common stock or securities convertible, exercisable or exchangeable for or into common stock of the Company issued to Viessmann Group GmbH & Co. KG (or any of its Affiliates) pursuant to the Acquisition Agreement, (b) issuances pursuant to employee compensation plans, employee benefit plans, employee incentive plans and retirement plans or issued as compensation to officers and/or non-employee directors, (c) issuances of directors’ qualifying shares and/or other nominal amounts required to be held by Persons other than the Company or its Subsidiaries under applicable law and (d) issuances by the Company’s Foreign Subsidiaries to the extent the repatriation of the proceeds of such issuances would result in material adverse tax consequences as reasonably determined by the Company.

 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and all rules, regulations, rulings and official interpretations promulgated or issued thereunder.

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ERISA Affiliate” means any trade or business (whether or not incorporated) which is a member of a group of which the Company is a member and which is under common control within the meaning of Section 414 of the Code.

ERISA Event” means (a) any “reportable event” under 4043 of ERISA (other than an event for which the 30-day notice period is waived or a safe harbor is available) with respect to a Plan, (b) any failure by any Plan to satisfy the minimum funding standard under Section 412 of the Code, (c) the filing of an application for a waiver of the minimum funding standard with respect to any Plan under Section 412(c) of the Code, (d) the incurrence of any liability under Title IV of ERISA with respect to the involuntary or distress termination of any Plan under Sections 4041(c) or Section 4042 of ERISA, (e) the receipt from the PBGC or a plan administrator by the Company or any ERISA Affiliate of the Company of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan under Section 4041(c) or Section 4042 of ERISA, (f) the incurrence of any liability with respect to the withdrawal or partial withdrawal from any Plan (within the meaning of Section 4063 of ERISA) or Multiemployer Plan (within the meaning of Sections 4203 or 4205 of ERISA) or (g) the receipt of any notice by the Company or an ERISA Affiliate of the Company from any Multiemployer Plan, concerning the imposition of withdrawal liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Section 4245 of ERISA, or in endangered, critical and declining, or critical status within the meaning of Section 305 of ERISA.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencement of such Interest Period.

EURIBOR Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.

Euro” or “€” means the single currency of the participating member states of the European Union.

Events of Default” has the meaning assigned to that term in Section 6.01.

Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time.

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Exchange Rate” means, as of any date of determination, for purposes of determining the US Dollar Equivalent of any currency other than US Dollars, the rate at which such currency may be exchanged into US Dollars at the time of determination on such day as last provided (either by publication or as may otherwise be provided to the Administrative Agent) by the applicable Reuters source on the Business Day (determined based on New York City time) immediately preceding such day of determination. In the event that Reuters ceases to provide such rate of exchange or such rate does not appear on the applicable Reuters source, the Exchange Rate shall be determined by reference to such other publicly available information service for displaying such rate of exchange at such time as shall be selected by the Administrative Agent from time to time in its reasonable discretion after consultation with the Company.

Excluded Asset Sale” means (a) any sale or other disposition of property (including, for the avoidance of doubt, inventory) in the ordinary course of business, (b) leasing transactions or sale and leaseback transactions, (c) the sale or other disposition of property as part of any factoring arrangement, (d) the sale or other disposition of property as part of any leasing transaction, (e) (i) dispositions of property by the Company’s Foreign Subsidiaries to the extent that repatriation of the proceeds of such dispositions is not permitted by applicable laws and regulations or would result in material adverse tax consequences (as reasonably determined by the Company) or (ii) any casualty or condemnation event in respect of property of the Company or its Subsidiaries (including proceeds from the sale of stock of any Subsidiary of the Company) to the extent the repatriation of the proceeds of such casualty or condemnation event is not permitted by applicable laws and regulations or would result in material adverse tax consequences (as reasonably determined by the Company), (f) any Asset Sales or other dispositions in connection with the approval of any anti-trust authority or otherwise necessary or advisable in the good faith determination of the Company to consummate any transaction and (g) any sale or other disposition of property between the Company and/or its Subsidiaries.

Excluded Debt” means (a) intercompany indebtedness between the Company and/or its Subsidiaries, (b) credit extensions under the 2022 JPY Term Loan Credit Agreement, the 2023 5-Year Revolving Credit Agreement, the 2023 364-Day Revolving Credit Agreement or the 2023 Term Loan Credit Agreement, in each case, including any amendment, extension, roll-over, renewal, refinancing and/or replacement thereof and, in each case, having an aggregate principal amount of commitments thereunder not in excess of the aggregate amount of existing commitments in effect on the date of this Agreement, (c) commercial paper, (d) ordinary course letter of credit facilities, (e) overdraft protection, (f) short term working capital facilities, (g) ordinary course local credit facilities of foreign Subsidiaries of the Company, including any amendment, extension, refinancing and/or replacement thereof and, in each case, having an aggregate principal amount of commitments thereunder not in excess of the aggregate amount of existing commitments in effect on the date of this Agreement, (h) NORESCO Project Finance Debt, (i) factoring arrangements or seller lending financing activities, (j) capital leases, financial leases and indebtedness issued in connection with credit tenant leases, (k) hedging and cash management arrangements, (l) ordinary course purchase money indebtedness, facility and equipment financings and similar obligations (including Sale and Leaseback Transactions), (m) indebtedness incurred to refinance, renew, replace or roll-over any outstanding indebtedness of the Company or any of its Subsidiaries and any fees, premiums and accrued interest, including capitalized paid-in-kind interest, thereon maturing within 24 months of the date of such refinancing, renewal, replacement or roll-over (regardless of whether such refinanced, renewed, replaced or rolled-over debt remains outstanding until its maturity) to the extent the aggregate amount thereof is not increased, (n) amendments or replacements to facilities separately agreed between the Arrangers and the Company, (o) vendor financing incurred in the ordinary course of business, (p) other indebtedness (other than indebtedness under (x) this Agreement or any other Loan Documents or (y) the 2023 Offering Notes in an aggregate principal amount of up to €5,400,000,000) in an aggregate principal amount up to $1,000,000,000 and (q) the 2020 Offering Notes and/or the 2023 Offering Notes, as the case may be, up to an aggregate principal amount not in excess of the aggregate principal amount of 2020 Offering Notes and/or the 2023 Offering Notes, as applicable, outstanding on the Closing Date (with any refinancing, renewal, replacement or roll-over of such indebtedness subject to clause (m) above).

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Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office in, or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, withholding Taxes (including backup withholding Taxes) imposed by the United States on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to laws in effect on the date on which (i) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment request by the Company under Section 2.18(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.14(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA; provided that, for the avoidance of doubt, for purposes of clause (b)(i), in the case of an interest in a Loan acquired by a Lender pursuant to the funding of a Commitment, such Lender shall be treated as acquiring such interest on the date such Lender acquired an interest in the Commitment pursuant to which such Loan was funded.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, as of the date of this Agreement (or any amended or successor version described above), and any fiscal or regulatory legislation, rules, guidance notes or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities implementing the foregoing.

Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for all purposes of this Agreement.

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Financial Officer” means, with respect to any Person, the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of such Person.

Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate, Adjusted Daily Simple SOFR and Adjusted EURIBOR Rate, as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR Rate, Adjusted Daily Simple SOFR, Adjusted EURIBOR Rate and Central Bank Rate shall be 0%.

Foreign Lender” means a Lender that (a) is not a U.S. Person or (b) is an entity disregarded as separate from its owner for U.S. federal income tax purposes and is owned, for U.S. federal income tax purposes, by a Person that is not U.S. Person.

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

GAAP” means generally accepted accounting principles in the United States as in effect, subject to Section 1.04, from time to time.

Governmental Authority” means the government of the United States, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, per- and polyfluoroalkyl substances and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

Hedge Agreement” means any agreement with respect to any swap, forward, future or derivative transaction, or any option or similar agreement, involving, or settled by reference to, one or more rates, currencies, commodities, prices of equity or debt securities or instruments, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or the Subsidiaries shall be a Hedge Agreement.

Historical Company Financial Statements” means the combined balance sheet of the Company and its Subsidiaries as of December 31, 2022 and the combined statements of operations, of comprehensive income, of changes in equity and of cash flows of the Company and its Subsidiaries for the year then ended.

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Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under this Agreement and (b) to the extent not otherwise described in clause (a) of this definition, Other Taxes.

Indemnitee” has the meaning assigned to that term in Section 8.04(b).

Industrial Development Bonds” means obligations issued by a State, a Commonwealth, a Territory or a possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, the interest on which is excludable from gross income of the holders thereof pursuant to the provisions of Section 103(a)(1) of the Code (or any similar provision of the Code), as in effect on the date of the issuance of such obligations.

Ineligible Subsidiary” means any Subsidiary Borrower designated as such pursuant to Section 2.19(c).

Ineligible Subsidiary Designation Notice” means an Ineligible Subsidiary Designation Notice substantially in the form of Exhibit D hereto, duly executed by the Company.

Information” has the meaning assigned to that term in Section 8.07.

Interest Election Request” means a request by a Borrower (or the Company on behalf of a Subsidiary Borrower) to convert or continue a Borrowing in accordance with Section 2.09, which shall be substantially in the form of Exhibit E or any other form approved by the Administrative Agent and the Company.

Interest Period” means with respect to any Term Benchmark Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter, as the Borrower may elect; provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (c) no tenor that has been removed from this definition pursuant to Section 2.17(e) shall be available for specification in such Borrowing Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

IRS” means the United States Internal Revenue Service, or any other Governmental Authority that shall have succeeded to the functions thereof.

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Judgment Currency” has the meaning assigned to that term in Section 8.17(b).

Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that shall have ceased to be a party hereto pursuant to Section 8.06.

Liens” has the meaning assigned to that term in Section 5.02(a).

Loan” means a loan by a Lender to a Borrower pursuant to this Agreement.

Loan Documents” means this Agreement, each Subsidiary Borrower Agreement and each Ineligible Subsidiary Designation Notice.

Local Time” means (a) with respect to a Loan or Borrowing denominated in US Dollars or with respect to any payment hereunder to be made in US Dollars, New York City time and (b) with respect to a Loan or Borrowing denominated in Euros or with respect to any payment hereunder to be made in Euros, London time.

Material Acquisition” means any acquisition by the Company or any of its Subsidiaries of (a) equity interests in any Person if, after giving effect thereto, such Person will become a Subsidiary of the Company or (b) assets comprising all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person (in the case of clauses (a) and (b), including as a result of a merger or consolidation); provided that, in the case of clauses (a) and (b), the aggregate consideration therefor exceeds US$50,000,000.

Material Adverse Effect” means a material adverse effect on (a) the financial condition, operations or business of the Company and its Subsidiaries, taken as a whole, or (b) the rights of or benefits available to the Administrative Agent or the Lenders under this Agreement, taken as a whole.

Material Debt” means Debt in the principal amount in excess of US$100,000,000.

Material Disposition” means any sale, transfer or other disposition by the Company or any of its Subsidiaries of (a) all or substantially all the issued and outstanding equity interests in any Person that are owned by the Company or any of its Subsidiaries or (b) assets comprising all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person; provided that, in the case of clauses (a) and (b), such sale, transfer or other disposition yields net proceeds to the Company or any of its Subsidiaries in excess of US$50,000,000 in the aggregate.

Maximum Rate” has the meaning assigned to that term in Section 8.13.

MNPI” means material information concerning the Company, its Subsidiaries or the respective securities of any of the foregoing that has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD under the Securities Act and the Exchange Act.

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Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating agency business.

Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

Net Cash Proceeds” means

(a)          with respect to any Asset Sale, the aggregate amount of all cash (which term, for the purpose of this paragraph (a), shall include cash equivalents) proceeds (including any cash proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment, but only as and when actually received) actually received in respect of such Asset Sale, including property insurance or condemnation proceeds paid on account of any loss of or damage to, or any condemnation or other taking of, any property, net of (i) all attorneys’ fees, accountants’ fees, investment banking fees, brokerage, consultant and other fees and survey costs, title insurance premiums, and related search and recording charges, commissions, title and recording tax expenses and other fees and expenses incurred in connection therewith, (ii) all taxes (including withholding taxes) paid or reasonably estimated to be payable as a result thereof, (iii) all payments made, and all installment payments required to be made, with respect to any obligation (A) that is secured by any assets subject to such Asset Sale, in accordance with the terms of any lien upon such assets, or (B) that must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale, (iv) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Sale, or to any other Person (other than the Company or any of its Subsidiaries) owning a beneficial interest in the assets disposed of in such Asset Sale, and (v) the amount of any reserves established by the Company or any of its Subsidiaries in accordance with GAAP to fund purchase price or similar adjustments, indemnities or liabilities, contingent or otherwise, reasonably estimated to be payable in connection with such Asset Sale (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds); provided that such Net Cash Proceeds of any Asset Sale shall not include proceeds of any Asset Sale received to the extent reinvested in other assets used or useful (or used to replace or repair damaged or destroyed assets) in the business of the Company or any of its Subsidiaries within twelve months of actual receipt of such proceeds (or, in the case of any casualty of condemnation event, such longer period as may be reasonably required to replace or repair the affected asset but, in any event, not to exceed a total of eighteen months from the receipt of such proceeds); provided further that, Net Cash Proceeds received from Asset Sales by the Company and its Subsidiaries after April 25, 2023 shall not be required to be applied to prepay the Loans until such time as the aggregate amount of all such Net Cash Proceeds received on or after April 25, 2023 shall exceed $1,000,000,000; and

(b)          with respect to any Equity Issuance or Debt Issuance, the aggregate amount of all cash proceeds actually received (including in escrow to the extent the conditions to the availability thereunder are no more restrictive than the conditions precedent set forth in Section 3.01) in respect of such Equity Issuance or Debt Issuance, net of all attorneys’ fees, accountants’ fees, investment banking fees, brokerage, consultant and other customary fees and other fees, expenses, costs, underwriting discounts and commissions incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof.

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New Holding Company” has the meaning assigned to that term in Section 8.18.

NORESCO Project Finance Debt” means the energy savings performance contracts for energy saving projects as described on Schedule 1.01A hereto.

Notice of Objection” has the meaning assigned to that term in Section 2.19(a).

NYFRB” means the Federal Reserve Bank of New York.

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any such day that is a Business Day, the “NYFRB Rate” means the rate for a Federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined shall be less than 0%, such rate shall be deemed to be 0% all purposes of this Agreement.

NYFRB Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

Objecting Lender” has the meaning assigned to that term in Section 2.19(a).

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than connections arising solely from such Recipient having taken any of the following actions: executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement, or sold or assigned pursuant to Section 2.18(b) an interest in any Loan or other interest under this Agreement).

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18(b)).

Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in US Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.

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Participant” has the meaning assigned to that term in Section 8.06(c).

Participant Register” has the meaning assigned to that term in Section 8.06(c).

Payment” has the meaning assigned to it in Section 7.11.

Payment Notice” has the meaning assigned to it in Section 7.11.

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA, or any other Governmental Authority that shall have succeeded to the functions thereof.

Permitted Reorganization” means a transaction described in Section 8.18 pursuant to which the Company becomes a wholly-owned Domestic Subsidiary of the New Holding Company, but only if all the requirements set forth in Section 8.18 shall have been satisfied.

Permitted Reorganization Merger Subsidiary” has the meaning assigned to that term in Section 8.18.

Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other entity.

Plan” means an employee benefit plan, other than a Multiemployer Plan, which is (or, in the event that any such plan has been terminated within five years after a transaction described in Section 4069 of ERISA, was) maintained for employees of the Company or any ERISA Affiliate and subject to Title IV of ERISA.

Platform” means Debt Domain, IntraLinksTM, SyndTrak or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system.

Prepayment Minimum” means (a) in the case of a Borrowing denominated in Euros, €20,000,000 and (b) in the case of a Borrowing denominated in US Dollars, US$20,000,000.

Prepayment Multiple” means (a) in the case of a Borrowing denominated in Euros, €1,000,000 and (b) in the case of a Borrowing denominated in US Dollars, US$1,000,000.

Prime Rate” means the rate of interest per annum last quoted by The Wall Street Journal as the “prime rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Board of Governors in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Board of Governors (as determined by the Administrative Agent in its reasonable discretion). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

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Principal Property” means any manufacturing plant or warehouse, together with the land upon which it is erected and fixtures comprising a part thereof, owned by the Company or any Wholly-Owned Domestic Manufacturing Subsidiary and located in the United States the gross book value (without deduction of any reserve for depreciation) of which on the date as of which the determination is being made is an amount which exceeds 1% of Consolidated Net Tangible Assets, other than any such manufacturing plant or warehouse or any portion thereof or any such fixture (together with the land upon which it is erected and fixtures comprising a part thereof) (a) which is financed by Industrial Development Bonds or (b) which, in the opinion of the board of directors of the Company, or of any duly authorized committee of that board, is not of material importance to the total business conducted by the Company and its Subsidiaries taken as a whole.

Projections” has the meaning assigned to that term in Section 4.01(l).

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Lender” has the meaning assigned to that term in Section 5.01.

Public Side Lender Representatives” means, with respect to any Lender, representatives of such Lender that do not wish to receive MNPI.

Qualifying Material Acquisition” means any acquisition by the Company or any of its Subsidiaries of (a) equity interests in any Person if, after giving effect thereto, such Person will become a Subsidiary of the Company or (b) assets comprising all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person (in the case of both clauses (a) and (b), including as a result of a merger or consolidation); provided that the aggregate cash consideration therefor (including Debt of such acquired Person (or such business unit, division, product line or line of business) assumed in connection therewith or that is refinanced in connection therewith, all obligations in respect of deferred purchase price and all other cash consideration payable in connection therewith) exceeds US$1,000,000,000.

Ratings” means the ratings by Moody’s and S&P of the Company’s senior, unsecured, non-credit-enhanced, long-term debt.

Recipient” means the Administrative Agent or any Lender.

Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if the RFR for such Benchmark is Daily Simple SOFR, then four RFR Business Days prior to such setting or (4) if such Benchmark is none of the Term SOFR Rate or the EURIBOR Rate, the time determined by the Administrative Agent in its reasonable discretion.

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Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the directors, officers, partners, trustees, employees, agents and advisors of such Person and of such Person’s Affiliates.

Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in US Dollars, the Board of Governors and/or the NYFRB, or a committee officially endorsed or convened by the Board of Governors and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto and (iii) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.

Relevant Interbank Market” means (a) with respect to US Dollars, the secured overnight funding market and (b) with respect to Euro, the European interbank market.

Relevant Rate” means (i) with respect to any Term Benchmark Borrowing denominated in US Dollars, the Adjusted Term SOFR Rate, (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the Adjusted EURIBOR Rate and (iii) if applicable pursuant to Section 2.17, with respect to any RFR Borrowing denominated in US Dollars, the Adjusted Daily Simple SOFR, as applicable.

Relevant Screen Rate” means (i) with respect to any Term Benchmark Borrowing denominated in US Dollars, the Term SOFR Reference Rate and (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR Screen Rate, as applicable.

Required Lenders” means, at any time, Lenders having Commitments and Loans representing more than 50% of the sum of the aggregate amount of all the Commitments and the aggregate principal amount of all the Loans at such time; provided that the Commitments and Loans of any Defaulting Lender shall be excluded for the purposes of making a determination of Required Lenders.

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

Reuters” means Thomson Reuters Corporation, a corporation incorporated under and governed by the Business Corporations Act (Ontario), Canada, Refinitiv and any successor thereto.

RFR” means, for any RFR Loan denominated in US Dollars, Daily Simple SOFR.

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RFR Business Day” means, for any Loan denominated in US Dollars, a U.S. Government Securities Business Day.

RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR.

S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.

Sale and Leaseback Transaction” has the meaning assigned to that term in Section 5.02(c).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, HM Treasury of the United Kingdom or other relevant sanctions authority or (b) any Person majority-owned or controlled by any such Person or Persons described in the foregoing clause (a).

Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, HM Treasury of the United Kingdom or other relevant sanctions authority.

Scheduled Maturity Date” means the date that is sixty days after the Closing Date; provided that, if such day is not a Business Day, the Scheduled Maturity Date shall be the immediately following Business Day.

SEC” means the United States Securities and Exchange Commission, or any other Governmental Authority that shall have succeeded to the functions thereof.

Securities Act” means the United States Securities Act of 1933, as amended from time to time.

Significant Subsidiary” means any Subsidiary of the Company that constitutes a “significant subsidiary” under Regulation S-X promulgated by the SEC, as in effect from time to time.

SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

SOFR Administrator’s Website” means the NYFRB website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

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SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.

Solvency Certificate” means a certificate from the chief financial officer, treasurer or other executive financial officer of the Company in the form of Exhibit H.

Solvent” means the fair value of the assets of the Company and its Subsidiaries on a Consolidated basis, at a fair valuation on a going concern basis, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Company and its Subsidiaries on a Consolidated basis; (b) the present fair saleable value of the property of the Company and its Subsidiaries on a Consolidated and going concern basis will be greater than the amount that will be required to pay the probable liability of the Company and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (c) the Company and its Subsidiaries on a Consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured in the ordinary course of business; and (d) the Company and its Subsidiaries on a Consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.

Specified Representations” means each of the representations made by (i) the Company in Section 4.01(a), 4.01(b) (other than with respect to clause (iii) thereof), 4.01(d), 4.01(g), 4.01(j), 4.01(k)(iii) and 4.01(m) and (ii) if, as of the Closing Date, there is a Subsidiary Borrower (other than a Subsidiary Borrower that is an Ineligible Subsidiary), such Subsidiary Borrower in Section 4.02(a), 4.02(b) (other than with respect to clause (ii) thereof) and 4.02(d).

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors to which the Administrative Agent is subject with respect to the Adjusted EURIBOR Rate for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentages shall include those imposed pursuant to such Regulation D. Term Benchmark Loans for which the associated Benchmark is adjusted by reference to the Statutory Reserve Rate (per the related definition of such Benchmark) shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

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Subsidiary” means, with respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall or might have voting power upon the occurrence of any contingency) is at the time of any determination directly or indirectly owned or Controlled by such Person, by such Person and one or more other Subsidiaries of such Person or by one or more other Subsidiaries of such Person. Unless otherwise specified, all references herein to Subsidiaries shall be deemed to refer to Subsidiaries of the Company.

Subsidiary Borrower” means any Subsidiary of the Company that has been designated as, and became, a “Subsidiary Borrower” pursuant to Section 2.19(a), in each case, other than any Subsidiary Borrower that shall have ceased to be such as provided in Section 2.19(c).

Subsidiary Borrower Agreement” means a Subsidiary Borrower Agreement substantially in the form of Exhibit F hereto, duly executed by the Company and the applicable Subsidiary.

Subsidiary Borrower Termination Event” means, with respect to such Subsidiary Borrower, the occurrence of any of the following events:

(a)          such Subsidiary Borrower shall be liquidated or dissolved;

(b)          such Subsidiary Borrower (i) shall cease to be a Subsidiary of the Company or (ii) shall merge or consolidate with or into another Person and such Subsidiary Borrower shall not be the surviving entity (except that a Subsidiary Borrower may merge or consolidate with or into another Borrower that expressly assumes in writing all of such Subsidiary Borrower’s obligations hereunder);

(c)          such Subsidiary Borrower shall fail to pay (i) any principal of any Loan when the same becomes due and payable, (ii) any interest on any Loan when the same becomes due and payable, and such failure shall continue for a period of five Business Days or (iii) any other amount owing by such Subsidiary Borrower when the same becomes due and payable, and such failure shall continue for a period of 15 Business Days after receipt by such Subsidiary Borrower and the Company of written notice from the Administrative Agent of such amount being due, together with a statement in reasonable detail of the calculation thereof;

(d)          any representation or warranty made (or deemed made pursuant to Article III hereof) by such Subsidiary Borrower herein or in any Borrowing Request or other document delivered by such Subsidiary Borrower pursuant to Section 2.19 or Article III shall prove to have been incorrect in any material respect when made or deemed made;

(e)          such Subsidiary Borrower (i) shall fail to perform or observe any term, covenant or agreement set forth in Section 2.19(d)(i) or (ii) shall fail to perform or observe any term, covenant or agreement (other than those specified in clause (a), (b), (c) or (e)(i) above) contained in this Agreement on its part to be performed or observed if such failure shall remain unremedied for 30 calendar days after written notice thereof shall have been given to such Subsidiary Borrower and the Company by the Administrative Agent or any Lender;

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(f)          such Subsidiary Borrower (i) shall admit in writing its inability to pay its debts generally, (ii) shall make a general assignment for the benefit of creditors or shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property or (iii) shall take any corporate action to authorize any of the actions set forth above in this clause (f); or

(g)          any proceeding shall be instituted against such Subsidiary Borrower seeking to adjudicate it bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, and such proceeding shall remain undismissed or unstayed for a period of 60 days.

Syndication Agent” means Bank of America, N.A., in its capacity as syndication agent for the credit facility provided for herein.

TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007 or any successor system.

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges in the nature of a tax imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate.

Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.

Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated in US Dollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.

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Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in US Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.

Test Period” means, on any date of determination, the period of four consecutive fiscal quarters of the Company most recently ended on or prior to such date for which financial statements have been delivered, or are required to have been delivered, pursuant to Section 5.01(a)(i) or 5.01(a)(ii).

Transactions” means (a) the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, the borrowing of Loans and the use of the proceeds thereof, (b) the consummation of the Acquisition and (c) the payment of fees and expenses incurred in connection with the foregoing.

Transferee” has the meaning assigned to that term in Section 2.18(b).

Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate, the Adjusted Daily Simple SOFR, the Central Bank Rate or the Alternate Base Rate.

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain Affiliates of such credit institutions or investment firms.

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment; provided that, if the Unadjusted Benchmark Replacement as so determined would be less than 0%, the Unadjusted Benchmark Replacement will be deemed to be 0% for all purposes of this Agreement.

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United States” means the United States of America (including the constituent States thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

Unrestricted Cash” means, on any date, cash and cash equivalents owned on such date by the Company and its Consolidated Subsidiaries, as would be reflected on a Consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared as of such date in conformity with GAAP; provided that such cash and cash equivalents do not appear (and would not be required to appear) as “restricted” on a Consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared in conformity with GAAP.

U.S. Borrower” means any Borrower that is a U.S. Person (or, if such Borrower is disregarded as an entity separate from its owner for U.S. federal income tax purposes, is owned for U.S. federal income tax purposes by a U.S. Person).

US Dollar Equivalent” means, on any date of determination, (a) with respect to any amount in US Dollars, such amount, and (b) with respect to any amount in Euros, the equivalent in US Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.07 using the Exchange Rate with respect to Euros at the time in effect under the provisions of Section 1.07.

US Dollars” and the sign “US$” each mean the lawful money of the United States.

U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

U.S. Person” means a Person who is a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.06.

U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.14(f)(ii)(B)(3).

USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time, and the rules and regulations promulgated or issued thereunder.

Wholly‑Owned Domestic Manufacturing Subsidiary” means any Subsidiary of the Company of which, at the time of determination, all of the outstanding capital stock (other than directors’ qualifying shares) is owned by the Company directly and/or indirectly and which, at the time of determination, is primarily engaged in manufacturing; provided, however, that “Wholly-Owned Domestic Manufacturing Subsidiary” shall not include any Subsidiary of the Company that (a) neither transacts any substantial portion of its business nor regularly maintains any substantial portion of its fixed assets within the United States, (b) is engaged primarily in the finance business, including financing the operations of, or the purchase of products that are products of or incorporate products of, the Company and/or its Subsidiaries or (c) is primarily engaged in ownership and development of real estate, construction of buildings or related activities, or a combination of the foregoing. In the event that there shall at any time be a question as to whether a Subsidiary of the Company is primarily engaged in manufacturing or is described in the foregoing clause (a), (b) or (c), such matter shall be determined for all purposes of this Agreement by resolution of the board of directors of the Company.

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Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

SECTION 1.02      Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Type (e.g., a “Term Benchmark Loan” or an “ABR Borrowing”).

SECTION 1.03      Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Unless the context requires otherwise or except as otherwise expressly provided herein, (a) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (b) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (c) any definition of or reference to any agreement, instrument or other document (including this Agreement) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (but disregarding any amendment, supplement or other modification made in breach of this Agreement) and (d) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws).

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SECTION 1.04      Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in accordance with GAAP; provided that if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, for purposes of this Agreement all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any change as a result of the adoption of any of the provisions set forth in the Accounting Standards Update 2016-02, Leases (Topic 842), issued by the Financial Accounting Standards Board in February 2016, or any other amendments to the Accounting Standards Codifications issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require the recognition of right-of-use assets and lease liabilities for leases or similar agreements that would not be classified as capital leases under GAAP as in effect prior to January 1, 2019, (ii) any election under Accounting Standards Codification 825, Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Debt or other indebtedness of the Company or any of its Subsidiaries at “fair value”, as defined therein, (iii) any treatment of indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such indebtedness in a reduced or bifurcated manner as described therein, and such indebtedness shall at all times be valued at the full stated principal amount thereof, or (iv) any valuation of Debt or other indebtedness below its full stated principal amount as a result of the application of Accounting Standards Update 2015-03, Interest, issued by the Financial Accounting Standards Board, it being agreed that Debt and other indebtedness shall at all times be valued at the full stated principal amount thereof.

(b)          All pro forma computations required to be made hereunder giving effect to any Material Acquisition (including the Acquisition) or Material Disposition shall be calculated after giving pro forma effect thereto (and to other transactions, including the repayment or incurrence of Debt, related thereto) as if such transactions had occurred on the first day of the applicable Test Period and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Debt, all in accordance with Article 11 of Regulation S-X under the Securities Act (it being understood that, unless otherwise set forth in this Agreement, the Consolidated Leverage Ratio and Consolidated Net Tangible Assets shall be calculated on a pro forma basis). If any Debt bears a floating rate of interest and is being given pro forma effect, the interest on such Debt shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedge Agreement applicable to such Debt if such Hedge Agreement has a remaining term in excess of 12 months). Notwithstanding anything to the contrary in this Agreement or any classification under GAAP as “discontinued operations” of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, no pro forma effect shall be given to any such discontinued operations (and the Consolidated EBITDA attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.

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SECTION 1.05       Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in US Dollars or Euros may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.17(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (inclu