As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

12/04/17  Johnson Controls Int’l plc        8-K:1,8,9  11/28/17    5:511K                                   Merrill Corp-MD/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     34K 
 2: EX-1.1      Underwriting Agreement                              HTML    193K 
 3: EX-4.2      Instrument Defining the Rights of Security Holders  HTML     87K 
 4: EX-5.1      Opinion re: Legality                                HTML     18K 
 5: EX-5.2      Opinion re: Legality                                HTML     45K 

Exhibit 4.2

 

THIS FOURTH SUPPLEMENTAL INDENTURE is dated as of December 4, 2017, among Johnson Controls International plc, a public limited company organized under the laws of Ireland (the “Company”), U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”), and Elavon Financial Services DAC, UK Branch, as paying agent (the “Paying Agent”).

 

RECITALS

 

A.            The Company and the Trustee executed and delivered an Indenture, dated as of December 28, 2016 (the “Base Indenture”), to provide for the issuance by the Company from time to time of debt securities evidencing its indebtedness.

 

B.            Pursuant to resolutions of the Board of Directors, the Company has authorized the issuance of the Offered Securities (as defined herein).

 

C.            The entry into this Fourth Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Base Indenture.

 

D.            The Company desires to enter into this Fourth Supplemental Indenture pursuant to Section 9.01 of the Base Indenture to establish the terms of the Offered Securities in accordance with Section 2.01 of the Base Indenture and to establish the form of the Offered Securities in accordance with Section 2.02 of the Base Indenture.

 

E.            All things necessary to make this Fourth Supplemental Indenture a valid indenture and agreement according to its terms have been done.

 

NOW, THEREFORE, for and in consideration of the foregoing premises, the Company, the Trustee and the Paying Agent mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Offered Securities as follows:

 

ARTICLE I.

 

Section 1.01         Definitions of Terms.

 

(a)           Capitalized terms used but not defined in this Fourth Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.

 

(b)           As used herein, the following terms shall have the following meanings with respect to the Offered Securities only:

 

“Offered Securities” means the 0.000% Senior Notes due 2020 issued pursuant to this Fourth Supplemental Indenture, in an initial aggregate principal amount of €750,000,000, together with any additional Securities of such series issued pursuant to Section 2.01(b) of the Base Indenture.

 

 

“Reference Bond” means, in relation to any Treasury Rate calculation, a German government bond whose maturity is closest to the maturity of the Offered Securities, or if the Company or an independent investment bank appointed by the Company considers that such similar bond is not in issue, such other German government bond as the Company or an independent investment bank appointed by the Company, with the advice of three brokers of, and/or market makers in, German government bonds selected by the Company or an independent investment bank appointed by the Company, determine to be appropriate for determining the Treasury Rate.

 

“Remaining Scheduled Payments” means, with respect to each Offered Security to be redeemed, the remaining scheduled payments of principal of and interest on the relevant Offered Security that would be due after the related redemption date but for the redemption. If that redemption date is not an Interest Payment Date with respect to an Offered Security, the amount of the next succeeding scheduled interest payment on the relevant Offered Security will be reduced by the amount of interest accrued on the Offered Security to the redemption date.

 

“Treasury Rate” means the rate per annum (which, if less than zero, shall be deemed to be zero) equal to the annual equivalent yield to maturity of the Reference Bond, assuming a price for the Reference Bond (expressed as a percentage of its principal amount) equal to the middle market price of the Reference Bond prevailing at 11:00 a.m. (London time) on the third Business Day preceding such redemption date as determined by the Company or an independent investment bank appointed by the Company.

 

Section 1.02         Terms of Offered Securities.  The following terms relate to the Offered Securities:

 

(1)           The Offered Securities constitute a single series of securities having the title “0.000% Senior Notes due 2020”.

 

(2)           The initial aggregate principal amount of the Offered Securities that may be authenticated and delivered under the Base Indenture (except for Offered Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Offered Securities pursuant to Section 2.05, 2.06, 2.07, 2.11 or 3.03 of the Base Indenture) is €750,000,000.

 

(3)           The entire Outstanding principal of the Offered Securities shall be payable on December 4, 2020.

 

(4)           The Offered Securities will bear interest at a rate of 0.000% per annum.  The basis upon which interest shall be calculated will be the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Offered Securities (or December 4, 2017, if no interest has been paid on the Offered Securities), to but excluding the next scheduled Interest Payment Date. This payment convention is referred to as “ACTUAL/ACTUAL (ICMA),” as defined in the statutes, by-laws, rules and recommendations published by the International Capital Markets Association (the “ICMA Rulebook”).

 

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(5)           Interest on the Offered Securities shall accrue from December 4, 2017, or, if later, the most recent Interest Payment Date to which interest in respect of the Offered Securities has been paid or provided for.  The Interest Payment Date for the Offered Securities shall be December 4 of each year, beginning on December 4, 2018.  Interest in respect of the Offered Securities shall be payable annually in arrears on each applicable Interest Payment Date to the applicable Holders of record at the close of business on the November 19 next preceding such Interest Payment Date (the “regular record date”).

 

(6)           The Company initially appoints Elavon Financial Services DAC, UK Branch (“Elavon, UK Branch”) as Paying Agent with respect to the Offered Securities pursuant to Section 4.03 of the Base Indenture until such time as Elavon, UK Branch has resigned or a successor has been appointed. Elavon, UK Branch hereby accepts such initial appointment, and the Company confirms that such initial appointment is acceptable to it. Elavon, UK Branch shall have all of the rights, privileges, protections and immunities granted to the Trustee in the Indenture mutatis mutandis. Principal of, premium, if any, interest on and additional amounts, if any, on the Offered Securities will be payable at the office or agency of the Paying Agent at Elavon Financial Services DAC, 2nd Floor, Block E, Cherrywood Science & Technology Park, Loughlinstown, Co. Dublin, Ireland acting through its UK Branch (registered number BR009373) from its offices at Fifth Floor, 125 Old Broad Street, London EC2N 1AR, United Kingdom, until such time as the Company designates an alternate place of payment.

 

(7)           [Reserved].

 

(8)           Prior to September 4, 2020 (three months prior to the maturity date), the Company may, at its option, redeem the Offered Securities, in whole at any time or in part from time to time (in €1,000 increments, provided that any remaining principal amount thereof shall be at least the minimum authorized denomination of €100,000), at a redemption price equal to the greater of (i) 100% of the principal amount of the Offered Securities to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments discounted to the redemption date, on an annual basis (ACTUAL/ACTUAL (ICMA)), at a rate equal to the Treasury Rate plus 15 basis points plus, in either case, accrued and unpaid interest, if any, thereon to, but excluding, the redemption date (subject to the right of Holders of record on the relevant regular record date to receive interest due on the relevant Interest Payment Date).

 

On or after September 4, 2020 (three months prior to their maturity date), the Company may, at its option, redeem the Offered Securities, in whole at any time or in part from time to time (in €1,000 increments, provided that any remaining principal amount thereof shall be at least the minimum authorized denomination of €100,000), at a redemption price equal to 100% of the principal amount of the Offered Securities to be redeemed, plus accrued and unpaid interest, if any, thereon to, but excluding, the redemption date (subject to the right of Holders of record on the relevant regular record date to receive interest due on the relevant Interest Payment Date).

 

In addition, the Offered Securities may be redeemed pursuant to Article XIV of the Base Indenture.

 

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(9)           Except as provided in Section 4.08 of the Base Indenture, the Offered Securities shall not be subject to redemption, repurchase or repayment at the option of any Holder thereof, upon the occurrence of any particular circumstance or otherwise.  The Offered Securities will not have the benefit of any sinking fund.

 

(10)         The Offered Securities shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference.

 

(11)         The Offered Securities will be issued in registered form without interest coupons and only in denominations of €100,000 and whole multiples of €1,000 in excess thereof.

 

(12)         All payments of interest and principal, including payments made upon any redemption or repurchase of the Offered Securities, will be payable in Euros.  If, on or after November 28, 2017, the Euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the control of the Company or if the Euro is no longer being used by the then member states of the European Monetary Union that have adopted the Euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Offered Securities will be made in Dollars until the Euro is again available to the Company or so used. In such circumstances, the amount payable on any date in Euros will be converted into Dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent Dollar/Euro exchange rate available on or prior to the second Business Day prior to the relevant payment date as determined by the Company in its sole discretion. Any payment in respect of the Offered Securities so made in Dollars will not constitute an Event of Default under the Offered Securities or the Indenture.  Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing.

 

(13)         [Reserved].

 

(14)         [Reserved].

 

(15)         The Offered Securities shall be issuable in whole in the registered form of one or more Global Securities, and the common depositary on behalf of Euroclear and Clearstream shall be the initial Depositary.

 

(16)         The Offered Securities will not be convertible into or exchangeable for other Securities, common shares or other securities of the Company.

 

(17)         [Reserved].

 

(18)         [Reserved].

 

(19)         [Reserved].

 

(20)         Upon the Company’s request, each Holder and beneficial owner shall provide a properly completed and executed IRS Form W-9 or IRS Form W-8, as applicable, as

 

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would have been applicable if the Company were incorporated in the United States of America, any State thereof or the District of Columbia.

 

(21)         The Offered Securities may be defeased in accordance with the provisions of Section 11.03 of the Base Indenture and the Indenture shall cease to be of further effect with respect to the Offered Securities in accordance with the provisions of Section 11.02 of the Base Indenture; provided, however, that (a) for purposes of defeasance of the Offered Securities and satisfaction and discharge of the Indenture with respect to the Offered Securities and (b) as otherwise used in Article XI of the Base Indenture with respect to the Offered Securities, the term “Governmental Obligations” shall have the meaning set forth in Section 1.03 (a) of this Fourth Supplemental Indenture.

 

(22)         [Reserved].

 

(23)         The Offered Securities will be issued as Unrestricted Securities.

 

(24)         No Offered Securities shall be issued with guarantees.

 

(25)         The additional provisions set forth in Section 1.03 shall be applicable to the Offered Securities.

 

Section 1.03         Additional Terms of Offered Securities.

 

(a)           For purposes of the Base Indenture and this Fourth Supplemental Indenture, with respect to the Offered Securities the term “Governmental Obligations” means (x) any security which is (i) a direct obligation of the German government or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the German government the payment of which is fully and unconditionally guaranteed by the German government, the central bank of the German government or a governmental agency of the German government, which, in either case (x)(i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) certificates, depositary receipts or other instruments which evidence a direct ownership interest in obligations described in clause (x)(i) or (x)(ii) above or in any specific principal or interest payments due in respect thereof.

 

(b)           Claims against the Company for the payment of principal or Additional Amounts, if any, of the Offered Securities will be prescribed ten years after the applicable due date for payment thereof. Claims against the Company for the payment of interest, if any, of the Offered Securities will be prescribed five years after the applicable due date for payment of interest.

 

(c)           The third and fourth sentences of Section 2.05(c) of the Base Indenture shall not apply to the Offered Securities, and instead the following shall apply:

 

Each Global Security is exchangeable for Definitive Securities only if (1) the Depositary for such Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security and a successor Depositary is not appointed by the Company within 90 days after receiving that notice; (2) upon request of a Holder of any Offered Securities upon the occurrence and continuance of an Event of Default with respect to the Offered Securities;

 

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or (3) the Company determines that such Global Security will be exchangeable for Definitive Securities and notifies the Trustee of its decision. Upon the occurrence of any of the foregoing clauses (1), (2) and (3), the provisions of Section 2.11 of the Base Indenture shall no longer apply to the Offered Securities.

 

(d)           The second and third sentences of Section 2.11(a) of the Base Indenture shall not apply to the Offered Securities, and instead the following shall apply:

 

The Holder of a Global Security representing an Offered Security shall be the only Person entitled to receive payments in respect of Offered Securities represented by such Global Security, and the Company will be discharged by payment to, or to the order of, the Holder of such Global Security in respect of each amount so paid. After payment to the Depositary (or its nominee) of interest, principal or other amounts in respect of the Offered Securities represented by a Global Security, the Company will not have responsibility or liability for the payment of such amounts to Euroclear or Clearstream or to Holders or beneficial owners of book-entry interests in the Offered Securities. Each Person owning a beneficial interest in an Offered Security must rely on the procedures of the Depositary and, if such Person is not a Participant, on the procedures of the Participant through which such Person owns its interest, in order to exercise any rights of a Holder of Offered Securities.

 

(e)           Any notice or communication by the Company or the Trustee to the Paying Agent is duly given if in writing and delivered electronically or in person or mailed by first-class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the following address:

 

Elavon Financial Services DAC, UK Branch

Fifth Floor

125 Old Broad Street

London

EC2N-1AR

United Kingdom

Facsimile: +44 (0)207 365 2577

Attention: Structured Finance Relationship Management

 

ARTICLE II.

 

MISCELLANEOUS

 

Section 2.01         Confirmation of Indenture.  The Base Indenture, as supplemented and amended by this Fourth Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture, this Fourth Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.

 

Section 2.02         Concerning the Trustee.  In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses under the Indenture.  The recitals contained herein and in the Offered Securities, except the certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to the validity

 

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or sufficiency of this Fourth Supplemental Indenture or of the Offered Securities.  The Trustee shall not be accountable for the use or application by the Company of the Offered Securities or the proceeds thereof.  The Company hereby reaffirms its obligations under the Base Indenture to indemnify and hold harmless the Trustee as required under Article 7 of the Base Indenture, including under Section 7.06 of the Base Indenture. This indemnity shall survive the final payment in full of the Offered Securities and the resignation or removal of the Trustee solely to the extent expressly provided in Article 7 of the Base Indenture.

 

Section 2.03         Governing Law.  This Fourth Supplemental Indenture and the Offered Securities shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York without regard to conflicts of laws principles that would require the application of any other law.

 

Section 2.04         Separability.  In case any provision in this Fourth Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 2.05         Counterparts.  This Fourth Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

 

Section 2.06         No Benefit.  Nothing in this Fourth Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns, and the Holders of the Offered Securities, any benefit or legal or equitable rights, remedy or claim under this Fourth Supplemental Indenture or the Base Indenture.

 

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0.000% SENIOR NOTES DUE 2020

 

No. [   ]

€[      ]

Common Code 173161719

ISIN No. XS1731617194

CUSIP. 478375 AW8

 

JOHNSON CONTROLS INTERNATIONAL PLC

 

promises to pay to [USB Nominees (UK Limited)][   ] or registered assigns, the principal sum of [    ] Euros[, or such other sum as is set forth in the Schedule of Increases or Decreases of the Global Security attached hereto,] on December 4, 2020.

 

Interest Payment Date:  December 4 of each year

 

Regular Record Date:  November 19 of each year

 

Each Holder of this Note (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions.  Each Holder of this Note hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.

 

This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose unless the Certificate of Authentication hereon shall have been duly executed by the Trustee or Authenticating Agent by manual or facsimile signature of an authorized signatory.  The provisions of this Note are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.