UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 |
SCHEDULE 13D
Under the Securities Exchange Act of 1934 |
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Carrier Global Corporation |
(Name of Issuer) |
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Common Stock, par value $0.01 per share |
(Title of Class of Securities) |
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14448C104 |
(CUSIP Number) |
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Viessmann Group GmbH & Co. KG
Im Birkenried 1
35088 Battenberg
Germany
+49 (0) 6452 9296 000
With a copy to:
Leo Borchardt
Davis Polk & Wardwell London LLP
5 Aldermanbury Square
London NW5 3LH
United Kingdom
Telephone: +44 20 7418 1334 |
(Name, Address and Telephone Number of Person Authorized
to
Receive Notices and Communications) |
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January 2, 2024 |
(Date of Event which Requires Filing of this Statement) |
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If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-l(f) or 240.13d-l(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See § 240.13d-7(b) for other parties to whom copies are to be sent. |
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*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
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The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). |
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1 |
Name of Reporting Person
Viessmann Group GmbH & Co. KG
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2 |
Check the Appropriate Box if a Member of a Group
(a) o
(b) o
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3 |
SEC Use Only
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4 |
Source of Funds
OO
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5 |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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o |
6 |
Citizenship or Place of Organization
Germany
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
Sole Voting Power
0
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8 |
Shared Voting Power
58,608,959 (See item 5)
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9 |
Sole Dispositive Power
0
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10 |
Shared Dispositive Power
58,608,959 (See item 5)
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11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
58,608,959 (See item 5)
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12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
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o |
13 |
Percent of Class Represented by Amount in Row (11)
6.53% (See item 5)
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14 |
Type of Reporting Person (See Instructions)
PN
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1 |
Names of Reporting Person
Viessmann Komplementär B.V.
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2 |
Check the Appropriate Box if a Member of a Group
(a) o
(b) o
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3 |
SEC Use Only
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4 |
Source of Funds
OO
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5 |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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o |
6 |
Citizenship or Place of Organization
The Netherlands
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
Sole Voting Power
0
|
8 |
Shared Voting Power
58,608,959 (See item 5)
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9 |
Sole Dispositive Power
0
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10 |
Shared Dispositive Power
58,608,959 (See item 5)
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11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
58,608,959 (See item 5)
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12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
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o |
13 |
Percent of Class Represented by Amount in Row (11)
6.53% (See item 5)
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14 |
Type of Reporting Person (See Instructions)
CO
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1 |
Names of Reporting Person
Viessmann Beteiligungs AG
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2 |
Check the Appropriate Box if a Member of a Group
(a) o
(b) o
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3 |
SEC Use Only
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4 |
Source of Funds
OO
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5 |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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o |
6 |
Citizenship or Place of Organization
Switzerland
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
Sole Voting Power
0
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8 |
Shared Voting Power
58,608,959 (See item 5)
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9 |
Sole Dispositive Power
0
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10 |
Shared Dispositive Power
58,608,959 (See item 5)
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11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
58,608,959 (See item 5)
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12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
o |
13 |
Percent of Class Represented by Amount in Row (11)
6.53% (See item 5)
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14 |
Type of Reporting Person (See Instructions)
CO
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1 |
Names of Reporting Person
Maximilian Viessmann
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2 |
Check the Appropriate Box if a Member of a Group
(a) o
(b) o
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3 |
SEC Use Only
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4 |
Source of Funds
OO
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5 |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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o |
6 |
Citizenship or Place of Organization
Germany
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
Sole Voting Power
0
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8 |
Shared Voting Power
58,608,959 (See item 5)
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9 |
Sole Dispositive Power
0
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10 |
Shared Dispositive Power
58,608,959 (See item 5)
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11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
58,608,959 (See item 5)
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12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
o |
13 |
Percent of Class Represented by Amount in Row (11)
6.53% (See item 5)
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14 |
Type of Reporting Person (See Instructions)
IN
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Item 1. Security and Issuer.
This Schedule 13D (this “Schedule 13D”) relates
to the common stock, par value $0.01 per share (the “Common Stock”) of Carrier Global Corporation, a Delaware corporation
(the “Issuer”). The principal business address for the Issuer is 13995 Pasteur Boulevard, Palm Beach Gardens, Florida 33418.
Item 2. Identity and Background
This Schedule 13D is being filed by Viessmann Group GmbH & Co.
KG, a limited partnership (Kommanditgesellschaft) organized under the laws of Germany (“Viessmann Group KG”),
its sole general partner, Viessmann Komplementär B.V., a limited liability company (besloten venootschap met beperkte aansprakelijkheid)
organized under the laws of the Netherlands (“Viessmann GP”), and managing limited partner, Viessmann Beteiligungs
AG, a corporation (Aktiengesellschaft) organized under the laws of Switzerland (“Viessmann LP”), and Maximilian
Viessmann, as a director and the controlling stockholder of each of Viessmann GP and Viessmann LP. Each of the foregoing is referred to
herein as a “Reporting Person” and collectively as the “Reporting Persons.”
The principal business address for each of the Reporting Persons is
Im Birkenried 1, 35088 Battenberg, Germany.
Viessmann Group KG is an independent family holding company and a global
group that invests in a diversified range of businesses on behalf of the Viessmann family. Viessmann GP is the sole general partner of
Viessmann Group KG. Viessmann LP is a managing limited partner of Viessmann Group KG. Maximilian Viessmann is a director, the President
and Chief Executive Officer and the controlling stockholder of each of Viessmann GP and Viessmann LP. As such, Mr. Viessmann is in a position
indirectly to determine the investment and voting decisions made by each of Viessmann GP, Viessmann LP and Viessmann Group KG. Mr. Viessmann’s
present principal occupation is as Chief Executive Officer of Viessmann Group KG.
In accordance with the provisions of General
Instruction C to Schedule 13D, information concerning the name, business address, citizenship and present principal occupation or employment
(and the name, principal business and address of any corporation or other organization in which such employment is conducted) of each
director and executive officer of Viessmann Group KG, Viessmann GP and Viessmann LP (collectively, the “Covered Persons”),
as required by Item 2 of Schedule 13D, is set forth in Schedule I hereto and is incorporated by reference herein. Each of the Covered
Persons other than Mr. Viessmann expressly disclaims beneficial ownership of any shares of Common Stock held by any of the Reporting Persons.
During the last five years the Reporting Persons have not and, to the
knowledge of the Reporting Persons, without independent verification, none of the Covered Persons identified on Schedule I hereto has
been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
The Reporting Persons have executed a joint filing agreement, dated
as of January 9, 2024, with respect to the joint filing of this Schedule 13D and any amendment or amendments hereto, the full text of
which is filed as Exhibit 99.1 hereto and incorporated herein by reference.
Item 3. Source and Amount of Funds or Other Consideration.
On January 2, 2024 (the “Closing Date”), the Issuer
and Viessmann Group KG consummated the transactions contemplated by that certain share purchase agreement, dated as of April 25, 2023
(the “Purchase Agreement”), by and among the Issuer, Blitz F23-620 GmbH (subsequently renamed Johann Purchaser GmbH),
a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Germany and a wholly owned
subsidiary of the Issuer (“Purchaser”) and Viessmann Group KG, pursuant to which Purchaser acquired Viessmann Group
KG’s climate solutions business in exchange for a total purchase price of (i) approximately EUR 10.2 billion in cash (the “Cash
Consideration”) and (ii) 58,608,959 shares of Common Stock (the “Share Consideration”). The Purchase Agreement
is filed as Exhibit 99.2 hereto and incorporated herein by reference.
All holdings in this Schedule 13D are reported as of the close of business
on the Closing Date.
Item 4. Purpose of Transaction
The information set forth in Items 3 and 6 of this Schedule 13D is
incorporated by reference in its entirety into this Item 4.
Concurrently with the consummation of transactions contemplated by
the Purchase Agreement, on the Closing Date, the Issuer and Viessmann Group KG entered into an investor rights agreement (the “Investor
Rights Agreement”), pursuant to which, among other things and in accordance with the terms and subject to the conditions set
forth therein, (i) Viessmann Group KG has the right to nominate one member of the Issuer’s Board of Directors (the “Board”)
for a period of ten years following the Closing Date, provided that Viessmann Group KG, together with its permitted transferees, continues
to hold at least 29,304,480 shares of Common Stock (representing 50% of the Share Consideration received by Viessmann Group KG on the
Closing Date pursuant to the Purchase Agreement) (as adjusted for any stock split, reverse stock split, stock dividend, subdivision, reclassification,
recapitalization, exchange or similar reorganization of shares).
The Investor Rights Agreement provides that, for the time periods specified
therein, Viessmann Group KG and its affiliates will vote their shares of Common Stock in favor of the Board’s director nominees
and other customary matters as recommended by the Board and will be subject to customary standstill, lockup and transfer restrictions,
except that Viessmann Group KG and its affiliates are permitted to acquire additional shares of Common Stock or other voting securities
in the Issuer in an aggregate amount not to exceed 13.5% of the total number of voting securities of the Issuer at any time outstanding
(in addition to the 58,608,959 shares of Common Stock received by Viessmann Group KG as Share Consideration and reported herein). The
Investor Rights Agreement further provides for customary resale, demand and piggyback registration rights subject to customary limitations
(including with respect to minimum offering size and maximum number of demands and underwritten shelf takedowns within certain periods).
In addition, the Investor Rights Agreement provides that Viessmann Group KG and its affiliates may freely pursue any investment or business
opportunity not otherwise prohibited by the Investor Rights Agreement, the Purchase Agreement, the License Agreement (as defined below)
or the Transitional Services Agreement (as defined below), subject to certain notice requirements.
The foregoing description of the Investor Rights Agreement does not
purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Investor Rights Agreement,
filed as Exhibit 99.4 hereto and incorporated herein by reference.
Effective upon the Closing Date, Mr. Viessmann was appointed to the
Board.
The Reporting Persons acquired the securities reported herein for investment
purposes and as a result of the consummation of the transactions contemplated by the Purchase Agreement. The principal objective of the
Reporting Persons’ investment in the Issuer is to provide stable and committed support for the Issuer’s long-term value creation
plans for the climate solutions business and the European transition to renewable energy.
Except as otherwise described in this Schedule 13D, none of the Reporting
Persons has any present plans or proposals that relate to or would result in any of the events or matters described in clauses (a) through
(j) of Item 4 of Schedule 13D, though the Reporting Persons intend to review their investment in the Issuer on a continuing basis and
may, subject to the terms of the agreements described herein as well as general economic, market and industry conditions and prospects
existing at the time, consider various alternative courses of action from time to time. Such actions may include: (i) acquiring additional
shares of Common Stock and/or other equity, debt, notes, other securities or derivative or other instruments of the Issuer that are based
upon or relate to the value of shares of Common Stock (collectively, “Securities”) in the open market, through private
transactions, block trades, registered sales or otherwise, including in connection with business development transactions or financing
commitments in relation thereto; (ii) disposing of any or all of their Securities in the open market, through private transactions,
block trades, registered sales or otherwise; (iii) engaging in any hedging or similar transactions with respect to the Securities;
or (iv) proposing or considering one or more of the actions described in clauses (a) through (j) of Item 4 of Schedule 13D. The Reporting
Persons may also determine to transfer the shares of Common Stock held by Viessmann Group KG to another entity controlled, directly or
indirectly, by Viessmann GP, Viessmann LP or Mr. Viessmann. In determining whether to carry out any of the above-mentioned actions, the
Reporting Persons may consider factors such as the Issuer’s financial position and strategic direction, actions taken by the Board,
the price of the shares of Common Stock or other Securities, conditions in the securities market and general economic and industry conditions.
In addition, the Reporting Persons may, subject to the terms of the
agreements described herein, engage in discussions with representatives of the Issuer and/or with other holders of Securities and, from
time to time, may suggest or take a position regarding, or participate in, a variety of matters relating to the Issuer, which may include,
among other things, the Issuer’s operations, assets, management, corporate governance or capital structure or its control, strategic
alternatives and direction. To facilitate its consideration of such matters, the Reporting Persons may retain consultants and advisors
and may enter into discussions with potential sources of capital and other third parties and may exchange information with any such persons
pursuant to appropriate confidentiality or similar agreements. The Reporting Persons are likely to take some or all of the foregoing steps
at preliminary stages in their respective consideration of various possible courses of action, before forming any intention to pursue
any particular plan or direction.
Each of the Reporting Persons may, at any time, review or reconsider
its respective position with respect to the Issuer and reserves the right, subject to the terms of the agreements described herein, to
develop plans or proposals, including discussing, proposing or taking one or more of the actions described in clauses (a) through (j)
of Item 4 of Schedule 13D, and may discuss such actions with the Issuer and Issuer’s management and Board, other stockholders of
the Issuer and other interested parties.
Item 5: Interest in Securities of the Issuer
(a)-(b) As of January 2, 2024, the Reporting
Persons may be deemed to have beneficially owned an aggregate of 58,608,959 shares of Common Stock, representing approximately 6.53% of
the total outstanding shares of Common Stock (such percentage is calculated based on 898,185,159 shares of Common Stock outstanding as
of January 3, 2023, according to information provided by the Issuer to the Reporting Persons). As of January 2, 2024, Viessmann Group
KG was the record and beneficial owner of 58,608,959 shares of Common Stock. Each of Viessmann GP, as the sole general partner of Viessmann
Group KG, Viessmann LP, as a managing limited partner of Viessmann Group KG, and Mr. Viessmann, as the director and controlling stockholder
of each of Viessmann GP and Viessmann LP, may be deemed to be the beneficial owner of the shares of Common Stock held by Viessmann Group
KG.
As of January 2, 2024, none of the Covered
Persons identified on Schedule I hereto beneficially owned any shares of Common Stock, except that Dr. Ulrich Hüllmann was the beneficial
owner of 1,330 shares of Common Stock. Each of the Covered Persons other than Mr. Viessmann expressly disclaims beneficial ownership of
any shares of Common Stock held by any of the Reporting Persons.
(c) The information set forth in Items 3 and
4 of this Schedule 13D is incorporated by reference herein. Except as disclosed in this Schedule 13D, none of the Reporting Persons has
effected and, to the knowledge of the Reporting Persons, without independent verification, none of the Covered Persons identified in Schedule
I hereto has effected any transactions in shares of Common Stock during the past 60 days.
(d) Except as disclosed in this Schedule 13D,
no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, any of the shares of Common Stock beneficially owned by any of the Reporting Persons.
(e) Not applicable.
Item 6: Contracts, Arrangements, Understandings
or Relationships With Respect to Securities of the Issuer
The information contained in Items 3 and 4
of this Schedule 13D is incorporated by reference in its entirety into this Item 6.
Purchase Agreement
Immediately after the consummation of the
transactions contemplated by the Purchase Agreement, on the Closing Date, the Issuer, Johann Purchaser GmbH and Viessmann Group KG entered
into a post-closing amendment to the Purchase Agreement documenting, amongst other things, certain amendments to the carve-out steps agreed
under the Purchase Agreement with respect to the climate solutions business.
The foregoing description of the post-closing
amendment to the Purchase Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to,
the full text of that amendment, filed as Exhibit 99.3 hereto and incorporated herein by reference.
Investor Rights Agreement
Concurrently with the consummation of the
transactions contemplated by the Purchase Agreement, on the Closing Date, the Issuer and Viessmann Group KG entered into the Investor
Rights Agreement. The information set forth in Item 4 of this Schedule 13D is incorporated by reference herein.
License Agreement
Concurrently with consummation of the transactions
contemplated by the Purchase Agreement, on the Closing Date, the Issuer, Viessmann Group KG and Carrier Innovative Technologies GmbH,
a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Germany and a wholly owned
subsidiary of the Issuer (“Licensee”) entered into a license agreement (the “License Agreement”),
pursuant to which Viessmann Group KG has granted to the Licensee an exclusive, worldwide license to use the “Viessmann” trademarks
in connection with the climate solutions business. The Licensee is required to pay an annual royalty 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 the Licensee and its affiliates
for the remainder of the term. The License Agreement has an initial term of 40 years and thereafter automatically renews for 5-year periods
unless either party elects not to renew. Viessmann Group KG may terminate the License Agreement for material uncured breaches of certain
specified provisions of the License Agreement. In the event that Viessmann Group KG sells any of the trademarks licensed to the Licensee
pursuant to the License Agreement, the Licensee has a right of first offer to acquire such trademarks for use in the climate solutions
business.
The foregoing description of the License Agreement
does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the License Agreement,
filed as Exhibit 99.5 hereto and incorporated herein by reference.
Transitional Services Agreement
Concurrently with consummation of the transactions
contemplated by the Purchase Agreement, on the Closing Date, the Issuer, Viessmann Group KG and Viessmann Climate Solutions SE, a European
stock company (Societas Europaea) organized under German law and an indirect wholly owned subsidiary of the Issuer, entered into
a transitional services agreement (the “Transitional Services Agreement”), pursuant to which each of the Issuer and
Viessmann Group KG have agreed to provide certain transitional services to the other for specified periods following the Closing Date.
The foregoing description of the Transitional
Services Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of
the Transitional Services Agreement, filed as Exhibit 99.6 hereto and incorporated herein by reference.
Item 7: Material to be Filed as Exhibits
Exhibit | Description |
Exhibit 99.1 | Joint Filing Agreement, dated as of January 9, 2024, by and among
Viessmann Group GmbH & Co. KG, Viessmann Komplementär B.V., Viessmann Beteiligungs AG and Maximilian Viessmann. |
Exhibit 99.2 | Share Purchase Agreement, dated as of April 25, 2023, by and among Carrier Global Corporation, Blitz F23-620 GmbH (subsequently renamed Johann Purchaser GmbH) and Viessmann Group GmbH & Co. KG (incorporated by reference to Exhibit 2.1 to the current report on Form 8-K filed by Carrier Global Corporation (Commission File No. 001-39220) with the Securities and Exchange Commission on April 26, 2023). |
Exhibit 99.3 | Post-Closing Amendment to Share Purchase Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation, Johann Purchaser GmbH and Viessmann Group GmbH & Co. KG.*+ |
Exhibit 99.4 | Investor Rights Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation and Viessmann Group GmbH & Co. KG (incorporated by reference to Exhibit 10.2 to the current report on Form 8-K filed by Carrier Global Corporation (Commission File No. 001-39220) with the Securities and Exchange Commission on January 2, 2024). |
Exhibit 99.5 | License Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation, Viessmann Group GmbH & Co. KG and Carrier Innovative Technologies GmbH (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K filed by Carrier Global Corporation (Commission File No. 001-39220) with the Securities and Exchange Commission on January 2, 2024). |
Exhibit 99.6 | Transitional Services Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation, Viessmann Climate Solutions SE and Viessmann Group GmbH & Co. KG.*+ |
Exhibit 99.7 | Limited Power of Attorney of Maximilian Viessmann, dated as of January
9, 2024. |
* Certain exhibits and schedules to this exhibit have been omitted.
A copy of all omitted exhibits and schedules will be furnished to the Securities and Exchange Commission upon its request.
+ Certain portions of this exhibit have been omitted. A copy of all
omitted exhibits and schedules will be furnished to the Securities and Exchange Commission upon its request.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and correct.
Date: January 9, 2024
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VIESSMANN GROUP GMBH & CO. KG |
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By: Viessmann Komplementär B.V.,
its sole general partner |
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By: |
/s/ Maximilian Viessmann |
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Name: Maximilian Viessmann |
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Title: President and Chief Executive Officer |
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By: |
/s/ Frauke von Polier |
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Name: Frauke von Polier |
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Title: Executive Board Member and Chief People Officer |
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VIESSMANN KOMPLEMENTÄR B.V. |
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By: |
/s/ Maximilian Viessmann |
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Name: Maximilian Viessmann |
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Title: President and Chief Executive Officer |
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By: |
/s/ Frauke von Polier |
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Name: Frauke von Polier |
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Title: Executive Board Member and Chief People Officer |
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VIESSMANN BETEILIGUNGS AG |
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By: |
/s/ Maximilian Viessmann |
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Name: Maximilian Viessmann |
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Title: President and Chief Executive Officer |
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By: |
/s/ Frauke von Polier |
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Name: Frauke von Polier |
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Title: Executive Board Member and Chief People Officer |
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/s/ Maximilian Viessmann |
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MAXIMILIAN VIESSMANN |
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EXHIBIT INDEX
Exhibit |
Description |
Exhibit 99.1 |
Joint Filing Agreement, dated as of January 9, 2024, by and among
Viessmann Group GmbH & Co. KG, Viessmann Komplementär B.V., Viessmann Beteiligungs AG and Maximilian Viessmann. |
Exhibit 99.2 |
Share Purchase Agreement, dated as of April 25, 2023, by and among Carrier Global Corporation, Blitz F23-620 GmbH (subsequently renamed Johann Purchaser GmbH) and Viessmann Group GmbH & Co. KG (incorporated by reference to Exhibit 2.1 to the current report on Form 8-K filed by Carrier Global Corporation (Commission File No. 001-39220) with the Securities and Exchange Commission on April 26, 2023). |
Exhibit 99.3 |
Post-Closing Amendment to Share Purchase Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation, Johann Purchaser GmbH and Viessmann Group GmbH & Co. KG.*+ |
Exhibit 99.4 |
Investor Rights Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation and Viessmann Group GmbH & Co. KG (incorporated by reference to Exhibit 10.2 to the current report on Form 8-K filed by Carrier Global Corporation (Commission File No. 001-39220) with the Securities and Exchange Commission on January 2, 2024). |
Exhibit 99.5 |
License Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation, Viessmann Group GmbH & Co. KG and Carrier Innovative Technologies GmbH (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K filed by Carrier Global Corporation (Commission File No. 001-39220) with the Securities and Exchange Commission on January 2, 2024). |
Exhibit 99.6 |
Transitional Services Agreement, dated as of January 2, 2024, by and among Carrier Global Corporation, Viessmann Climate Solutions SE and Viessmann Group GmbH & Co. KG.*+ |
Exhibit 99.7 |
Limited Power of Attorney of Maximilian Viessmann, dated as of January
9, 2024. |
* Certain exhibits and schedules to this exhibit have been omitted.
A copy of all omitted exhibits and schedules will be furnished to the Securities and Exchange Commission upon its request.
+ Certain portions of this exhibit have been omitted. A copy of all
omitted exhibits and schedules will be furnished to the Securities and Exchange Commission upon its request.
SCHEDULE I
In accordance with the provisions of General Instruction C to Schedule
13D, the name of each director and executive officer of each of Viessmann Group GmbH & Co. KG, Viessmann Komplementär B.V. and
Viessmann Beteiligungs AG, together with their citizenship and present principal occupation or employment (and the name, principal business
and address of any corporation or other organization in which such employment is conducted) is set forth below.
The principal business address for each person listed below is Im Birkenried
1, 35088 Battenberg, Germany, unless otherwise indicated.
VIESSMANN GROUP GMBH & CO. KG
Viessmann Group GmbH & Co. KG is managed by Viessmann Komplementär
B.V., its sole managing partner. The name of each director and executive officer of Viessmann Komplementär B.V. is set out below.
VIESSMANN KOMPLEMENTÄR B.V.
Name |
Citizenship |
Present
Principal Occupation or Employment and Principal Address of Corporation in which Employment is Conducted |
Maximilian Viessmann |
Germany |
President and Chief Executive Officer, Viessmann Group |
Dr. Ulrich Hüllmann |
Germany |
Chief Financial Officer, Viessmann Group |
Frauke von Polier |
Germany |
Chief People Officer, Viessmann Group |
Boris Scukanec Hopinski |
Croatia |
Chief Operating Officer, Viessmann Group |
Prof. Dr. Martin Viessmann |
Germany |
Professional board member |
Prof. Dr. Thomas Rödder |
Germany |
Tax Advisor and Partner, Flick Gocke Schaumburg, Bonn, Fritz-Schäffer-Straße 1, 53113 Bonn, Germany |
Dr. Albert Christmann |
Germany |
Chairman and General Partner, Dr. August Oetker KG, ⁠⁠Friedrich-List-Str. 5, ⁠33617 Bielefeld, Germany |
Madeleine Jahr |
Germany |
Managing Director, Houlihan Lokey, Marienturm, Taunusanlage 9-10, 60329 Frankfurt am Main, Germany |
Dr. Dieter Heuskel |
Germany |
Professional board member |
VIESSMANN BETEILIGUNGS AG
Name |
Citizenship |
Present
Principal Occupation or Employment and Principal Address of Corporation in which Employment is Conducted |
Maximilian Viessmann |
Germany |
President and Chief Executive Officer, Viessmann Group |
Dr. Ulrich Hüllmann |
Germany |
Chief Financial Officer, Viessmann Group |
Frauke von Polier |
Germany |
Chief People Officer, Viessmann Group |
Boris Scukanec Hopinski |
Croatia |
Chief Operating Officer, Viessmann Group |
Prof. Dr. Martin Viessmann |
Germany |
Professional board member |
Prof. Dr. Thomas Rödder |
Germany |
Tax Advisor and Partner, Flick Gocke Schaumburg, Bonn, Fritz-Schäffer-Straße 1, 53113 Bonn, Germany |
Dr. Albert Christmann |
Germany |
Chairman and General Partner, Dr. August Oetker KG, ⁠⁠Friedrich-List-Str. 5, ⁠33617 Bielefeld, Germany |
Madeleine Jahr |
Germany |
Managing Director, Houlihan Lokey, Marienturm, Taunusanlage 9-10, 60329 Frankfurt am Main, Germany |
Dr. Dieter Heuskel |
Germany |
Professional board member |
Dr. Christophe Sarasin |
Switzerland |
Partner, Fromer Rechtsanwälte, St. Jakobs-Strasse 7, 4052 Basel, Switzerland |
Exhibit 99.1
EXHIBIT 99.1
JOINT FILING AGREEMENT
Each of the undersigned hereby agrees that the Schedule 13D, dated
January 9, 2024, with respect to the common stock, par value $0.01 per share, of Carrier Global Corporation (the “Schedule
13D”) is, and any and all subsequent amendments thereto shall be, filed on behalf of each of the undersigned pursuant to and
in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, and that this Joint Filing
Agreement shall be included as an exhibit to the Schedule 13D and any amendments thereto. Each of the undersigned agrees to be responsible
for the timely filing of any amendments to the Schedule 13D, and for the completeness and accuracy of the information concerning itself
contained therein, but shall not be responsible for the completeness and accuracy of the information concerning any other party hereto
or thereto, except to the extent that it knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement
may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Joint Filing Agreement has been executed
and delivered by each of the undersigned as of January 9, 2024.
|
VIESSMANN GROUP GMBH & CO. KG |
|
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By: Viessmann Komplementär B.V., its sole general partner |
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By: |
/s/ Maximilian Viessmann |
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Name: Maximilian Viessmann |
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Title: President and Chief Executive Officer |
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By: |
/s/ Frauke von Polier |
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Name: Frauke von Polier |
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Title: Executive Board Member and Chief People Officer |
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VIESSMANN KOMPLEMENTÄR B.V. |
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By: |
/s/ Maximilian Viessmann |
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Name: Maximilian Viessmann |
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Title: President and Chief Executive Officer |
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By: |
/s/ Frauke von Polier |
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Name: Frauke von Polier |
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Title: Executive Board Member and Chief People Officer |
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VIESSMANN BETEILIGUNGS AG |
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By: |
/s/ Maximilian Viessmann |
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Name: Maximilian Viessmann |
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Title: President and Chief Executive Officer |
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By: |
/s/ Frauke von Polier |
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Name: Frauke von Polier |
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Title: Executive Board Member and Chief People Officer |
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/s/ Maximilian Viessmann |
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MAXIMILIAN VIESSMANN |
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Exhibit 99.3
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) OF A TYPE THAT THE FILER TREATS AS PRIVATE OR CONFIDENTIAL.
Post-Closing
Amendment to the Share
Purchase Agreement Regarding the sale
and transfer of the Climate Solutions
business
This amendment
agreement ("Agreement") is entered into
by and between
| 1. | 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, |
- "Seller"
–
| 2. | Johann
Purchaser GmbH (formerly trading as Blitz F23-620 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 Carrier Klimatechnik
GmbH, Gutenbergstraße 1, 85737 Ismaning, |
- "Purchaser"
–
| 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"
-
- Seller,
Purchaser and Parent also referred to individually as a "Party" and collectively as "Parties" -
Recitals
| (A) | Whereas,
the Parties entered into the Share Purchase Agreement dated 25 April 2023 (roll of deeds
no. 67/2023 of notary public Dr. Carsten J. Angersbach in Frankfurt am Main, hereinafter
"SPA"). |
| (B) | Whereas,
the Closing of the transactions contemplated under the SPA has occurred on 2 January
2024 prior to the signing of this Agreement. |
| (C) | WHEREAS,
the Parties wish to agree and confirm their joint understanding in relation to certain matters
stipulated in the SPA as set out herein. |
Now,
therefore, the Parties agree as follows:
Capitalized
terms used but not defined herein shall have the meaning ascribed to them in the SPA.
| 2. | Payment of
Share Consideration |
The
Parties agree, that in deviation from the process set out in Section 7.1.2 of the SPA, the Share Consideration has been paid directly
by Purchaser to Seller by way of a shortened payment made to Seller by Parent on Purchaser’s behalf (Zahlung im abgekürzten
Zahlungsweg) in lieu of the payment of the 20% Base Purchase Price Receivable by Purchaser and the contribution thereof by Seller
to Parent. The Parties agree that Seller's contribution of the Base Purchase Price Receivable and the payment of the Share Consideration
was duly performed by such shortened payment.
| 3. | Continuing
Commercial Agreement between Remaining Seller's Group and the Target Group |
Pursuant
to Section 17.2.3 of the SPA, the Parties have agreed that the following agreements shall continue after the Closing in accordance
with their terms. Therefore, they shall be included in Exhibit 17.2.1 to the SPA and not be terminated pursuant to Section 17.1 of the
SPA.
[***]
| 4. | Seller's Group
Insurance Policies |
| 4.1 | Purchaser
confirms to have itself purchased D&O Insurance as of Closing and, therefore, does not
wish Seller to procure the purchase of any such coverage. Accordingly, Purchaser waives its
rights under Section 17.5.2 of the SPA. |
| C.1. | Purchaser
has decided that it does not wish to have assigned or otherwise transferred to the Target
Companies the right to pursue recovery under the Transferred Insurance Policies and has,
therefore, waived its rights pursuant to Section 17.5.4 of the SPA. |
| 5. | Resigning Seller
Representatives |
| 5.1 | The Parties
have agreed that Dr. Albert Christmann shall also resign from his office as vice chairman
and member of the board of directors of the Company. The Parties further have agreed that
Frauke von Polier shall resign from her office as managing director of Viessmann Climate
Solutions Berlin GmbH. Therefore, both shall be included in Exhibit 18.4.1 to the SPA as
Resigning Seller Representative and Exhibit 18.4.1 to the SPA shall be supplemented
by the following lines. |
Function
|
Target
Company |
Last
Name |
First
Name |
Non-Executive
Director |
Viessmann
Climate Solutions SE |
Dr. Christmann |
Albert |
Managing
Director |
Viessmann
Climate Solutions Berlin GmbH |
von Polier |
Frauke |
| 5.2 | The Parties
have agreed that Thomas Noebels will not resign from his office as managing director of Bio-Energie
Allendorf GmbH. |
| 6.1 | The Parties
have agreed to have the Company and HBB Hotelbetriebsgesellschaft Battenberg GmbH enter into
the Group Price Agreement 2024 ('Firmenpreisvereinbarung 2024') in lieu of the following
lease agreements which were set out in Exhibit 17.3/1 of the SPA: |
Event
space
Hotel
suite
Seminar
room.
| 6.2 | The Parties
have agreed to change the rent per month (excluding ancillary costs and VAT) for the sales
offices in Erfurt and Leipzig to EUR 27,900. |
| 7.1 | The Parties
have agreed to include the following agreements in part E of Exhibit 16.1.1 of the SPA and
to amend part E of Exhibit 16.1.1 respectively: |
[***]
| 7.2 | The Parties
have agreed to not transfer the Orbian agreement to a Target Company. |
| C.2. | The Parties
have agreed that after Closing neither Party shall have any obligation to renew the sponsoring
agreement with Jochen Behle (line item 5 of Exhibit 16.1.1 of the SPA). |
| 7.3 | With respect
to certain domains, the Parties have agreed as follows: |
| 7.3.1 | The
domains listed under line items 21, 22 and 36 of Exhibit 16.1.1 of the SPA shall be allocated
to the Remaining Seller's Group and shall, therefore, other than set forth in Exhibit 16.1.1
of the SPA, not be transferred to the Target Group. |
| 7.3.2 | The
domains listed in Annex 7.4.2 hereto (which have not been reflected in
Exhibit 16.1.1 of the SPA) shall be included into part F of Exhibit 16.1.1 of the SPA as
Carve-in domains, i.e., domains that are allocated to the Target Group. They were, therefore,
transferred from the Remaining Seller's Group to the Target Group at a purchase price of
EUR 1.00 each, with such purchase price qualifying as Leakage. |
| C.2.1. | The
domains listed in Annex 7.4.3 hereto (which have not been reflected in
Exhibit 16.1.1 of the SPA) shall be included into part F of Exhibit 16.1.1 of the SPA as
Carve-out domains, i.e., domains that are allocated to the Remaining Seller's Group. They
were, therefore, transferred from the Target Group to the Remaining Seller's Group at a purchase
price of EUR 1.00 each, with such purchase price qualifying as Contribution. |
| 7.3.3 | The
rights held by Target Group to the domains listed in Annex 7.4.4 hereto,
if any, (which have not been reflected in Exhibit 16.1.1 of the SPA) shall be allocated to
the Remaining Seller's Group and qualify as Excluded Assets and Liabilities within the meaning
of Section 16.2.1(b) of the SPA. In connection with the allocation of the domains, the
Sellers acknowledge that Etanomics Italia s.r.s., an indirect subsidiary of the Company,
conducts a business in Italy under the designation "etanomics". It is agreed between
the Parties that, after Closing, Etanomics Italia s.r.s. shall be entitled to conduct its
business utilizing the designation and corresponding trademarks "etanomics" as
well as the domain "etanomics.it" substantially in the same manner and in the same
geographical area as conducted prior to Closing. For this purpose and to this extent, the
Seller shall, and the Purchaser shall procure, that as soon as practicable after Closing,
the Seller and Etanomics Italia s.r.s. will enter into a license agreement at commercially
reasonable terms, pursuant to which Etanomics Italia s.r.s. will be entitled to use the designation
and corresponding trademarks "etanomics" as well as the domain "etanomics.it". |
| C.2.2. | The
rights held by Seller Group to the domains listed in Annex 7.4.5 hereto,
if any, (which have not been reflected in Exhibit 16.1.1 of the SPA) shall be allocated to
the Target Group and qualify as Included Assets and Liabilities within the meaning of Section 16.2.1(a)
of the SPA. |
| 7.4 | Other Tangible
Assets: The Parties have agreed to transfer the bust of Johann Viessmann instead of the artwork
"Venice" (part G of Exhibit 16.1.1 of the SPA). |
| C.3. | With respect
to the part C of Exhibit 16.1.1 of the SPA (Employee Transfers), the Parties have
agreed that Annex C of Exhibit 16.1.1 of the SPA shall be replaced by Annex 7.6
hereto. |
The
Parties have agreed that the following social media accounts shall exclusively belong to, and be operated by, Seller. Therefore, the
Parties agree that the Target Companies shall (to the extent not having occurred yet) transfer all access data to these social media
accounts, including user credentials and passwords:
Social Media Platform |
Account
Name |
Link
to Account |
Xing |
Viessmann |
https://www.xing.com/pages/viessmann |
Kununu |
Viessmann |
https://www.kununu.com/de/viessmann |
Glassdoor |
Viessmann |
https://www.glassdoor.de/%C3%9Cberblick/Arbeit-bei-Viessmann-Group-EI_IE933457.11,26.htm |
The
Parties have agreed to include the above-mentioned domains in Exhibit 18.9.1 to the SPA and to amend the Exhibit respectively.
| 9. | Seller's Special
Bonus and Transaction Bonus |
The
Parties have agreed on the bonus guidelines attached as Annex 9 hereto. In respect of the pay-out for the Seller's Special Bonus
and the Transaction bonus payments specified in Exhibit 15.1.2 (f), the Parties will agree on a Payment Agency Agreement.
The
Parties have agreed that BIOFerm GmbH was sold and transferred to Viessmann Group GmbH & Co. KG and shall, therefore, as of 21 December
2023 no longer qualify as a Target Company or Material Target Company within the meaning of the SPA. Therefore, BIOFerm GmbH will not
be subject of the Bring-Down Certificate and the underlying bring-down process.
| 11. | Composition
of Board of Directors of Company |
In
deviation of Section 22.1.9 of the SPA, the Parties have agreed that Klaus Hoppe (due to termination of service agreement) and Dr.
Markus Klausner will no longer be members of the board of directors (Mitglieder des Verwaltungsrats) of the Company after the
Closing. The remainder of Section 22.1.9 of the SPA remains unaffected.
Except
as expressly set forth herein, the rights and obligations under the SPA remain unaffected. Sections 32 (Confidentiality),
35 (Notices), 36 (Governing Law, Dispute Resolution) and 37.1 through 37.6 (Miscellaneous) of the SPA shall
apply mutatis mutandis to this Closing Agreement.
Viessmann
Group GmbH & Co. KG
/s/ Ulrich
Hüllmann
Name: Ulrich
Hüllmann
Function: Chief
Financial Officer
|
Viessmann
Group GmbH & Co. KG
/s/ Hans-Jörg
Harth
Name: Hans-Jörg
Harth
Function: Managing
Director
|
|
|
Johann Purchaser
GmbH (formerly Blitz F23-620 GmbH)
/s/ Francesca
Campbell
Name: Francesca
Campbell
Function: Managing
Director |
Carrier
Global Corporation
/s/ Francesca
Campbell
Name: Francesca
Campbell
Function: Vice
President, Secretary |
Annex 7.4.2:
New Carve-ins
Annex 7.4.3:
New Carve-Outs
Annex 7.4.4:
Domains allocated to Seller's Remaining Group
Annex 7.4.5:
Domains allocated to Target Group
Annex 7.6:
Employee Transfers
Annex 9:
Bonus Guidelines
Exhibit 99.6
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) OF A TYPE THAT THE FILER TREATS AS PRIVATE OR CONFIDENTIAL.
Transitional
ServIces Agreement
Table of Contents
1. |
Interpretation
and Definitions |
4 |
2. |
TSA Services |
9 |
3. |
Consideration |
14 |
4. |
Exchange of Information,
Cooperation |
16 |
5. |
Service Management |
21 |
6. |
Term |
22 |
7. |
IT Services |
24 |
8. |
Limitation of Liability |
27 |
9. |
Force Majeure, Disaster Recovery |
27 |
10. |
Data Protection |
28 |
11. |
Parent Undertaking |
28 |
12. |
Confidentiality |
29 |
13. |
Notices |
30 |
14. |
Set-Off, Interest |
32 |
15. |
Applicable Law and Arbitration |
32 |
16. |
Miscellaneous |
34 |
This Transitional
Services Agreement (including any of its Exhibits, the "Agreement") is made on 2 January 2024
by and between
| 1. | 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 ("Seller"), 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
| 2. | Viessmann
Climate Solutions SE, a European stock company (Societas Europaea), incorporated
under German law and registered in the commercial register of the local court (Amtsgericht)
of Marburg under registration no. HRB 7562 with its business address at Viessmannstraße 1,
35108 Allendorf/Eder, Germany ("Company") |
| 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"), |
–
Seller, Parent and Company also referred to individually as a "Party" and collectively as "Parties"
–
RECITALS
| (A) | WHEREAS,
on 25 April 2023, Seller, Johann Purchaser GmbH (formerly named Blitz F23-620 GmbH) ("Purchaser")
and Parent as Purchaser's ultimate parent company entered into a share purchase agreement
("SPA") relating to the sale and acquisition of Seller's climate solutions
business. |
| (B) | whereas,
the transactions contemplated by the SPA are consummated on the date hereof, i.e.,
shortly prior to the Closing under this Agreement. |
| (C) | WHEREAS,
both Seller and Company and certain of their Subsidiaries as service provider ("Service
Provider") have provided, or have procured the provision of, certain services to
the respective other Party and/or certain of their Subsidiaries, and Company and Seller and
their respective Affiliated Companies as recipient ("Recipient") do not
yet have the infrastructure and personnel to perform certain identified services required.
Therefore, each of Seller and Company have requested transitional services to be provided
or procured by the respective other Party. |
| (D) | WHEREAS,
therefore, as part of the consummation of the transactions contemplated by the SPA, it is
envisaged for the Parties to enter into this Agreement and to have the respective Service
Provider continue identified services for a transitional period. |
| (E) | NOW,
THEREFORE, the Parties agree as follows: |
| 1. | Interpretation
and Definitions |
| 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
SPA. 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
terms "including" and "including, in particular" shall mean "including,
without limitation". |
| 1.1.3 | 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. |
| 1.1.4 | Any
reference in this Agreement (including in any of its Exhibits) to a "Section" is
a reference to the relevant section (or subsection) of this Agreement (i.e., contained
in the main body of this Agreement). Any reference in an Exhibit to a Section or paragraph
is a reference to the relevant Section or paragraph in the Exhibit where such reference is
made, unless that reference expressly states otherwise. |
| 1.1.5 | Terms
defined in the singular have a comparable meaning when used in the plural, and vice versa. |
| 1.1.6 | 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. |
| 1.1.7 | Terms
to which a German translation has been added shall be interpreted as having the meaning assigned
to them by the German translation. |
| 1.1.8 | The
term "law" shall include any statute, code, regulation and other legally binding
rule. |
| 1.1.9 | Any
obligation of a Party to "ensure" or "procure" any matter or to "cause"
any third party to take (or omit) an action shall be construed as an independent undertaking
(verschuldensunabhängige Einstandspflicht). |
| 1.1.10 | 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. Exhibit 1.1.10
sets forth a list of the Exhibits to this Agreement. |
For
the purpose of this Agreement, the following terms shall have the following meaning:
"Affiliated
Company" |
means, in relation
to a Person, any Person which directly or indirectly (i) controls by means of the majority of capital or voting rights or (ii) is
controlled by or (iii) is under joint control with such Person; and "affiliated (with)" shall be interpreted accordingly. |
"Business
Day" |
means any day
other than a Saturday, Sunday or other day on which banks in Frankfurt am Main, Germany, or New York City, New York (U.S.A.) are
generally closed for business or the New York Stock Exchange is not open for a full day of trading. |
"Closing" |
means 2 January 2024,
being the Closing under the SPA. |
"Person" |
means any individual or legal
entity. |
"Reasonable Efforts" |
shall require the respective
Party to take commercially reasonable efforts, provided, however, that nothing in this Agreement shall give rise to an obligation
on the part of the relevant Party to make any third party expenditures in relation to any TSA Services, unless the other Party offers
to reimburse such third party expenditures. |
"Reference Exchange
Rate" |
means with respect to any
day and any currency the exchange rate (i) as published by the European Central Bank or (ii) if the European Central Bank
generally does not publish such reference exchange rate for the respective currency, as published on the internet page of the Financial
Times, in each case of (i) and (ii) for such day or, if no rates are published for such day, the latest day before that day for which
such rates are published, whatever the case may be. |
"Subsidiary" |
means in relation
to a Person, any Person which is controlled by means of the majority of capital or voting rights or is under joint control with such
Person. |
"Transaction Documents" |
means the SPA, together with
all ancillary agreements concluded thereunder or in connection therewith. |
"Term Sheet" |
means the respective term
sheet for each TSA Service as agreed upon between Service Provider and Recipient with reference and annexed to this Agreement as
Exhibit 1.2, as may, from time to time, be supplemented or modified in accordance with this Agreement. |
"Termination Charges" |
means any fees or expenses
payable to any unaffiliated, third party provider as a result of any early termination or reduction of a TSA Service (which fees
and expenses may include breakage fees, early termination fees or charges, liquidated damages and minimum volume charges with respect
to a terminated TSA Service). |
"TSA Services" |
means
the services, functions, and tasks provided to Recipient or its Affiliated Companies (as specified in the relevant Term Sheet) by
or on behalf of Service Provider and its Subsidiaries as specified in the Term Sheets, which also include specific provisions regarding
the duration, consideration and service levels of the TSA Services, as such Term Sheets may, from time to time, be supplemented or
modified in accordance with this Agreement. |
"VAT" |
means
(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. |
The
following list contains capitalized terms defined in this Agreement other than in its Section 1.2.
Additional Services |
as
defined in Section 2.2 |
Affiliated
Company |
as defined
in Section 1.2 |
Agreement |
as
defined in the list of Parties |
Alleged
Transferee |
as defined in Section 2.9.3 |
Alleged
Transferor |
as defined in Section 2.9.3 |
Business
Day |
as defined
in Section 1.2 |
Change |
as defined
in Section 7.2.2 |
Change
Request |
as defined
in Section 7.2.2 |
Claiming
Employee |
as defined in Section 2.9.3 |
Closing |
as defined
in Section 1.2 |
Confidential
Information |
as defined
in Section 12.1 |
Developed
IP |
as defined
in Section 4.4.5 |
Dispute |
as defined
in Section 15.2 |
DSC |
as defined
in in Section 15.2 |
EURIBOR |
as defined
in Section 14.2.1 |
Force
Majeure |
as defined
in Section 9.3 |
Gross-Up |
as defined
in Section 3.4 |
IT
Breach |
as defined
in Section 4.3.3 |
IT
Service Levels |
as defined
in Section 7.4 |
IT
Services |
as defined
in Section 7.1 |
JSC |
as defined
in Section 5.2 |
Omitted
IT Services |
as defined
in Section 7.3.1 |
Parent |
as defined
in the list of Parties |
Party/Parties |
as defined
in the list of Parties |
Person |
as defined
in Section 1.2 |
Purchaser |
as defined
in Recital (A) |
Reasonable
Efforts |
as defined
in Section 1.2 |
Recipient |
as defined
in Recital (C) |
Reference
Exchange Rate |
as defined
in Section 1.2 |
Reference
Period |
as defined
in Section 2.1 |
Seller |
as
defined in the list of Parties |
Service
Fee |
as defined
in Section 3.1.1 |
Service
Manager |
as defined
in Section 5.1 |
Service
Personnel |
as defined
in Section 2.8 |
Service
Provider |
as defined
in Recital (C) |
Service
Suspensions |
as defined
in Section 2.5 |
SME |
as defined
in Section 2.6 |
SPA |
as defined
in Recital (A) |
Subcontractors |
as defined
in Section 2.7 |
Subsidiary |
as defined
in Section 1.2 |
Target |
as defined
in the list of Parties |
Term
Sheet |
as defined
in Section 1.2 |
Termination
Charges |
as defined
in Section 1.2 |
Transaction
Documents |
as defined
in Section 1.2 |
TSA
Services |
as defined
in Section 1.2 |
VAT |
as defined
in Section 1.2 |
| 2.1 | Service Specifications |
As
of the Closing and subject to the terms and conditions of this Agreement as well as applicable mandatory law, Service Provider shall,
or shall cause one or more of its Subsidiaries to, provide the TSA Services in accordance with the specifications set out in the respective
Term Sheet, it being agreed that the TSA Services set forth in the Term Sheets shall, unless otherwise agreed between the Parties, comprise
(in all material respects) the same scope, quality, service levels and functionality of services that were provided by Service Provider
or its Subsidiaries to Recipient or its Subsidiaries in the twelve months prior to the signing of the SPA ("Reference Period").
Each Party acknowledges and agrees that it has considered and will continue to consider in good faith any requests made by the other
Party to include in any Term Sheet a scope, quality, service levels or functionality of service that differs from that provided during
the Reference Period (including to take into account the fact that Service Provider will be providing the respective TSA Services to
a non-affiliated party).
After
the Closing, if Recipient reasonably requests additional transition services ("Additional Services") from Service Provider,
Service Provider shall consider consenting to the request in good faith. Following such consent, the Parties shall work in good faith
to add the Additional Services by entering into a new Term Sheet or other agreement with respect thereto, in each case on terms and conditions
mutually agreeable to the Parties, including with respect to scope, duration and fees.
| 2.3.1 | Subject to the other terms and
conditions of this Agreement, Recipient and Service Provider acknowledge and agree that Service Provider shall provide TSA Services to
support Recipient during the term set out in the respective Term Sheet. |
| 2.3.2 | Unless
specifically set forth otherwise herein, Service Provider shall, and in case any TSA Services
through an Affiliated Company or Subcontractor in accordance with Section 2.7 Service
Provider shall cause any such Affiliated Company or Subcontractor to, carry out the TSA Services
with at least such degree of care (in all material respects) as was provided by Service Provider
or its Subsidiaries consistent with its past practice in the Reference Period. |
| 2.3.3 | If
there is any restriction on Service Provider by an existing contract with a third party or
by applicable law that would restrict the nature, quality or standard of care applicable
to delivery of certain TSA Services to be provided by Service Provider to Recipient (including
due to the fact that Service Provider will be providing the respective TSA Services to a
non-affiliated party), Service Provider shall use its Reasonable Efforts to provide such
TSA Services in a manner as closely as possible to the standard described in this Section
2.3, which shall include taking reasonable steps to avoid or mitigate such restriction, to
the extent practicable. |
| 2.3.4 | If
Service Provider is unable to provide or procure a TSA Service in accordance with the terms
of this Agreement or any Term Sheet due to a capacity shortage (which the Service Provider
agrees to use Reasonable Efforts to avoid or mitigate, to the extent practicable), Service
Provider shall provide the affected TSA Service to Recipient on a pro-rata non-discriminatory
basis as compared to operations, businesses or divisions of Service Provider and any person
affiliated with Service Provider receiving similar services, unless otherwise agreed to by
the parties in writing. |
| 2.3.5 | Service
Provider shall keep employed sufficient, qualified personnel to be in a position to honour
its obligations under this Agreement. |
Service
Provider shall use Reasonable Efforts to obtain any consent required by any third party for the provision of TSA Services, and Recipient
shall use Reasonable Efforts to assist Service Provider in Service Provider's efforts to obtain such third party consents as Service
Provider may reasonably request. If such consent cannot be obtained, Service Provider shall use Reasonable Efforts to provide a mutually
acceptable arrangement in order to enable Service Provider to provide such TSA Services, including to use Reasonable Efforts to have
such third party enter into an agreement directly with Recipient; provided, however, that only if such Reasonable Efforts do not result
in a mutually acceptable arrangement, the Parties shall negotiate in good faith an acceptable substitute TSA Service to be provided by
Service Provider, that shall be subject to the terms and conditions of this Agreement; in all other cases the TSA Services shall be provided
by Service Provider as agreed hereunder. Any reasonable fees or other out-of-pocket costs to obtain any third party consents shall be
borne by Recipient in addition to the Service Fees.
In
case of any operationally required material interruptions or suspensions of any TSA Service the TSA Services ("Service Suspensions"),
(i) Service Provider shall (or cause its Subsidiary to) provide to Recipient (x) advance notice of any planned Service Suspension, and
(y) in the event of any unplanned Service Suspension for which advance notice is not practicable, prompt notice thereof, provided that
in each case Recipient shall be notified no later than such time as Service Provider or its Subsidiaries notify any person affiliated
with them, respectively, of the same Service Suspensions, (ii) Service Provider shall provide each of the TSA Services to Recipient
on a non-discriminatory basis as compared to operations, businesses or divisions of Service Provider and its Affiliates receiving similar
services (iii) Service Provider shall restore provision of TSA Services as quickly as reasonably practicable, and (iv) Service Provider
shall keep (or shall cause an Affiliate to keep) Recipient or its applicable Affiliates reasonably and promptly informed of the status
and progress of any Service Suspension and steps being taken to restore provision of the TSA Services.
| 2.6 | Subject Matter Experts |
The
Parties acknowledge and agree that, should services under a Term Sheet hereto be performed by a subject matter expert ("SME"),
as specified in the applicable Term Sheet, Service Provider shall use its Reasonable Efforts to replace such SME with another employee
of Service Provider or one of its Affiliated Companies in case that the respective SME ceases employment with Service Provider and any
of its Affiliated Companies. If Service Provider is unable to locate a suitable replacement for such SME, the services attributable to
such individual shall, upon request of the Recipient, no longer be provided under this Agreement and Recipient shall have no obligation
to pay any further compensation, Service Fees or expenses relating to the services attributable to such SME, provided that Service Provider
shall, without undue delay, use Reasonable Efforts to assist Recipient in locating a suitable external party to provide the services
attributable to such SME.
Service
Provider may perform TSA Services through Affiliated Companies, or, provided that there is no material increase in the total cost (over
the entire term of the TSA Service) or change in service (including quality and functionality), through external Subcontractors ("Subcontractors");
provided, however, that (i) Service Provider shall use the same degree of care in selecting any such Affiliated Company or Subcontractor
as it would if such Affiliated Company or Subcontractor were being retained to provide similar services to Service Provider, (ii) Service
Provider shall perform the TSA Services exclusively through the SME in accordance with Section 2.4 (if applicable), (iii) Service Provider
shall in all cases procure compliance of the Affiliated Company or Subcontractor with the terms and conditions of this Agreement and
the respective Term Sheet in providing any of the TSA Services and shall remain responsible for the provision to Recipient of the TSA
Services, and that (iv) Service Provider shall be solely responsible for any obligations or liabilities that it may have to such third
party service providers with respect to their service hereunder.
With
respect to the TSA Services and subject to the standard of care and performance requirements set forth in this Agreement, Service Provider
shall not be subject to the directions of Recipient and shall have the exclusive right to select, direct and discharge any of the employees,
agents or Subcontractors of Service Provider who will perform the TSA Services ("Service Personnel") and Recipient shall
have no right of, and will not exercise any, direction, control, and supervision over and not issue any instructions to any Service Personnel
while the same is performing the TSA Services. Service Provider shall be responsible for paying the compensation of such Service Personnel,
unless otherwise set forth in Section 2.9.3.
| 2.9 | No Transfer of Employees |
| 2.9.1 | Service
Provider acts as an independent contractor, subject to any instructions given by Recipient
in accordance with this Agreement. |
| 2.9.2 | Nothing
in this Agreement, including termination, shall have the effect, nor is intended that any
provision of law shall have the effect, of transferring to the respective other Party any
employment relationships that a Party or any of its Affiliated Companies or Subcontractors
has with any of their employees. |
| 2.9.3 | Notwithstanding
the above, if any individual (a "Claiming Employee") claims or alleges that
as a result of the commencement, continuation or termination of the TSA Services his or her
employment, or any liability relating to his or her employment, has transferred from one
Party or any of its Affiliated Companies (the "Alleged Transferor") to the
other Party or any of its Affiliated Companies (the "Alleged Transferee"),
then the Parties shall cooperate in good faith, or shall procure that the relevant Affiliate
Company shall cooperate in good faith, to minimize any related costs, expenses, and liabilities,
and shall in particular act as follows: |
| (a) | each Party shall notify the other
Party of such claim or allegation within ten (10) Business Days of becoming aware of such claim or allegation; |
| (b) | the Alleged
Transferor shall have the right to make an offer of employment to the Claiming Employee within
ten (10) Business Days of receipt of such notification from the Alleged Transferee or
of otherwise becoming aware of such claim or allegation; |
| (c) | if such
offer of employment has not been made within ten (10) Business Days pursuant to Section 2.9.3(b)
or has not been accepted within ten (10) Business Days of such offer being made to the
Claiming Employee, then the Alleged Transferee may employ the Claiming Employee or, otherwise,
shall initiate the termination of the employment relationship with the Claiming Employee
and the Alleged Transferor and the Alleged Transferee shall coordinate on further steps. |
| (d) | During
the respective periods of ten (10) Business Days set forth in Sections 2.9.3(a) through 2.9.3(c),
the Alleged Transferee shall not actually employ and/or integrate the Claiming Employee into
its own business organization. |
| (e) | All reasonable
costs, claims, expenses and liabilities arising for the Alleged Transferee from the employment,
including the termination of employment, of the Claiming Employee including in relation to
statutory, tortious or contractual claims, including any lawyer's and other legal fees incurred
shall be borne by the relevant Alleged Transferor. |
| 3.1.1 | The
Recipient shall pay to Service Provider the fees as specified for the relevant TSA Service
in the respective Term Sheet ("Service Fee"), it being agreed that: |
| (a) | in case
a TSA Service is performed through a Subcontractor in accordance with Section 2.7, the
Service Fee shall be equal the Subcontractor's bona fide pass-through costs; and |
| (b) | in all
other cases, the Service Fee shall be set forth in the Term Sheet for the relevant TSA Service,
which the Parties acknowledge and agree (i) were discussed and agreed for the time period
(including the extension, if any) set out in the relevant Term Sheet prior to the date of
this Agreement based on a good faith reasonable standard taking into consideration the fees
and other charges for the relevant TSA Service in the Reference Period (as set out in the
Separation Report by Deloitte dated 23 February 2023) and actual costs of Service Provider
for the provision of such TSA Services (excl. cost of integration and corporate charges)
and (ii) may be adjusted from time to time in accordance with the provisions set out in the
relevant Term Sheet. |
| 3.1.2 | In
the case of any TSA Service that is provided through a Subcontractor in accordance with Section 2.7,
Service Provider may increase the applicable Service Fee from time to time in an amount equal
to any bona fide increase in the fees charged to Service Provider by such Subcontractor
on a non-discriminatory basis for the relevant TSA Service. |
| 3.2 | Invoicing and Payments |
The
Service Fee shall be pro-rated on a monthly basis for the TSA Services performed in the respective month. Unless otherwise set forth
in the respective Term Sheet, Service Provider or its Affiliated Company shall invoice Recipient in Euro in arrears for the Service Fees
of each calendar month until twenty (20) Business Days after the end of such calendar month. Service Provider or its Affiliated Company
shall only invoice Recipient if the Service Fee amounts to at least EUR 2,500 (net amount). If the Service Fee for the TSA Services performed
in a month amounts to less than EUR 2,500 (net amount), the Service Fee shall be invoiced together with the Service Fees for the
respective TSA Services rendered in the following months when the sum of the Service Fees to be invoiced amounts to at least EUR 2,500
(net amount). The threshold of EUR 2,500 (net amount) for the invoice does not apply to the invoice for the TSA Services rendered
in the last month before the term of the respective TSA Term Sheet expires or the respective TSA Term Sheet is terminated. Any foreign
exchange conversions shall occur at the Reference Exchange Rate applicable to the last day of the month to which the invoice relates.
Each invoice amount shall be paid within ten (10) Business Days after receipt of the invoice.
The
Service Fee and any other consideration payable under this Agreement are net amounts that do not yet include any VAT. If and to the extent
that any VAT is or becomes chargeable or payable on any service or supply contemplated under this Agreement, Recipient shall pay to Service
Provider or the respective Affiliated Company of Service Provider an amount equal to such VAT in addition to the Service Fee or any other
consideration payable unless and to the extent the respective VAT is owed by Recipient under the reverse charge regime. Service Provider
or the respective Affiliated Company of Service Provider shall issue an invoice in accordance with applicable VAT law and provide any
other applicable documentation reasonably requested by Recipient.
All
payments made by Recipient under this Agreement shall be made in full and without deduction or withholding of any tax unless a deduction
or withholding is required by law. If a deduction or withholding in respect of a tax is required by law to be made by Recipient, the
amount of the payment due from the Recipient shall be increased to an amount which (after making any deduction or withholding) leaves
an amount equal to the payment which would have been due if no deduction or withholding had been required ("Gross-Up").
If and to the extent Service Provider has obtained and utilized a tax credit which is attributable to the deduction or withholding, Service
Provider shall pay an amount to Recipient equal to the tax credit up to the amount of the Gross-up that was paid by Recipient to Service
Provider.
The
Parties shall, or shall procure (stehen dafür ein) that their respective Affiliated Companies use Reasonable Efforts to (i)
minimize the amount of VAT or amounts required to be withheld or deducted by Recipient under applicable law, (ii) claim the benefit of
any exemptions or reductions in applicable rates and (iii) minimize any other incremental tax burden on any Party or any of their respective
Affiliated Companies as a result of the provision of services or supplies under this Agreement.
For
tax or invoicing reasons, the Parties may mutually agree that certain TSA Services shall be rendered on a local level under a separate
local transition services agreement or Term Sheet between the relevant service providing entities of Service Provider and service receiving
entities of Recipient. The terms and conditions of this Agreement shall apply to such local agreements as if they were incorporated therein
and, in case of a conflict between such local agreements and this Agreement, the terms of this Agreement shall prevail.
| 4. | Exchange of
Information, Cooperation |
The
Parties shall use their respective Reasonable Efforts to cooperate with each other in all matters relating to the provision and receipt
of the TSA Services and compliance with the obligations under this Agreement. Such cooperation shall include, (i) exchanging information,
data and documentation and (ii) making available sufficient resources and timely decisions, approvals and acceptances, in each case of
(i) and (ii) as either Party may reasonably require for the purposes of providing or receiving, as appropriate, the TSA Services and
complying with the obligations under this Agreement, and subject to prior contract, intellectual property or confidentiality obligations
owed by Service Provider or its Affiliated Companies to third parties or other legal restrictions of Service Provider or its Affiliated
Companies.
During
the term of this Agreement, Recipient shall, subject to compliance with applicable law and all of Recipient's safety and security procedures
which are generally applicable to third parties visiting Recipient's facilities, provide Service Provider, its Affiliated Companies and
Subcontractors and their respective authorized personnel with any assistance and access to personnel, information, materials and facilities
of Recipient and its Affiliated Companies as Service Provider, its Affiliated Companies and Subcontractors and their respective authorized
personnel may reasonably require to enable Service Provider to perform its obligations under this Agreement.
| 4.3 | Access to Computer Systems |
| 4.3.1 | If
Service Provider (or any of its Affiliated Companies or Subcontractors) has access (either
on-site or remotely) to Recipient's information technology systems in relation to the TSA
Services, Service Provider shall (and shall cause its Affiliated Companies and Subcontractors
to) limit such access solely to the use of such systems as necessary to provide the TSA Services
and shall (and shall cause its Affiliated Companies or Subcontractors to) (i) not access
or attempt to access Recipient's or any of its Affiliated Companies' information technology
systems, files, software or services other than those required to receive the intended benefit
of the TSA Services, (ii) maintain reasonable security measures, consistent with Service
Provider’s past practice during the Reference Period, to protect such information technology
systems of Recipient and its Affiliated Companies to which Service Provider or its Affiliated
Companies has access pursuant to this Agreement from access by unauthorized third parties,
and any "back door", "time bomb", "Trojan Horse", "worm",
"drop dead device", "virus" or other computer software routine intended
or designed to disrupt, disable, harm or otherwise impede in any manner the operation of
such systems, (iii) not permit access or use of information technology systems of Recipient
or any of its Affiliated Companies by a third party other than as authorized by prior written
consent of Recipient and (iv) not disable, damage or erase or disrupt or impair the normal
operation of the information technology systems of Recipient or any of its Affiliated Companies.
Service Provider shall limit such access to its employees with a bona fide need to
have such access in connection with the provision of the TSA Services, and shall follow all
of Recipient's applicable written security rules and procedures previously provided by Recipient
to Service Provider in writing. |
| 4.3.2 | If
Recipient (or any of its Affiliated Companies or Subcontractors) has access (either on-site
or remotely) to Service Provider's or any of its Affiliated Companies' information technology
systems in relation to the TSA Services, Recipient shall (and shall cause its Affiliated
Companies or Subcontractors to) limit such access solely to the use of such systems as necessary
to receive the intended benefit of the TSA Services and shall (and shall cause its Affiliated
Companies or Subcontractors to) (i) not access or attempt to access Service Provider's or
any of its Affiliated Companies' information technology systems, files, software or services
other than those required to receive the intended benefit of the TSA Services, (ii) maintain
reasonable security measures, consistent with Recipient’s past practice during the
Reference Period, to protect such information technology systems of Service Provider and
its Affiliated Companies to which Recipient or its Affiliated Companies has access pursuant
to this Agreement from access by unauthorized third parties, and any "back door",
"time bomb", "Trojan Horse", "worm", "drop dead device",
"virus" or other computer software routine intended or designed to disrupt, disable,
harm or otherwise impede in any manner the operation of such systems, (iii) not permit access
or use of information technology systems of Service Provider or any of its Affiliated Companies
by a third party other than as authorized by prior written consent of Service Provider and
(iv) not disable, damage or erase or disrupt or impair the normal operation of the information
technology systems of Service Provider or any of its Affiliated Companies. Recipient shall
limit such access to its employees with a bona fide need to have such access in connection
with the receipt of the TSA Services, and shall follow all of Service Provider's applicable
written security rules and procedures previously provided by Service Provider to Recipient
in writing. |
| 4.3.3 | Each
Party shall promptly notify the other Party in the event it or any of its respective Affiliated
Companies becomes aware of or suspects that there has been a breach of security or a loss,
theft or unauthorized access, use or disclosure of any information technology systems (collectively,
"IT Breach") of Service Provider or Recipient or any of their respective
Affiliated Companies to the extent such (i) IT Breach could adversely affect the provision
or receipt of the TSA Services hereunder or such other Party's data or Confidential Information
or (2) notice is required by applicable law. |
| 4.4.1 | Each
Party shall retain all right, title and interest in and to its and its Affiliates' Intellectual
Property Rights, except as otherwise provided in this Section 4.4. |
| 4.4.2 | Except
as expressly provided in this Section 4.4, no license or right, express or implied, is granted
under this Agreement by either Party or their respective Affiliates in or to their respective
Intellectual Property Rights. |
| 4.4.3 | If
the provision of the TSA Services hereunder requires the use by Service Provider (or its
relevant Affiliated Company or Subcontractor) of any Intellectual Property Rights owned or
licensable (without payment by Recipient or any its Affiliated Companies), Recipient (on
behalf of itself and its Affiliated Companies) hereby grants to Service Provider a limited,
non-exclusive, non-transferable and royalty-free license, on an "as is", warranty-free
basis, to use such Intellectual Property Rights for the sole purpose of, and only to the
extent and duration necessary for, the provision of the TSA Services hereunder, pursuant
to the terms and conditions of this Agreement; provided that (i) with respect to Company
or any of its Subsidiaries as Recipient in this Section 4.4.3, the term "Affiliated
Companies", as used in this Section 4.4.3, shall be limited to the Company and its Subsidiaries,
(ii) the duration of the foregoing license shall not exceed the Term and (iii) the foregoing
license is subject to any applicable third party restrictions or limitations. The licensed
Intellectual Property Rights may only be sub-licensed to other Affiliated Companies of Service
Provider or third parties involved in the TSA Services and limited thereto. |
| 4.4.4 | If
the receipt of the TSA Services hereunder requires the use by Recipient (or its relevant
Affiliated Company) of any Intellectual Property Rights owned or controlled by Service Provider
or any its Affiliated Companies, Service Provider (on behalf of itself and its Affiliated
Companies) hereby grants to Recipient and its Affiliated Companies a limited, non-exclusive,
non-transferable and royalty-free license, on an "as is", warranty-free basis,
to use such Intellectual Property Rights for the sole purpose of, and only to the extent
and duration necessary for, the receipt of the TSA Services hereunder, pursuant to the terms
and conditions of this Agreement; provided that (i) with respect to the Company or any of
its Subsidiaries as Service Provider in this Section 4.4.4, the term "Affiliated Companies",
as used in this Section 4.4.4, shall be limited to the Company and its Subsidiaries, (ii)
the duration of the foregoing license shall not exceed the Term and (iii) the foregoing license
is subject to any applicable third party restrictions or limitations. The licensed Intellectual
Property Rights may only be sub-licensed to other Affiliated Companies of Recipient and only
to the extent reasonably required for the performance of TSA Services. |
| 4.4.5 | As
between the Parties, Service Provider shall solely own all right, title and interest in and
to all Intellectual Property Rights (other than trademarks) created or developed by or on
behalf of Service Provider, any of its Subsidiaries or any of their respective third party
service providers in connection with the provision of the TSA Services to Recipient ("Developed
IP"). Recipient hereby irrevocably assigns, and shall cause its Affiliated Companies
to assign, to Service Provider all of its or their right, title and interest in and to all
Developed IP and hereby waives any and all moral rights that it or they may have in all such
Developed IP. Recipient agrees, and shall cause its Affiliated Companies, to execute all
other documents and take all actions as may be necessary or desirable to enable the Service
Provider to prosecute, perfect, enforce, defend, registered and record its right, title and
interest in and to the Developed IP. To the extent Recipient requires certain Developed IP
(including customizations of software or systems) for the continuation of its business after
the expiration and/or termination of this Agreement or a specific TSA Service, Service Provider
hereby grants the Recipient a limited, non-exclusive, non-transferrable, royalty-free, sublicensable
(solely with respect to Affiliates and service providers or assignees permitted pursuant
to Section 16.4 and Exhibit 16.4) right to use such Developed IP solely to the extent and
duration necessary to continue the conduct of the Recipient’s or such assignee's business
on an “as-is”, warranty-free basis. Service Provider is under no obligation to
provide any services, updates or modifications to the Recipient for its use of the Developed
IP under such license. |
Each
Party shall, and shall procure that its Affiliated Companies and Subcontractors comply with any applicable law, including applicable
economic sanctions and export controls, with regard to the provision of the TSA Services and Service Provider shall only be obliged to
provide the TSA Services permissible under applicable law, including applicable economic sanctions and export controls. Recipient shall
only be provided with the TSA Services permissible under applicable law, including applicable economic sanctions and export controls.
Without limiting the foregoing, no Service Provider shall provide services (i) in or derived from any territory that is the target of
comprehensive sanctions under or (ii) that involve or benefit any individual or entity that is the target of, in each case of (i) and
(ii), sanctions laws and regulations applicable to Recipient.
Each
Party shall make and keep books and records with respect to the provision of the TSA Services in accordance with such Party's respective
practices and procedures in the ordinary course of business from time to time.
Service
Provider and Recipient shall each appoint one individual who shall coordinate all activities related to a respective TSA Service under
a Term Sheet and be the primary contact for the other Party for any issues arising with respect to such TSA Service ("Service
Manager"). The initial Service Manager for each Party is listed in the relevant Term Sheet. The Service Managers shall identify
and resolve any upcoming issues in connection with the respective TSA Service. Unless otherwise mutually determined by the Service Managers,
the Parties shall regularly meet on a weekly basis for the first six (6) months after the Closing and on a bi-weekly basis thereafter
to review the performance of the respective TSA Service and to discuss any modifications. Meetings may be held in person or by means
of telecommunication (telephone, video, or web conferences). The Service Managers shall promptly discuss and attempt to resolve in good
faith disputes arising out of or relating to this Agreement. Any dispute that has not been resolved by the Service Managers to the mutual
satisfaction of both Parties within five (5) Business Days (or such longer period as the parties may agree) may be referred by either
Party to the JSC and the members of the JSC shall in good faith seek to find an agreement on the dispute referred to them, in accordance
with Section 5.5 below.
| 5.2 | Joint Steering Committee |
The
Parties shall establish a joint steering committee ("JSC"), which shall have an equal number of members from each Party.
Each of Service Provider and Recipient will appoint two (2) representatives to the JSC. Each representative must have the requisite experience
and seniority to enable him or her to make decisions with respect to oversight and dispute resolution relating to the TSA Services on
behalf of the applicable Party.
Either
Party may change any of its Service Managers or representatives on the JSC from time to time, upon ten (10) days' written notice to the
other Party. In case a Service Manager or representative on the JSC of either Party becomes permanently unavailable, the relevant Party
shall nominate a replacement and inform the other Party of the replacement without undue delay.
| 5.4 | Responsibility of the JSC |
The
JSC shall have the responsibility to
| 5.4.1 | endeavour
to resolve any issues that could not be resolved between the Service Managers; |
| 5.4.2 | serve
as a forum for the Parties to exchange and discuss information and proposals regarding important
issues under this Agreement; and |
| 5.4.3 | take
such other actions as are set forth in this Agreement as the responsibility of the JSC or
as the Parties may agree in writing are the responsibility of the JSC. |
| 5.5.1 | Unless
otherwise agreed by the members of the JSC, the JSC will meet at least on a bi-weekly basis
for the first six (6) months after the Closing and at least once every month thereafter.
Meetings may be held in person or by means of telecommunication (telephone, video, or web
conferences). The first meeting of the JSC will take place within two (2) weeks of the Closing.
The JSC decides by unanimous consent of its members. |
| 5.5.2 | If
the JSC is unable to reach such consent on a particular matter in a formal vote called by
one of its members, the JSC will reconvene within one (1) week after such vote to attempt
to resolve the matter. Any matter upon which the JSC is unable to reach unanimous consent
shall be treated as a Dispute. |
| 5.5.3 | Except
as explicitly set forth in this Section 5.5, the JSC will establish its own procedural
rules for its operation. Each Party will bear its expenses incurred in connection with such
Party's participation on the JSC. |
| 6.1.1 | This
Agreement shall become effective upon Closing. This Agreement shall terminate on the earlier
of (i) being terminated pursuant to the provisions of this Section 6, (ii) such
point in time when the terms of all TSA Services have expired under their applicable Term
Sheets or have been terminated and (iii) thirty (30) months after the Closing. |
| 6.1.2 | The
TSA Services shall be delivered for such time periods set out in Exhibit 6.1.2. |
| 6.2 | Termination for Convenience |
| 6.2.1 | Recipient
may from time to time and without cause terminate a TSA Service, in its entirety or partially,
upon prior written notice, with the notice period as set forth in the respective Term Sheet
or, absent such stipulation, upon ninety (90) days' prior written notice. Upon such termination
for convenience becoming effective, Service Provider shall no longer be obliged to provide
the respective TSA Service and Recipient shall only remain obliged to pay for (i) the respective
TSA Service until the termination, (ii) any costs already incurred by Service Provider (or
its Affiliated Company or Subcontractors) in reasonable expectation of the continuing provision
of such TSA Service in accordance with the terms of this Agreement and any applicable Term
Sheet, (iii) in case of a partial termination, the Service Fee for the remaining TSA Service
(x) as defined in the respective Term Sheet or, (y) if not defined in the respective Term
Sheet, as reduced proportionally and (iv) any Termination Charges. |
| 6.2.2 | Both
Parties may immediately terminate a TSA Service upon mutual agreement. |
| 6.3 | Termination for Breach |
If
either Party fails to perform any of its material obligations under this Agreement (including under any Term Sheet) and such breach is
not cured within thirty (30) days after notice to such Party with all relevant details of the breach, the other Party may request a convening
of the JSC to take place within one (1) week after such request in order to agree on a remedy to cure the breach within three (3) weeks
after the convening of the JSC. If four (4) weeks after the request for convening the JSC, the breach is still not cured and the JSC
has not reached an agreement on a remedy to cure the breach, the other Party may terminate the relevant TSA Service(s) and any interdependent
TSA Services, immediately by notice to the defaulting Party without any further notice period. Such termination right applies irrespective
of any right of any Party to refer the Dispute to a DSC pursuant to Section 15.2.
Any
further right of any Party to terminate the Agreement for cause (Kündigung aus wichtigem Grund) under mandatory statutory
law remains unaffected.
| 6.5 | Effect of Termination, Transition Support |
| 6.5.1 | Subject
to Section 6.5.2, as early as reasonably practicable before any termination or expiration
of a TSA Service, the Parties shall cooperate in good faith and use all Reasonable Efforts
to prepare and execute an orderly transition of the relevant terminated or expired TSA Service
from Service Provider (or its relevant Affiliated Company or Subcontractor) to Recipient
(or the relevant Affiliated Companies), in particular, they shall comply with their migration
obligations set out in the Term Sheets. Each Party will bear its own costs for such transition,
provided that all reasonable external costs (e.g., for third party service providers)
required for the transition and requested by Recipient shall be borne by Recipient except
in case of a termination pursuant to Section 6.3, in which case the Party in breach
shall bear such costs. |
| 6.5.2 | The
relevant Term Sheet will specify the requirements (if any) of Service Provider for the transition
of TSA Services and the transfer of know-how to Recipient in order to facilitate the migration
of services to Recipient and to ensure full service functionality prior to the expiration
of the term of the Term Sheet as well as the consideration owed therefore. |
A termination
of this Agreement for whatever reason shall be without prejudice to the rights and obligations of either Party accruing up to the date
of termination, and Section 4.4.5 (Developed IP), Section 8 (Limitations of Liability) and Sections 11 (Parent
Undertaking) and 12 through 16 (Confidentiality, Notices, Set-Off, Interest, Applicable Law and Arbitration, Miscellaneous)
shall survive any such termination.
| 7.1 | Applicability of Terms to IT Services |
The
terms of this Agreement shall be fully applicable to TSA Services which consist in IT services or which include substantial IT components
and which are therefore marked "IT" or "IT Service" in the respective Term Sheet ("IT Services").
| 7.2 | Additional Terms for IT Services, Changes |
| 7.2.1 | Unless
specifically set forth otherwise herein or in the respective Term Sheet and except as legally
required because Service Provider will be providing the respective IT Services to a non-affiliated
party, Service Provider shall carry out the IT Services in substantially the same manner
as in the Reference Period. Unless specifically set forth otherwise in the respective Term
Sheet, Service Provider shall in particular (i) keep to the same lead times as recorded or
otherwise documented for the relevant IT Service during the Reference Period and (ii) provide
any data in relation to the relevant IT Service in substantially the same form as used during
the Reference Period. |
| 7.2.2 | Each
Party may request modifications to any aspect of an IT Service ("Change")
by written notice to the relevant Service Manager of the other Party (each such request a
"Change Request"). The Service Managers will discuss the Change Request
in good faith and prepare all information required for discussion of the Change Request in
the JSC as soon as reasonably practicable. The Parties shall decide jointly on approval or
rejection of the Change Request as well as, in case of approval, on all relevant details
of its implementation (including any changes in Service Fees or other related costs). If
the service volumes of the IT Services are changed, the prices from the Service Catalogue
set forth in Exhibit 7.2.2 will apply. |
| 7.2.3 | The
Term Sheets for IT Services shall set out certain basic migration obligations of the Parties,
to ensure the establishment of the Recipient's own IT infrastructure during the transitional
period. Further migration obligations of the Parties shall be specified in the migration
plan annexed as Exhibit 7.2.3 to facilitate the migration of such services
to the relevant recipient and to ensure full service functionality at the expiration of the
term of the respective Term Sheet. Both Parties shall amend and further develop the migration
plan during the Term in order to achieve such goal. Each Party shall bear its respective
costs of the migration obligations. Any licenses that are provided to the Service Recipient
as part of the Service Provider's migration obligations shall be paid by the Recipient. |
| 7.3.1 | If
there are IT services that were provided by Service Provider and its Affiliated Companies
to Recipient and its Affiliated Companies during the Reference Period that are reasonably
required in order for the Recipient and its Affiliated Companies to operate in substantially
the same manner in which they operated during the Reference Period, and are not listed as
excluded services and have been accidentally omitted in the agreed IT Services ("Omitted
IT Services"), Recipient may notify Service Provider of such Omitted IT Services
within a period of one (1) year after the Closing and request such Omitted IT Services from
Service Provider. Any such notification shall take place without undue delay after the omission
becomes apparent to any of Recipient's Service Managers involved with the respective Omitted
IT Service. |
| 7.3.2 | Following
such request, Service Provider shall consider consenting to the request in good faith, with
such consent not to be unreasonably withheld, conditioned or delayed. Following such consent,
the Parties shall work in good faith to add the Omitted IT Services without undue delay to
the IT Services by agreeing on a Term Sheet. In doing so, the Parties shall add terms and
conditions for the Omitted IT Services (including on Service Fees and reimbursements) that
are consistent with the terms and conditions for both (i) the Omitted IT Services as they
have been provided during the Reference Period and (ii) the other IT Services. |
If
certain service levels are specified in the respective Term Sheet for IT Services ("IT Service Levels"), such IT Service
Levels may set forth penalties in the form of Service Fee reductions in case Service Provider fails to perform an IT Service in accordance
with the applicable IT Service Level. Service Provider shall issue a credit (Gutschrift) to Recipient for any such penalty incurred
at the same time as the next invoice for the affected Service. In case no further invoices for the affected IT Service are issued, the
penalty amount shall be due and payable by Service Provider to Recipient within 14 calendar days after Service Provider receives a corresponding
invoice by Recipient. The penalties under this clause shall be limited as specified in the respective Term Sheet.
| 7.5 | Escalation Process for IT Services |
Any
non-compliance with IT Service Levels and/or migration obligations by Service Provider shall, upon fruitless completion of the escalation
procedure set out in the relevant Term Sheet (if any), be immediately addressed to an IT Steering Committee, which shall resolve the
issue within two (2) weeks and immediately establish all mitigation measures possible. The IT Steering Committee shall consist of the
Service Managers and the SME of the respective IT Service. If the IT Steering Committee fails to resolve the issue within two (2) weeks,
the issue shall be escalated to the JSC that will convene immediately. If the JSC cannot reach a solution within two (2) weeks after
the escalation of the issue, each Party may initiate arbitration proceedings pursuant to Section 15.3 and, in addition, Recipient
may terminate the relevant TSA Service and any interdependent TSA Services immediately by notice to the defaulting Party without any
further notice period. In any event, the Parties shall use Reasonable Efforts to establish an adequate substitution for the respective
IT Services.
| 8. | Limitation
of Liability |
Neither
Service Provider, its Affiliated Companies or Subcontractors nor any agent of them shall be liable for any action taken or omitted to
be taken by it under or in connection with this Agreement, other than for negligent or willful misconduct.
Subject
to Section 8.3 below, the aggregate amount of all claims of Recipient and its Affiliated Companies against Service Provider, its Affiliated
Companies and, if applicable, Subcontractors and any of their agents shall be limited to the amount equal to the sum of the Service Fees
payable for the TSA Services affected by the breach for a twelve (12) months period.
The
Parties' liability for willful misconduct and death or personal injury remains unaffected.
| 9. | Force Majeure,
Disaster Recovery |
| 9.1 | Release from Obligations |
If
Service Provider (including its Affiliated Companies and Subcontractors engaged in providing the TSA Services) is unable to fulfill the
TSA Services during the term of this Agreement due to an event of Force Majeure, it shall be released from its obligations in connection
with and for the duration of such interruption. Service Provider shall inform Recipient without undue delay in writing in accordance
with Section 13 below about the circumstances of the Force Majeure event and its expected duration.
The
Parties agree to cooperate in good faith to remedy any event of Force Majeure and/or to limit its impacts. Service Provider shall have
backup and disaster recovery protocols as well as technical and organizational measures to protect the security, availability, integrity,
and confidentiality of its information technology systems in place, consistent with its past practice in the Reference Period and all
requirements of applicable law. Service Provider shall follow these backup and disaster recovery protocols and measures to resume the
TSA Services as soon as reasonably practicable.
"Force
Majeure" shall mean all incidents that are beyond the reasonable control of either Party and their relevant Affiliated Companies
and Subcontractors, including war, natural disasters, flood, earthquakes, atmospheric disasters, nuclear disasters, acts decreed by public
authorities, economic sanctions, exceptional traffic and road situations, strikes and lock-outs, pandemics, lock-downs, civil unrest,
breakdowns of machinery or equipment or IT hardware or software not resulting from improper maintenance, and disruptions in the supply
of energy or raw materials unrelated to any actions of the Parties.
In
relation to the processing of personal data in connection with this Agreement both Parties shall comply, and shall procure that their
Affiliated Companies and Subcontractors comply, with all applicable data protection laws as enacted from time to time. To the extent
Service Provider, or any of its Affiliated Companies or Subcontractors, is a processor of personal data for or on behalf of Recipient
or any of its Affiliated Companies in the sense of Article 28 of Regulation (EU) 2016/679 (General Data Protection Regulation), the Parties
will enter into (or procure that their relevant Affiliated Companies or Subcontractors enter into), in due time before any processing
of personal data, a data processing agreement in accordance with applicable law. For the processing of personal data carried out by Service
Provider in connection with the TSA Services, the Parties and their respective Subsidiaries have entered into the Data Processing Agreements
set out in Exhibit 10/1 (Data Processing Agreement for non-IT Services) and Exhibit 10/2 (Data Processing
Agreement for IT Services).
Parent
undertakes to utilize its shareholder rights to procure that Company and its Affiliated Companies fulfil their obligations under this
Agreement.
Except
as referred to in Section 12.2 below, each Party shall treat, and cause their respective Affiliated Companies and Subcontractors,
as well as their employees, agents and representatives, to treat, as strictly confidential all information concerning the other Party,
its Affiliated Companies, and their respective businesses and affairs received or obtained from or on behalf of the other Party in connection
with the execution and performance of this Agreement ("Confidential Information"). Each Party may only use Confidential
Information for the purpose of performing its obligations or exercising its rights under, and in accordance with, this Agreement.
Each
Party may disclose Confidential Information if and to the extent:
| 12.2.1 | such
Confidential Information has been legally obtained from a third party which is not restricted
from disclosing such Confidential Information by law or regulation or, to the respective
Party's best knowledge, by contractual obligations; |
| 12.2.2 | such
Confidential Information has been independently developed by the respective Party without
use or benefit of any of the Confidential Information of the respective other Party; |
| 12.2.3 | such
Confidential Information is within the public domain or later becomes part of the public
domain without a breach by a Party of its obligations under this Section 11; |
| 12.2.4 | agreed
in written form between the Parties; or |
| 12.2.5 | the
disclosure is required by mandatory law or stock exchange regulations provided that any such
disclosure shall only be made after providing the other Party with notice thereof in order
to permit the other Party to seek an appropriate protective order or exemption. |
The
burden of proof with regard to any Confidential Information of which a Party claims that it may be disclosed in accordance with this
Section 12.2 rests with such Party.
Service
Provider may disclose Confidential Information to its Affiliated Companies and Subcontractors (including their officers and employees)
on a "need-to-know" basis to the extent required for the performance of the TSA Services, Recipient may disclose Confidential
Information to the Affiliated Companies (including their officers and employees) on a "need-to-know" basis to the extent required
for receipt of the TSA Services, and either Party may disclose Confidential Information on a "need-to-know" basis to their
officers and employees, insurers or professional advisors, provided that the person or entity the Confidential Information is disclosed
to is subject to confidentiality obligations with respect to such Confidential Information which are equivalent in scope to the confidentiality
obligations of the receiving Party hereunder on the basis of their employment or service agreements, enforceable rules of conduct or
individual confidentiality undertakings.
The
confidentiality undertaking set forth in this Section 12 shall continue irrespective of any expiry or termination of this Agreement
except to the extent the relevant Confidential Information is no longer protected by applicable trade secret or know-how protection laws.
Any
notice, request, demand or other communication under or in connection with this Agreement shall be made in writing in the English language
and delivered by hand, courier or e-mail (provided that any electronic submission includes a duly signed copy of the relevant notice
or other communication) 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:
To
Seller:
Viessmann
Group GmbH & Co. KG
Attn.: [***]
[***]
With a
copy to Seller's Legal Counsel:
Hengeler
Mueller Partnerschaft von Rechtsanwälten mbH
Attn.: [***]
[***]
To
Company or Parent:
Carrier
Global Corporation
Attn.: [***]
[***]
With a
copy to Parent's Legal Counsel:
Paul, Weiss, Rifkind Wharton & Garrison LLP
Attn: [***]
[***]
Linklaters
LLP
Attn: [***]
[***]
Rights
and claims under this Agreement may be set-off against any rights or claims a Party or its Affiliated Companies may have under this Agreement,
but no other rights or claims. To the extent any foreign exchange conversion is required to allow for the set-off, the Reference Exchange
Rate applicable to the last day of the month shall be used, to which the underlying invoice relates.
| 14.2.1 | Other
than as specifically set forth in this Agreement, payments under this Agreement shall bear
interest for the time of default (Verzug) at a rate p.a. equal to EURIBOR plus three
hundred (300) basis points beginning on the first day of default and each subsequent three
(3) months period, as determined two (2) Business Days prior to each such period. "EURIBOR"
shall mean the euro interbank offered rate for deposits in Euro for a period of three (3)
months which appears on REUTERS page EURIBOR03MD (or such other page as may replace such
page on that service for the purpose of displaying Brussels interbank offered rate quotations
of major banks) as of approximately 11:00 hours (Brussels time); if such rate is less than
zero, EURIBOR shall be deemed to be zero. |
| 14.2.2 | Interest
payable under any provision of this Agreement shall be calculated on the basis of the actual
days elapsed and a year of three hundred sixty (360) days and shall be payable at the same
time as the payment to which it relates. |
| 15. | Applicable
Law and Arbitration |
This
Agreement and the transactions contemplated by it shall be governed by, and be construed in accordance with, the Laws of the Federal
Republic of Germany, without regard to principles of conflicts of laws and without regard to the UN Convention on the International Sale
of Goods (CISG).
In
the event of any controversy or claim arising out of or relating to any provision of this Agreement or the performance or alleged non-performance
of a Party of its obligations under this Agreement upon which the JSC was unable to reach unanimous consent ("Dispute"),
each Party may refer such matter by written notice to a dispute solving committee ("DSC") which shall be composed of
two (2) senior executives from each Party meeting on demand. The DSC will use its good faith efforts to mutually agree upon the
proper course of action to resolve the matter. If the Parties are unable to resolve a Dispute in accordance with this Section 15.2
within thirty (30) days after referral of the Dispute to the DSC, such Dispute shall be finally resolved in accordance with Section 15.3
below.
All
disputes arising under or in connection with this Agreement (including any disputes in connection with its validity as well as any tortious
or non-contractual disputes) shall be exclusively and finally settled by arbitration in accordance with the rules of the International
Chamber of Commerce, Paris (ICC) as applicable from time to time. The arbitration shall be conducted as Expedited Proceedings
as defined in and pursuant to Annex 4 to such arbitration rules by an arbitration tribunal consisting of a sole arbitrator mutually
agreed between and jointly nominated by the Parties. In case the Parties cannot agree on the sole arbitrator within five (5) Business
Days, each Party may file a notice to the ICC requesting the appointment of a suitable arbitrator. Place of arbitration shall
be Frankfurt, Germany. The language to be used in the arbitral proceedings shall be English, provided that no Party shall be under an
obligation to provide to the arbitral tribunal English translations of any contracts and agreements in the German language. The right
to obtain injunctive relief before state courts shall not be excluded hereby.
Parent
hereby appoints every partner of Linklaters LLP admitted to the German bar, as its agent for service of process (Zustellungsbevollmächtigter)
for all legal proceedings involving Parent 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 Seller (which approval shall not be unreasonably withheld or delayed). Parent 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.
This
Agreement (including its Exhibits), together with the other Transaction Documents, comprises the entire agreement and understanding between
the Parties and supersedes any prior agreement or understanding, written or oral, relating to the subject matter of this Agreement. All
annexes to this Agreement shall constitute an integral part of this Agreement.
Any
provisions of this Agreement and its annexes as well as Term Sheets (including amendments to this Section 16.2) may be amended or
waived only if such amendment or waiver is (i) by written instrument executed by all Parties and explicitly referring to this Agreement,
(ii) by DocuSign, or (iii) by notarized deed, if required by law.
| 16.3 | No Third Party Rights and Procurement
Obligations |
| 16.3.1 | This
Agreement shall not grant any rights to, and is not intended to operate for the benefit of,
third parties unless otherwise explicitly provided for herein. Wherever under this Agreement
any party other than a Party is to be indemnified by the respective other Party, such other
party shall not be entitled to bring any claims for indemnification against the respective
Party directly. |
| 16.3.2 | To
the extent that this Agreement implies to impose any obligations on a person which is not
a Party to this Agreement, such clause shall be interpreted as an obligation of the Parties
to cause such person to act as contemplated under this Agreement, provided, however, that,
should the person concerned be an Affiliated Company of a Party, such Party shall procure
(steht dafür ein) that the person concerned acts as contemplated under this Agreement. |
Subject
to Exhibit 16.4, Recipient shall not, in whole or in part, dispose of any claims (including future or contingent claims)
arising from or in connection with this Agreement by way of assignment, encumbrance or otherwise without the prior written consent of
Service Provider consenting to such disposal. This shall also apply to any disposal by way of a universal succession.
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 deemed to be substituted 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 if this Agreement turns out
to be incomplete (gap - Regelungslücke); in this case, in order to fill the gap, a suitable and equitable provision shall
be deemed to have been 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.
[Signature page
to follow]
Viessmann
Group GmbH & Co. KG
/s/
Ulrich Hüllmann
Name:
Ulrich Hüllmann
Function:
Chief Financial Officer
|
Viessmann
Group GmbH & Co. KG
/s/
Hans-Jörg Harth
Name: Hans-Jörg
Harth
Function:
Managing Director
|
Carrier
Global Corporation
/s/
Francesca Campbell
Name:
Francesca Campbell
Function:
Vice President, Secretary
|
|
Viessmann
Climate Solutions SE
/s/
Markus Klausner
Name:
Dr. Markus Klausner
Function:
Chief Technology Officer
|
Viessmann
Climate Solutions SE
/s/
Vanessa Hellwing
Name:
Vanessa Hellwing
Function:
Chief Financial Officer
|
Exhibit 1.1.10
List of Exhibits
Exhibit 1.1.10 List
of Exhibits
Exhibit 1.2 Term
Sheets
Exhibit 6.1.2 Time
Periods for Delivery of TSA Services
Exhibit 7.2.2 Service
Catalogue
Exhibit 7.2.3 Migration
Plan
Exhibit 10/1 Data
Processing Agreement for non-IT Services
Exhibit 10/2 Data
Processing Agreement for IT Services
Exhibit 16.4 Transfer
of TSA Services
Exhibit 16.4
Transfer of TSA
Services
In the event specified
in Exhibit 9.6.3 of the SPA, Seller shall be entitled to transfer its rights and obligations under this Agreement regarding
the TSA Services received or provided by the Divestment Business (as defined in the SPA) to the third party acquiring such Divestment
Business with discharging effect for the Seller (Abtretung und/oder Schuldübernahme) as from the effectiveness of the transfer.
Parent and the Company hereby consent to, and agree to acknowledge such transfer of rights and obligations by Seller, provided that Seller
shall discuss and use Reasonable Efforts to agree in good faith any changes to the scope, quality, service levels or functionality of
services that are reasonably requested by Parent or the Company to reflect the fact that the TSA Services will be provided to a different
recipient, including any additional safeguarding requirements appropriate for the provision of services to a potential competitor of
Parent (if applicable).
Exhibit 99.7
EXHIBIT 99.7
LIMITED POWER OF ATTORNEY
The undersigned does hereby make, constitute, and appoint each of Ole
Oldenburg and Nadja Hanuschkiewitz, acting individually with full power of substitution, as the undersigned’s true and lawful attorney-in-fact,
to act for the undersigned and in the undersigned’s name, place and stead, to:
| (a) | prepare, execute, deliver, and file, for and on behalf of the undersigned, including in the undersigned’s capacity as a director,
officer or authorized person of Viessmann Komplementär B.V., Viessmann Beteiligungs AG or any of their respective subsidiaries, any
and all agreements, forms and other documents, and any amendments thereto, that may be required as a result of or in connection with the
undersigned’s obligations (or the obligations of Viessmann Komplementär B.V., Viessmann Beteiligungs AG or any of their respective
subsidiaries) under the Securities Exchange Act of 1934 (the “1934 Act”), as amended, including Sections 13 and 16
thereunder, or any other U.S. federal or state securities laws; |
| (b) | do and perform any and all acts for and on behalf of the undersigned that may be necessary or desirable to complete and execute any
federal and state securities laws filings, including Schedules 13D and 13G and Forms 3, 4, and 5 in accordance with Sections 13(d) and
16(a) of the 1934 Act, to complete and execute any amendment or amendments thereto, and to timely file such forms with the U.S. Securities
and Exchange Commission and the securities administrators of any state or territory of the Untied States; and |
| (c) | take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may
be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by
such attorney-in-fact on behalf of the undersigned pursuant to this Limited Power of Attorney shall be in such form and shall contain
such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact’s discretion. |
Any agreement, form or other document executed in the name of the undersigned
by any attorney-in-fact named above in accordance with this Limited Power of Attorney shall fully bind and commit the undersigned and
all other parties to such documents may rely upon the execution thereof by such attorney-in-fact as if executed by the undersigned and
as the true and lawful act of the undersigned, and the undersigned hereby ratifies and confirms all that any such attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact,
in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned’s responsibilities (or
the responsibilities of Viessmann Komplementär B.V., Viessmann Beteiligungs AG or any of their respective subsidiaries) to comply
with U.S. federal and state securities laws.
This Limited Power of Attorney shall automatically terminate as to
the authority of any attorney-in-fact named above in the event of such attorney-in-fact’s resignation or termination as an officer
or employee of Viessmann Komplementär B.V., Viessmann Beteiligungs AG or any of their respective subsidiaries; however, any such
resignation or termination shall have no effect on any agreement, form or other document duly executed by such attorney-in-fact prior
to such resignation or termination. In addition, the undersigned may terminate or revoke this Limited Power of Attorney at any time; provided
that such termination shall have no effect on any agreement, form or other document duly executed by any attorney-in-fact hereunder prior
to such termination or revocation.
IN WITNESS WHEREOF, this Limited Power of Attorney has been executed
and delivered by the undersigned as of January 9, 2024.
|
/s/ Maximilian Viessmann |
|
|
MAXIMILIAN VIESSMANN |
|
|
|
|
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