UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934

(Amendment No.    )

 

 

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☐	Definitive Proxy Statement

 

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☐	Soliciting Material under §240.14a-12

Linde plc

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

 

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PRELIMINARY PROXY STATEMENT — SUBJECT

TO COMPLETION DATED NOVEMBER 22, 2022

 

Making our world more productive

LETTER TO SHAREHOLDERS

Dear Linde plc Shareholder:

You are cordially invited to a special court-ordered meeting of shareholders (“Court Meeting”) and a related extraordinary general meeting of shareholders (“EGM”) of Linde plc (“Linde”), each of which will be held on                 , 2023, to approve a proposed reorganization transaction, consisting of a share exchange pursuant to a scheme of arrangement and a subsequent intercompany merger (collectively, the “Reorganization”). If approved, the Reorganization would result in your Linde ordinary shares being exchanged one-for-one for shares in a new publicly traded company incorporated in Ireland, which we refer to as “New Linde.” The Reorganization is intended solely to facilitate the delisting of Linde’s ordinary shares from the Frankfurt Stock Exchange (“FSE”). The Reorganization will have no impact on Linde’s governance structure, business operations, organization, employees, customers, or our commitment to the regions in which we operate.

As announced on October 24, 2022, Linde’s board of directors (the “Board”) has decided to propose the Reorganization to our shareholders for their approval. The Reorganization will involve a two-step process: (i) a scheme of arrangement (the “Scheme”) under Irish law, pursuant to which all outstanding ordinary shares of Linde would be exchanged for ordinary shares of New Linde on a one-for-one basis, followed by (ii) an intercompany merger under Irish law, pursuant to which Linde would be merged with and into New Linde, with New Linde surviving the merger (the “Dissolution Merger”). The Dissolution Merger, which is expected to occur immediately after the Scheme becomes effective, would result in the automatic and immediate delisting of Linde’s ordinary shares from the FSE. The ordinary shares of New Linde would be listed solely on the New York Stock Exchange (“NYSE”) under the symbol “LIN.” New Linde ordinary shares would start trading on the NYSE and replace the current Linde ordinary shares upon the effectiveness of the Dissolution Merger, which is expected to be completed in                  2023.

At the Court Meeting, you will be asked to approve the Scheme. At the EGM, which will occur promptly following the Court Meeting, you will be asked to approve the Scheme and the Dissolution Merger as well as additional proposals in respect of the Reorganization.

Following the Reorganization, New Linde is expected to be named “Linde plc,” and would have the same assets, liabilities, revenues and cash flows as Linde. Additionally, the rights of shareholders under New Linde’s organizational documents would be substantially the same as those in effect for Linde immediately before the Reorganization (other than the loss of certain statutory rights resulting from the FSE listing). Like Linde, New Linde will be incorporated in Ireland and its principal corporate tax domicile will be in the United Kingdom.

Immediately following the Reorganization, the number of New Linde ordinary shares that you will own will be the same as the number of Linde ordinary shares that you owned immediately prior to the Reorganization, and your proportionate ownership and relative voting rights will remain unchanged.

We are writing to you on behalf of our Board to encourage you to vote at the Court Meeting and the EGM (which we refer to together as the “Shareholder Meetings”) to be held on                 , 2023 (unless such meetings are adjourned or postponed) and to explain why our Board unanimously recommends that you vote “FOR” each of the proposals presented at the Shareholder Meetings.

For further information about the Reorganization and the expected timetable, see “Summary—The Reorganization” in this Proxy Statement.

1.	Background and Reasons for the Reorganization

Background

As discussed in greater detail in this Proxy Statement, we have concluded that delisting Linde’s ordinary shares from the FSE and having New Linde’s shares being listed solely on the NYSE is in the best interest of Linde and its shareholders. Linde’s ordinary shares have been dual listed on the NYSE and the FSE since the merger of Praxair Inc. and Linde AG in 2018, which we believe has served us well during the years following the merger. However, over the last two years, management has observed increased valuation limits associated with the listing of Linde’s ordinary shares on the FSE.

Linde’s ordinary shares are included in the DAX index, which is comprised of 40 blue-chip companies that are listed on the FSE. The DAX index rules set out a market-based capitalization limit of 10%, meaning no one company’s weight in the DAX may exceed 10% of the total index based on free float market capitalization. If the market capitalization of a company breaches this cap during rebalancing periods over a three-week period every quarter, the DAX is required to reduce the weighting of that company to match the 10% index cap. Linde’s shares have increased in value significantly since 2018, including relative to most other DAX companies. Linde is currently the largest DAX company by free float market capitalization and as a result of its stock performance, its shares have regularly exceeded the 10% index cap. In particular, we have observed that in 11 of 12 quarters during the past three full calendar years, Linde has breached the index cap, and Linde has been one of the most capped stocks in Europe averaging almost two-thirds of each trading year above the DAX index cap since 2020. The resulting mandatory DAX rebalancing has required passive funds that mirror the DAX to sell Linde’s shares to avoid a “tracking” error, which has impacted our stock price. This technical selling pressure has been persistent.

Reasons for the Reorganization

After considering various factors, on October 24, 2022, our Board determined that effecting the Reorganization, which would result in a delisting of Linde ordinary shares from the FSE by replacing Linde with New Linde, is in the best interests of our organization and shareholders. In reaching its determination, our Board considered a number of factors, including:

 

•

Eliminating Market-Capitalization Based Limits. The Board believes that the existence of market-capitalization based limits associated with our FSE listing has caused stock valuation challenges by creating technical selling pressure unrelated to Linde’s performance or fundamentals. The Board believes that eliminating these limitations will position Linde’s long-term stock valuation to more closely reflect Linde’s performance and fundamentals.

 

•

Reducing Regulatory Complexity. The Board believes that delisting Linde’s ordinary shares from the FSE and maintaining solely a NYSE listing will eliminate regulatory complexity associated with Linde’s existing dual listing structure. Linde’s dual listing structure requires Linde to comply with two separate compliance and public reporting regimes, one resulting from the listing on the NYSE and the other resulting from the listing on the FSE. Among other requirements, Linde and its affiliates have been required to comply with overlapping (i) accounting standards requiring Linde’s consolidated financial results to be prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) and International Financial Reporting Standards (“IFRS”); (ii) company stock repurchase rules and reporting; (iii) insider trading rules and director and executive officer trading and reporting requirements; and (iv) other disclosure requirements. In addition, certain of our shareholders currently are subject to two separate compliance regimes, including European filing and reporting requirements for institutional shareholders owning 3% or more of Linde’s ordinary shares. We believe a dual public company compliance structure results in excess costs and complexity. Following the Reorganization, New Linde will be required to report consolidated financial results in accordance with U.S. GAAP, be subject to U.S. securities laws, including the mandates of the U.S. Sarbanes-Oxley Act, the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”) and the corporate governance standards of the NYSE. New Linde will not be required to report its consolidated financial results in accordance with IFRS or be subject to other requirements resulting from the FSE listing. New Linde will also comply with reporting requirements under Irish law.

•

Emphasizing Global Presence. The Board believes that delisting Linde’s ordinary shares from the FSE will help emphasize Linde’s international presence relative to a misperception of an outsized exposure of our business to the German market. Linde is committed to all regions in which it operates as it is a global company, with operations in over 80 countries. Consolidated revenue from each country represented a single digit or less percentage for the nine months ended September 30, 2022, except for Linde’s operations in the U.S., which represented approximately 30% of consolidated revenue.

 

•

Continuity of Business Operations and Governance. The overall profile of our company, including governance structure, activities, its trade and business, as well as the tax profile will remain unchanged following the Reorganization. Linde has a strong corporate governance structure that compares favorably to that of other large public companies and to the standards of recognized governance organizations. That structure, including our board composition and committees, our split between Chairman and Chief Executive Officer roles, our Independent Lead Director, and our corporate governance policies, will not change. The board of directors of New Linde will be comprised of the current members of the Board and New Linde will have the same current Linde senior management team. If the Reorganization is completed, the rights of shareholders under New Linde’s organizational documents would be substantially the same as those in effect immediately before the Reorganization (other than the loss of certain statutory rights resulting from the FSE listing).

The Board weighed the advantages and opportunities of the proposed Reorganization along with a number of other factors, uncertainties and risks identified in its deliberations potentially weighing negatively against the Reorganization before making its determination. See “Risk Factors” in this Proxy Statement.

 

2.	The Court Meeting and the EGM

The Court Meeting will be held on                 , 2023 at                  Eastern Time and it will be followed by the EGM at                  Eastern Time, or as soon as possible thereafter, in each case at 10 Riverview Drive, Danbury, Connecticut 06810, United States.

At the Court Meeting, you will be asked to approve the Scheme. At the EGM, which will occur promptly following the Court Meeting, you will be asked to approve the Scheme and the Dissolution Merger as well as additional proposals in respect of the Reorganization.

The Scheme to be considered at the Court Meeting cannot be completed without (i) the affirmative vote of more than 50% in number of shareholders and 75% or more in value of the Linde ordinary shares held by Linde shareholders voting, in person or by proxy, and (ii) the approval of the Irish High Court.

The proposals to be considered at the EGM (other than the proposal to approve the Scheme), are proposed as special resolutions for which approval requires 75% or more of the votes cast, in person or by proxy.

Entitlement to attend and vote at the Shareholder Meetings (or any adjournment thereof) and the number of votes which may be cast, will be determined by reference to Linde’s register of members as of 48 hours before the relevant meeting. As of the close of business, Eastern Time, on                 , 2022 (the record date for notice of the Shareholder Meetings), a total of                  Linde ordinary shares were outstanding. Each ordinary share entitles the holder to one vote.

 

3.

Taxation

Generally, shareholders tax-resident in the following jurisdictions will not recognize any gain or loss on the Reorganization:

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—U.S. Federal Income Tax Considerations,” U.S. holders of Linde ordinary shares generally will not recognize any gain or loss on the exchange of shares of Linde ordinary shares for New Linde ordinary shares in the Reorganization for U.S. federal income tax purposes.

•

As discussed in “Material Tax Considerations Relating to the Reorganization—U.K. Tax Considerations,” a holder of our ordinary shares which, together with its connected parties, does not hold more than 5% of the ordinary shares in Linde, generally will not recognize any gain or loss on the Reorganization for the purposes of U.K. tax on chargeable gains.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—Irish Tax Considerations,” the holders of our ordinary shares who (i) are not resident or ordinarily resident in Ireland for Irish tax purposes; and (ii) do not use or hold, and did not acquire, their shares in Linde in connection with a trade or business carried on by such holder in Ireland through an Irish branch or agency, generally will not recognize any gain or loss on the Reorganization for Irish tax purposes.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—German Tax Considerations,” for most holders of Linde shares who are subject to taxation in Germany, the Reorganization will not recognize any gain or loss on the Reorganization for German tax purposes. However, under certain circumstances (such as shareholdings of 1% or more, or the shares are being held as business assets) German capital gains tax may apply.

You should carefully review the section “Material Tax Considerations Relating to the Reorganization” with your tax advisors before voting.

 

4.	Action to be Taken and Recommendation

We are furnishing the accompanying Proxy Statement to you in connection with the solicitation of proxies by the Board for use at the Court Meeting and the EGM, to approve the proposals set forth herein.

Information about the Court Meeting, the EGM, and the business to be considered by Linde shareholders is contained in this Proxy Statement, which we urge you to read. In particular, see “Risk Factors” beginning on page 19 for a discussion of risks before voting.

Your vote is very important. Whether or not you plan to attend the Court Meeting or the EGM, please take appropriate action to make sure your Linde ordinary shares are represented at the Court Meeting and the EGM.

The Board unanimously recommends that you vote “FOR” each of the proposals presented at the Shareholder Meetings.

Very truly yours,

 

Stephen F. Angel		Sanjiv Lamba
Chairman of the Board		Chief Executive Officer and Director

This document is dated                 , 2022, and is first being distributed to Linde shareholders on or about                 , 2022.

Making our world more productive

NOTICE OF COURT MEETING OF SHAREHOLDERS

THE HIGH COURT,                 No.                

IN THE MATTER OF LINDE PLC

– and –

IN THE MATTER OF THE COMPANIES ACT 2014

NOTICE IS HEREBY GIVEN that by an Order dated                 , made in the above matter, the High Court of Ireland, referred to as the “Irish High Court,” has (in accordance with Section 450 of the Irish Companies Act) directed a meeting, referred to as the “Court Meeting” to be convened of the holders of the Scheme Shares (as defined in the proposed scheme of arrangement that is included in the document of which this Notice forms a part) of Linde public limited company, referred to as “Linde,” for the purpose of considering and, if thought fit, approving a resolution to approve (with or without modification) a scheme of arrangement pursuant to Chapter 1 of Part 9 of the Irish Companies Act 2014 proposed to be made between Linde and the holders of the Scheme Shares, referred to as the “Scheme” or “Scheme of Arrangement” and that such meeting will be held at 10 Riverview Drive, Danbury, Connecticut 06810, United States on                 , Eastern Time, at which place and time all holders of the Scheme Shares entitled to vote thereat are invited to attend; such resolution being in the following terms:

“That the scheme in its original form or with or subject to any modification(s), addition(s) or condition(s) approved or imposed by the Irish High Court be agreed to.”

A copy of the Scheme of Arrangement and a copy of the explanatory statement required to be furnished pursuant to Section 452 of the Irish Companies Act 2014 are included in the accompanying Proxy Statement.

Scheme Shareholders (as defined in the proposed Scheme of Arrangement that is included in the document of which this Notice forms a part) may vote at the Court Meeting or they may appoint another person, whether a shareholder of Linde or not, as their proxy to attend, speak and vote in their stead. The Court Meeting will be held at 10 Riverview Drive, Danbury, Connecticut 06810, United States and Scheme Shareholders may also, by technological means, participate in the Court Meeting in Ireland in accordance with Section 176 of the Irish Companies Act 2014 by attending the offices of Arthur Cox LLP, Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland at the time of the meeting, where the Court Meeting will be audio cast through the Microsoft Teams platform. Scheme Shareholders attending from the Arthur Cox LLP office may communicate questions or comments or vote by notifying the Linde representative at the Arthur Cox LLP office during the Court Meeting and following the instructions of such representative. The process of asking questions, voting and accessing the Court Meeting presentation will be further explained by the Linde representative at the Arthur Cox LLP office during the Court Meeting. Please note that your ability to vote at the Arthur Cox LLP office will not be enabled until the chair formally opens the meeting.

Whether or not you expect to attend the Court Meeting in person, please promptly provide your proxy as further explained in the accompanying Proxy Statement. You may vote online, or by filling in, signing, dating and promptly mailing a proxy card. Linde recommends that you review the further information on the process for, and deadlines applicable to, voting, attending the meeting and appointing a proxy under “Summary of the Proxy Statement.” Scheme Shareholders may submit a proxy or proxies as follows:

 

•

Vote on the Internet. If you have internet access, you may access the Proxy Statement and submit your proxy or voting instructions by following the instructions provided with your proxy materials and on

your proxy card or voting instruction card. If you vote on the internet, you can also request electronic delivery of future proxy materials.

 

•

Vote by Telephone. Certain shareholders may also be able to vote by telephone if their proxy materials so permit by following the instructions provided with your proxy materials and on your proxy card or voting instruction card. Easy-to-follow voice prompts allow you to vote your shares and confirm that your instructions have been properly recorded.

 

•

Vote by Mail. You may also choose to vote by mail by marking your proxy card or voting instruction card, dating and signing it, and returning it in the postage-paid envelope provided. Alternatively, shareholders may submit a form of proxy in writing that is compliant with the Irish Companies Act 2014 to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. To be valid, the form of proxy must be received by not later than 11:59 p.m. Eastern Time on                 , 2023.

In the case of joint shareholders, the vote of the senior shareholder who tenders a vote, whether in person or by proxy, will be accepted to the exclusion of the vote(s) of the other joint holder(s) and, for this purpose, seniority will be determined by the order in which the names stand in Linde’s register of shareholders in respect of the joint holding.

Entitlement to attend and vote at the Court Meeting (or any adjournment thereof) and the number of votes which may be cast, will be determined by reference to Linde’s register of shareholders as of 48 hours before the meeting, United Kingdom Time, on                 , 2023 (the “Voting Record Time”). In each case, changes to Linde’s register of shareholders after the Voting Record Time shall be disregarded for the purposes of being entitled to vote. Each Scheme Share entitles the holder to one vote. Each Scheme Share entitles the holder to one vote. As of the close of business, Eastern Time, on                 , 2022 (the record date for notice of the Court Meeting), a total of                 Scheme Shares were outstanding.

If the form of proxy is duly completed and signed, and is submitted by following the instructions set forth on the form of proxy no later than 11:59 p.m. Eastern Time on                 , 2023, then it will be voted in the manner directed by the shareholder executing it, or if no directions are given, it will be voted “FOR” each of the proposals.

In the case of a corporation, limited liability company or partnership, the form of proxy must be either under its Common Seal or under the hand of an officer or attorney, duly authorized or in such other manner as its directors may approve.

By the said Court Order, the Irish High Court has appointed                 , or in his absence,                 , or in his absence, such other person as the Board may determine to act as chair of the said Court Meeting, and has directed the chair to report the result thereof to the Irish High Court.

Subject to, amongst other things, the approval of the resolution proposed at the Court Meeting convened by this Notice, the requisite resolutions to be proposed at the extraordinary general meeting of Linde convened for                 , 2023, and the satisfaction or waiver of the other conditions to the completion of the Scheme of Arrangement and the Irish High Court, it is anticipated that the Irish High Court will order that the hearing of the application to approve said Scheme of Arrangement will take place in                  2023.

Terms shall have the same meaning in this Notice as they have in the Proxy Statement accompanying this Notice.

The Scheme of Arrangement will be subject to the subsequent sanction of the Irish High Court.

The resolution at the Court Meeting shall be decided on a poll. Every holder of a Scheme Share as of the Voting Record Time will have one vote for every Scheme Share carrying voting rights of which he, she or it is the holder. In order for the resolution at the Court Meeting to pass, those voting to approve the Scheme must (a) represent a simple majority (being more than 50%) in number of the shareholders of Scheme Shares as of the

Voting Record Time present and voting (whether present in person or by proxy), and (b) also represent 75% or more in value of the Scheme Shares held by such holders as of the Voting Record Time, present and voting (whether present in person or by proxy).

YOUR VOTE IS IMPORTANT

IT IS IMPORTANT THAT AS MANY VOTES AS POSSIBLE ARE CAST AT THE COURT MEETING (WHETHER IN PERSON OR BY PROXY) SO THAT THE IRISH HIGH COURT CAN BE SATISFIED THAT THERE IS A FAIR AND REASONABLE REPRESENTATION OF LINDE SHAREHOLDERS IN THE COURT’S OPINION. TO ENSURE YOUR REPRESENTATION AT THE COURT MEETING, YOU ARE REQUESTED TO COMPLETE, SIGN AND DATE THE ENCLOSED FORM OF PROXY FOR THE COURT MEETING AS PROMPTLY AS POSSIBLE AND RETURN IT IN THE POSTAGE PREPAID ENVELOPE ENCLOSED FOR THAT PURPOSE OR BY INTERNET OR TELEPHONE IN THE MANNER PROVIDED ABOVE. IF YOU ATTEND THE COURT MEETING, YOU MAY VOTE EVEN IF YOU HAVE RETURNED A COMPLETED FORM OF PROXY, BUT YOUR VOTE AT THE COURT MEETING WILL SUPERCEDE YOUR PREVIOUSLY SUBMITTED PROXY.

Dated                 , 2022

Arthur Cox LLP

Ten Earlsfort Terrace

Dublin 2

D02 T380

Ireland

Solicitors for Linde plc

Making our world more productive

NOTICE OF EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS

Dear Shareholder:

The extraordinary general meeting (“EGM”) of shareholders of Linde plc (“Linde”) will be held at 10 Riverview Drive, Danbury, Connecticut 06810, United States at                  Eastern Time on                 , 2023 (or, if the special Court-ordered meeting, referred to as the “Court Meeting,” has not concluded prior to such time, as soon as possible after the conclusion or adjournment of the Court Meeting), for the purpose of considering and, if thought fit, approving of the following resolutions (of which resolution 1 will be proposed as an ordinary resolution and resolutions 2 and 3 will be proposed as a special resolution):

 

1.

To approve, subject to the approval by the requisite majorities at the Court Meeting, the scheme of arrangement that is included in the document of which this Notice forms a part, referred to as the “Scheme” or “Scheme of Arrangement,” whereupon and assuming the other conditions to the Scheme are satisfied, holders of Linde ordinary shares will receive, on a one-for-one basis, ordinary shares of a new publicly traded company incorporated in Ireland (“New Linde”), and that the directors of Linde be authorized to take all such action as they consider necessary or appropriate for carrying the Scheme into effect.

 

2.

To approve, subject to the Scheme becoming effective, an amendment to the articles of association of Linde, which are part of the Linde constitution, referred to as the “Articles,” in respect of certain mechanics to effect the Scheme.

 

3.

To approve the Common Draft Terms of Merger, whereupon and assuming the other conditions to the Merger are satisfied, Linde would be merged with and into New Linde, with New Linde surviving the merger.

Linde shareholders may vote at the EGM or they may appoint another person, whether a shareholder of Linde or not, as their proxy to attend, speak and vote in their stead. The EGM will be held at 10 Riverview Drive, Danbury, Connecticut 06810, United States and shareholders may also, by technological means, participate in the EGM in Ireland in accordance with Section 176 of the Irish Companies Act 2014 by attending the offices of Arthur Cox LLP, Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland at the time of the meeting where the Court Meeting will be audio cast through the Microsoft Teams platform. Shareholders attending from the Arthur Cox LLP office may communicate questions or comments or vote by notifying the Linde representative at the Arthur Cox LLP office during the EGM and following the instructions of such representative. The process of asking questions, voting and accessing the EGM presentation will be further explained by the Linde representative at the Arthur Cox LLP office during the Court Meeting. Please note that your ability to vote at the Arthur Cox LLP office will not be enabled until the chair formally opens the meeting.

A form of proxy for use at the EGM is enclosed with this Notice. Completion and return of a form of proxy will not preclude a Scheme Shareholder from attending and voting in person at the EGM, if that shareholder wishes to do so. Any alteration to the form of proxy must be initialed by the person who signs it.

It is requested that a form of proxy, duly completed and signed, together with any power of attorney, under which it is signed, be submitted by following the instructions set forth on the form of proxy no later than 11:59 p.m. Eastern Time on                 , 2023.

Scheme Shareholders may submit a proxy or proxies as follows:

 

•

Vote on the Internet. If you have internet access, you may access the Proxy Statement and submit your proxy or voting instructions by following the instructions provided with your proxy materials and on

your proxy card or voting instruction card. If you vote on the internet, you can also request electronic delivery of future proxy materials.

 

•

Vote by Telephone. Certain shareholders may also be able to vote by telephone if their proxy materials so permit by following the instructions provided with your proxy materials and on your proxy card or voting instruction card. Easy-to-follow voice prompts allow you to vote your shares and confirm that your instructions have been properly recorded.

 

•

Vote by Mail. You may also choose to vote by mail by marking your proxy card or voting instruction card, dating and signing it, and returning it in the postage-paid envelope provided. Alternatively, shareholders may submit a form of proxy in writing that is compliant with the Irish Companies Act 2014 to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. To be valid, the form of proxy must be received by not later than 11:59 p.m. Eastern Time on                 , 2023.

In the case of joint shareholders, the vote of the senior shareholder who tenders a vote, whether in person or by proxy, will be accepted to the exclusion of the vote(s) of the other joint holder(s) and, for this purpose, seniority will be determined by the order in which the names stand in Linde’s register of shareholders in respect of the joint holding.

This Proxy Statement and a form of proxy are being distributed to shareholders on or about                 , 2022. Entitlement to attend and vote at the EGM (or any adjournment thereof) and the number of votes which may be cast, will be determined by reference to Linde’s register of shareholders as of 48 hours before the meeting. Each ordinary share entitles the holder to one vote. As of the close of business, Eastern Time, on                 , 2022 (the record date for notice of the EGM), a total of                  Linde ordinary shares were outstanding.

Whether or not you expect to attend the EGM in person, please promptly provide your proxy either online or by telephone, as further explained in the accompanying Proxy Statement, or by filling in, signing, dating and promptly mailing a proxy card. We recommend that you review the further information on the process for, and deadlines applicable to, voting, attending the meeting and appointing a proxy under “The Court Meeting and the Extraordinary General Meeting” of the Proxy Statement.

Please be aware that, if you own shares in a brokerage account, you must instruct your broker, bank or other institution on how to vote your shares. Without your instructions, New York Stock Exchange rules do not allow your broker, bank or other institution to vote your shares on any of the proposals. Please exercise your right as a shareholder to vote on all proposals by instructing your broker, bank or other institution by proxy.

TABLE OF CONTENTS

 

		Page
QUESTIONS AND ANSWERS			1
SUMMARY			11
RISK FACTORS			19
THE COURT MEETING AND THE EXTRAORDINARY GENERAL MEETING			21
COURT SCHEME OF ARRANGEMENT PROPOSAL AND EGM SCHEME OF ARRANGEMENT PROPOSAL			27
DISSOLUTION MERGER PROPOSAL			33
LINDE CONSTITUTION AMENDMENT PROPOSAL			36
MATERIAL TAX CONSIDERATIONS RELATING TO THE REORGANIZATION			39
DESCRIPTION OF NEW LINDE SHARE CAPITAL			56
COMPARISON OF RIGHTS OF SHAREHOLDERS			68
INFORMATION ON SHARE OWNERSHIP			70
DISCLOSURE OF INTERESTS			72
SHAREHOLDERS SHARING AN ADDRESS			72
WHERE YOU CAN FIND MORE INFORMATION			73
OTHER MATTERS			74
Annex A – The Scheme of Arrangement			A-1
Annex B – New Linde Constitution			B-1
Annex C – Common Draft Terms of Merger			C-1

 

-i-

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This Proxy Statement contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are identified by terms and phrases such as: anticipate, believe, intend, estimate, expect, continue, should, could, may, plan, project, predict, will, potential, forecast, and similar expressions. They are based on management’s reasonable expectations and assumptions as of the date the statements are made but involve risks and uncertainties. These risks and uncertainties include, without limitation: Linde’s ability to implement the Reorganization, including obtaining the requisite shareholder vote and Irish High Court approvals; the expected timing and scope of the Reorganization, if implemented, and its expected effects on the company, the company’s stock price and its shareholders; the performance of stock markets generally; developments in worldwide and national economies and other international events and circumstances, including trade conflicts and tariffs; changes in foreign currencies and in interest rates; the cost and availability of electric power, natural gas and other raw materials; the ability to achieve price increases to offset cost increases; catastrophic events including natural disasters, epidemics, pandemics such as COVID-19, and acts of war and terrorism; the ability to attract, hire, and retain qualified personnel; the impact of changes in financial accounting standards; the impact of changes in pension plan liabilities; the impact of tax, environmental, healthcare and other legislation and government regulation in jurisdictions in which the company operates; the cost and outcomes of investigations, litigation and regulatory proceedings; the impact of potential unusual or non-recurring items; continued timely development and market acceptance of new products and applications; the impact of competitive products and pricing; future financial and operating performance of major customers and industries served; the impact of information technology system failures, network disruptions and breaches in data security; and the effectiveness and speed of integrating new acquisitions into the business. These risks and uncertainties may cause future results or circumstances to differ materially from adjusted projections, estimates or other forward-looking statements. Linde assumes no obligation to update or provide revisions to any forward-looking statement in response to changing circumstances. The above listed risks and uncertainties are further described in Item 1A. Risk Factors in Linde’s Form 10-K for the fiscal year ended December 31, 2021 filed with the SEC on February 28, 2022, which should be reviewed carefully. Please consider Linde’s forward-looking statements in light of those risks.

CERTAIN DEFINITIONS

We use the following terms in this Proxy Statement:

 

•

“beneficial owner”: A Linde shareholder whose shares are held through a broker, bank or other institution.

 

•

“Court Hearing”: The hearing by the Irish High Court of the motion to approve the Scheme under Section 453 of the Irish Companies Act.

 

•

“Court Meeting”: The meeting of Scheme Shareholders convened by order of the Irish High Court to consider and vote on the Court Scheme of Arrangement Proposal to be held at 10 Riverview Drive, Danbury, Connecticut 06810, United States at                  Eastern Time on                 , 2023.

 

•

“Court Order”: The order or orders of the Irish High Court approving the Scheme under Section 453 of the Act.

 

•

“Court Scheme of Arrangement Proposal”: The proposal to be considered and voted on at the Court Meeting proposing that the Scheme, with or without amendment (but subject to such amendment being acceptable to each of Linde and New Linde, except for a technical or procedural amendment which is required for the proper implementation of the Scheme and does not have a substantive consequence on the implementation of the Scheme), be approved.

 

•

“Dissolution Merger”: An intercompany merger under Irish law, pursuant to which Linde would be merged with and into New Linde, with New Linde surviving the merger, which we expect to become effective on the same date, and immediately after, the effectiveness of the Scheme.

 

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•

“Dissolution Merger Proposal”: The proposal to be voted at the EGM to approve the Dissolution Merger.

 

•

“EGM” or “Extraordinary General Meeting”: The extraordinary general meeting of Linde shareholders convened by the Board to consider and vote on the EGM Proposals to be held at 10 Riverview Drive, Danbury, Connecticut 06810, United States at                  Eastern Time on                 , 2023 (or, if the Court Meeting has not concluded prior to such time), as soon as possible after the conclusion or adjournment of the Court Meeting.

 

•

“EGM Proposals”: The EGM Scheme of Arrangement Proposal, Dissolution Merger Proposal and the Linde Constitution Amendment Proposal to be voted on at the EGM.

 

•

“EGM Scheme of Arrangement Proposal”: The proposal to be voted at the EGM to approve the Scheme of Arrangement.

 

•

“Forms of Proxy”: The form of proxy for the Court Meeting and/or the form of proxy for the EGM, as the context may require.

 

•

“Irish High Court”: The High Court of Ireland.

 

•

“Linde Constitution Amendment Proposal”: The proposal to be voted on at the EGM in respect of the proposed amendment to the Linde Constitution.

 

•

“Linde Constitution”: The constitution of Linde, comprising its memorandum and articles of association.

 

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“New Linde Constitution”: The constitution of New Linde, comprising its memorandum and articles of association.

 

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“Registrar of Companies”: The Registrar of Companies in Dublin, Ireland.

 

•

“shareholder of record”: A Linde shareholder directly registered in their own name on the register of members, as maintained by Linde’s stock transfer agent, Computershare Investo Services.

 

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“Scheme” or “Scheme of Arrangement”: The scheme of arrangement between Linde and Scheme Shareholders as set out in “Annex A – The Scheme of Arrangement” beginning on page A-1 of this Proxy Statement and on such other terms and in such form not being inconsistent therewith as the parties mutually agree in writing, including any revision thereof as may be so agreed between the parties with or subject to any modifications, additions or conditions which the Irish High Court may approve or impose.

 

•

“Scheme Effective Date”: The date on which this Scheme becomes effective in accordance with its terms, upon filing the Court Order with the Registrar of Companies.

 

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“Scheme Effective Time”: The time on the Scheme Effective Date at which the Scheme becomes effective in accordance with its terms.

 

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“Scheme Record Time”: 11:59 p.m. Eastern Time on the last business day before the Scheme Effective Date.

 

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“Scheme Shareholder”: Each holder of Scheme Shares at the Court Meeting.

 

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“Scheme Shares”: (i) in relation to attendance and voting at the Court Meeting, the Linde ordinary shares in issue before the Voting Record Time; and (ii) otherwise, the Linde ordinary shares in issue before the Scheme Record Time, and in each case (where the context requires) remaining in issue at the Scheme Record Time, but excluding any treasury shares and, for the avoidance of doubt, any Linde deferred shares.

 

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“Shareholder Meetings”: The Court Meeting and EGM.

 

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“Reorganization”: The proposed Scheme of Arrangement and the Dissolution Merger.

 

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“Voting Record Time”: 48 hours before the relevant Shareholder Meeting.

 

 

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QUESTIONS AND ANSWERS

About the Shareholder Meetings

 

Q.	Why did I receive this Proxy Statement?

 

A.

We sent you this Proxy Statement because the Irish High Court has convened a Court Meeting (“Court Meeting”) at                  Eastern Time on                 , 2023 in order to obtain shareholder approval of the Scheme of Arrangement. Linde will hold an Extraordinary General Meeting (“EGM”) at                  Eastern Time on                 , 2023 or, if the Court Meeting has not concluded by such time, as soon as possible thereafter, in order to obtain shareholder approval of the resolutions necessary to implement the Scheme of Arrangement and to approve the Dissolution Merger solely to facilitate the delisting of Linde’s ordinary shares from the FSE. The Board is soliciting your proxy to vote at both the Court Meeting and the EGM (together, the “Shareholder Meetings”). This Proxy Statement summarizes the information you need to know to vote on an informed basis.

 

Q.	What am I being asked to vote on at the Shareholder Meetings?

 

A.	Court Meeting

For the Court Meeting, you are being asked to vote on and, if you see fit, approve the Scheme of Arrangement as set forth in the “Notice of Court Meeting of Shareholders” included in this Proxy Statement. If the Scheme is approved at the Shareholder Meetings and the Scheme subsequently becomes effective, holders of Linde ordinary shares will receive, on a one-for-one basis, ordinary shares of New Linde. As a result, New Linde will become the new publicly traded company of our organization. We refer to this proposal as the “Court Scheme of Arrangement Proposal.” The effectiveness of the Scheme is conditioned on the approval of this proposal at the Court Meeting.

 

EGM

For the EGM, you are being asked to vote on and, if you see fit, approve the “EGM Proposals,” which comprise:

 

1.

To approve, subject to the approval by the requisite majority at the Court Meeting, the scheme of arrangement that is included in this Proxy Statement, referred to as the “Scheme” or “Scheme of Arrangement,” whereupon and assuming the other conditions to the Scheme are satisfied, holders of Linde ordinary shares will receive, on a one-for-one basis, ordinary shares of New Linde, and that the directors of Linde be authorized to take all such action as they consider necessary or appropriate for carrying the Scheme into effect (the “EGM Scheme of Arrangement Proposal”);

 

2.

To approve, subject to the Scheme becoming effective, an amendment to the articles of association of Linde, which are part of the Linde constitution, referred to as the “Articles,” in respect of certain mechanics to effect the Scheme (the “Linde Constitution Amendment Proposal”); and

 

3.

To approve the Common Draft Terms of Merger, whereupon and assuming the other conditions to the Dissolution Merger are satisfied, Linde would be merged with and into New Linde, with New Linde surviving the merger (the “Dissolution Merger Proposal”).

If any other routine matters properly come before the Shareholder Meetings or any adjournments or postponements of the Shareholder Meetings, the persons named in the Forms of Proxy will vote the shares represented by all properly executed proxies in their discretion.

 

Q:	Why are there two Shareholder Meetings?

 

A:

Irish law requires that two separate shareholder meetings be held, the Court Meeting and the EGM. Both meetings are necessary to cause the Scheme and the EGM Proposals to become effective. At the Court Meeting, Scheme Shareholders will be asked to approve the Scheme for the purposes of satisfying the

 

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requirements of the Irish legislation upon which the Scheme is based. At the EGM, Linde shareholders will be asked to approve the EGM Proposals. See “What am I being asked to vote on at the Shareholder Meetings?” above.

 

Q:	Who is entitled to notice of, and to vote at, the Shareholder Meetings?

 

A:

Entitlement to receive notice of the Shareholder Meetings has been determined by reference to Linde’s register of members as of close of business on                 , 2022. However, entitlement to attend and vote at the Shareholder Meetings (or any adjournment thereof) and the number of votes which may be cast, will be determined by reference to Linde’s register of shareholders as of 48 hours before the relevant meeting (the “Voting Record Time”). Each ordinary share entitles the holder to one vote. As of the close of business on                 ,                  (the record date for notice of the Shareholder Meetings), a total of                  Linde ordinary shares were outstanding.

 

Q:	What quorum is required at the Shareholder Meetings?

 

A:

The presence, in person or by proxy, of the holders of a majority of Linde’s ordinary shares entitled to vote shall constitute a quorum for both the Court Meeting and the EGM. The shares represented by abstentions and broker non-votes on filed proxies and ballots will be considered present for quorum purposes (for an explanation of “broker non-votes,” see the vote counting rules below).

 

Q:	What vote of Linde shareholders is required to approve the proposals?

 

A:	At the Shareholder Meetings, voting will be by written poll ballot and not a show of hands. In summary, the following votes are required to approve the relevant proposals at the relevant meeting:

Court Meeting

The Court Scheme of Arrangement Proposal must be approved by Scheme Shareholders that represent:

 

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a simple majority (being more than 50%) in number of those Scheme Shareholders as of the Voting Record Time present and voting (in person or by proxy) at the Court Meeting; and

 

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75% or more in value of the Scheme Shares held by those Scheme Shareholders as of the Voting Record Time present and voting (in person or by proxy) at the Court Meeting.

For the purpose of calculating the simple “majority in number” requirement for the approval of the proposal at the Court Meeting, each shareholder at the Voting Record Time, present and voting in person or by proxy, will be counted as a single shareholder, regardless of the number of shares voted by that shareholder.

It is important that, for the Court Meeting, as many votes as possible are cast so that the Irish High Court may be satisfied that there is a fair representation of the opinion of Scheme Shareholders as of the Voting Record Time when it is considering whether to approve the Scheme. You are therefore strongly urged to complete and return your Form of Proxy for the Court Meeting as soon as possible.

EGM

 

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The EGM Scheme of Arrangement Proposal must be approved by a simple majority (being more than 50%) of the votes cast by the Linde shareholders present and voting (in person or by proxy) at the EGM.

 

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The Linde Constitution Amendment Proposal must be approved by at least 75% of the votes cast by the Linde shareholders present and voting (in person or by proxy) at the EGM.

 

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The Dissolution Merger Proposal must be approved by at least 75% of the votes cast by the Linde shareholders present and voting (in person or by proxy) at the EGM.

 

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The Board may determine not to proceed with the Reorganization for any reason, even if shareholders approve the Reorganization.

 

Q.	What vote does the Board recommend?

 

A.	The Board recommends that:

 

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at the Court Meeting you vote “FOR” the Court Scheme of Arrangement Proposal, and

 

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at the EGM you vote “FOR” the EGM Scheme of Arrangement Proposal, “FOR” the Linde Constitution Amendment Proposal and “FOR” the Dissolution Merger Proposal.

 

Q:	What other approvals are required for the Reorganization?

 

A:

In addition to the approval by Linde’s shareholders, the Scheme and the Dissolution Merger will also both require approval by the Irish High Court after the Shareholder Meetings are held. In considering its approval of the Scheme, the Irish High Court will consider whether there has been a sufficiently large (in the Irish High Court’s judgment) number of Scheme Shares included in the vote in favor of the Scheme to fairly represent the opinion of the Linde shareholders, in addition to whether the required Scheme Shareholder approval at the Court Meeting is obtained and the appropriate procedures satisfied. As a result, it is important that, for the Court Meeting, as many votes as possible are cast so that the Irish High Court may be satisfied as to such fair shareholder representation at the Court Meeting when it is considering whether to approve the Scheme. You are therefore strongly urged to complete and return your Court Meeting Form of Proxy as soon as possible.

 

Q.	How do I Submit My Vote by Means of a Proxy?

 

A.	We encourage you to vote your shares in advance by submitting your Forms of Proxy or following the instructions provided by your broker, even if you plan to attend the Shareholder Meetings in person.

Shareholders of Record

 

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If you are a shareholder of record, meaning that you own your shares in your own name and not through a broker, bank or other institution, you may vote in one of four ways:

 

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Vote on the Internet. If you have internet access, you may access the Proxy Statement and submit your proxy or voting instructions by following the instructions provided with your proxy materials and on your proxy card or voting instruction card. If you vote on the internet, you can also request electronic delivery of future proxy materials.

 

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Vote by Telephone. Certain shareholders may also be able to vote by telephone if their proxy materials so permit by following the instructions provided with your proxy materials and on your proxy card or voting instruction card. Easy-to-follow voice prompts allow you to vote your shares and confirm that your instructions have been properly recorded.

 

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Vote by Mail. You may also choose to vote by mail by marking your proxy card or voting instruction card, dating and signing it, and returning it in the postage-paid envelope provided. Alternatively, shareholders may submit a form of proxy in writing that is compliant with the Irish Companies Act 2014 to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. To be valid, the form of proxy must be received by not later than 11:59 p.m. Eastern Time on                 , 2023.

 

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In Person. Attend the Shareholder Meetings in person, or by appointing one or more proxies (who do not have to be shareholders) to attend the Shareholder Meetings in person and cast

 

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votes on your behalf in accordance with your instructions. If you wish to appoint as your proxy any person other than the individuals specified in the Form of Proxy, please contact the Company Secretary at our registered office. For information on how to attend to Shareholder Meetings please see “What do I need to do to attend the Shareholder Meetings?” below.

Beneficial owners

Beneficial owners who own shares through a broker, bank or other institution must vote their shares in the manner prescribed by their broker, bank or other institution. If you do not receive voting instructions, please contact your broker, bank or other institution directly. Beneficial owners wishing to vote at the Shareholder Meetings in person will need to obtain a legal proxy from their broker, bank or other institution and bring it with them to the Shareholder Meetings.

For information on how to attend the Shareholder Meetings, please see “What do I need to do to attend the Shareholder Meetings?” below.

In order to be timely processed, your votes must be received by 11:59 p.m. Eastern Time on                 , 2023 (or, if you are a beneficial owner, such earlier time as your broker, bank or other institution may require).

 

Q.	What do I need to do to attend the Shareholder Meetings?

 

A.

All Scheme Shareholders of record at the Voting Record time may attend the Court Meeting at 10 Riverview Drive, Danbury, Connecticut 06810, United States commencing at                  Eastern Time on                 , 2023 or, in accordance with Section 176 of the Irish Companies Act 2014, by attending the offices of Arthur Cox LLP, Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland at the time of the meeting. All Linde shareholders of record as at the Voting Record Time may attend the EGM at 10 Riverview Drive, Danbury, Connecticut 06810, United States commencing at                  Eastern Time on                 , 2023 or in accordance with Section 176 of the Irish Companies Act 2014, by attending at the offices of Arthur Cox LLP, Ten Earlsfort Terrance, Dublin 2, D02 T380, Ireland at the time of the Meeting. To attend the relevant meeting in person, if you are a shareholder of record as of the Voting Record Time, you must present valid photo identification, such as a driver’s license or passport, matching that of a shareholder appearing on Linde’s Register of Shareholders as of the Voting Record Time and a copy of a share certificate or other evidence of share ownership. If you are a beneficial owner, you also must present a letter from your broker, bank or other institution showing that you are the beneficial owner of the shares as of the Voting Record Time together with a legal proxy from your broker, bank or other institution entitling you to vote your shares in person.

 

Q.	Does it matter, for the purpose of voting at and attending the Shareholder Meetings, whether I hold my shares “beneficially” or “of record?”

 

A.	Yes, in general, Linde shareholders are either shareholders of record (i.e., directly registered in their own names on Linde’s Register of Shareholders) or beneficial owners (i.e., held through a broker, bank or other institution). Most Linde shareholders are beneficial owners.

There are different procedures for voting and attending the Shareholder Meetings, depending on whether you are a shareholder of record or beneficial owner. See “What do I need to do to attend the Shareholder Meetings” and “How do I Submit My Vote by Means of a Proxy?”

 

Q.	If I am a beneficial owner, will my broker, bank or other institution vote my shares for me?

 

A.	You should have received a copy of this Proxy Statement and instructions on how to instruct your broker, bank or other institution to vote your shares. If you have not received a Proxy Statement and instructions,

 

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we recommend that you contact your broker, as beneficial owners must vote their shares in the manner prescribed by their broker. Your broker, bank or other institution can give you directions on how to instruct the broker, bank or other institution to vote your shares. Please note that the broker, bank or other institution may have an earlier deadline by which you must provide instructions to it as to how to vote shares, so you should carefully read the materials provided to you by your brokers.

Your broker, bank or other institution will not be able to vote your shares unless the broker, bank or other institution receives appropriate instructions from you. Brokers who hold shares on behalf of customers have the authority to vote on “routine” proposals when they have not received instructions from beneficial owners, but are precluded from exercising their voting discretion with respect to proposals for “non-routine” matters. Proxies submitted by brokers without instructions from customers for these non-routine matters are referred to as “broker non-votes.” All of the Court Meeting and EGM Proposals are “non-routine” proposals, so your broker, bank or other institution will not be able to vote your shares without appropriate instructions from you. It is important you follow your broker’s instructions and vote.

 

Q:	What is the effect of broker non-votes and abstentions?

 

A:

A “broker non-vote” occurs when a broker, bank or other institution holding shares for a beneficial owner does not vote on a particular proposal because the broker, bank or other institution did not receive instructions from the beneficial owner. All of the proposals are “non-routine” proposals, so if you are a beneficial owner your broker, bank or other institution will not be able to vote your shares without appropriate instructions from you. It is important you follow your broker’s instructions and vote. See “How do I Submit My Vote by Means of a Proxy?” above.

Linde ordinary shares owned by shareholders who elect to abstain from voting with respect to any proposal and broker non-votes will be counted towards the determination of a quorum at each of the Shareholder Meetings but will not be considered present and voting with respect to any of the proposals. Therefore, abstentions and broker non-votes will have no effect on the outcome of such proposals.

 

Q.	How will my proxy get voted?

 

A.

If your proxy is properly submitted, you are legally designating the person or persons named on the relevant Form of Proxy to vote your shares as you have directed. Unless you name a different person or persons to act as your proxy, Linde’s designees or their substitutes will act as your proxies. If you sign and return your proxy without indicating how your shares are to be voted and name anyone other than a Linde’s designee as your proxy, that person may vote your shares at their discretion. If you name Linde’s designee as your proxy without indicating how your shares are to be voted on the enclosed Forms of Proxy that are submitted (or when providing your proxy over the Internet or by telephone), Linde’s designee will vote your shares as our Board recommends on each proposal in this Proxy Statement and at their discretion regarding any other matter properly presented for a vote at the Court Meeting or the EGM.

If you are a beneficial owner and your broker, bank or other institution does not receive instructions from you, your broker, bank or other institution may only vote your shares at their discretion on “routine” matters. See “What is the effect of broker non-votes and abstentions?”

 

Q.	May I revoke my proxy?

 

A.

You may revoke your proxy at any time before it is voted by filing with Linde’s Corporate Secretary a written revocation, by timely delivery of a properly completed and later-dated proxy (including by internet or telephone), or by voting in person at the Shareholder Meetings. Merely attending the Shareholder Meetings does not revoke your proxy. To revoke a proxy, you must take one of the actions described above.

 

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Q.	May I still vote at the Shareholder Meetings even if I have submitted a proxy?

 

A.

The method by which you vote will in no way limit your right to vote at the Shareholder Meetings if you later decide to attend in person. If your shares are held in the name of a bank, broker, bank or other institution or other shareholder of record, you must obtain a proxy, executed in your favor, from the shareholder of record, to be able to vote at the Shareholder Meetings.

About the Reorganization

 

Q.	Why do you want to replace Linde with New Linde?

 

A.

The Reorganization is intended solely to facilitate the delisting of Linde’s ordinary shares from the Frankfurt Stock Exchange (“FSE”). As discussed in greater detail in “Summary—The Reorganization,” we have concluded that delisting Linde’s ordinary shares from the FSE and having New Linde’s shares being listed solely on the NYSE is in the best interest of Linde and its shareholders.

 

Q:	How will New Linde ordinary shares differ from Linde ordinary shares?

 

A:

As a result of the Scheme, Linde shareholders will become New Linde shareholders and such shareholders’ rights will be governed by the New Linde Constitution. If the Reorganization is completed, the rights of shareholders under Linde’s organizational documents would be substantially the same as those in effect immediately before the Reorganization (other than the loss of certain statutory rights resulting from the FSE listing). See “Description of New Linde Share Capital” and “Comparison of Rights of Shareholders.” The form of the New Linde Constitution will be substantially the same as the existing Linde Constitution. The New Linde Constitution is attached to this Proxy Statement as Annex B.

 

Q.	Will the Reorganization affect Linde’s current or future operations?

 

A.	No. The Reorganization will not have an impact on how we conduct our day-to-day operations.

 

Q.	Will there be any other changes to the corporate or governance structure of Linde in connection with the Reorganization?

 

A.

No. The overall profile of our company, including governance structure, activities, its trade and business, as well as the tax profile will remain unchanged following the Reorganization. Linde has a strong corporate governance structure that compares favorably to that of other large public companies and to the standards of recognized governance organizations. That structure, including our board composition and committees, our split between Chairman and Chief Executive Officer roles, our Independent Lead Director, and our corporate governance policies, will not change.

 

Q.	How will the Reorganization affect Linde’s presence in the U.S., Germany and around the world?

 

A.	There are no changes planned for our operations or workforce in the U.S., Germany or elsewhere as a result of the Reorganization.

 

Q.	Will the Reorganization dilute my economic interest?

 

A.	No. Your economic interest will not change as a result of the Reorganization. Your current shareholder ownership in Linde will transfer to New Linde and you will hold the same number of New Linde ordinary shares instead.

 

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Q.	How will the Reorganization affect financial reporting and the information provided to Linde shareholders?

 

A.

Following the reorganization, New Linde will be required to report consolidated financial results in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”), be subject to U.S. securities laws, including the mandates of the U.S. Sarbanes-Oxley Act, the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”) and the corporate governance standards of the NYSE. New Linde will not be required to report its consolidated financial results in accordance with International Financial Reporting Standards (“IFRS”) or be subject to the other requirements resulting from the FSE listing. New Linde will also comply with reporting requirements under Irish law.

 

Q.	What impact will the Reorganization have on our current debt arrangements?

 

A.

None. As of September 30, 2022, Linde had (i) no borrowings outstanding under its revolving credit facility, (ii) $3.5 billion, €8.4 billion, £0.3 billion principal amounts outstanding in bonds, and (iii) $3.0 billion outstanding in commercial paper. Such arrangements will be binding upon New Linde as the successor of Linde once the Dissolution Merger becomes effective.

 

Q.	Will the Reorganization impact our ability to access the capital and bank markets in the future?

 

A.

No. We do not expect the Reorganization to affect our ability to access the capital and bank markets. We expect to access the capital and bank markets as efficiently and on similar terms as we do today, subject to any changes in market conditions. We do not expect our credit ratings to change as a result of the Reorganization, which has been confirmed by certain major rating agencies.

 

Q.	Will the Reorganization have any impact on our ability to pay dividends or buy back shares?

 

A.

No. We do not expect that the Reorganization will affect our ability to pay dividends or buy back shares, however in order to facilitate the payment of dividends and buy back of shares, New Linde will seek Irish High Court approval of a capital reduction shortly following completion of the Reorganization to create the distributable reserves required to make distributions in the future. Under Irish law, dividends and distributions may only be made from distributable reserves which are, generally, a company’s accumulated realized profits less its accumulated realized losses. For further discussion, see “Risk Factors—Following the Reorganization, New Linde will seek Irish High Court approval for the creation of distributable reserves. New Linde expects this will be forthcoming, but cannot guarantee this, and until distributable reserves of New Linde are created, New Linde will be unable to make distributions by way of dividends, share repurchases or otherwise under Irish law.”

 

Q.	Will the Reorganization impact our ability to pay the March dividend?

 

A.

No. Subject to the timing of the occurrence of the Scheme Effective Date, it is our expectation that Linde’s Board will consider and approve the declaration of Linde’s regular March dividend prior to the Scheme Effective Date, which will obligate New Linde, by operation of law as a result of the Dissolution Merger, to pay the dividend, if declared.

 

Q.	What effect would the failure to complete the Reorganization have on Linde?

 

A.	Linde will continue to be listed on the FSE and the NYSE and will operate as it does today.

 

Q.	Am I entitled to appraisal or dissenters’ rights in the Reorganization?

 

A.	A Linde shareholder who votes against the Dissolution Merger Proposal may, up to 15 days after the Shareholder Meetings, request that New Linde acquire the New Linde ordinary shares issued to such Shareholder following the Scheme becoming effective. Where a valid request is made by a Linde

 

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shareholder, and assuming the effectiveness of each of the Scheme and the Dissolution Merger, New Linde shall purchase such New Linde ordinary shares held by that shareholder at a price which is expected to be equal to the closing price of one ordinary share of Linde on the NYSE on the day before the Scheme Effective Date.

 

Q.	What are the material tax consequences of the Reorganization?

 

A.

Please read the following questions and answers regarding some of the potential tax consequences of the Reorganization. The actual tax consequences of the Reorganization to you may be complex and will depend on your specific situation. We urge you to consult your tax advisor for a full understanding of the tax consequences of the Reorganization to you. Please see “Material Tax Considerations Relating to the Reorganization.”

 

Q.	Is the Reorganization a taxable event for me?

 

A.	Generally, shareholders tax-resident in the following jurisdictions will not recognize any gain or loss on the Reorganization:

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—U.S. Federal Income Tax Considerations,” the Reorganization is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), for U.S. federal income tax purposes. In accordance with such intended treatment, U.S. holders of Linde ordinary shares generally will not recognize any gain or loss on the exchange of shares of Linde ordinary shares for New Linde ordinary shares in the Reorganization for U.S. federal income tax purposes.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—U.K. Tax Considerations,” a holder of our ordinary shares which, together with its connected parties, does not hold more than 5% of the ordinary shares in Linde, generally will not recognize any gain or loss on the Reorganization for the purposes of U.K. tax on chargeable gains.

 

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As discussed in “Material Tax Considerations Relating to the Reorganization—Irish Tax Considerations,” the holders of our ordinary shares who (i) are not resident or ordinarily resident in Ireland for Irish tax purposes; and (ii) do not use or hold, and did not acquire, their shares in Linde in connection with a trade or business carried on by such holder in Ireland through an Irish branch or agency, generally will not recognize any gain or loss on the Reorganization for Irish tax purposes.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—German Tax Considerations,” for most holders of Linde shares who are subject to taxation in Germany, the Reorganization will not recognize any gain or loss on the Reorganization for German tax purposes. However, under certain circumstances (such as shareholdings of 1% or more, or the shares are being held as business assets) German capital gains tax may apply.

You should carefully review the section “Material Tax Considerations Relating to the Reorganization” with your tax advisors before voting.

 

Q.	Will the Reorganization give rise to corporate income tax liabilities for Linde or New Linde?

 

A.	Neither the Scheme nor the Dissolution Merger is expected to give rise to any material corporate income tax liability to Linde or New Linde. For a further discussion, see “Material Tax Considerations Relating to the Reorganization.”

 

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Q.	Will the Reorganization impact Linde’s underlying effective tax rate in 2023 or expectations for later years?

 

A.	The Reorganization is not expected to have a material impact on our underlying effective tax rate.

 

Q:	Will there be any Irish or U.K. withholding tax on any dividends on New Linde ordinary shares?

 

A:

The same dividend withholding tax treatment will apply to the payment of dividends on New Linde ordinary shares as currently applies to Linde shareholders. Dividend payments may be made by New Linde (as currently by Linde) without withholding or deduction for or on account of Irish and U.K. income tax. For further discussion, see “Material Tax Considerations Relating to the Reorganization—Irish Tax Considerations” and “—U.K. Tax Considerations,” respectively.

 

Q:	Will there be Irish or U.K. income tax on any dividends paid on New Linde ordinary shares?

 

A:

The same Irish and U.K. income tax treatment will apply to the receipt of dividends on New Linde ordinary shares as currently applies to Linde shareholders. For further discussion, see “Material Tax Considerations Relating to the Reorganization—Irish Tax Considerations” and “—U.K. Tax Considerations,” respectively.

 

Q:	Will there be an Irish or U.K. stamp duty liability on the transfer or sale of New Linde ordinary shares by New Linde ordinary shareholders after the completion of the Reorganization?

 

A:

The same stamp duty treatment will apply to the transfer of New Linde ordinary shares as currently applies to the transfer of Linde ordinary shares. For further discussion, see “Material Tax Considerations Relating to the Reorganization—Irish Tax Considerations” and “—U.K. Tax Considerations,” respectively.

 

Q.	Will the Reorganization have any material impact on another company’s ability to acquire Linde?

 

A.	The Reorganization should not have any material impact on the ability of another company to acquire us.

 

Q.	When do you expect the Reorganization to be completed?

 

A.

We are working towards completing the Reorganization as quickly as possible and, assuming the Court Scheme of Arrangement Proposal is approved, the Irish High Court approves the Scheme and the conditions to the Reorganization are satisfied, we expect to complete the Reorganization in                  2023. However, the Reorganization may be abandoned or delayed by our Board at any time prior to the Scheme Effective Time without obtaining the approval of Linde shareholders, even though the Scheme of Arrangement may have been approved by shareholders and approved by the Irish High Court and all other conditions to the Scheme may have been satisfied. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—Amendment, Termination or Delay.”

 

Q.	What will I receive for my Linde ordinary shares?

 

A.	You will receive one New Linde ordinary share for each Linde ordinary share you own immediately prior to the Scheme becoming effective.

 

Q.	If the Scheme becomes effective, do I have to take any action to transfer my Linde ordinary shares and receive New Linde ordinary shares?

 

A.

No. Assuming the Scheme becomes effective, your Linde ordinary shares will be transferred to New Linde by means of a form of transfer or other instrument of transfer. Please see “Annex A – Scheme of Arrangement – The Scheme – Transfer of Scheme Shares.” Your New Linde ordinary shares will be issued without any action on your part. All of the New Linde ordinary shares will be issued in uncertificated book-

 

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entry form. If you currently hold Linde ordinary shares in certificated form, following the Scheme Effective Date your Linde ordinary share certificates will cease to have effect as documents or evidence of title and you may disregard such certificates. The transfer agent will make an electronic book-entry in your name and will mail you a statement evidencing your ownership of New Linde ordinary shares. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—The Transfer of Scheme Shares to New Linde.”

 

Q.	Can I trade Linde ordinary shares between the date of this Proxy Statement and the Scheme Effective Time?

 

A.

Yes. Linde ordinary shares will continue to trade during this period. However, if you are a shareholder as of the close of business on                 , 2022 (the record date for notice of the Shareholder Meetings) and you sell your shares before the Voting Record Time, you will not be entitled to vote at the Shareholder Meetings. If you purchase or sell shares after the Voting Record Time, this will have no effect on whether or not you have a right to vote.

 

Q.	How will the Reorganization affect the stock exchange listing of Linde ordinary shares?

 

A.	New Linde ordinary shares are expected to be listed on the NYSE under the symbol “LIN” in                  2023. Merging Linde into New Linde will result in an automatic and immediate delisting of Linde ordinary shares from the FSE.

 

Q.	Will there be any other changes to the corporate structure of Linde in connection with the Scheme?

 

A.

Once New Linde has replaced Linde as the new publicly traded company of our organization and Linde has become a wholly-owned subsidiary of New Linde, Linde will merge upwards into New Linde by virtue of a merger by absorption, with New Linde surviving and Linde ceasing to exist. The overall profile of our group, including governance structure, activities, its trade and business, as well as the tax profile of our group would remain unchanged following the Reorganization.

 

Q.	Who is making and paying for this proxy solicitation?

 

A.

We have engaged Morrow Sodali LLC to assist in the distribution of Proxy Materials and the solicitation of proxies. The entire cost of soliciting proxies will be borne by Linde including the expense of preparing, printing and mailing this Proxy Statement. Solicitation costs include payments to brokerage firms and others for forwarding solicitation materials to beneficial owners of Linde’s shares and reimbursement of out-of-pocket costs incurred for any follow up mailings. Linde also has engaged Morrow Sodali LLC to assist in the solicitation of proxies from shareholders at a fee of $17,500 plus reimbursement of out-of-pocket expenses. In addition to use of the mail, proxies may be solicited personally or by telephone by employees of Linde without additional compensation, as well as by employees of Morrow Sodali LLC.

To the extent necessary in order to ensure sufficient representation at its meeting, Linde or its proxy solicitor may solicit the return of proxies by mail, telephone, facsimile, Internet or other means of electronic transmission. The extent to which this will be necessary depends upon how promptly proxies are returned. We urge you to send in your Forms of Proxy without delay.

 

Q.	Will the current Linde CUSIP/ISIN change if the Linde ordinary shares are exchanged for New Linde ordinary shares ?

 

A.	The CUSIP and ISIN are expected to change but the ISIN will continue to start with IE because New Linde is also incorporated in Ireland.

 

Q.	Whom should I call if I have questions about the Court Meeting, the EGM or the Reorganization?

 

A.	You should contact our proxy solicitor, Morrow Sodali LLC, at +(203) 658-9400 or at +(800) 607-0088 (toll-free within the United States).

 

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SUMMARY

This summary highlights selected information from this Proxy Statement. It does not contain all of the information that is important to you. To understand the Reorganization more fully, and for a more complete legal description of the Reorganization, you should read carefully the entire Proxy Statement, including the Annexes. The Scheme of Arrangement, substantially in the form attached as Annex A to this Proxy Statement, is the legal document that governs the Scheme. The New Linde Constitution, substantially in the form attached as Annex B to this Proxy Statement, will govern New Linde following the Scheme becoming effective. The Common Draft Terms, in the form attached as Annex C to this Proxy Statement, sets out the proposed terms of the Dissolution Merger. We encourage you to read those documents carefully.

The Reorganization

As announced on October 24, 2022, Linde’s Board has decided to propose the Reorganization to our shareholders for their approval. The Reorganization will involve a two-step process: (i) a scheme of arrangement (the “Scheme”) under Irish law, pursuant to which all outstanding ordinary shares of Linde would be exchanged for ordinary shares of New Linde on a one-for-one basis, followed by (ii) an intercompany merger under Irish law, pursuant to which Linde would be merged with and into New Linde, with New Linde surviving the merger (the “Dissolution Merger”). The Dissolution Merger, which is expected to occur immediately after the Scheme becomes effective, would result in the automatic and immediate delisting of Linde’s ordinary shares from the FSE. The ordinary shares of New Linde would be listed solely on the NYSE under the symbol “LIN.” New Linde ordinary shares would start trading on the NYSE and replace the current Linde ordinary shares upon the effectiveness of the Dissolution Merger, which is expected to be completed in                  2023.

As discussed in greater detail in this Proxy Statement, we have concluded that delisting Linde’s ordinary shares from the FSE and having New Linde’s shares being listed solely on the NYSE is in the best interest of Linde and its shareholders. Linde’s ordinary shares have been dual listed on the NYSE and the FSE since the merger of Praxair Inc. and Linde AG in 2018, which we believe has served us well during the years following the merger. However, over the last two years, management has observed increased valuation limits associated with the listing of Linde’s ordinary shares on the FSE.

Linde’s ordinary shares are included in the DAX index, which is comprised of 40 blue-chip companies that are listed on the FSE. The DAX index rules set out a market-based capitalization limit of 10%, meaning no one company’s weight in the DAX may exceed 10% of the total index based on free float market capitalization. If the market capitalization of a company breaches this cap during rebalancing periods over a three-week period every quarter, the DAX is required to reduce the weighting of that company to match the 10% index cap. Linde is currently the largest DAX company by free float market capitalization and as a result of its stock performance, its shares have regularly exceeded the 10% index cap. In particular, we have observed that in 11 of 12 quarters during the past three full calendar years, Linde has been the only DAX company to breach the index cap, and Linde has been one of the most capped stocks in Europe averaging almost two-thirds of each trading year above the cap since 2020. The resulting mandatory DAX rebalancing has required passive funds that mirror the DAX to sell Linde’s shares to avoid a “tracking” error, which has impacted our stock price. This technical selling pressure has been persistent.

Reasons for the Reorganization

After considering various factors, on October 24, 2022, our Board determined that effecting the Reorganization, which would result in a delisting of Linde ordinary shares from the FSE by replacing Linde with New Linde, is in the best interests of our organization and shareholders. In reaching its determination, our Board considered a number of factors, including:

 

•

Eliminating Market-Capitalization Based Limits. The Board believes that the existence of market-capitalization based limits associated with our FSE listing has caused stock valuation challenges by

 

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creating technical selling pressure unrelated to Linde’s performance or fundamentals, as more fully discussed in “Background” above. The Board believes that eliminating these limitations will position Linde’s long-term stock valuation to more closely reflect Linde’s performance and fundamentals.

 

•

Reducing Regulatory Complexity. The Board believes that delisting Linde’s ordinary shares from the FSE and maintaining solely a NYSE listing will eliminate regulatory complexity associated with Linde’s existing dual listing structure. Linde’s dual listing structure requires Linde to comply with two separate compliance and public reporting regimes, one resulting from the listing on the NYSE and the other resulting from the listing on the FSE. Among other requirements, Linde and its affiliates have been required to comply with overlapping (i) accounting standards requiring Linde’s consolidated financial results to be prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) and International Financial Reporting Standards (“IFRS”); (ii) company stock repurchase rules and reporting; (iii) insider trading rules and director and executive officer trading and reporting requirements; and (iv) other disclosure requirements. In addition, certain of our shareholders currently are subject to two separate compliance regimes, including European filing and reporting requirements for institutional shareholders owning 3% or more of Linde’s ordinary shares. We believe a dual public company compliance structure results in excess costs and complexity. Following the Reorganization, New Linde will be required to report consolidated financial results in accordance with U.S. GAAP, be subject to U.S. securities laws, including the mandates of the U.S. Sarbanes-Oxley Act, the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”) and the corporate governance standards of the NYSE. New Linde will not be required to report its consolidated financial results in accordance with IFRS or be subject to the other requirements resulting from the FSE listing. New Linde will also comply with reporting requirements under Irish law.

 

•

Emphasizing Global Presence. The Board believes that delisting Linde’s ordinary shares from the FSE will help emphasize Linde’s international presence, relative to a misperception of an outsized exposure of our business to the German market. Linde is committed to all regions in which it operates as, it is a global company, with operations in over 80 countries. Consolidated revenue from each country represented a single digit or less percentage for the nine months ended September 30, 2022, except for Linde’s operations in the U.S., which represented approximately 30% of consolidated revenue.

 

•

Continuity of Business Operations and Governance. The overall profile of our company, including governance structure, activities, its trade and business, as well as the tax profile will remain unchanged following the Reorganization. Linde has a strong corporate governance structure that compares favorably to that of other large public companies and to the standards of recognized governance organizations. That structure, including our board composition and committees, our split between Chairman and Chief Executive Officer roles, our Independent Lead Director, and our corporate governance policies, will not change. The board of directors of New Linde will be comprised of the current members of the Board and New Linde will have the same current Linde senior management team. If the Reorganization is completed, the rights of shareholders under New Linde’s organizational documents would be substantially the same as those in effect immediately before the Reorganization (other than the loss of certain statutory rights resulting from the FSE listing).

The Board weighed the advantages and opportunities of the proposed Reorganization along with a number of other factors, uncertainties and risks identified in its deliberations potentially weighing negatively against the Reorganization. See “Risk Factors” in this Proxy Statement.

Parties to the Reorganization

Linde. Linde plc is a public limited company formed under the laws of Ireland. Linde is the largest industrial gas company worldwide and its primary products in its industrial gases business are atmospheric gases (oxygen, nitrogen, argon, and rare gases) and process gases (carbon dioxide, helium, hydrogen, electronic gases, specialty gases, and acetylene). The company also designs and builds equipment that produces industrial gases and offers

 

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customers a wide range of gas production and processing services such as olefin plants, natural gas plants, air separation plants, hydrogen and synthesis gas plants and other types of plants. Linde serves a diverse group of industries including healthcare, chemicals and energy, manufacturing, metals and mining, food and beverage, and electronics.

Linde’s principal executive offices are located at Forge, 43 Church Street West, Woking, Surrey GU21 6HT, United Kingdom and at 10 Riverview Drive, Danbury, Connecticut 06810, United States.

New Linde. New Linde was incorporated as an Irish limited company in 2017 and was re-registered as an Irish public limited company on October 27, 2022. Currently, all of New Linde’s issued ordinary shares are held by an Irish corporate services provider. New Linde has only nominal assets and capitalization and has not engaged in any business or other activities other than in connection with its formation, re-registration as a public limited company and the Reorganization. As of the Scheme Effective Date, New Linde will replace Linde as the publicly traded company of our organization.

The registered offices of New Linde are located at Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland, and the telephone number at that address is 00353-1-920 1000 and its principal executive office is at Forge, 43 Church Street West, Woking, Surrey GU21 6HT, United Kingdom.

The Scheme

The Scheme will result in New Linde becoming the publicly traded company of our organization. The Scheme will result in Linde shareholders holding New Linde ordinary shares instead of Linde ordinary shares.

The Scheme involves several steps, a number of which will effectively occur simultaneously at the Scheme Effective Time, which we anticipate will occur before the opening of trading on the NYSE on the Scheme Effective Date, but may be at such earlier or later date and time as the Board (or their duly authorized officer) determines. If we receive the required shareholder approvals and the approval of the Irish High Court, we anticipate that the Scheme of Arrangement will become effective as soon as practicable following approval of the Irish High Court at the Court Hearing, upon our delivery of the Court Order sanctioning the Scheme of Arrangement to the Irish Companies Registration Office.

At the Scheme Effective Time, the following steps of the Scheme will effectively occur simultaneously:

 

•

all issued and outstanding Linde ordinary shares will be acquired by New Linde and Linde will become a wholly-owned direct subsidiary of New Linde; and

 

•

New Linde will issue New Linde ordinary shares on a one-for-one basis for each Linde ordinary share that has been transferred to New Linde.

If, and only if, the Scheme of Arrangement is effected, Linde will immediately merge with and into New Linde in the Dissolution Merger. For further discussion, see “—Court Approval of the Scheme and the Dissolution Merger” below.

All previously outstanding New Linde ordinary shares, which prior to the Scheme Effective Time will be held by a third party Irish corporate services provider, will be automatically converted to deferred shares immediately following the issuance of New Linde ordinary shares to Linde shareholders and subsequently surrendered to New Linde for nil consideration in accordance with the provisions of the New Linde Constitution.

The Scheme will be effected pursuant to the Scheme of Arrangement. A copy of the Scheme of Arrangement is attached to this Proxy Statement as Annex A and is a part of this Proxy Statement.

 

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The Dissolution Merger

The Dissolution Merger is intended to be implemented as a “merger by absorption” under Irish company law, such that, from the effective date of the Dissolution Merger (the “Merger Effective Date”), Linde will transfer its assets and liabilities to New Linde, following which Linde will be dissolved without going into liquidation. The Dissolution Merger will require, among other things, the approval of the Linde shareholders at the EGM and the Irish High Court.

If the Dissolution Merger is approved by Linde’s shareholders, Linde and New Linde will jointly apply to the Irish High Court for an order confirming the Dissolution Merger, determining satisfaction of statutory conditions, the fairness of the terms and conditions of the Dissolution Merger to Linde shareholders and setting the Merger Effective Date. The Dissolution Merger will become effective on the date specified in the Dissolution Merger Court Order, which we expect to be the same date, and immediately after, the effectiveness of the Scheme. For further discussion, see “—Court Approval of the Scheme and the Dissolution Merger” below.

The Dissolution Merger is internal and administrative in nature and will not dilute your interest in Linde or New Linde. Furthermore, the Reorganization will have no effect on how Linde manages its business or how it serves its customers. See “Comparison of Rights of Shareholders” below.

Court Approval of the Scheme and the Dissolution Merger

We cannot consummate the Scheme without the approval of the Scheme by the Irish High Court. If the Scheme Shareholders approve the Court Scheme of Arrangement Proposal at the Court Meeting, the Irish High Court will subsequently hold a Court Hearing to consider approval of the Scheme of Arrangement. At the Court Hearing, the Irish High Court may impose such conditions as it deems appropriate in relation to the Scheme but may not impose any material changes without the joint consent of Linde and New Linde. Linde may, subject to U.S. securities law requirements, consent to any modification of the Scheme on behalf of the Scheme Shareholders that the Irish High Court may think fit to approve or impose. In determining whether to exercise its discretion and approve the Scheme of Arrangement, the Irish High Court will determine, among other things, whether the Scheme is fair to the Linde shareholders. The Scheme will become effective upon our delivery to the Registrar of Companies of the Court Order approving the Scheme of Arrangement.

We cannot consummate the Dissolution Merger without the confirmation of the Dissolution Merger by the Irish High Court. If the Linde Shareholders approve the Dissolution Merger Proposal at the EGM, the Irish High Court will hold a Court Hearing to confirm the Dissolution Merger, which will occur on the same day as the Court Hearing to approve the Scheme. The Dissolution Merger will become effective on the date specified in the Dissolution Merger Court Order, which we expect to be the same date, and immediately after, the effectiveness of the Scheme.

For a discussion of the expected timing of principal events relating to the Scheme and the Dissolution Merger, see “—Expected Timetable of Principal Events” below.

Conditions to the Reorganization

The Scheme is subject to, amongst other things, the satisfaction or waiver of the following conditions:

 

•

at the Court Meeting, the approval of the Court Scheme of Arrangement Proposal; and

 

•

at the EGM, the approval of the EGM Scheme of Arrangement Proposal and the Linde Constitution Amendment Proposal.

The Dissolution Merger is conditioned upon Irish High Court approval of the Scheme.

For further discussion, see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal—Conditions” and “Dissolution Merger Proposal— Merger Conditions.”

 

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Rights of Shareholders

As a result of the Scheme, Linde shareholders will become New Linde shareholders and such shareholders’ rights will be governed by the New Linde Constitution. If the Reorganization is completed, the rights of shareholders of New Linde under its organizational documents would be substantially the same as those of Linde in effect immediately before the Reorganization (other than the loss of certain statutory rights resulting from the FSE listing). See “Description of New Linde Share Capital.” The form of the New Linde Constitution will be substantially the same as the existing Linde Constitution. The New Linde Constitution is attached to this Proxy Statement as Annex B.

Appraisal and Similar Rights

Irish law does not provide for appraisal rights in respect of the Scheme, although dissenting Scheme Shareholders will have the right to appear at the Court Hearing and make objections in respect of the Scheme.

Irish law does not provide for appraisal rights in respect of the Dissolution Merger. However, any Linde shareholder that has voted against the Dissolution Merger Proposal has the right to submit a request in writing to New Linde, not more than 15 calendar days after the date of the EGM, that New Linde acquire their New Linde ordinary shares for cash. Where a valid request is made by a Linde shareholder, and assuming the effectiveness of each of the Scheme and the Dissolution Merger, New Linde shall purchase such New Linde ordinary shares held by that shareholder at a price which is expected to be equal to the closing price of one ordinary share of Linde on the NYSE on the day before the Effective Date of the Scheme.

For further discussion, see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal/Explanatory Statement—No Appraisal or Similar Rights” and “Dissolution Merger Proposal/Explanatory Statement—Appraisal or Similar Rights.”

Tax Considerations

Generally, shareholders tax-resident in the following jurisdictions will not recognize any gain or loss on the Reorganization:

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—U.S. Federal Income Tax Considerations,” the Reorganization is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), for U.S. federal income tax purposes. In accordance with such intended treatment, U.S. holders of Linde ordinary shares generally will not recognize any gain or loss on the exchange of shares of Linde ordinary shares for New Linde ordinary shares in the Reorganization for U.S. federal income tax purposes.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—U.K. Tax Considerations,” a holder of our ordinary shares which, together with its connected parties, does not hold more than 5% of the ordinary shares in Linde, generally will not recognize any gain or loss on the Reorganization for the purposes of U.K. tax on chargeable gains.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—Irish Tax Considerations,” the holders of our ordinary shares who (i) are not resident or ordinarily resident in Ireland for Irish tax purposes; and (ii) do not use or hold, and did not acquire, their shares in Linde in connection with a trade or business carried on by such holder in Ireland through an Irish branch or agency, generally will not recognize any gain or loss on the Reorganization for Irish tax purposes.

 

•

As discussed in “Material Tax Considerations Relating to the Reorganization—German Tax Considerations,” for most holders of Linde shares who are subject to taxation in Germany, the Reorganization will not recognize any gain or loss on the Reorganization for German tax purposes. However, under certain circumstances (such as shareholdings of 1% or more, or the shares are being held as business assets) German capital gains tax may apply.

 

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You should carefully review the section “Material Tax Considerations Relating to the Reorganization” with your tax advisors before voting. We urge you to consult your tax advisor for a full understanding of the tax consequences of the Reorganization to you.

The Court Meeting and the EGM

Time, Place, Date and Purpose. The Court Meeting will be held on                 , 2023 at                  Eastern Time and it will be followed by the EGM at                  Eastern Time, or as soon as possible thereafter, in each case at 10 Riverview Drive, Danbury, Connecticut 06810, United States. Scheme Shareholders may also, by technological means, participate in the Court Meeting in Ireland in accordance with Section 176 of the Irish Companies Act 2014 by attending the offices of Arthur Cox LLP, Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland at the time of the meeting, where the Court Meeting will be audio cast through the Microsoft Teams platform. At the Court Meeting, you will be asked to approve the Scheme. At the EGM, which will occur promptly following the Court Meeting, you will be asked to approve the Scheme and the Dissolution Merger as well as additional proposals in respect of the Reorganization.

Notice Record Date. Shareholders as of the close of business on                 , 2022, are entitled to receive notice of the Shareholders Meetings. As of the close of business on such date, a total of              Linde ordinary shares were outstanding.

Voting Record Time. Entitlement to attend and vote at the Shareholder Meetings (or any adjournment thereof) and the number of votes which may be cast, will be determined by reference to Linde’s register of shareholders as of 48 hours before the relevant meeting, United Kingdom Time, on                 , 2023. Each ordinary share entitles the holder to one vote.

Quorum. Scheme Shareholders (or their proxies) as of the Voting Record Time may vote at the Court Meeting and Linde shareholders (or their proxies) as of the Voting Record Time may vote at the EGM. Each Scheme Shareholder or Linde shareholder (whichever the case may be) of record is entitled to one vote per share. Changes in shareholders after the Voting Record Time will be disregarded for voting and quorum purposes.

Required Vote. The Scheme to be considered at the Court Meeting cannot be completed without (i) the affirmative vote of more than 50% in number and 75% or more in value of the Linde ordinary shares held by Linde shareholders voting, in person or by proxy, and (ii) the approval of the Irish High Court. Because the voting requirement to approve the Scheme is determined by the number of Linde shareholders who are present and voting at the Court Meeting and the EGM, in person or by proxy, the Scheme could be approved with the affirmative vote of less than 50% of the outstanding Linde ordinary shares.

Recommendation of the Board

The Board recommends that:

 

•

at the Court Meeting, you vote “FOR” the Court Scheme of Arrangement Proposal; and

 

•

at the EGM, you vote “FOR” the EGM Scheme of Arrangement Proposal, “FOR” the Linde Constitution Amendment Proposal and “FOR” the Dissolution Merger Proposal.

Unaudited Summary Pro Forma Financial Information

Pro forma consolidated financial statements for New Linde are not presented in this Proxy Statement because no pro forma adjustments are required to be made to show the impact of the Reorganization to the statement of operations of Linde for the fiscal year ended December 31, 2021 and the three and nine month periods ended September 30, 2022. Those financial statements are included in Linde’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and Quarterly Report on Form 10-Q for the quarter ended September 30, 2022, respectively.

 

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Risk Factors

We cannot assure you that the anticipated benefits of the Reorganization will be realized and there are a number of risks associated with the Reorganization, which are discussed in this Proxy Statement and in documents incorporated by reference herein, including:

 

•

there is no assurance that Irish High Court approval of the Scheme and the Dissolution Merger will be forthcoming or that the other conditions to the effectiveness of the Scheme and the Dissolution Merger will be satisfied;

 

•

the impact of the Reorganization and the resulting delisting from the FSE on Linde’s stock price and, following the Reorganization, New Linde’s stock price is uncertain; and

 

•

following the Reorganization, New Linde will seek Irish High Court approval for the creation of distributable reserves. New Linde expects this will be forthcoming, but cannot guarantee this, and until distributable reserves of New Linde are created, New Linde will be unable to make distributions by way of dividends, share repurchases or otherwise under Irish law.

You should consider these risks carefully. For additional information, see the discussion under “Risk Factors.”

Expected Timetable of Principal Events

The table below shows principal steps to be taken to effect the Reorganization. The times and dates are indicative only and will depend on, among other things, the dates upon which (i) the conditions to the Reorganization are satisfied (or waived, where applicable), (ii) the Irish High Court approves the Scheme and (iii) the Court Order is delivered to the Registrar of Companies. If the expected date of the Court Hearing is changed, we will give adequate notice of such change by issuing an announcement that will be made available at our website at www.linde.com.

 

Event		Expected Date/Time (Eastern Time)
Record date for determining shareholders entitled to notice of the Shareholder Meetings		, 2023
Voting Record Time for Linde shareholders		on        , 2023  (1)
Latest time for receipt of paper proxy cards and for appointing a proxy by telephone or internet for the Shareholder Meetings		on , 2023 (2)
Court Meeting		on        , 2023
Extraordinary General Meeting		on        , 2023 (3)
Court Hearing regarding the Scheme and the Dissolution Merger		on        , 2023
Suspension of trading in Linde ordinary shares on the NYSE		on        , 2023
Effective Date of the Scheme and the Dissolution Merger; suspension of trading and delisting of Linde ordinary shares from the FSE		on        , 2023
Commencement of trading in New Linde ordinary shares on the NYSE		By        on        , 2023
Irish High Court hearing regarding the New Linde Reduction of Capital		Within 8 weeks after effectiveness of the Scheme

 

(1)	If either of the Shareholder Meetings is adjourned, the Voting Record Time for the adjourned Shareholder Meeting will be 48 hours before the date set for such adjourned Shareholder Meeting.

(2)

You may also choose to vote by mail by marking your proxy card or voting instruction card, dating and signing it, and returning it in the postage-paid envelope provided. Alternatively, shareholders may submit a form of proxy in writing that is compliant with the Irish Companies Act 2014 to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. To be valid, the form of proxy must be received by not later than 11:59 p.m. Eastern Time on                 , 2023. Shareholders who wish to submit a form of

 

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proxy that is in compliance with the Irish Companies Act 2014 by electronic means may do so up to the same deadline by submitting to usservices@computershare.ie.

(3)	To commence at                Eastern Time or as soon thereafter as the Court Meeting shall have concluded or adjourned.

 

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RISK FACTORS

Before you decide how to vote, you should consider carefully the following risk factors in addition to the other information contained in this Proxy Statement, including the matters addressed under the section entitled “Cautionary Note Regarding Forward-Looking Statements,” and the documents incorporated by reference, including, without limitation, our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, and our subsequent filings with the SEC.

Risks Relating to the Reorganization

We can provide no assurance that Irish High Court approval of the Scheme of Arrangement and the Dissolution Merger will be forthcoming or that the other conditions to the effectiveness of the Scheme and the Dissolution Merger will be satisfied.

Even if the Court Scheme of Arrangement Proposal and the Dissolution Merger Proposal are approved at the Shareholder Meetings, both the Scheme of Arrangement and the Dissolution Merger require the approval of the Irish High Court. Although we are not aware of any reason why the Irish High Court would not approve the Scheme of Arrangement or the Dissolution Merger, the issuance of the required orders is a matter for the discretion of the Irish High Court and there is no guarantee that such approval will be forthcoming. If the Irish High Court does not approve the Scheme of Arrangement and the Dissolution Merger, Linde may abandon the Reorganization and continue to remain the publicly traded company of our organization, with its ordinary shares listed on the FSE and NYSE.

The Reorganization and the resulting delisting from the FSE could cause volatility in our stock price.

Linde’s ordinary shares are currently listed and traded on the NYSE and the FSE, in each case under the symbol “LIN.” As Linde’s ordinary shares are listed on the FSE, they are also included in the DAX index, the German blue-chip index comprised of the top 40 FSE-traded German companies. As a result of the Reorganization, New Linde will be listed only on the NYSE and not be listed on the FSE or included in the DAX index. The effect on the share price of Linde shares resulting from the approval by shareholders of the Reorganization or the completion of the Reorganization and the resulting delisting of our shares from the FSE is uncertain. The delisting would make us ineligible for inclusion in the DAX, and as a result, mutual funds, exchange traded funds, and other investment vehicles that attempt to track the DAX will not be investing in our stock. As a result, our stock price might be volatile, at least in the near term.

We may choose to abandon or delay the Reorganization.

We may abandon or delay the Reorganization at any time prior to the Scheme Effective Time, even after all shareholder approvals at the Shareholder Meetings have been obtained. While we currently expect to complete the Scheme and the Dissolution Merger as soon as practicable after obtaining those shareholder approvals, Linde may delay the Reorganization for a significant time or may abandon the Reorganization altogether after the Shareholder Meetings because, among other reasons, the Reorganization is no longer in our best interest or the best interests of our shareholders or may not result in the benefits we expect, or our estimated cost of the Reorganization increases. Additionally, we may not be able to obtain the requisite shareholder or court approvals or satisfy all of the other conditions to the consummation of the Reorganization, including obtaining all consents necessary, desirable or appropriate in connection with the Scheme of Arrangement and related transactions. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—Amendment, Termination or Delay” and “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—Conditions.”

Following the Reorganization, New Linde will seek Irish High Court approval for the creation of distributable reserves. New Linde expects this will be forthcoming, but cannot guarantee this, and until distributable reserves of New Linde are created, New Linde will be unable to make distributions by way of dividends, share repurchases or otherwise under Irish law.

 

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Under Irish law, dividends may only be paid and share repurchases and redemptions must generally be funded only out of “distributable reserves,” which New Linde will not have immediately following the closing. The creation of distributable reserves of New Linde involves a reduction in New Linde’s undenominated share capital which requires the approval of the Irish High Court. The approval of the Irish High Court is expected within eight weeks following the Reorganization becoming effective. New Linde is not aware of any reason why the Irish High Court would not approve the creation of distributable reserves in this manner; however, the issuance of the required order is a matter for the discretion of the Irish High Court. In the event that distributable reserves of New Linde are not created, no distributions by way of dividends, share repurchases or otherwise will be permitted under Irish law until such time as New Linde has created sufficient distributable reserves from its business activities.

Transfers of New Linde ordinary shares other than by means of the transfer of book-entry interests through the Depository Trust Company (“DTC”), may be subject to Irish stamp duty.

It is expected that certain confirmations related to Irish stamp duty will be sought from the Irish Revenue Commissioners in advance of the Reorganization. These confirmations should provide that transfers of New Linde ordinary shares, following the Reorganization, effected by means of the transfer of book-entry interests through DTC should not be subject to Irish stamp duty.

However, if you hold your Linde shares directly rather than beneficially through DTC, such that following the Reorganization you will hold your New Linde ordinary shares directly rather than beneficially through DTC, any transfer of your New Linde ordinary shares could be subject to Irish stamp duty (currently at the rate of 1% of the higher of the price paid or the market value of the shares acquired).

A New Linde shareholder who directly holds New Linde ordinary shares may, subject to confirmation by the Irish Revenue Commissioners in advance of the Reorganization, transfer such New Linde ordinary shares into his or her own broker, bank or other institution account to be held through DTC (or vice versa) without giving rise to Irish stamp duty, provided that there is no change in the beneficial ownership of the New Linde ordinary shares as a result of the transfer, and the transfer is not in contemplation of a sale of New Linde ordinary shares by a beneficial owner to a third party.

Payment of Irish stamp duty is generally a legal obligation of the transferee. The potential for Irish stamp duty could adversely affect the price of your New Linde ordinary shares.

 

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THE COURT MEETING AND THE EXTRAORDINARY GENERAL MEETING

Consents (Court Meeting and EGM)

The Court Meeting is being held at the direction of the Irish High Court to seek the approval of the Scheme by the Scheme Shareholders. The EGM is being convened to seek the approval of Linde shareholders as of the Voting Record Time with respect to certain resolutions that are necessary or desirable to effect and to implement the Scheme and the Dissolution Merger, as described below.

Notices of the Shareholder Meetings are set out at the front of this Proxy Statement. Entitlement to receive notice of the Court Meeting has been determined by reference to Linde’s register of members as of close of business on                 , 2022. However, entitlement to attend and vote at the Court Meeting (or any adjournment thereof) and the number of votes which may be cast, will be determined by reference to Scheme Shareholders as of the Voting Record Time. Each ordinary share entitles the holder to one vote. For further information, see “Summary—Required Vote” in this Proxy Statement.

Court Meeting

The Court Meeting has been convened for                  Eastern Time on                 , 2023 to enable the Scheme Shareholders to consider and, if thought fit, approve the Scheme. At the Court Meeting, voting will be by poll and not a show of hands. Each Scheme Shareholder as of the Voting Record Time who is present (in person or by proxy) will be entitled to one vote for each Scheme Share held as of the Voting Record Time for the purposes of determining 75% in value of the Scheme Shares referred to below. In order to conduct business at the Court Meeting, a quorum must be present. The presence (in person or by proxy) of two or more Scheme Shareholders holding at least 50% of the issued and outstanding Scheme Shares entitled to vote at the Court Meeting will constitute a quorum for the transaction of business at the Court Meeting. In order for the resolution at the Court Meeting to pass, those voting to approve the Scheme must represent:

 

•

a simple majority (being more than 50%) in number of those Scheme Shareholders as of the Voting Record Time present and voting (in person or by proxy) at the Court Meeting; and

 

•

75% or more in value of the Scheme Shares held by those Scheme Shareholders as of the Voting Record Time present and voting (in person or by proxy) at the Court Meeting.

It is important that, for the Court Meeting, as many votes as possible are cast so that the Irish High Court may be satisfied that there is a fair representation of the opinion of Scheme Shareholders as of the Voting Record Time when it is considering whether to approve the Scheme. You are therefore strongly urged to complete and return your Court Meeting Form of Proxy as soon as possible.

EGM

In addition to the Court Meeting, the EGM has been convened for                  Eastern Time on                 , 2023 or, if the Court Meeting has not concluded by such time, as soon as possible thereafter. A quorum must be present in order to conduct any business at the EGM. The presence (in person or by proxy) of two or more Linde shareholders holding at least 50% of the issued and outstanding Linde ordinary shares entitled to vote at the EGM will constitute a quorum for the transaction of business at the EGM. The proposals to be voted upon by the Linde shareholders at the Voting Record Time at the EGM are set out in full under the section entitled “Questions and Answers about The Reorganization and the Shareholder Meetings—What am I being asked to vote on at the Shareholder Meetings” in this Proxy Statement. The Linde Constitution Amendment Proposal and the Dissolution Merger Proposal, in each case, as described therein, are “special resolutions,” which means that each requires the approval of at least 75% of the votes cast at the EGM, either in person or by proxy. The EGM Scheme of Arrangement Proposal is an “ordinary resolution,” which means that it requires the approval of at least a majority of the votes cast by the Linde shareholders as of the Voting Record Time present and voting, either in person or by proxy. The Scheme is conditioned on the approval of the EGM Scheme of Arrangement Proposal and the Linde Constitution Amendment Proposal.

 

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Court Hearing on the Scheme

Subject to the approval of Court Scheme of Arrangement Proposal, the EGM Scheme of Arrangement Proposal and the Linde Constitution Amendment Proposal at the Shareholder Meetings, the Court Hearing is expected to take place on                 , 2023. Each Linde shareholder is entitled to be represented by counsel or a solicitor (at his, her or its own expense) at the Court Hearing to support or oppose the approving of the Scheme. However, the Irish High Court has discretion to hear from interested parties.

Forms of Proxy

Holders of Linde ordinary shares at close of business on                 , 2022 have been sent this Proxy Statement enclosing a Form of Proxy for the Court Meeting, and a Form of Proxy for the EGM. You are strongly urged to complete and return both the (i) Court Meeting Form of Proxy and (ii) the EGM Form of Proxy as soon as possible and, in any event, no later than 11:59 p.m. Eastern Time on                 , 2023. If you are a beneficial owner, your broker, bank or other institution provided instructions on how to vote. See “Questions and Answers about the Reorganization and the Shareholder Meetings—What do I need to do to attend the Shareholder Meetings?”

Voting Your Shares

If you are a shareholder of record, use the proxy voting method that is available to you to instruct the persons named as proxy how to vote your shares. Linde recommends that you submit your proxy even if you plan to attend either or both of the Shareholder Meetings. If you vote by proxy, you may change your vote, among other ways, if you attend and vote at the Shareholder Meetings. See “Questions and Answers about the Reorganization and the Shareholder Meetings—What do I need to do to attend the Shareholder Meetings?”

If you properly complete and submit either or both proxy voting instructions for the Court Meeting and the EGM, your shares will be voted in accordance with your instructions. The named proxies will vote all shares at the meeting for which proxies have been properly submitted and not revoked. If you properly complete and submit your Forms of Proxy appointing the named proxies of the applicable Shareholder Meeting as your proxy but do not mark the Form of Proxy to tell the proxy how to vote on a voting item, such shares will be voted “FOR” each of the proposals.

You may also vote over the internet or by telephone anytime up to 11:59 p.m. Eastern Time on                 , 2023. Voting instructions are contained on the Forms of Proxy or voting information form you received. Either method of submitting a proxy will enable your shares to be represented and voted at the Shareholder Meetings. See “Questions and Answers about the Reorganization and the Shareholder Meetings—How do I Submit My Vote by Means of a Proxy?”

Beneficial Owners

If you are a beneficial owner, you must instruct your broker, bank or other institution how to vote your shares by following the instructions that your broker, bank or other institution provided along with this Proxy Statement. Your broker, bank or other institution may have an earlier deadline by which you must provide instructions to it as to how to vote your shares, so you should carefully read the materials provided by your broker.

If you do not provide a signed voting instruction form to your broker, your shares will not be voted on any proposal on which brokers do not have discretionary authority to vote, referred to as a “broker non-vote.” In these cases, the broker, bank or other institution will not be able to vote your shares on those matters for which specific authorization is required. Brokers do not have discretionary authority to vote on any of the proposals at either Shareholder Meeting. All of the proposals are “non-routine” proposals. Accordingly, if you fail to provide a signed voting instruction form to your broker, your shares will not be voted at either Shareholder Meeting.

 

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Background and Reasons for the Reorganization

As discussed in greater detail in this Proxy Statement, we have concluded that delisting Linde’s ordinary shares from the FSE and having New Linde’s shares being listed solely on the NYSE is in the best interest of Linde and its shareholders. Linde’s ordinary shares have been dual listed on the NYSE and the FSE since the merger of Praxair Inc. and Linde AG in 2018, which we believe has served us well during the years following the merger. However, over the last two years, management has observed increased valuation barriers associated with the listing of Linde’s ordinary shares on the FSE. We have concluded that the existence of two separate market-capitalization based limits associated with our FSE listing have had a negative impact on Linde’s stock performance, as further described in “Summary—The Reorganization.”

After considering various factors, on October 24, 2022, our Board determined that effecting the Reorganization, which would result in a delisting of Linde ordinary shares from the FSE by replacing Linde with New Linde, is in the best interests of Linde and its shareholders. In reaching its determination, our Board considered a number of factors in connection with its evaluation of the Reorganization, including the factors described in “Summary—The Reorganization.”

The Board weighed the advantages and opportunities against a number of other factors, uncertainties and risks identified in its deliberations potentially weighing negatively against the Reorganization, including:

 

•

there is no assurance that Irish High Court approval of the Scheme and the Dissolution Merger will be forthcoming or that the other conditions to the effectiveness of the Scheme and the Dissolution Merger will be satisfied;

 

•

the impact of the Reorganization and the resulting delisting from the FSE on Linde’s stock price and, following the Reorganization, New Linde’s stock price is uncertain;

 

•

following the Reorganization, New Linde will seek Irish High Court approval for the creation of distributable reserves. New Linde expects this will be forthcoming, but cannot guarantee this, and until distributable reserves of New Linde are created, New Linde will be unable to make distributions by way of dividends, share repurchases or otherwise under Irish law; and

 

•

various other risks associated with the Reorganization, some of which are described in the section entitled “Risk Factors.”

After careful consideration, the Board has concluded that the potential benefits that it expects Linde and its shareholders to achieve as a result of the Reorganization outweigh the potentially negative factors associated with the Reorganization. Accordingly, the Board unanimously (i) determined that in the good faith opinion of all the directors, it is for the commercial benefit and in the best interests of our shareholders to approve the Reorganization and to approve the entry by Linde into the documents governing the Scheme and the Dissolution Merger and the performance by Linde of its obligations thereunder, and (ii) recommends that shareholders vote “FOR” the approval of the Scheme of Arrangement and each of the EGM Proposals at the Shareholder Meetings.

The Linde Directors and Executive Officers and the Effect of the Scheme on their Interests

Interests of Certain Persons in the Reorganization

Except for any interests arising from his or her ownership of securities of Linde, which are discussed in “Information of Share Ownership,” no person who has been a director or executive officer of Linde at any time since the beginning of the last fiscal year, or any associate of any such person, has any substantial interest in the Reorganization. No such person is receiving any benefit not shared on a pro rata basis by all other holders of Linde ordinary shares.

Indemnification Agreements

Linde maintains indemnification agreements with each of its directors indemnifying them in respect of any liability incurred by them while acting as a director of Linde in accordance with customary standards. Upon completion of the Reorganization, the indemnification agreements will be binding upon New Linde.

 

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Continuing Directors and Management

Upon the Scheme becoming effective, the directors and executive officers of Linde immediately prior to the Scheme Effective Time will be appointed the directors and executive officers of New Linde. The New Linde Constitution, as in effect as of the Scheme Effective Time, will provide for a single class of directors, just as Linde currently has, and New Linde’s directors will be subject to re-election at the next annual general meeting of New Linde following the Scheme Effective Time.

Employees

The Reorganization will not affect the terms of employment of any employees of Linde or its subsidiaries.

Regulatory Matters

Other than the Scheme, we are not aware of any other governmental approvals or actions that are required to complete the Reorganization other than the Irish High Court approval of the Dissolution Merger, compliance with U.S. federal and state securities laws and Irish corporate law. We do not believe that any other significant regulatory approvals will be required to effect the Reorganization.

Dividends

Under Irish law, dividends and distributions may only be made from distributable reserves which are, generally, a company’s accumulated realized profits less its accumulated realized losses. In addition, no distribution or dividend may be made if the net assets of New Linde are not, or if making such distribution or dividend will cause the net assets of New Linde to not be, equal to, or in excess of, the aggregate of New Linde’s called up share capital plus undistributable reserves. Undistributable reserves include the company’s undenominated capital and the amount by which a company’s accumulated unrealized profits exceeds its accumulated unrealized losses. The determination as to whether New Linde has sufficient distributable reserves to fund a dividend must be made by reference to New Linde’s most recent unconsolidated annual audited financial statements or other financial statements properly prepared in accordance with the Irish Companies Act 2014. The relevant financial statements must be filed in the Companies Registration Office (the official public registry for companies in Ireland).

As New Linde will not have “distributable reserves” immediately following the closing, it will take steps to create distributable reserves. The creation of distributable reserves of New Linde involves a reduction in New Linde’s undenominated share capital which requires the approval of the Irish High Court. The approval of the Irish High Court is expected within eight weeks following the Reorganization becoming effective. New Linde is not aware of any reason why the Irish High Court would not approve the creation of distributable reserves in this manner; however, the issuance of the required order is a matter for the discretion of the Irish High Court. In the event that distributable reserves of New Linde are not created, no distributions by way of dividends, share repurchases or otherwise will be permitted under Irish law until such time as New Linde created sufficient distributable reserves from its business activities.

For a description of the U.K. tax rules relating to dividends, please see “Material Tax Considerations Relating to the Reorganization—U.K. Tax Considerations.”

Stock Exchange Listing

Linde ordinary shares are currently listed on the NYSE and the FSE. Following the Dissolution Merger, Linde ordinary shares will be delisted from the NYSE and the FSE and deregistered under the Exchange Act. However, New Linde’s ordinary shares will solely be listed on the NYSE. There is currently no established public trading market for New Linde ordinary shares. New Linde ordinary shares are expected to start trading on the NYSE on                 , 2023.

 

 

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Equity Plans

If the Reorganization is completed, New Linde will succeed Linde’s existing rights and obligations in connection with awards granted under Linde’s equity incentive plans. As a result of the completion of the Reorganization, Linde equity-based awards will relate to or become exercisable for New Linde ordinary shares.

Following the Reorganization, New Linde will be deemed to be the successor issuer to Linde under Rule 414 of the Securities Act. New Linde will file post-effective amendments to Linde’s existing registration statements on Form S-8, and upon such filings, these registration statements will be deemed to be registration statements of New Linde pursuant to Rule 414 of the Securities Act.

Effect of the Reorganization on Linde’s Current Debt Arrangements

As of September 30, 2022, Linde had (i) no borrowings outstanding under its revolving credit facility, (ii) $3.5 billion, €8.4 billion, £0.3 billion principal amounts outstanding in bonds and (iii) $3.0 billion outstanding in commercial paper. Such arrangements will be binding upon New Linde as the successor of Linde once the Dissolution Merger becomes effective.

In connection with the consummation of the Reorganization:

 

•

New Linde will succeed Linde by operation of law pursuant to the Dissolution Merger with respect to its obligations, as issuer or guarantor, under our 2.70% Notes due 2023, 2.00% Euro denominated Notes due 2023, 5.875% GBP denominated Notes due 2023, 1.20% Euro denominated Notes due 2024, 1.875% Euro denominated Notes due 2024, 2.65% Notes due 2025, 1.625% Euro denominated Notes due 2025, 0.00% Euro denominated Notes due 2026, 3.20% Notes due 2026, 3.434% Notes due 2026, 1.652% Euro denominated Notes due 2027, 0.250% Euro denominated Notes due 2027, 1.00% Euro denominated Notes due 2027, 1.00% Euro denominated Notes due 2028, 1.90% Euro denominated Notes due 2030, 1.375% Euro denominated Notes due 2031, 0.550% Euro denominated Notes due 2032, 0.375% Euro denominated Notes due 2033, 1.625% Euro denominated Notes due 2035, 3.55% Notes due 2042 and 1.0% Notes due 2051, in each case to the extent such bonds have not matured, been redeemed or otherwise repurchased before the completion of the Reorganization.

 

•

We will enter into a supplemental indenture to our indenture, dated as of August 10, 2020, with U.S Bank National Association, as trustee, governing our 1.10% Notes due August 10, 2030 and 2.00% Notes due August 10, 2050, to replace Linde with New Linde as a guarantor under the indenture. The entry into such supplemental indenture will not require noteholders’ consent.

Effect of the Reorganization on Corporate Governance and Reporting Requirements

Linde has a strong corporate governance structure that compares favorably to that of other large public companies and to the standards of recognized governance organizations. That structure, including our board composition and committees, our split between Chairman and Chief Executive Officer roles, our Independent Lead Director, and our corporate governance policies, will not change.

Following the Reorganization, New Linde will be required to report consolidated financial results in accordance with U.S. GAAP, be subject to U.S. securities laws, including the mandates of the U.S. Sarbanes-Oxley Act, the rules and regulations of the SEC and the corporate governance standards of the NYSE. New Linde will not be required to report its consolidated financial results in accordance with IFRS or be subject to the European public company regulation to which Linde is currently subject as a result of the FSE listing. New Linde will also comply with reporting requirements under Irish law.

 

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Overseas Shareholders

For Linde shareholders located outside of Ireland or the United States (“Overseas Shareholders”), the Scheme may be affected by the laws of the relevant jurisdictions. Such Overseas Shareholders should apprise themselves about and observe any applicable legal requirements. It is the responsibility of Overseas Shareholders to satisfy themselves as to the full observance of the laws of the relevant jurisdiction in connection therewith, including the obtaining of any governmental, exchange control or other consents which may be required, or the compliance with other necessary formalities which are required to be observed and the payment of any issue, transfer or other taxes due in such jurisdiction.

This explanatory statement has been prepared for the purposes of complying with the laws of Ireland and the United States and the rules of the SEC, respectively (to the extent applicable), and the information disclosed may be different from that which would have been disclosed if this Proxy Statement had been prepared in accordance with the laws of jurisdictions outside Ireland and the United States.

Overseas Shareholders are encouraged to consult their local advisor.

 

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COURT SCHEME OF ARRANGEMENT PROPOSAL

AND EGM SCHEME OF ARRANGEMENT PROPOSAL

EXPLANATORY STATEMENT

(This section sets out the explanatory statement in compliance with Section 452 of the Irish Companies Act 2014)

To each holder of Scheme Shares at the Court Meeting (“Scheme Shareholders”) and Linde shareholders

ACQUISITION OF LINDE BY NEW LINDE BY MEANS OF A SCHEME OF ARRANGEMENT UNDER CHAPTER 1 OF PART 9 OF THE IRISH COMPANIES ACT 2014

Overview

As explained in more detail below, the Scheme on which we are asking you to vote, in connection with the other steps of the Reorganization described in this Proxy Statement, will result in New Linde serving as the publicly traded company of our organization.

The Scheme of Arrangement will result in you holding New Linde ordinary shares instead of Linde ordinary shares.

The Reorganization involves several steps. New Linde was incorporated as an Irish private company limited by shares and was re-registered as an Irish public limited company on 27 October 2022. Currently, all of the New Linde ordinary shares are held by a third party Irish corporate services provider. New Linde currently has only nominal assets and capitalization and has not engaged in any business or other activities other than in connection with its formation, re-registration as a public limited company and the Reorganization.

The Board held a board meeting on 24 October 2022 to, among other things, approve the Reorganization. The Scheme of Arrangement will require approval by Scheme Shareholders at the Court Meeting and by Linde shareholders at the EGM and the approval of the Irish High Court at the Court Hearing.

The Board unanimously recommends that all Linde shareholders vote “FOR” approval of the Scheme and the other proposals presented at both the Court Meeting and the EGM. As of November 1, 2022, Linde’s directors and executive officers as a group beneficially owned approximately 0.7% of the outstanding Linde ordinary shares. See “Information on Share Ownership” in this Proxy Statement. The Scheme will not constitute a change in control and will not trigger any benefit enhancements or accelerated benefit payments under the terms of the Linde equity and other compensation programs applicable to its directors, officers and employees.

Scheme

The Scheme will be effected by way of a scheme of arrangement between Linde and the Scheme Shareholders pursuant to Chapter 1 of Part 9 of the Irish Companies Act 2014. The Scheme is set out in full under the section entitled “Annex A—The Scheme of Arrangement” beginning on page A-1 of this Proxy Statement. Under the terms of the Scheme (which will be subject to the conditions set out below), New Linde will issue and deliver, or cause to be issued and delivered one New Linde ordinary share to the Scheme Shareholders for each Linde ordinary share held by the Scheme Shareholders.

The Scheme will require, among other things, approval by Scheme Shareholders as of the Voting Record Time of the Court Scheme of Arrangement Proposal at the Court Meeting, approval by Linde shareholders as of the Voting Record Time of the EGM Proposals at the EGM, and an application by Linde to the Irish High Court to approve the Scheme at the Court Hearing. Provided the conditions are satisfied or, to the extent applicable and

 

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lawful, waived (and we do not abandon the Reorganization), the Scheme will become effective upon delivery to the Registrar of Companies of a copy of the Court Order of the Irish High Court approving the Scheme. Upon the Scheme becoming effective, it will be binding on all Scheme Shareholders, irrespective of whether or not they attended or voted at the Court Meeting or the EGM. It is expected that the Scheme will become effective in                  2023, subject to the satisfaction or waiver of the conditions to the Scheme.

If the Scheme becomes effective, all Scheme Shares will be automatically transferred to New Linde in accordance with the terms of the Scheme. When we refer to “Scheme Shares” we mean, (i) in relation to attendance and voting at the Court Meeting, the Linde ordinary shares in issue before the Voting Record Time; and (ii) otherwise, the Linde ordinary shares in issue at the Scheme Record Time, and in each case (where the context requires) remaining in issue at the Scheme Record Time, but excluding any Treasury Shares and, for the avoidance of doubt, any Linde Deferred Shares.

The Scheme is subject to a number of conditions. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—Conditions.”

As a result of the Scheme, Linde shareholders will become shareholders of New Linde and such shareholders’ rights will be governed by the New Linde Constitution, which is attached to the Proxy Statement at Annex B and is substantially the same as the Linde Constitution. In addition, any securities issued by Linde or its subsidiaries that are convertible, exchangeable or exercisable into Linde ordinary shares will become convertible, exchangeable or exercisable, as the case may be, into New Linde ordinary shares on a one-for-one basis. All previously outstanding New Linde ordinary shares, which prior to the Scheme Effective Time will be held by a third party Irish corporate services provider, will be automatically converted to deferred shares immediately following the issuance of New Linde ordinary shares to Linde shareholders and subsequently surrendered to New Linde for nil consideration in accordance with the provisions of the New Linde Constitution.

If, and only if, the Scheme is effected, Linde will immediately merge with and into New Linde through the implementation of the Dissolution Merger.

In connection with the completion of the Scheme, New Linde will assume, on a one-for-one basis, Linde’s existing obligations in connection with awards granted under Linde’s equity incentive plans.

There currently are no fractional shares issued by Linde and we do not expect there to be any such fractional shares immediately prior to the Scheme Effective Time.

Conditions

The Scheme of Arrangement will not be completed unless, among other things, the following conditions are satisfied or, if allowed by law, waived:

 

•

the approval of the Scheme at the Court Meeting (or any adjournment thereof);

 

•

the approval of the Court Scheme of Arrangement Proposal (by the requisite majority of Scheme Shareholders at the Court Meeting and the requisite majority of Linde shareholders at the EGM (or any adjournments thereof), as applicable);

 

•

the Irish High Court’s approval of the Scheme (without material modification (but subject to any such material modification being acceptable to Linde and New Linde)) and the delivery of the Court Order to the Registrar of Companies;

 

•

the adoption by New Linde of all such resolution or resolutions that are necessary to approve, implement and give effect to the Scheme and the acquisition of Scheme Shares pursuant to the Scheme or otherwise (including a resolution or resolutions to authorize the creation, allotment and issue of the New Linde ordinary shares);

 

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•

there is no threatened, pending or effective decree, order, injunction or other legal restraint prohibiting the effectiveness of the Scheme;

 

•

the New Linde ordinary shares to be issued pursuant to the Scheme are authorized for listing on NYSE, subject to official notice of issuance;

 

•

all consents and governmental authorizations, if any, in connection with the Scheme and related transactions are obtained on terms acceptable to New Linde and are in full force and effect;

 

•

all conditions precedent for the effective implementation of the Scheme have been satisfied or, to the extent permitted by law, waived;

 

•

all waivers and amendments, if any, have been obtained, which waivers and amendments address and cure any defaults that would otherwise result from the Scheme;

In the event these conditions are not satisfied or waived (where capable of being waived), the Reorganization may be abandoned or delayed, even after approval of the Scheme by the Linde shareholders or the Irish High Court. In addition, the Reorganization may be abandoned or delayed by the Board at any time prior to the Scheme Effective Time, without obtaining the approval of the Scheme Shareholders, even though the Scheme may have been approved by the Irish High Court and all other conditions may have been satisfied. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—Amendment, Termination or Delay.”

Amendment, Termination or Delay

The Scheme may be amended, modified or supplemented at any time before or after its approval at the Court Meeting. However, after approval, no amendment, modification or supplement may be made or effected that legally requires further approval by the Scheme Shareholders without obtaining such approval.

At the Court Hearing, the Irish High Court may impose such conditions as it deems appropriate in relation to the Scheme. The Board (on behalf of Linde) and the New Linde Board may jointly consent on behalf of all persons concerned to any modification of or addition to this Scheme or any condition that the Irish High Court may approve or impose. The Irish High Court may not impose any material changes without the joint consent of Linde and New Linde. The Irish High Court would be unlikely to approve or impose any modification of, or addition to, or a condition to, the Scheme which might be materially adverse to the interests of Scheme Shareholders, unless Scheme Shareholders were informed of any such modification, addition or condition. It would be a matter for the Irish High Court to decide in its discretion whether or not a further meeting of Scheme Shareholders should be held in these circumstances. Similarly if a modification, addition or condition is put forward which, in the opinion of the Board, is of such a nature or importance that it requires the consent of Scheme Shareholders at a further meeting, the Board will not take the necessary steps to enable the Scheme to become effective unless and until such consent is obtained.

The Board may terminate the Scheme and abandon the Reorganization, or delay the Reorganization, at any time prior to the Scheme Effective Time, without obtaining the approval of the Linde shareholders, even though the Scheme may have been approved by such shareholders and all other conditions to the Scheme may have been satisfied, including having received final Irish High Court approval, if the Board determines that such course is in our best interests and the best interests of our shareholders.

Unless the Scheme has become effective and the Scheme Effective Time has occurred on or before                 , or such later date, if any, as Linde may agree and the Irish High Court may allow, the Scheme of Arrangement will lapse by its terms and not come into effect and therefore, the Reorganization will not be effected.

Scheme Effective Date and Scheme Effective Time

If the Scheme is approved by the requisite shareholder majorities and approved by the Irish High Court and the conditions to the Scheme are satisfied or, to the extent applicable and lawful, waived (and we do not abandon the

 

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Reorganization), the Scheme will become effective on its terms upon our delivery of the Court Order approving the Scheme with the Registrar of Companies. When we refer to the “Scheme Effective Date,” we mean the date on which the Scheme becomes effective in accordance with its terms, upon filing the Court Order with the Registrar of Companies in Dublin, Ireland. When we refer to the “Scheme Effective Time,” we mean the time on the Scheme Effective Date at which the Scheme becomes effective in accordance with its terms. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal /Explanatory Statement—Conditions.” The Scheme involves several steps, a number of which will effectively occur simultaneously at the Scheme Effective Time, which we anticipate will occur before the opening of trading on the NYSE on the Scheme Effective Date, but may be at such earlier or later date and time as the Board (or their duly authorized officer) determines.

In the event the conditions are not satisfied or waived (where capable of being waived), the Reorganization may be abandoned or delayed, even after approval of the Scheme by the Linde shareholders or the approval of the Scheme by the Irish High Court. In addition, the Reorganization may be abandoned or delayed by the Board at any time prior to the Scheme Effective Time, without obtaining the approval of the Linde shareholders, even though the Scheme of Arrangement may have been approved by the Linde shareholders and approved by the Irish High Court and all other conditions may have been satisfied. Please see “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal/Explanatory Statement—Amendment, Termination or Delay.”

No Appraisal or Similar Rights

Irish law does not provide for appraisal or similar rights in respect of the Scheme, although dissenting Scheme Shareholders will have the right to appear at the Court Hearing and make objections in respect of the Scheme.

The Transfer of Scheme Shares to New Linde

Assuming the Scheme becomes effective, the Scheme Shares shall be transferred to New Linde by means of a form of transfer or other instrument of transfer. Please see “Annex A—Scheme of Arrangement—The Scheme—Transfer of Scheme Shares.”

Irish Takeover Rules

The Scheme amounts to a “takeover” of Linde for the purposes of the Irish Takeover Panel Act, 1997 (being a “takeover” in respect of which the Irish Takeover Rules would ordinarily apply). However, in light of the economic and voting rights of Linde shareholders remaining unchanged as a result of the Scheme (save that, following the Scheme Effective Time, such rights will be in respect of New Linde ordinary shares as opposed to Linde ordinary shares), the Panel has granted a waiver of the Irish Takeover Rules to the extent they may apply to the Scheme.

U.S. Securities Law Consequences; Resale Restrictions

The issuance of New Linde ordinary shares to Scheme Shareholders in connection with the Scheme will not be registered under the Securities Act. Section 3(a)(10) of the Securities Act exempts securities issued in exchange for one or more outstanding securities from the general requirement of registration where the terms and conditions of the issuance and exchange of such securities have been approved by any court of competent jurisdiction, after a hearing upon the fairness of the terms and conditions of the issuance and exchange at which all persons to whom such securities will be issued have a right to appear and to whom adequate notice of the hearing has been given. In determining whether it is appropriate to authorize the Scheme of Arrangement, the Irish High Court will consider at the Court Hearing whether the terms and conditions of the Scheme of Arrangement are fair to Scheme Shareholders. The Irish High Court will fix the date and time for the Court Hearing. The New Linde ordinary shares issued to Scheme Shareholders in connection with the Scheme will be

 

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freely transferable, except for the ability of the directors of New Linde to decline the registration of shares in limited circumstances and for restrictions applicable to certain “affiliates” of Linde under the Securities Act, as follows:

 

•

Persons who were not affiliates of Linde at the Scheme Effective Time and have not been affiliates within 90 days prior to such time will be permitted to sell any New Linde ordinary shares received in the Scheme without regard to Rule 144 under the Securities Act.

 

•

Persons who were affiliates of Linde at the Scheme Effective Time or were affiliates within 90 days prior to such time will be permitted to resell any New Linde ordinary shares they receive pursuant to the Scheme in the manner permitted by Rule 144. In computing the holding period of the New Linde ordinary shares for the purposes of Rule 144(d), such persons will be permitted to “tack” the holding period of their Linde ordinary shares held prior to the Scheme Effective Time.

 

•

Persons whose Linde ordinary shares bear a legend restricting transfer will receive New Linde ordinary shares that are subject to the same restrictions.

 

•

Persons who may be deemed to be affiliates of Linde and New Linde for these purposes generally include individuals or entities that control, are controlled by, or are under common control with, Linde or New Linde, and would generally not be expected to include shareholders who are not executive officers, directors or significant shareholders of Linde or New Linde.

We have not filed a registration statement with the SEC covering any resales of the New Linde ordinary shares to be received by Linde’s shareholders in connection with the Scheme. New Linde intends to file certain post-effective amendments to existing effective registration statements of Linde shortly after the Scheme becoming effective.

Upon the Scheme becoming effective, the New Linde ordinary shares will be deemed to be registered under Section 12(b) of the Exchange Act, by virtue of Rule 12g-3 under the Exchange Act, without the filing of any Exchange Act registration statement.

Action to be Taken

Please refer to the section entitled “Summary” for a summary of the actions to be taken.

Further Information

The terms of the Scheme are set out in full in “Annex A—The Scheme of Arrangement” beginning on page A-1 of this Proxy Statement. Your attention is drawn to the conditions and further terms of the Reorganization set out in the remaining parts of this Proxy Statement, all of which form part of this Proxy Statement.

Court Meeting Resolution: To Approve the Scheme of Arrangement

Scheme Shareholders are requested to approve the following resolution at the Court Meeting:

“That the Scheme in its original form or with or subject to any modification(s), addition(s) or condition(s) approved or imposed by the Irish High Court be agreed to.”

EGM Ordinary Resolution: To Approve the Scheme of Arrangement

Linde shareholders are requested to approve the following resolution at the EGM:

“That, subject to the approval by the requisite majority of Linde Shareholders at the Scheme Meeting, the scheme of arrangement that is included in the document of which this notice forms a part, referred to as the “Scheme” or

 

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“Scheme of Arrangement,” (a copy of which has been produced to this meeting and for the purposes of identification signed by the chair thereof), in its original form or with or subject to any modification, addition or condition approved or imposed by the Irish High Court be approved and the directors of Linde be authorized to take all such action as they consider necessary or appropriate for carrying the Scheme of Arrangement into effect.”

THE BOARD RECOMMENDS THAT YOU VOTE “FOR” (1) THE COURT SCHEME OF ARRANGEMENT PROPOSAL AND (2) THE APPROVAL OF THE EGM SCHEME OF ARRANGEMENT PROPOSAL SET FORTH IN THIS EXPLANATORY STATEMENT.

 

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DISSOLUTION MERGER PROPOSAL

MERGER OF LINDE AND NEW LINDE BY MEANS OF A MERGER BY ABSORPTION UNDER CHAPTER 16 OF PART 17 OF THE IRISH COMPANIES ACT 2014

Overview

As explained in more detail below, the Dissolution Merger on which we are asking you to vote, in connection with other steps of the Reorganization described in this Proxy Statement, will result in Linde transferring its assets and liabilities to New Linde, following which Linde will be dissolved without going into liquidation.

The common draft terms is the document which sets forth the terms of the Dissolution Merger and is attached to this Proxy Statement as Annex C (the “Common Draft Terms of Merger”). The Common Draft Terms of Merger have already been approved by the Board at a meeting held on October 24, 2022. Pursuant to Article 1137 of the Irish Companies Act 2014, Linde shareholders are required to approve the common draft terms of merger in order for the Dissolution Merger to be effected.

The Board unanimously recommends that all Linde shareholders vote in favor of the Dissolution Merger. As of November 1, 2022, Linde’s directors and executive officers as a group beneficially owned approximately 0.7% of the outstanding Linde ordinary shares. See “Information on Share Ownership” in this Proxy Statement. The Dissolution Merger will not constitute a change in control and will not trigger any benefit enhancements or accelerated benefit payments under the terms of the Linde equity and other compensation programs applicable to its directors, officers and employees.

Dissolution Merger

The Dissolution Merger is intended to be implemented pursuant to the provisions of Chapter 16 of Part 17 of the Irish Companies Act 2014 as a “merger by absorption,” such that, from the effective date of the Dissolution Merger (the “Merger Effective Date”), Linde will transfer its assets and liabilities to New Linde, following which Linde will be dissolved without going into liquidation. The Dissolution Merger will require, among other things, the approval of the Linde shareholders and the Irish High Court.

If the Dissolution Merger is approved by Linde’s shareholders, Linde and New Linde will jointly apply to the Irish High Court for an order confirming the Dissolution Merger, determining satisfaction of the statutory requirements, the fairness of the terms and conditions of the merger to Linde shareholders and setting the Merger Effective Date.

The Dissolution Merger is internal and administrative in nature and will not dilute your interest in Linde or New Linde. Furthermore, the Reorganization will have no effect on how Linde manages its business or how it serves its customers. See “Comparison of Rights of Shareholders” below.

Merger Conditions

The Dissolution Merger will not be completed unless, among other things, the following conditions are satisfied or, if allowed by law, waived:

 

•

the Common Draft Terms of Merger are approved by a special resolution of Linde shareholders at the EGM;

 

•

there is no threatened, pending or effective decree, order, injunction or other legal restraint prohibiting the consummation of the Dissolution Merger;

 

•

all consents and governmental authorizations that are necessary, desirable or appropriate in connection with the Dissolution Merger are obtained on terms acceptable to New Linde and Linde, and are in full force and effect;

 

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•

an order has been made by the Irish High Court under Section 453 of the Irish Companies Act 2014 approving the Scheme of Arrangement; and

 

•

an order has been made by the Irish High Court confirming the Dissolution Merger and setting the Merger Effective Date.

It is expected that the Dissolution Merger will become effective immediately after the Scheme.

See also “Court Scheme of Arrangement Proposal and EGM Scheme of Arrangement Proposal—Conditions” above.

Amendment, Termination or Delay

Subject to applicable law, the Common Draft Terms of Merger may be amended at any time before or after its approval by Linde shareholders at the EGM. However, after the shareholders have approved the Common Draft Terms of Merger, no changes may be made except as provided by the Irish High Court.

While we currently expect to complete the Dissolution Merger in                  2023, until the issuance of the Dissolution Merger Court Order, the Dissolution Merger may be abandoned or delayed by the Board and/or the board of directors of New Linde, even if approved by the shareholders of both Linde and New Linde and all other conditions (other than the approval of the Irish High Court) have been satisfied.

Effective Date and Time of the Dissolution Merger

The Dissolution Merger will take effect on the effective date set forth in the order of the Irish High Court confirming the Dissolution Merger and determining the fairness of the terms and conditions of the merger to Linde shareholders. We intend to propose to the Irish High Court that the Dissolution Merger take effect immediately after the Scheme of Arrangement becomes effective. While the determination of the Merger Effective Date is entirely within the Irish High Court’s discretion, we are not aware of any reason why it would not grant the requested date. In addition, until the issuance of the order of the Irish High Court, the Dissolution Merger may be abandoned or delayed by the Board and/or the board of directors of New Linde. See “Dissolution Merger Proposal—Amendment, Termination or Delay.”

Appraisal and Similar Rights

Irish law does not provide for appraisal rights in respect of the Dissolution Merger. However, any Linde shareholder that has voted against the Dissolution Merger Proposal has the right to submit a request in writing to New Linde, not more than 15 calendar days after the date of the EGM, that New Linde acquire their New Linde ordinary shares for cash. Where a valid request is made by a Linde shareholder, and assuming the effectiveness of each of the Scheme and the Dissolution Merger, New Linde shall purchase such New Linde ordinary shares held by that shareholder at a price which is expected to be equal to the closing price of one ordinary share of Linde on the NYSE on the day before the Effective Date of the Scheme. Any Linde shareholder wishing to make such a request should send a written request that is received within 15 calendar days of the EGM to the principal executive offices of New Linde and Linde being: Forge, 43 Church Street West, Woking, Surrey, GU21 6HT, United Kingdom, Attention: Secretary. Any such request must be in writing and shall be irrevocable and, to ensure the validity of any such request, New Linde reserves the right to seek such confirmations as are necessary to evidence ownership of the relevant shares and evidence of the voting of such shares at the EGM.

Action to be Taken

Please refer to the section entitled “Summary” for a summary of the actions to be taken.

 

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Further Information

The terms of the Dissolution Merger are set out in full in “Annex C—The Common Draft Terms of Merger” beginning on page C-1 of this Proxy Statement. Your attention is drawn to the conditions and further terms of the Reorganization set out in the remaining parts of this Proxy Statement, all of which form part of this Proxy Statement.

EGM Special Resolution: to Approve the Common Draft Terms of Merger

Linde shareholders are requested to approve the following resolution:

“As a special resolution, that, the common draft terms of merger dated                 ,                 between Linde and New Linde (the “Common Draft Terms”) be and are hereby approved and each director of Linde be and is hereby authorized to take all such steps as he or she considers necessary or appropriate in relation thereto and to execute and carry the merger between Linde and New Linde, and the Common Draft Terms, into effect.”

THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE DISSOLUTION MERGER PROPOSAL.

 

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LINDE CONSTITUTION AMENDMENT PROPOSAL

Set out below is background information on the proposed amendments to the Linde Constitution. The description of the following proposed amendments is only a summary and is qualified in its entirety by reference of the complete text of the proposed amendments as set out in the “Notice of Extraordinary General Meeting” at the beginning of this Proxy Statement. We urge you to read the proposed amendments to the Linde Constitution in their entirety before casting your vote.

Amendments in Connection with the Scheme

In connection with the Scheme and in order to effect the Scheme of Arrangement, Linde wishes to amend the Linde Constitution to include certain mechanics to effect the Scheme so that any Linde ordinary shares that are issued on or after the Voting Record Time will either be subject to the terms of the Scheme of Arrangement or will be immediately and automatically acquired by New Linde and, accordingly, upon the Scheme becoming effective, New Linde will be the sole holder of Linde ordinary shares.

Required Vote

As required under Irish law, the resolution with respect to the Linde Constitution Amendment Proposal is a special resolution that requires the affirmative vote of at least 75% of all votes cast (in person or by proxy) at the EGM by Linde shareholders at the Voting Record Time. The Scheme of Arrangement is conditional upon this proposal being approved by Linde shareholders, though may be waived by Linde.

Special Resolution: To Approve the Constitution Amendment

Linde’s shareholders are requested to approve the following resolution:

“That, subject to the Scheme becoming effective, the articles of association of Linde, which are part of the Linde constitution, referred to as the “Articles,” be amended by adding the following new Article 268:

268. Scheme of Arrangement

(a) In these Articles, the “Scheme” or the “Scheme of Arrangement” means the scheme of arrangement dated                 ,                  between the Company and the holders of the scheme shares (which comprise the ordinary shares of the Company that are transferred under the Scheme, referred to as the “Scheme Shares”) under Chapter 1 of Part 9 of the Irish Companies Act 2014 in its original form or with or subject to any modification, addition or condition approved or imposed by the High Court of Ireland and expressions defined in the Scheme and (if not so defined) in the document containing the explanatory statement circulated with the scheme under Section 452 of the Irish Companies Act 2014 shall have the same meanings in this Article 268;

(b) Notwithstanding any other provision of these Articles or the terms of any resolution, whether ordinary or special, passed by the Company in any general meeting, if the Company allots or issues any ordinary shares (other than to Rounderway plc, a public limited company incorporated under the laws of Ireland with registration number 606357, referred to as “New Linde”) on or after the Voting Record Time (as defined in the Scheme of Arrangement) and prior to or at the Scheme Record Time (as defined in the Scheme of Arrangement), such shares be allotted or issued subject to the terms of the Scheme and the holder or holders of those shares shall be bound by the Scheme accordingly;

(c) Notwithstanding any other provision of these Articles, if any Ordinary Shares are allotted or issued to any person (a “new shareholder”) (other than to New Linde) at any time after the Scheme Record Time, the new shareholder shall, provided that the Scheme has become effective, have such shares (the “Post-Scheme Shares”) transferred immediately, free of all encumbrances, to New Linde as New Linde may direct in consideration of

 

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and conditional on the allotment and issue by New Linde to the new shareholder of the ordinary shares in New Linde (the “Consideration Shares”) to which the new shareholder would have been entitled under the terms of the Scheme had each Post-Scheme Share transferred to New Linde hereunder been a Scheme Share at the Scheme Record Time, provided that if any new shareholder has a registered address in a jurisdiction outside Ireland and New Linde is advised or reasonably believes that the allotment and/or issue of the Consideration Shares to that new shareholder would or may infringe the laws of such jurisdiction or would or may require New Linde to observe any governmental or other consent or any registration, filing or other formality with which New Linde is unable to comply or which either the Company or New Linde believes is unduly onerous to comply with, New Linde may, in its sole discretion, determine that the Consideration Shares shall not be allotted and/or issued to such new shareholder but shall instead be allotted and issued to a nominee appointed by New Linde to act on behalf of and for the benefit of such new shareholder on terms that the nominee shall, as soon as practicable following the allotment and issue of the Consideration Shares, sell in the open market the Consideration Shares so allotted and issued and procure the despatch to such new shareholder of a cheque in accordance with paragraph (g) of this Article 268;

(d) Ordinary shares in New Linde (“New Linde Ordinary Shares”) allotted and issued pursuant to this Article 268 shall:

 

(i)

be issued credited as fully paid, shall be free from all liens, equities, charges, encumbrances, rights of pre-emption and any other third party rights and other interests of any nature whatsoever;

 

(ii)

rank equally in all respects with all other fully paid New Linde Ordinary Shares in issue on the date such New Linde Ordinary Shares allotted and issued pursuant to this Article 268 are so allotted and issued; and

 

(iii)

be entitled to all dividends and other distributions declared, paid or made by New Linde by reference to a record date on or after the date the New Linde Ordinary Shares allotted and issued pursuant to this Article 268 are so allotted and issued.

(e) On any reorganisation of, or material alteration to, the share capital of the Company or New Linde (including, without limitation, any subdivision and/or consolidation), the value of the consideration per Post-Scheme Share under paragraph (c) above shall be adjusted by the Company and New Linde in such manner as the auditors of the Company or an independent investment bank selected by the Company and New Linde may determine to be fair and reasonable to reflect such reorganisation or alteration. References in this Article to shares shall, following such adjustment, be construed accordingly.

(f) In order to give effect to any transfer required by this Article 268, the Company may appoint any person to act, and who shall be authorised, as attorney or agent for any new shareholder, without the need for any further action being required to give effect thereto, to: (i) execute and deliver as transferor a form of transfer or other instrument or instruction of transfer in favour of New Linde; (ii) give a good receipt in respect of consideration received in respect of any such transfer; and (iii) give such instructions and to do all other things which he or she may consider necessary or expedient in connection with such sale or transfer, on behalf of the new shareholder and every form, instrument, or instruction executed or delivered or other such thing done so shall be as effective as if it had been executed, delivered or done by the new shareholder to which such form, instrument, instruction, or thing relates. Pending the registration of New Linde as a holder of any share to be transferred under this Article 268, the new shareholder shall not be entitled to exercise any rights attaching to any such share unless so agreed by New Linde and New Linde shall be irrevocably empowered to appoint a person nominated by New Linde to act as attorney or agent on behalf of any holder of that share in accordance with any directions New Linde may give in relation to any dealings with or disposal of that share (or any interest in it), the exercise of any rights attached to it or receipt of any distribution or other benefit accruing or payable in respect of it, and any holder(s) of that share must exercise all rights attaching to it in accordance with the directions of New Linde. The Company shall not be obliged to issue a certificate to the new shareholder for any such share.

 

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(g) Any sale of Consideration Shares effected pursuant to this Article 268 shall be at the then prevailing market price and New Linde shall, as soon as practicable after such sale, procure the despatch to each person entitled thereto a cheque in respect of the net proceeds of such sale (after the deduction of all expenses and commissions), and rounded down to the nearest cent. All despatches of cheques pursuant to this Article 268 shall be effected by sending each cheque by first class post/mail (or international standard post/mail, if overseas) in pre-paid envelopes addressed to the persons entitled thereto at their respective addresses as appearing in the register of shareholders of the Company at the date of issuing the cheque or, in the case of joint holders, at the address of the joint holder whose name stands first in such register in respect of such joint holding at the date of issuing the cheque. None of New Linde, the Company or any person or nominee appointed by New Linde or their respective agents shall be responsible for any loss or delay in transition or delivery of any cheque sent in accordance with this Article 268 which shall be sent entirely at the risk of the persons entitled thereto. All cheques drawn in accordance with this Article 268 shall be in U.S. dollars drawn on a U.S. clearing bank and shall be made payable to the persons respectively entitled to the moneys represented thereby (except that, in the case of joint holders, New Linde reserves the right to make such cheques payable to that one of the joint holders whose name stands first in the register of shareholders of the Company in respect of such joint holding), and the despatch of any such cheque shall be a complete discharge of New Linde’s obligations to pay the monies represented thereby.

(h) In the absence of bad faith or wilful default, none of New Linde, the Company, any person or nominee appointed by New Linde, the Company or their respective agents shall have any liability for any loss or damage arising as a result of sale or transfer (including as a result of the timing or terms of such sale or transfer) or any instrument of transfer executed and/or delivered or any other thing done for or on behalf of any new shareholder or otherwise pursuant to this Article 268.

(i) Notwithstanding any other provisions of these Articles, both the Company and the Directors shall refuse to register the transfer of any shares effected between the Scheme Record Time and the Scheme Effective Time (as defined in the Scheme of Arrangement) (other than to New Linde pursuant to the Scheme).

(j) Notwithstanding any other provision of these Articles, both the Company and the Directors may refuse to register the transfer of any shares other than as provided by this Article 268 and the Scheme.”

THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE LINDE CONSTITUTION AMENDMENT PROPOSAL.

 

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MATERIAL TAX CONSIDERATIONS RELATING TO THE REORGANIZATION

U.K. Tax Considerations

The statements set out below reflect current U.K. tax law as applied in England and Wales and published guidance of His Majesty’s Revenue and Customs (which may not be binding on HMRC) as at the date of this Proxy Statement, which may be subject to change, possibly with retroactive effect. They are intended as a general guide and apply only to shareholders resident and, in the case of an individual, domiciled exclusively in the U.K. for U.K. tax purposes (except insofar as express reference is made to the treatment of non-U.K. residents), who hold shares as an investment (other than under an individual savings account or self-invested personal pension) and who are the absolute beneficial owners of the shares and any dividends paid thereon (“U.K. Shareholders”). (In particular, shareholders holding their shares through a depositary receipt system or clearance service should note that they may not always be regarded as the absolute beneficial owners of such shares.) This guidance does not address all possible tax consequences relating to an investment in the shares. Specifically, this guidance does not address: (i) special classes of shareholders such as, for example, dealers in securities, broker-dealers, intermediaries, insurance companies, pension funds, charities or collective investment schemes; (ii) shareholders who hold shares as part of hedging transactions; (iii) shareholders who have (or are deemed to have) acquired shares by virtue of an office or employment; (iv) shareholders that, either alone or together, with one or more associated persons, such as personal trusts and connected persons, control directly or indirectly at least 10%. of the voting rights or of any class of share capital of the company, or (v) any person holding shares as a borrower under a stock loan or an interim holder under a repo.

Taxation of Linde Shareholders in Connection with the Reorganization

Scheme — Taxation of Chargeable Gains

U.K. Shareholders

The exchange of Linde ordinary shares for New Linde ordinary shares pursuant to the Scheme will not be treated as a disposal of Linde ordinary shares for the purposes of U.K. tax on chargeable gains (“no disposal” treatment), subject to certain conditions. If “no disposal” treatment applies, the New Linde ordinary shares will be treated as having been acquired by a U.K. Shareholder at the same time and for the same consideration as that U.K. Shareholder’s Linde ordinary shares.

Where a shareholder, together with its connected parties, does not hold more than 5% of the ordinary shares in Linde, “no disposal” treatment should apply.

Under section 137 of the Taxation of Chargeable Gains Act 1992 (“TCGA”), any U.K. Shareholder of Linde ordinary shares who holds (either alone or together with other persons connected with them) more than 5% of, or of any class of, shares in or debentures of Linde will not receive the “rollover” treatment described above if the merger has not been effected for bona fide commercial reasons or if it forms part of a scheme or arrangement of which the main purpose, or one of the main purposes, is the avoidance of liability to capital gains tax or corporation tax. It is possible to apply for statutory clearance from HMRC under section 138 of the TCGA confirming that this anti-avoidance provision does not apply. No application for clearance has been made to HMRC under section 138 of the TCGA in respect of the receipt of New Linde ordinary shares pursuant to the Scheme.

Non-U.K.-resident shareholders

As Linde ordinary shares are not registered in a register maintained in the United Kingdom, shareholders who are not resident in the U.K. will not be subject to U.K. taxation of chargeable gains on disposal of Linde ordinary shares.

An individual shareholder who acquires Linde ordinary shares while U.K. resident, ceases to be resident for tax purposes in the U.K. for a period of five years or less and disposes of all or part of his Linde ordinary shares

 

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during the period in which he is non-U.K. resident may be liable to capital gains tax on his return to the U.K., where that shareholder was U.K. resident for all or part of at least four of the seven tax years immediately preceding the year of departure from the U.K. (subject to any available exemptions or reliefs). For these purposes, a tax year is the period from April 6 in a calendar year to April 5 in the following calendar year. The “no disposal” treatment set out above should be capable of applying to such a shareholder as it would to a U.K. Shareholder.

Scheme — Stamp Duty and Stamp Duty Reserve Tax

No stamp duty or stamp duty reserve tax (which is herein referred to as “SDRT”) should be payable on the cancellation of Linde ordinary shares or the issue of New Linde ordinary shares pursuant to the Scheme.

Exercise of dissenters’ rights

When New Linde purchases New Linde ordinary shares from a U.K. Shareholder pursuant to their exercise of dissenters’ rights, that U.K. Shareholder will be treated for U.K. tax purposes as receiving partly a capital sum for the disposal of the New Linde ordinary shares equal to the amount treated (for U.K. tax purposes) as paid up share capital on each New Linde ordinary share (broadly being the amount originally subscribed for the New Linde ordinary shares, including any premium paid on subscription, and expected to equal the market value of the New Linde ordinary shares at the time the New Linde ordinary shares are issued) (the “Capital Amount”) and partly an income distribution to the extent of the amount of any excess above the Capital Amount (the “Distribution Amount”).

Taxation of New Linde Shareholders

Taxation of income

Liability to U.K. income tax or U.K. corporation tax on income in respect of the Distribution Amount will depend upon the individual circumstances of the U.K. Shareholder and should be in line with the treatment of a dividend on the New Linde ordinary shares, an overview of which is set out below under “—New Linde ordinary shares—Taxation of Dividends.”

Taxation of chargeable gains

As noted above, when New Linde purchases New Linde ordinary shares from U.K. Shareholders pursuant to their exercise of dissenters’ rights, for U.K. tax purposes those U.K. Shareholders will be treated as receiving an amount for the disposal of their New Linde ordinary shares. Liability to U.K. capital gains tax or U.K. corporation tax on chargeable gains in respect of that disposal will depend upon the individual circumstances of the U.K. Shareholder and should be in line with the treatment of a disposal of the New Linde ordinary shares, an overview of which is set out below under “—New Linde ordinary shares—Taxation of Disposals.”

An individual U.K. Shareholder or a corporate U.K. Shareholder which has brought the Distribution Amount into account as income should treat the amount realized on the disposal as being the Capital Amount. A corporate U.K. Shareholder for which the Distribution Amount is exempt from the corporation tax charge on income should treat the amount realized on the disposal as being the whole of the proceeds (both the Capital Amount and the Distribution Amount).

Transactions in securities

Under section 684 of the Income Tax Act 2007 (for individuals), HMRC can, in certain circumstances, counteract income tax advantages arising in relation to transactions in securities. Were section 684 to be successfully invoked against any individual U.K. Shareholder, that individual Shareholder would be likely to be taxed as though all the consideration for the sale of their New Linde ordinary shares to New Linde was an income distribution.

 

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Under the provisions of Part 15 of the Corporation Tax Act 2010 (for corporates), HMRC can, in certain circumstances, counteract corporation tax advantages arising in relation to transactions in securities. If these provisions were to be applied by HMRC to the exercise of dissenters’ rights by any corporate U.K. Shareholder, that corporate U.K. Shareholder might be liable to corporation tax as if it had received an income distribution.

These transactions in securities provisions apply only in certain circumstances and, in particular, do not apply where it can be shown that the Reorganization in question was entered into for genuine commercial reasons and did not involve as one of its main objects the obtaining of an income tax or corporation tax advantage. In view of these restrictions on the application of the anti-avoidance provisions, no application has been made to HMRC for clearance in respect of the application of these provisions to the exercise of dissenters’ rights. U.K. Shareholders exercising dissenters’ rights are advised to take independent advice as to the potential application of the above provisions in light of their own particular motives and circumstances.

New Linde ordinary shares — Taxation of Dividends

Withholding Tax

Dividend payments may be made by New Linde without withholding or deduction for or on account of U.K. income tax.

Individual Shareholders

An individual shareholder who receives a dividend from New Linde will pay no income tax on the amount of dividend income received in a tax year that does not exceed the “dividend allowance.” The dividend allowance is £2,000 for the tax year ending April 5, 2023, but the U.K. government announced in its Autumn Statement on November 17, 2022 that it intends to introduce legislation that will reduce the dividend allowance to £1,000 for the tax year beginning April 6, 2023 and to £500 for the tax year beginning April 6, 2024. The rates of income tax for the tax year ending April 5, 2023 on dividends received above the dividend allowance are: (i) 8.75%. for dividends taxed in the basic rate band; (ii) 33.75%. for dividends taxed in the higher rate band; and (iii) 39.35%. for dividends taxed in the additional rate band. An individual shareholder’s dividend income that is within the dividend allowance counts towards an individual’s basic or higher rate limits — and will therefore affect the level of savings allowance to which they are entitled, and the rate of tax that is due on any dividend income in excess of this allowance. In calculating into which tax band or bands any dividend income over the dividend allowance falls, savings and dividend income are treated as the highest part of an individual’s income. Where an individual has both savings and dividend income, the dividend income is treated as the top slice.

Corporate Shareholders

For corporate shareholders, it is likely that most dividends paid on the New Linde ordinary shares will fall within one or more of the classes of dividend qualifying for exemption from corporation tax. However, the exemptions are not comprehensive and are also subject to anti-avoidance rules. Shareholders within the charge to U.K. corporation tax should consult their own professional advisors.

New Linde ordinary shares — Taxation of Disposals

A disposal of New Linde ordinary shares by a shareholder who is (at any time in the relevant U.K. tax year) resident and, in the case of an individual, domiciled exclusively in the U.K. for U.K. tax purposes, may, depending upon the shareholder’s circumstances and subject to any available exemption or relief (such as the annual exempt amount for individuals, or indexation for corporate shareholders), give rise to a chargeable gain or an allowable loss for the purposes of U.K. taxation of chargeable gains.

Individual Shareholders

Chargeable gains are treated as the top slice of an individual’s combined income and gains. Capital gains tax is charged at (i) 10%. to the extent that gains accruing to an individual in any tax year (calculated after deducting

 

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the annual exempt amount and any capital losses) when aggregated with the individual’s taxable income for that year (calculated after deduction of the personal allowance and other reliefs) are less than the upper limit of the income tax basic rate band; or (ii) 20%. to the extent that gains accruing to an individual in any tax year (calculated after deducting the annual exempt amount and any capital losses) when aggregated with the individual’s taxable income for that year (calculated after deduction of the personal allowance and other reliefs) exceed the upper limit of the income tax basic rate band.

Corporate Shareholders

A company subject to U.K. corporation tax that disposes of New Linde ordinary shares at a gain will be subject to U.K. corporation tax on chargeable gains after taking account of any losses available and subject to any available exemptions or reliefs. Such a company will be subject to corporation tax at the applicable rate (currently 19% but due to rise to 25% from April 1, 2023, with transitional rules for tax accounting periods beginning before and ending on or after April 1, 2023).

Non U.K.-resident Shareholders

Provided that New Linde ordinary shares are not registered in a register maintained in the United Kingdom (which they are not and are not expected to be), shareholders who are not resident in the U.K. will not be subject to U.K. taxation of chargeable gains on disposal of New Linde ordinary shares.

An individual shareholder who acquires New Linde ordinary shares while U.K. resident, ceases to be resident for tax purposes in the U.K. for a period of five years or less and disposes of all or part of his New Linde ordinary shares during the period in which he is non-U.K. resident may be liable to capital gains tax on his return to the U.K., where that shareholder was U.K. resident for all or part of at least four of the seven tax years immediately preceding the year of departure from the U.K. (subject to any available exemptions or reliefs). For these purposes, a tax year is the period from 6 April in a calendar year to 5 April in the following calendar year.

Transfers of New Linde ordinary shares — Stamp Duty and SDRT

Provided that the New Linde ordinary shares are not registered in any register kept in the United Kingdom and are not required by the New Linde constitution to be transferred as part of a unit with a share in a body corporate incorporated in the United Kingdom, no SDRT should be payable on any agreement to transfer the New Linde ordinary shares.

No stamp duty should be payable on the transfer of New Linde ordinary shares, provided that any instrument of transfer is not executed in the United Kingdom and does not relate to any property situate, or to any other matter or thing done or to be done, in the United Kingdom.

In any case, no stamp duty should be payable upon a transfer of New Linde ordinary shares in dematerialized form, for instance within DTC.

THE U.K. TAX CONSIDERATIONS SUMMARIZED ABOVE ARE FOR GENERAL INFORMATION ONLY. SHAREHOLDERS SHOULD CONSULT WITH THEIR TAX ADVISORS REGARDING THE TAX CONSEQUENCES OF THE SCHEME AND OF THE SUBSEQUENT ACQUISITION, OWNERSHIP AND DISPOSAL OF NEW LINDE ORDINARY SHARES.

Irish Tax Considerations

This is a summary of the principal Irish tax considerations for certain beneficial owners of Linde ordinary shares who receive New Linde ordinary shares under the Scheme based on Irish taxation laws and the practices of the

 

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Irish Revenue Commissioners currently in force in Ireland (which may be subject to change). It deals with Linde shareholders who beneficially own their Linde ordinary shares as an investment. Particular rules not discussed below may apply to certain classes of taxpayers holding Linde ordinary shares, such as dealers in securities, collective investment schemes, insurance companies, trusts etc. The summary does not constitute tax or legal advice and the comments below are of a general nature only. Linde shareholders should consult their professional advisers on the tax implications of the Reorganization under the laws of their country of residence, citizenship and/or domicile. If you are in doubt as to your tax position, you should consult an appropriate professional adviser without delay. New Linde intends to manage its affairs so that (1) New Linde will not be resident in Ireland for Irish tax purposes, (2) New Linde will not be liable to Irish corporation tax and (3) New Linde dividends will not be subject to Irish dividend withholding tax or, for shareholders that have no connection with Ireland other than holding New Linde ordinary shares, Irish income tax.

Taxation of Linde Shareholders in Connection with the Reorganization

Taxation of Chargeable Gains

Under Irish tax law, the holders of our ordinary shares who (i) are neither resident nor ordinarily resident in Ireland for Irish tax purposes; and (ii) do not use or hold, and did not acquire, their shares in Linde for the purposes of a trade or business carried on by such holder in Ireland through an Irish branch or agency, generally will not be liable to Irish capital gains tax (“CGT”) on the disposal of their shares in Linde pursuant to the Reorganization for Irish tax purposes.

Under Irish tax law, the holders of New Linde ordinary shares who (i) are neither resident nor ordinarily resident in Ireland for Irish tax purposes; and (ii) do not use, hold or acquire their shares in New Linde for the purposes of a trade or business carried on by such holder in Ireland through an Irish branch or agency, generally should not be liable for Irish CGT on the subsequent disposal of their New Linde ordinary shares for Irish tax purposes.

An Irish shareholder who is an individual and who is temporarily not resident in Ireland may, under Irish anti-avoidance legislation, still be liable for Irish CGT on any chargeable gain realized upon the subsequent disposal of New Linde ordinary shares during the period in which such individual is a non-resident.

Stamp Duty

The rate of stamp duty (where applicable) on transfers of shares of Irish incorporated companies is 1% of the greater of the price paid or market value of the shares acquired. Where Irish stamp duty arises, it is generally a liability of the transferee. However, in the case of a gift or transfer at less than fair market value, all parties to the transfer are jointly and severally liable.

Shareholders should not have a liability to stamp duty in respect of the Reorganization.

Irish stamp duty may be payable in respect of transfers of New Linde ordinary shares, depending on the manner in which the New Linde ordinary shares are held. New Linde expects to enter into arrangements with DTC to allow the New Linde ordinary shares to be settled through the facilities of DTC. As such, the discussion below discusses separately the New Linde shareholders who hold their shares through DTC and those who do not.

New Linde Shares Held Through DTC

No Irish stamp duty should be payable by Linde shareholders on the issuance of the New Linde ordinary shares or the transfer of the Linde ordinary shares pursuant to the Reorganization.

Submission will be made to the Irish Revenue Commissioners to confirm that transfers of New Linde ordinary shares effected by means of the transfer of book entry interests in DTC will not be subject to Irish stamp duty. It is expected that this confirmation should be granted, in which case a transfer of New Linde ordinary shares effected by means of the transfer of book-entry interests in DTC will not be subject to Irish stamp duty.

 

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New Linde Shares Held Outside of DTC or Transferred Into or Out of DTC

A transfer of New Linde ordinary shares where any party to the transfer holds such New Linde ordinary shares outside of DTC may be subject to Irish stamp duty.

Should the confirmation from the Irish Revenue Commissioners be granted, holders of New Linde ordinary shares wishing to transfer their New Linde ordinary shares into (or out of) DTC may do so without giving rise to Irish stamp duty provided that:

 

•

there is no change in the beneficial ownership of such shares as a result of the transfer; and

 

•

the transfer into (or out of) DTC is not effected in contemplation of a sale of such shares by a beneficial owner to a third party.

Due to the potential Irish stamp charge on transfers of New Linde ordinary shares held outside of DTC, it is strongly recommended that those Linde shareholders who do not hold their Linde shares through DTC (or through a broker, bank or other institution who in turn holds such shares through DTC) should arrange for the transfer of their Linde shares as soon as possible and before the Reorganization.

Taxation of New Linde Shareholders

Capital Acquisitions Tax (“CAT”)

CAT comprises principally gift tax and inheritance tax. CAT could apply to a gift or inheritance of New Linde ordinary shares irrespective of the place of residence, ordinary residence or domicile of the parties. This is because New Linde ordinary shares may be regarded as property situated in Ireland for Irish CAT purposes as the share register of New Linde must be held in Ireland. The person who receives the gift or inheritance has primary liability for CAT.

CAT is currently levied at a rate of 33% above certain tax-free thresholds. The appropriate tax-free threshold is dependent upon (i) the relationship between the donor and the donee and (ii) the aggregation of the values of previous gifts and inheritances received by the donee from persons within the same group threshold. Gifts and inheritances passing between spouses are exempt from CAT. Children have a tax-free threshold of €335,000 in respect of taxable gifts or inheritances received from their parents. New Linde shareholders should consult their own tax advisors as to whether CAT is creditable or deductible in computing any domestic tax liabilities.

There is also a “small gift exemption” from CAT whereby the first €3,000 of the taxable value of all taxable gifts taken by a donee from any one donor, in each calendar year, is exempt from CAT and is also excluded from any future aggregation. This exemption does not apply to an inheritance.

Encashment Tax

Irish encashment tax will be required to be withheld (currently at a rate of 25%) from any dividends paid by New Linde, where such dividends are entrusted by or on behalf of the person entitled to them to a bank or encashment agent in Ireland (i.e. a collection agent) for payment to any New Linde shareholder who is an Irish resident, or is not an Irish resident and has failed to file the appropriate forms confirming the fact, and paid over to the Irish Revenue Commissioners. It is not the intention of New Linde to use an Irish paying agent function. Accordingly, provided New Linde shareholders do not use an Irish collection agent for such purpose, the above withholding tax treatment should not apply.

 

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THE IRISH TAX CONSIDERATIONS SUMMARIZED ABOVE ARE FOR GENERAL INFORMATION ONLY. SHAREHOLDERS SHOULD CONSULT WITH THEIR TAX ADVISORS REGARDING THE TAX CONSEQUENCES OF THE REORGANISATION AND OF THE SUBSEQUENT ACQUISITION, OWNERSHIP AND DISPOSAL OF NEW LINDE ORDINARY SHARES.

U.S. Federal Income Tax Considerations

The following discussion sets forth the anticipated material U.S. federal income tax consequences for U.S. holders and non-U.S. holders (each as defined below) relating to the Reorganization but does not purport to be a complete analysis of all the potential tax consequences relating thereto. In addition, this discussion does not address the consequences of a Linde shareholder who exercises dissenters’ rights in respect of the Reorganization.

This discussion also does not address the tax considerations arising under the laws of any state, local or foreign jurisdiction, or under any U.S. non-income tax laws, such as federal gift and estate tax rules, or the effects, if any, of the Medicare contribution tax on net investment income enacted pursuant to the Health Care and Education Reconciliation Act of 2010 or the alternative minimum tax. This summary is based upon the provisions of the Code, treasury regulations promulgated thereunder and administrative rulings and judicial decisions, all as of the date hereof. These authorities may be changed, possibly retroactively, so as to result in U.S. federal income tax considerations different from those set forth below.

This discussion addresses only those Linde shareholders that hold their Linde ordinary shares as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment). In addition, this discussion does not address tax considerations applicable to an investor’s particular circumstances or to investors that may be subject to special tax rules, including, without limitation:

 

•

a financial institution;

 

•

a tax-exempt organization or government organization;

 

•

an insurance company;

 

•

a mutual fund;

 

•

a dealer or broker, bank or other institution in stocks and securities, or currencies;

 

•

a trader in securities that elects mark-to-market treatment;

 

•

an accrual method taxpayer subject to special accounting rules under Section 451(b) of the Code;

 

•

a person who receives Linde ordinary shares through the exercise of an employee stock option, through a tax qualified retirement plan or otherwise as compensation;

 

•

a person that has a functional currency for tax purposes other than the U.S. dollar;

 

•

a person that actually or constructively owns five percent or more (by vote or value) of Linde ordinary shares;

 

•

a real estate investment trust;

 

•

a regulated investment company;

 

•

“qualified foreign pension funds” as defined in Section 897(l)(2) of the Code, entities all of the interests of which are held by qualified foreign pension fund and tax-qualified retirement plans;

 

•

controlled foreign corporations, passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax;

 

•

a person who holds Linde ordinary shares as part of a hedge, straddle, constructive sale, wash sale, conversion or other integrated transaction; or

 

•

a former citizen or resident of the United States subject to U.S. tax as an expatriate.

 

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For purposes of this discussion, a “U.S. holder” is a beneficial owner of Linde ordinary shares who is, for U.S. federal income tax purposes:

 

•

a citizen or resident of the United States;

 

•

a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized under the laws of the United States, any state thereof or the District of Columbia;

 

•

a trust if it (i) is subject to the primary supervision of a court within the United States and one or more United States persons have the authority to control all substantial decisions of the trust or (ii) has a valid election in effect under applicable United States Treasury regulations to be treated as a United States person; or

 

•

an estate that is subject to United States federal income tax on its income regardless of its source.

For purposes of this discussion, a ”non-U.S. holder” is a beneficial owner of Linde ordinary shares who is neither a U.S. holder nor an entity or arrangement classified for U.S. federal income tax purposes as a partnership or as a “disregarded entity.”

If a partnership (or other entity or arrangement classified as a pass-through or disregarded entity for U.S. federal income tax purposes) holds Linde ordinary shares, the tax treatment of a partner or member in the partnership or other entity generally will depend on the status of the partner or member and upon the activities of the partnership or other entity or arrangement. A partner or member in a partnership or other entity or arrangement that holds Linde ordinary shares or will hold New Linde ordinary shares should consult his, her or its own tax advisor regarding the tax considerations of the Reorganization.

Unless otherwise explicitly noted, this discussion assumes that Linde and New Linde will not be treated as domestic corporations for U.S. federal income tax purposes under Section 7874 of the Code. For a further discussion, see the discussion under “—Tax Consequences of the Reorganization to Linde and New Linde – Section 7874 Rule Regarding Residency of a Corporation.”

Taxation of Linde Shareholders in Connection with the Reorganization

Intended U.S. Tax Treatment of the Reorganization

The Reorganization is intended qualify as a “reorganization” within the meaning of Section 368(a) of the Code for U.S. federal income tax purposes (the “Intended U.S. Tax Treatment”). Neither Linde nor New Linde intends to request a ruling from the IRS regarding the U.S. federal income tax consequences of the Reorganization. Accordingly, no assurance can be given that the IRS will not challenge that conclusion, or that a court would not sustain such a challenge, nor is the receipt of any tax opinion a condition to the completion of the Reorganization.

If the Reorganization does not qualify for the Intended U.S. Tax Treatment, existing U.S. holders of Linde ordinary shares will be required to recognize gain or loss for U.S. federal income tax purposes upon the exchange of Linde ordinary shares for New Linde ordinary shares. The remainder of this discussion assumes that the Reorganization will qualify for the Intended U.S. Tax Treatment.

Tax Consequences of the Reorganization to Linde and New Linde

Consequences of the Reorganization

The Reorganization is not expected to be taxable to Linde or New Linde for U.S. federal income tax purposes.

U.S. Federal Income Taxation of Linde and New Linde

It is expected that Linde, and following the Reorganization, New Linde, will each be treated as foreign corporations for U.S. federal income tax purposes. Following the merger between Praxair, Inc. and Linde AG,

 

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which created Linde in 2018 (the “Prior Merger”), if the percentage (by vote or value) of Linde ordinary shares considered to be held by former holders of Praxair, Inc. shareholders after the Prior Merger by reason of holding Praxair, Inc. shares is 60% or more under Section 7874 of the Code (which is herein referred to as the “Section 7874 Percentage”), Linde, and therefore New Linde after the Reorganization, could be treated as a U.S. “domestic” corporation for U.S. federal income tax purposes. Linde believes that the Section 7874 Percentage with respect to the Prior Merger was less than 60%. Accordingly, Linde and New Linde are expected to be treated as foreign corporations for U.S. federal income tax purposes before and after the Reorganization, respectively. However, the calculation of the Section 7874 Percentage is complex, is subject to detailed regulations (the application of which is uncertain in various respects) and is subject to factual uncertainties, and the IRS or a court could disagree with this conclusion.

The remainder of this discussion assumes that Linde and New Linde will be treated as foreign corporations for U.S. federal income tax purposes. If Linde or New Linde were treated as a U.S. domestic corporation for U.S. federal income tax purposes, the U.S. federal income tax consequences described herein could be materially and adversely affected.

Consequences to U.S. Holders

Consequences of the Reorganization

Pursuant to the U.S. Intended Tax Treatment, a holder who receives New Linde ordinary shares in exchange for shares of Linde ordinary shares will not recognize any gain or loss upon the Reorganization. The aggregate tax basis of the New Linde ordinary shares received in the Reorganization will be equal to the holder’s aggregate tax basis in the Linde ordinary shares exchange for such New Linde ordinary shares. The holding period of New Linde ordinary shares received in the Reorganization will include the holder’s holding period of the Linde ordinary shares exchanged for such New Linde ordinary shares.

If holders acquired different blocks of Linde ordinary shares at different times and at different prices, a holder’s tax basis and holding period in New Linde ordinary shares may be determined with reference to each block of Linde ordinary shares.

Pursuant to the Intended U.S. Tax Treatment, Linde does not expect that U.S. holders who own 5% or more of the outstanding Linde ordinary shares will be required to file a “gain recognition agreement” with the IRS solely as a result of the Reorganization. U.S. holders who own 5% or more of the outstanding Linde ordinary shares are urged to consult their tax advisor with regard to the U.S. federal income tax consequences of the Reorganization.

Taxation of New Linde Shareholders

Dividends on New Linde ordinary shares

Subject to the following discussion of special rules applicable to PFICs (as defined below), the gross amount of any dividend New Linde pays out of its current or accumulated earnings and profits (as determined for United States federal income tax purposes) is subject to U.S. federal income tax. If such holder is a non-corporate U.S. holder, dividends that constitute qualified dividend income will be taxable at the preferential rates applicable to long-term capital gains provided that such holder holds the shares for more than 60 days during the 121-day period beginning 60 days before the ex-dividend date and meets other holding period requirements. Dividends New Linde pays with respect to the shares generally will be qualified dividend income provided that, in the year that such holder receives the dividend, New Linde ordinary shares are readily tradable on an established securities market in the United States. The U.S. Department of the Treasury and the IRS have determined that common stock is considered readily tradable on an established securities market if it is listed on an established securities market in the United States. Accordingly, dividends received by non-corporate U.S. holders should be entitled to favorable treatment as dividends received with respect to stock of a “qualified foreign corporation” as long as New Linde ordinary shares are listed on NYSE or other established securities markets in the United States. Dividends paid by New Linde will not qualify for the dividends received deduction generally allowed to U.S. corporations in respect of dividends received from other U.S. corporations.

 

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Special rules apply in determining the foreign tax credit limitation with respect to dividends that are subject to the preferential tax rates. To the extent a refund of any tax withheld is available to a U.S. holder under applicable non-U.S. law or under an applicable income tax treaty, the amount of any such tax withheld that is refundable will not be eligible for credit against such holders’ U.S. federal income tax liability.

To the extent that the amount of any dividend exceeds New Linde’s current and accumulated earnings and profits for a taxable year, the excess will first be treated as a tax-free return of capital, causing a reduction in the U.S. holder’s adjusted basis in New Linde ordinary shares. The balance of the excess, if any, will be taxed as capital gain, which would be long-term capital gain if the holder has held the New Linde ordinary shares for more than one year at the time the dividend is received.

It is expected that New Linde will be, at the effective time of the Reorganization or at some future time thereafter, at least 50% owned by U.S. persons. Dividends paid by a foreign corporation that is at least 50% owned by U.S. persons may be treated as U.S. source income (rather than foreign source income) for foreign tax credit purposes to the extent the foreign corporation has more than an insignificant amount of U.S. source income. This rule, to the extent applicable, could result in a U.S. holder being able to credit a lower amount of foreign taxes than would be possible if dividends from New Linde were treated as foreign source income. U.S. holders are urged to consult their own tax advisors regarding the possible impact of this rule in their particular circumstances, including certain elective relief that may be available to holders entitled to benefits under the U.K.-U.S. income tax treaty.

Sale, Exchange or Other Taxable Disposition of New Linde ordinary shares

Subject to the following discussion of special rules applicable to PFICs, a U.S. holder will recognize taxable gain or loss on the sale, exchange or other taxable disposition of New Linde ordinary shares in an amount equal to the difference between the amount realized on such taxable disposition and the holder’s tax basis in the New Linde ordinary shares.

The source of any such gain or loss is determined by reference to the residence of the holder such that it will be treated as U.S. source income for foreign tax credit limitation purposes in the case of a sale, exchange or other taxable disposition by a U.S. holder. However, the Code permits a U.S. holder entitled to benefits under the U.K.-U.S. income tax treaty to elect to treat any gain or loss on the sale, exchange or other taxable disposition of Linde ordinary shares as foreign source income for foreign tax credit purposes if the gain or loss is sourced outside of the United States under the U.K.-U.S. income tax treaty and such gain or loss is separated from other income items for purposes of calculating the U.S. holder’s foreign tax credit. U.S. holders should consult their own tax advisors about the desirability and method of making such an election.

Gain or loss realized on the sale, exchange or other taxable disposition of New Linde ordinary shares will be capital gain or loss and will generally be long-term capital gain or loss if the New Linde ordinary shares have been held for more than one year. The aggregate basis of New Linde ordinary shares received in the Reorganization (including any fractional entitlement to Linde ordinary shares deemed received and exchanged for cash) will be equal to the basis of Linde ordinary shares exchanged. The holding period of New Linde ordinary shares received by a U.S. holder will include the holding period of the Linde ordinary shares surrendered in exchange therefor. Long-term capital gain of a non-corporate U.S. holder is generally taxed at preferential rates. The deduction of capital losses is subject to limitations.

Passive Foreign Investment Company Provisions

The U.S. federal income tax consequences to U.S. holders could differ materially from those described above if, at any relevant time, Linde or New Linde were passive foreign investment companies, or “PFICs” (determined under the rules described below).

 

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For U.S. tax purposes, a foreign corporation will generally be classified as a PFIC for any taxable year if either:

 

•

75% or more of its gross income is “passive income” (as defined for U.S. federal income tax purposes); or

 

•

50% or more of the value, determined on the basis of a quarterly average, of assets held by such corporation is attributable to assets that produce passive income or are held for the production of passive income.

For purposes of applying the tests in the preceding sentence, a look-through rule applies and the foreign corporation is deemed to own its proportionate share of the assets, and to receive directly the proportionate share of the income, of any other corporation of which the foreign corporation owns, directly or indirectly, at least 25% by value of the stock.

Linde does not believe it is a PFIC or that New Linde will become a PFIC as a result of its business operations and asset holdings following the Scheme Effective Time, and the discussion herein assumes that neither Linde nor New Linde is a PFIC. The tests for determining PFIC status are applied annually, and thus may be subject to change. Accordingly, no assurance can be given that the IRS would not challenge this position or that a court would not sustain such challenge. or that New Linde will not become a PFIC at some future time as a result of changes in New Linde assets, income or business operations unrelated to the Reorganization. U.S. holders should consult their own tax advisors about the determination of Linde PFIC status and the U.S. federal income tax consequences of holding New Linde shares if New Linde is considered a PFIC in any taxable year.

U.S. holders of New Linde ordinary shares should consult their own tax advisor about the PFIC rules, including the availability of certain elections.

Consequences to Non-U.S. Holders

Consequences of the Reorganization

The Reorganization is not expected to be taxable to non-U.S. holders for U.S. federal income tax purposes.

Dividends on New Linde ordinary shares

A non-U.S. holder generally will not be subject to U.S. federal income or withholding tax on dividends from New Linde unless: (1) the dividends are effectively connected with the holder’s conduct of a trade or business in the U.S. (or, if a tax treaty applies, the dividends are attributable to a permanent establishment or fixed place of business maintained by the non-U.S. holder in the U.S.); or (2) such non-U.S. holder is subject to backup withholding.

Sale, Exchange or Other Taxable Disposition of New Linde ordinary shares

A non-U.S. holder generally will not be subject to U.S. federal income or withholding tax on any gain recognized on the sale, exchange or other disposition of New Linde ordinary shares unless: (1) such gain is effectively connected with the conduct by the non-U.S. holder of a trade or business within the U.S. (or, if a tax treaty applies, is attributable to a permanent establishment or fixed place of business maintained by the non-U.S. holder in the U.S.); (2) in the case of certain capital gains recognized by a non-U.S. holder that is an individual, such individual is present in the U.S. for 183 days or more during the taxable year in which the capital gain is recognized and certain other conditions are met; or (3) the non-U.S. holder is subject to backup withholding.

Information Reporting and Backup Withholding

U.S. holders that own at least 5% (of total voting power or total value) of Linde ordinary shares immediately before the Reorganization will be required to file a Section 368(a) statement. Other information reporting could

 

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also apply to the Reorganization. Shareholders of Linde should consult their own tax advisors about the information reporting requirements that could be applicable to the exchange of Linde ordinary shares for New Linde ordinary shares in the Reorganization.

Dividends on New Linde ordinary shares paid within the U.S. or through certain U.S.-related intermediaries are subject to information reporting unless the holder is a corporation, other exempt recipient or non-U.S. holder who establishes such foreign status. Dividends subject to information reporting are subject to backup withholding (currently at a rate of 24%) unless the payee furnishes the payor with a taxpayer identification number and satisfies certain certification requirements. Information reporting requirements and backup withholding may also apply to the payment of proceeds from a sale of New Linde ordinary shares within the U.S. or through certain U.S.-related intermediaries. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against the holder’s U.S. federal income tax liability, provided that the holder furnishes certain required information to the IRS.

If a U.S. holder of New Linde ordinary shares does not provide us (or our paying agent) with the holder’s correct taxpayer identification number or other required information, the holder may be subject to penalties imposed by the IRS.

In order for a non-U.S. holder to not be subject to backup withholding tax on a subsequent disposition of New Linde ordinary shares, or dividends paid on those shares, a non-U.S. holder may be required to provide an IRS Form W-8BEN or W-8BEN-E or other appropriate version of IRS Form W-8 certifying such non-U.S. holder’s non-U.S. status or otherwise establish an exemption.

Holders should consult their tax advisor regarding the application of information reporting and backup withholding to their particular situations.

THE U.S. FEDERAL INCOME TAX CONSIDERATIONS SUMMARIZED ABOVE ARE FOR GENERAL INFORMATION ONLY. EACH LINDE SHAREHOLDER SHOULD CONSULT HIS OR HER TAX ADVISOR AS TO THE PARTICULAR CONSEQUENCES THAT MAY APPLY TO SUCH SHAREHOLDER.

German Tax Considerations

The following summary sets forth the anticipated material German income tax consequences for German holders of Linde ordinary shares relating to the Reorganization and the holding of New Linde shares but does not purport to be a complete analysis of all the potential tax consequences relating thereto.

Any reference in this section to a tax, or other charge or withholding refers to German tax law and/or concepts only. It is based on the tax laws of the Federal Republic of Germany and their application by the German Federal Tax Court (Bundesfinanzhof) and officially published statements of the German tax authorities as of the date hereof. It does not take into account any changes introduced later which may have retroactive or retrospective effect. The relevant rules and their interpretation by the German tax courts or tax authorities may change, possibly with retroactive effect. We can provide no assurance that the views taken in this summary will not be challenged by the German tax authorities or will be sustained by a court if challenged.

This overview only applies to shares that are held as capital assets. It does not address certain classes of shareholders or ownership arrangements, such as (i) banks, other financial institutions and financial enterprises, dealers in securities, trustees, insurance companies, collective investment schemes, tax-exempt organizations and governmental organizations, (ii) individual retirement and other deferred accounts or shareholders who have, or are deemed to have, acquired their shares by virtue of an office or employment and (iii) shareholders who hold shares as part of a hedging transaction, or under a stock loan or repo arrangement.

 

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This summary is not exhaustive. For individuals, church tax may apply, which is not addressed in this summary. This discussion also does not address tax considerations arising under any German non-income tax laws, such as inheritance and gift taxation or value added tax. Shareholders should consult their own tax advisors as to the tax consequences in Germany or other relevant jurisdictions concerning the Reorganization and the acquisition, ownership and disposition of New Linde shares.

Dividends and capital gains may be subject to withholding tax (Kapitalertragsteuer). New Linde is not expected to have its registered seat or place of management in Germany and does not assume any responsibility in this regard. A Domestic Disbursing Agent or Domestic Dividend Paying Agent (each as defined below) may be obliged to withhold German withholding tax.

Taxation of Linde Shareholders in Connection with the Reorganization

Taxation of Linde Shareholders Tax-Resident in Germany

Linde Shares Held as Private Assets

If Linde shareholders holding their Linde shares as private assets (Privatvermögen) exchange these within the Scheme for New Linde shares, this is in principle a taxable disposal of the Linde shares. The market value of the New Linde shares received in return constitutes the proceeds from which the disposal and acquisition costs for the Linde shares are deducted (as the case may be, these may be the acquisition costs of Praxair Inc. or Linde AG shares tendered in the 2018 share-for share exchange offer (the “2018 Exchange”). In principle, the final flat tax rate (Abgeltungsteuertarif) of 25% plus solidarity surcharge of 5.5% (in aggregate 26.375%), applies on such capital gain for investors whose participation amounted to less than 1% throughout the five year period preceding the Reorganization (where the shareholding in Praxair Inc. or Linde AG prior to the 2018 Exchange exceeded this participation, the exchange should have been subject to taxation and considered an acquisition of the Linde shares with no tax attributes (including holding or reference periods) being carried over to the Linde shares).

If certain requirements are met, the share exchange within the Scheme should be tax neutral for shareholders who hold their shares as private assets and have, at no time within the five years preceding the Reorganization, held 1% or more of the shares in Linde. The tax neutral treatment pursuant to Sec. 20 para. 4a sent. 1 German Income Tax Act (Einkommensteuergesetz – “GITA”) further requires that the exchange is executed on the basis of company law measures of the entities involved. This condition should be satisfied as the New Linde shares issued under the Scheme in exchange for the Linde shares are issued in a capital measure as new shares. The New Linde shares received in exchange for Linde shares should take the place of such Linde shares for German tax purposes and in principle have the same tax status; the acquisition costs of the Linde shares should continue to apply to the New Linde shares.

Even if the above requirements are not met, the Reorganization would not be taxable to Linde shareholders holding the shares as private assets with a participation of less than 1% of the shares in Linde if the shares have been acquired prior to January 1, 2009. According to precedents from lower fiscal courts, the holding period is not interrupted by a share-for share exchange qualifying for purposes of Sec. 20 para. 4a sent. 1 GITA so that Linde shares which were in turn exchanged for Praxair Inc. or Linde AG shares in the 2018 Exchange acquired prior to January 1, 2009 may qualify. A resulting capital loss, if any, would not be tax deductible. However, no statement of the Federal Fiscal Court (Bundesfinanzhof) is available. It cannot be excluded that the German tax authorities may treat the Transaction as taxable and that the German tax courts may confirm such view in the future.

To the extent that the share exchange under the Scheme is tax neutral, no German withholding tax should apply. To the extent that the share exchange is not tax neutral as described above, the general rules of German withholding tax described below (see “Taxation of Capital Gains on the Disposal of New Linde Shares” below) will apply.

 

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If a shareholder, or in the case of a gratuitous transfer, the shareholder’s legal predecessor, directly or indirectly has held at least 1% of the share capital of Linde at any time during the five years preceding the Transaction, the exchange a taxable event and the rules applicable to the taxation of the exchange of Linde shares held as business assets will apply accordingly (see “Linde Shares Held as Business Assets by Individual Shareholders (Sole Proprietors)” below).

Linde Shares Held as Business Assets by Individual Shareholders (Sole Proprietors)

For individuals holding Linde shares as business assets, the exchange for New Linde shares under the Scheme will be taxable. 60% of the capital gain (i.e., the market value of the New Linde shares less the disposal and acquisition costs) are taxable at the personal income tax rate (plus solidarity surcharge of 5.5% thereon). Correspondingly, only 60% of the related expenses (subject to general restrictions) and of any capital loss are tax deductible.

If the Linde shares are attributable to a permanent establishment of a trade or business in Germany, 60% of the capital gains are also subject to trade tax (Gewerbesteuer) at a rate between approx. 9% and 20% depending on the trade tax multiplier applied by the relevant municipality. The trade tax is generally fully or partly creditable towards the income tax in a lump sum process (limitations apply).

The rules discussed in this section also apply to a shareholder who, or in the case of a gratuitous acquisition their legal predecessor, has directly or indirectly held at least 1% of the share capital of Linde at any time during the five years preceding the Transaction. Limitations apply with regard to the deduction of capital losses. If the 2018 Exchange Offer qualified as a taxable event, then the Linde shares are considered to be acquired at that time and the reference period should not extend to time periods prior to the 2018 Exchange.

Linde Shares Held by Corporations

Generally, capital gains recognized by corporations on the exchange of Linde shares for New Linde shares in the Scheme (i.e., the market value of the New Linde shares less the disposal and acquisition costs) are exempt from corporate income and trade tax. 5% of such capital gain are treated as non-deductible business expenses and, as such, subject to corporate income tax at a rate of 15% (plus solidarity surcharge of 5.5% thereon) and trade tax. Losses from the exchange of Linde shares are generally not tax deductible.

Linde Shares Held by Partnerships

If the shareholder is a partnership engaged or deemed to be engaged in a trade or business (commercial partnership—Mitunternehmerschaft), income tax or corporate income tax, as the case may be, applies at the level of each partner. If the partner is subject to corporate income tax, capital gains from the exchange of Linde shares under the Scheme are, in general, effectively 95% tax exempt (see “Linde Shares Held by Corporations”). If the partner is subject to income tax, 60% of the capital gains from the exchange of the Linde shares under the Scheme are taxable under the partial income method (see “Linde Shares Held As Business Assets by Individual Shareholders (Sole Proprietors)”).

If the Linde shares are attributable to a permanent establishment of the commercial partnership in Germany, trade tax applies at the level of the partnership, with 60% of the capital gain from the share exchange under the Scheme subject to trade tax to the extent that the partners are individuals and 5% to the extent that the partners are corporations. In the case of partners who are individuals, the trade tax is generally fully or partly creditable towards the income tax in a lump sum process (limitations apply). The rules outlined above regarding the deductibility of business expenses related to the capital gains and capital losses for (corporate) income tax purposes apply accordingly to the partners, and to trade tax at the partnership level.

If the shareholder is a partnership which is neither engaged nor deemed to be engaged in a trade or business (vermögensverwaltende Personengesellschaft), each partner is taxed as though they held their share directly (see

 

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“Linde Shares Held As Private Assets,” “Linde Shares Held as Business Assets by Individual Shareholders (Sole Proprietors)” and “Linde Shares Held by Corporations”).

Linde Shareholders with Tax Residency Outside of Germany

Capital gains realized on the exchange of Linde shares under the Scheme (i.e., the market value of the New Linde shares less the disposal and acquisition costs) are subject to non-resident tax liability in Germany only to the extent that the shares are held as part of business assets in Germany (i.e., attributable to a permanent establishment or fixed base or to business assets for which a permanent representative in Germany has been appointed), and the provisions outlined above regarding the taxation of shareholders that are German tax residents in principle apply accordingly.

Otherwise, capital gains from the disposal of Linde Shares within the Reorganization realized by shareholders not tax resident in Germany should not be taxable in Germany. In case such Linde shares are held via a Domestic Disbursing Agent (as defined below), such Domestic Disbursing Agent is generally not obliged to withhold German withholding tax pursuant to a circular issued by the German tax authorities.

Taxation of New Linde Shareholders Tax-Resident in Germany

Taxation of Dividend Income from New Linde Shares

If shares are admitted for collective custody by a securities custodian bank (Wertpapiersammelbank) pursuant to Section 5 German Act on Securities Accounts (Depotgesetz) and are entrusted to such bank for collective custody (Sammelverwahrung) in Germany, withholding tax at a rate of 25% plus 5.5% solidarity surcharge thereon (in total: 26.375%) is withheld and remitted for the account of the shareholder (i) by the domestic credit or financial services institution (inländisches Kredit- oder Finanzdienstleistungsinstitut) (including domestic branches of such foreign enterprises) or the domestic securities institution (inländisches Wertpapierinstitut) which keeps or administers the shares and disburses or credits the dividends or (ii) by the central securities depository (Wertpapiersammelbank) to which the shares were entrusted for collective custody (the “Domestic Dividend Paying Agent”). No withholding tax is levied in case of an individual shareholder who holds the shares as private assets if they submit a tax exemption request (Freistellungsauftrag) to the Domestic Dividend Paying Agent, but only to the extent the overall annual capital investment income does not exceed the savers’ allowance (Sparer-Freibetrag) of €801 (€1,602 for married couples and registered partners filing jointly). Similarly, no withholding tax is deducted if it is to be assumed that the income is not subject to taxation and the shareholder has submitted to the Dividend Paying Agent a certificate of non-assessment (Nichtveranlagungsbescheinigung) issued by the competent tax office. If no German tax has been withheld for other reasons, the dividend income must be declared in the shareholder’s annual tax return.

For individuals who are tax resident in Germany and who hold the shares as private assets (Privatvermögen), the flat tax rate applies, which is generally raised by way of withholding. Shareholders may apply to have their capital investment income assessed at their personal income tax rate if this would result in a lower tax burden. The tax base would be the gross dividend less the savers’ allowance of €801 (€1,602 for married couples and registered partners filing jointly) for the entire capital investment income, with no deduction for actual costs incurred.

If the shares are held as part of the business assets of a sole proprietor (individual) tax resident in Germany, 60% of the dividend income are taxable (partial-income method (Teileinkünfteverfahren)). Only 60% of related expenses are tax-deductible. The partial-income method will also apply if individuals hold the shares through a commercial partnership (Mitunternehmerschaft). If the shares form part of the business assets of a domestic permanent establishment of a trade of business, 60% of the dividend income (after deduction of 60% of related expenses) are generally also subject to trade tax. Exceptions may apply (e.g., based on a shareholding of 15% or more). The trade tax is generally fully or partly creditable towards the income tax in a lump sum process (limitations apply).

 

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Dividends received by corporations tax resident in Germany are generally subject to corporate income tax (plus solidarity surcharge) and trade tax. Actual related business expenses incurred may generally be deducted. An effective 95% exemption from corporate income tax (and solidarity surcharge) and trade tax may apply subject to minimum shareholdings of at least 10% (additional requirements apply). This applies accordingly to shares held by a corporation through a commercial partnership.

Additional compliance obligations apply to shareholders having received dividends where no withholding tax was deducted.

The withholding tax in relation to shares held as business assets is generally credited against the shareholder’s income tax liability or refunded in case of overpayment. Under certain anti-abuse provisions, only two fifths of the withholding tax are credited in relation to dividends (i) from shares where the shareholder did not qualify as beneficial owner for a minimum holding period around the due date of the dividends; (ii) from shares where the shareholder does not bear the material risks or has entered into hedging transactions, or (iii) which the shareholder is obliged to materially compensate to third parties. The remaining three-fifths of the withholding tax may be deducted from the tax base for the relevant tax assessment period. These limitations do not apply to shareholders with dividend earnings of up to €20,000 or beneficially holding the shares for at least one year upon receipt of the dividends. The withholding tax credit may also be denied based on the general German anti-abuse rules.

Taxation of Capital Gains on the Disposal of New Linde Shares

Capital gains from the sale of New Linde shares that are held as private assets by shareholders tax resident in Germany are subject to tax, generally at a flat rate of 25% plus 5.5% solidarity surcharge thereon. Capital losses may only be used to offset capital gains realized on the sale of shares during the same or in subsequent years.

A Domestic Disbursing Agent is obliged to withhold tax on capital gains from the sale of shares held in a custodial account in Germany. With regard to the taxation of capital gains, “Domestic Disbursing Agent” means a German credit institution, a financial services institution, a securities trading enterprise or a securities trading bank (each as defined in the German Banking Act (Kreditwesengesetz) and, in each case including a German branch of a foreign enterprise, but excluding a foreign branch of a German enterprise that holds the shares in custody or administers the shares for the investor or conducts sales or other dispositions and disburses or credits the income to the shareholder.

If the shares were held in safekeeping or administered by a Domestic Disbursing Agent, or if a Domestic Disbursing Agent carries out the sale of the shares and disburses or credits the proceeds, it generally withholds of 25% of tax (plus 5.5% solidarity surcharge thereon) on the capital gain. If the shares were held with the same Domestic Disbursing Agent since their acquisition, the withholding is generally based on the difference between the proceeds from the sale less related expenses and acquisition costs. The withholding tax will be applied to 30% of the gross proceeds if the shares were not administered by the Domestic Disbursing Agent since their acquisition and the original cost of the shares cannot be validly substantiated. The shareholder may prove the acquisition costs of the shares in the annual tax return.

Shareholders may apply to have gains on the sale of their shares taxed in application of their personal tax rate instead of the final flat tax rate if that would result in a lower tax burden. The tax base would be the gross income less the savers’ allowance of €801 (€1,602 for married couples and registered partners filing jointly) for the entire income from capital investments, with no deduction for costs actually incurred. Any tax withheld would be credited against the income tax or refunded in case of overpayment.

Capital gains realized from the sale of shares that were acquired prior to January 1, 2009 and held as private assets are generally tax exempt. See “Taxation of Linde Shareholders in Connection with the Reorganization—Taxation of Linde Shareholders Tax-Resident in Germany—Linde Shares Held as Private Assets” above for a

 

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discussion whether this may be relevant for a disposal of New Linde shares received in exchange for the Linde shares in the Transaction, which were in turn received for Praxair Inc. or Linde AG shares in the 2018 Exchange which were acquired prior to January 1, 2009.

If a shareholder or, in the case of a gratuitous transfer, any of the shareholder’s legal predecessors held, directly or indirectly, at least 1% of New Linde’s share capital at any time during the five years preceding the sale, the capital gain from the sale of shares will be taxable under application of the partial-income method, so that only 60% of the capital gains will be taxable at the individual’s personal income tax rate (plus 5.5% solidarity surcharge thereon), and only 60% of related expenses or of capital losses will be deductible.

A Domestic Disbursing Agent is obliged to withhold tax on capital gains on the sale of shares held as business assets as for a shareholder holding shares as private assets. However, it may refrain from withholding the tax if (i) the shareholder is a corporation, association (Personenvereinigung) or estate (Vermögensmasse) with tax domicile in Germany, or (ii) the shares form part of the shareholder’s domestic business assets, and the shareholder informs the paying agent of this on the officially prescribed form and meets certain additional prerequisites. Any tax withheld will be credited against the shareholder’s (corporate) income tax liability and any excess will be refunded.

If the shares form part of the business assets of a sole proprietor (individual) tax resident in Germany, 60% of the capital gain is taxable at the personal income tax rate (plus 5.5% solidarity surcharge thereon) (partial-income method). Only 60% of related expenses and of capital losses are deductible. If the shares are attributable to a permanent establishment in Germany, 60% of the capital gains are also subject to trade tax. The trade tax is generally fully or partly creditable towards the income tax in a lump sum process (limitations apply).

In general, capital gains recognized on the sale of shares by corporations domiciled in Germany are effectively 95% tax exempt. 5% of the capital gains are subject to corporate income tax (plus the 5.5% solidarity surcharge) and to trade tax. Losses from the sale of shares are not tax-deductible.

German Controlled Foreign Corporation Rules (Außensteuergesetz)

Tax residents of Germany have to include in their income distributed and undistributed earnings of a foreign company in which they directly or indirectly hold shares if the foreign company qualifies as a low taxed controlled foreign corporation (which is herein referred to as “CFC”) and certain additional requirements regarding domestic shareholding and income qualification are met. No inclusion may have to occur if regular and substantial trading in the corporation’s main class of shares takes place at a recognized stock exchange. The rules regarding German CFC taxation are complex and shareholders are advised to carefully review whether any tax liability applies.

New Linde Shareholders with Tax Residency Outside of Germany

Dividends distributed by New Linde and capital gains realized from the sale of New Linde shares are subject to a non-resident tax liability in Germany only to the extent that the shares are held, either directly or indirectly (e.g., through a partnership) as part of business assets in Germany (i.e., if they are attributable to a permanent establishment or fixed base or for which a permanent representative in Germany has been appointed, all as either defined by German tax law or by an applicable tax treaty). The rules outlined above with respect to the taxation of shareholders that are German tax residents generally apply accordingly.

THE GERMAN TAX CONSIDERATIONS SUMMARIZED ABOVE ARE FOR GENERAL INFORMATION ONLY. EACH LINDE SHAREHOLDER SHOULD CONSULT HIS OR HER TAX ADVISOR AS TO THE PARTICULAR CONSEQUENCES THAT MAY APPLY TO SUCH SHAREHOLDER.

 

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DESCRIPTION OF NEW LINDE SHARE CAPITAL

The following description of New Linde ordinary shares is a summary. This summary is not complete and is subject to and qualified in its entirety by reference to the complete text of the New Linde Constitution attached to this Proxy Statement as Annex B, as well as to the Irish Companies Act 2014. We encourage you to read the New Linde Constitution and the applicable provisions of the Irish Companies Act 2014 carefully.

Capital Structure

The authorized share capital of New Linde will be €1,825,000 divided into 1,750,000,000 ordinary shares of €0.001 each, 25,000 A ordinary shares of €1.00 each, 25,000 deferred shares of €1.00 each and 25,000,000 preferred shares of €0.001 each.

New Linde may issue shares subject to the maximum prescribed by its authorized share capital that will be contained in the New Linde Constitution.

As a matter of Irish company law, the directors of a company may issue new ordinary or preferred shares without shareholder approval once authorized to do so by the constitution of the company or otherwise by an ordinary resolution adopted by the shareholders at a general meeting. An ordinary resolution requires over 50% of the votes of a company’s shareholders cast at a general meeting. The authority conferred can be granted for a maximum period of five years, at which point it must be renewed by the shareholders of the company by an ordinary resolution. The New Linde Constitution will confer a five-year authority on its directors to allot and issue its authorized share capital.

New Linde’s authorized share capital may be increased or reduced by way of an ordinary resolution of New Linde’s shareholders. The shares comprising the authorized share capital of New Linde may be divided into shares of such par value as the resolution shall prescribe.

The rights and restrictions to which New Linde ordinary shares are subject will be prescribed in the New Linde Constitution. The New Linde Constitution will allow the New Linde Board, without shareholder approval, to determine the terms of any preferred shares issued by New Linde. The New Linde Board will be authorized, without obtaining any vote or consent of the holders of any class or series of shares unless expressly provided by the terms of that class or series of shares, to provide from time to time for the issuance of other classes or series of preferred shares and to establish the characteristics of each class or series of preferred shares, including the number of shares, designations, relative voting rights, dividend rights, liquidation and other rights, redemption, repurchase or exchange rights and any other preferences and relative, participating, optional or other rights and limitations not inconsistent with applicable law.

Irish law does not recognize fractional shares held of record; accordingly, the New Linde Constitution will not provide for the issuance of fractional shares of New Linde, and New Linde’s official Irish register does not reflect any fractional shares.

Pre-emption Rights, Share Warrants and Share Options

Generally, under Irish law, certain statutory pre-emption rights apply automatically in favor of New Linde’s shareholders where shares in New Linde are to be issued for cash. As permitted by Irish law, in the New Linde Constitution, New Linde will opt out of these pre-emption rights for the maximum period of five years at which point any opt-out must be renewed by a special resolution of the New Linde ordinary shareholders. The statutory pre-emption rights do not apply where shares are issued for non-cash consideration and do not apply to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution).

 

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The New Linde Constitution will provide that, subject to any shareholder approval requirement under any laws, regulations or the rules of any stock exchange to which New Linde will be subject, the New Linde Board will be authorized, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the New Linde Board deems advisable, options to purchase such number of shares of any class or classes or of any series of any class as the New Linde Board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued.

Immediately following the consummation of the Scheme, New Linde will be subject to the rules of NYSE that require shareholder approval of certain share issuances.

Dividends

Under Irish law, dividends and distributions may only be made from distributable reserves. Distributable reserves, broadly, means the accumulated realized profits of New Linde less accumulated realized losses of New Linde and includes reserves created by way of capital reduction. In addition, no distribution or dividend may be made unless New Linde’s net assets are equal to, or in excess of, the aggregate of New Linde’s called-up share capital plus undistributable reserves and the distribution does not reduce New Linde’s net assets below such aggregate. Undistributable reserves includes undenominated capital and the amount by which New Linde’s accumulated unrealized profits, so far as not previously utilized by any capitalization, exceed New Linde’s accumulated unrealized losses, so far as not previously written off in a reduction or reorganization of capital.

The determination as to whether or not New Linde has sufficient distributable reserves to fund a dividend must be made by reference to “relevant financial statements” of New Linde. The “relevant financial statements” will be either the last set of unconsolidated annual audited financial statements or other qualifying financial statements properly prepared in accordance with the Irish Companies Act 2014, which give a “true and fair view” of New Linde’s unconsolidated financial position, and accord with accepted accounting practice. The relevant financial statements must be filed in the Registrar of Companies (the official public registry for companies in Ireland).

The mechanism as to who declares a dividend and when a dividend shall become payable will be governed by the New Linde Constitution. The New Linde Constitution will authorize the directors to declare such dividends as appear justified from the profits of New Linde without the approval of the shareholders at a general meeting. The New Linde Board may also recommend a dividend to be approved and declared by the shareholders at a general meeting. Although the shareholders may direct that the payment be made by distribution of assets, shares or cash, no dividend issued may exceed the amount recommended by the directors. The dividends can be declared and paid in the form of cash or non-cash assets.

The directors of New Linde may deduct from any dividend payable to any shareholder all sums of money (if any) payable by such shareholder to New Linde in relation to the shares of New Linde.

The directors of New Linde will also be entitled to issue shares with preferred rights to participate in dividends declared by New Linde. The holders of such preferred shares may, depending on their terms, be entitled to claim arrears of a declared dividend out of subsequently declared dividends in priority to holders of ordinary shares.

As New Linde will not have “distributable reserves,” immediately following the closing, it will take steps to create distributable reserves. The creation of distributable reserves of New Linde involves a reduction in New Linde’s undenominated share capital which requires the approval of the Irish High Court. The approval of the Irish High Court is expected within eight weeks following the Reorganization becoming effective. New Linde is not aware of any reason why the Irish High Court would not approve the creation of distributable reserves in this manner; however, the issuance of the required order is a matter for the discretion of the Irish High Court. In the event that distributable reserves of New Linde are not created, no distributions by way of dividends, share repurchases or otherwise will be permitted under Irish law until such time as New Linde has created sufficient distributable reserves from its business activities.

 

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Share Repurchases, Redemptions and Conversions

Overview

The New Linde Constitution will provide that, unless the New Linde Board specifically elects to treat such acquisition as a purchase for the purposes of the Irish Companies Act 2014, any ordinary share which New Linde has acquired or agreed to acquire shall be deemed to be a redeemable share on, and from the time of, the existence or creation of an agreement, transaction or trade between New Linde and any third party pursuant to which New Linde acquires or will acquire ordinary shares, or an interest in ordinary shares, from the relevant third party. Accordingly, for Irish company law purposes, any repurchases of ordinary shares by New Linde will technically be effected as a redemption of those shares as described below under “—Repurchases and Redemptions by New Linde.” If the New Linde Constitution did not contain this provision, repurchases by New Linde would be subject to many of the same rules that apply to purchases of New Linde ordinary shares by subsidiaries described below under “—Purchases by Subsidiaries of New Linde,” including the shareholder approval requirements described below and the requirement that any on-market purchases be effected on a “recognized stock exchange.” Except where otherwise noted, when we refer elsewhere in this description to repurchasing or buying back New Linde ordinary shares, we are referring to the redemption of New Linde ordinary shares pursuant to such provision of the New Linde Constitution or the purchase of New Linde ordinary shares by a subsidiary of New Linde, in each case in accordance with the New Linde Constitution and Irish company law as described below.

Repurchases and Redemptions by New Linde

Under Irish law, a company can issue redeemable shares and redeem them out of distributable reserves (which are described above under “Description of New Linde Share Capital—Dividends”) or the proceeds of a new issue of shares for that purpose.

The issuance of redeemable shares may only be made by New Linde where the nominal value of the issued share capital that is not redeemable is more than 10% of the nominal value of the total issued share capital of New Linde. All redeemable shares must also be fully paid and the terms of redemption of the shares must provide for payment on redemption. Redeemable shares may, upon redemption, be cancelled or held in treasury. Based on the New Linde Constitution, shareholder approval will not be required to redeem New Linde ordinary shares.

The New Linde Board will also be entitled to issue preferred shares which may be redeemed at the option of either New Linde or the shareholder, depending on the terms of such preferred shares.

Repurchased and redeemed shares may be cancelled or held as treasury shares. The nominal value of treasury shares held by New Linde at any time must not exceed 10% of the nominal value of the issued share capital of New Linde. New Linde cannot exercise any voting rights in respect of any shares held as treasury shares. Treasury shares may be cancelled by New Linde or re-issued subject to certain conditions.

Purchases by Subsidiaries of New Linde

Under Irish law, it may be permissible for an Irish or non-Irish subsidiary to purchase shares of New Linde either on-market or off-market. A general authority of the shareholders of New Linde by ordinary resolution will be required to allow a subsidiary of New Linde to make on-market purchases of New Linde ordinary shares; however, as long as this general authority has been granted, no specific shareholder authority for a particular on-market purchase by a subsidiary of New Linde ordinary shares will be required. New Linde may seek such general authority from its shareholders in the future. In order for a subsidiary of New Linde to make an on-market purchase of New Linde’s shares, such shares must be purchased on a “recognised stock exchange.” NYSE, on which the shares of Linde and New Linde are or will be listed, qualifies as a “recognised stock exchange” pursuant to the Irish Companies Act 2014 (Recognised Stock Exchanges) Regulations 2015 (S.I. No. 214 of 2015). For an off-market purchase by a subsidiary of New Linde, the proposed purchase contract must

 

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be authorized by special resolution of the shareholders of New Linde before the contract is entered into. The person whose shares are to be bought back cannot vote in favor of the special resolution and, for at least 21 days prior to the special resolution, the purchase contract must be on display or must be available for inspection by shareholders at the registered office of New Linde.

The number of shares held by the subsidiaries of New Linde at any time will count as treasury shares and will be included in any calculation of the permitted treasury share threshold of 10% of the nominal value of the issued share capital of New Linde. While a subsidiary holds shares of New Linde, it cannot exercise any voting rights in respect of those shares. The acquisition of the shares of New Linde by a subsidiary must be funded out of distributable reserves of the subsidiary.

Bonus Shares

Under the New Linde Constitution, the New Linde Board may resolve to capitalize any amount credited to any reserve or fund (whether or not distributable) of New Linde for issuance and distribution to shareholders as fully paid up shares or bonus shares to those shareholders who: (i) in the case of a distributable reserve, would have been entitled to that amount if it had been distributed by way of dividend; or (ii) in the case of an undistributable reserve, would have been entitled to that amount if it were distributable and had been distributed by way of dividend.

Consolidation and Division; Subdivision

Under the New Linde Constitution, New Linde will be able, by ordinary resolution, to consolidate and divide all or any of its share capital into shares of larger par value than its existing shares or subdivide its shares into smaller amounts than is fixed by its constitution.

Reduction of Share Capital

New Linde may, by ordinary resolution, reduce its authorized share capital in any way. New Linde also may, by special resolution and subject to confirmation by the Irish High Court, reduce or cancel its issued share capital in any way.

General Meetings of Shareholders

Following the consummation of the Scheme, New Linde will be required to hold annual general meetings at intervals of no more than fifteen months, provided that an annual general meeting is held in each calendar year and no more than nine months after its fiscal year-end. Any general meeting may be held outside Ireland if a resolution so authorizing is passed by the New Linde Board, provided that technical means are provided to enable shareholders to participate in the meeting without leaving Ireland.

The New Linde Constitution will include a provision reflecting this requirement of Irish law. At any annual general meeting, only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the New Linde Board or (b) by any shareholder entitled to vote at such meeting who complies with the procedures set forth in the New Linde Constitution.

Extraordinary general meetings of New Linde may be convened by (i) the New Linde Board, (ii) on requisition of the shareholders holding not less than 10% of the paid-up share capital of New Linde carrying voting rights, or (iii) on requisition of New Linde’s auditors. Extraordinary general meetings will be generally held for the purposes of approving shareholder resolutions of New Linde as may be required from time to time. At any extraordinary general meeting only such business shall be conducted as is set forth in the notice thereof.

Notice of a general meeting must be given to all shareholders of New Linde entitled to such notice and to the auditors of New Linde. The minimum notice periods are 21 days’ notice in writing for an annual general meeting

 

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or an extraordinary general meeting to approve a special resolution and 14 days’ notice in writing for any other extraordinary general meeting where all shareholders of New Linde being entitled to vote are permitted to do so by electronic means at the meeting and a special resolution reducing the period of notice to fourteen days has been passed at the immediately preceding annual general meeting, or at a general meeting held since that meeting. Because of the 21-day and 14-day requirements described in this paragraph, the New Linde Constitution will include provisions reflecting these requirements of Irish law.

In the case of an extraordinary general meeting convened by shareholders of New Linde, the proposed purpose of the meeting must be set out in the requisition notice. Upon receipt of any such valid requisition notice, the New Linde Board has 21 days to convene a meeting of New Linde’s shareholders to vote on the matters set out in the requisition notice. This meeting must be held within two months of the receipt of the requisition notice. If the New Linde Board does not convene the meeting within such 21-day period, the requisitioning shareholders, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, which meeting must be held within three months of the receipt of the requisition notice.

The New Linde Board may postpone any general meeting of New Linde (to the extent permitted by law) after it has been convened where the New Linde Board in its absolute discretion considers that the reasons for convening the meeting no longer exist or it is, for any reason, not in New Linde’s interests to hold the meeting. Such postponement may be for a particular period of time or indefinitely.

The only matters which must, as a matter of Irish company law, be transacted at an annual general meeting are the consideration of the Irish statutory financial statements and the report of the directors and the report of the statutory auditors on those statements and that report; the review by the shareholders of the company’s affairs; the declaration of a dividend (if any) of an amount not exceeding the amount recommended by the directors (save where the constitution provides otherwise); the authorization of the directors to approve the statutory auditor’s remuneration, where the constitution of the company so provides; the election and re-election of directors; the appointment or re-appointment of statutory auditors; and, where the constitution of the company so provides, the remuneration of the directors. If no resolution is made in respect of the reappointment of an existing auditor at an annual general meeting, the existing auditor will be deemed to have continued in office.

Directors are elected by ordinary resolution at general meetings, provided that, if there is a contested election (as will be provided for in the New Linde Constitution), each of the nominees shall be voted upon as a separate resolution and the directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at any such meeting and entitled to vote on the election of directors. “Elected by a plurality” means the election of those director nominees equal in number to the number of positions to be filled at the relevant general meeting that received the highest number of votes in the contested election. Directors serve until the next annual general meeting when they retire and can be re-elected. Because Irish law requires a minimum of two directors at all times, in the event that an election results in no director being elected, each of the two nominees receiving the greatest number of votes in favor of his or her election shall hold office until his or her successor shall be elected. In the event that an election results in only one director being elected, that director shall be elected and shall serve until the next annual general meeting, and the nominee receiving the greatest number of votes in favor of their election shall hold office until his or her successor shall be elected.

If the New Linde Board becomes aware that the net assets of New Linde are half or less of the amount of New Linde’s called-up share capital, the New Linde Board must convene an extraordinary general meeting of New Linde’s shareholders not later than 28 days from the date that they learn of this fact. This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.

Voting

Every shareholder shall have one vote for each ordinary share that he or she holds as of the voting record date for the meeting. A resolution put to the vote of the meeting shall be decided on a poll. Voting rights on a poll may be

 

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exercised by shareholders registered in New Linde’s share register as of the voting record date for the meeting or by a duly appointed proxy (or proxies) of such a registered shareholder, which proxy need not be a shareholder. Where interests in shares are held by a nominee trust company, this company may exercise the rights of the beneficial holders on their behalf as their proxy. All proxies must be appointed in the manner which will be prescribed by the New Linde Constitution. The New Linde Constitution will permit the appointment of proxies by the shareholders to be notified to New Linde electronically.

In accordance with the New Linde Constitution, the New Linde Board may from time to time cause New Linde to issue preferred shares. These preferred shares may have such voting rights as may be specified in the terms of such preferred shares (e.g., they may carry more votes per share than ordinary shares or may entitle their holders to a class vote on such matters as may be specified in the terms of the preferred shares).

Treasury shares will not be entitled to vote at general meetings of shareholders.

Irish company law requires “special resolutions” of the shareholders at a general meeting to approve certain matters. A special resolution requires not less than 75% of the votes cast of New Linde’s shareholders at a general meeting. This may be contrasted with “ordinary resolutions,” which require a simple majority of the votes of New Linde’s shareholders cast at a general meeting. Examples of matters requiring special resolutions include:

 

•

Amending the New Linde Constitution;

 

•

Approving a change of name of New Linde;

 

•

Authorizing the entering into of a guarantee or provision of security in connection with a loan, quasi-loan or credit transaction to a director or connected person;

 

•

Opting out of pre-emption rights on the issuance of new shares;

 

•

Re-registration of New Linde as a different corporate form;

 

•

Variation of class rights attaching to classes of shares;

 

•

Purchase of own shares off-market;

 

•

A reduction of issued share capital;

 

•

Approving a compromise/scheme of arrangement;

 

•

Resolving that New Linde be wound up by the Irish High Courts;

 

•

Resolving in favor of a shareholders’ voluntary winding-up;

 

•

Re-designation of shares into different share classes; and

 

•

Setting the re-issue price of treasury shares.

A scheme of arrangement with shareholders requires a court order from the Irish High Court and the approval of: (1) 75% of the voting shareholders by value; and (2) 50% in number of the voting shareholders, at a meeting called by the Irish High Court to approve the scheme.

Variation of Rights Attaching to a Class or Series of Shares

Variation of all or any special rights attached to any class or series of shares of New Linde will be addressed in the New Linde Constitution as well as the Irish Companies Act 2014. Any variation of class rights attaching to the issued shares of New Linde must be approved by a special resolution of the shareholders of the class or series affected.

 

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Quorum for General Meetings

The New Linde Constitution provides that no business shall be transacted at any general meeting unless a quorum is present. A quorum shall be two or more persons holding or representing by proxy more than 50% of the total issued voting rights of New Linde ordinary shares.

Inspection of Books and Records

Under Irish law, shareholders have the right to: (i) receive a copy of the New Linde Constitution and any act of the Irish government which alters the memorandum of association of New Linde; (ii) inspect and obtain copies of the minutes of general meetings and resolutions of New Linde; (iii) inspect and receive a copy of the register of shareholders, register of directors and secretaries, register of directors’ interests and other statutory registers maintained by New Linde; (iv) receive copies of statutory financial statements (or summary financial statements, where applicable) and directors’ and auditors’ reports which have previously been sent to shareholders prior to an annual general meeting; and (v) receive financial statements of a subsidiary company of New Linde which have previously been produced to an annual general meeting of such subsidiary in the preceding ten years. The auditors of New Linde will also have the right to inspect all books, records and vouchers of New Linde. The auditors’ report must be circulated to the shareholders with audited consolidated annual financial statements of New Linde 21 days before the annual general meeting and must be read to the shareholders at New Linde’s annual general meeting.

Appraisal and Similar Rights

Generally, under Irish law, shareholders of an Irish company do not have appraisal rights. However, Irish law does provide for dissenters’ rights in certain situations, as described below.

Under a tender or takeover offer, the bidder may require any remaining shareholders to transfer their shares on the terms of the offer (i.e., a “squeeze out”) if it has acquired, pursuant to the offer, not less than 80% of the target shares to which the offer relates (in the case of a company that is not listed on an EEA regulated market). Dissenting shareholders have the right to apply to the Irish High Court for relief.

A scheme of arrangement which has been approved by the requisite shareholder majority and approved by the Irish High Court will be binding on all shareholders. Dissenting shareholders have the right to appear at the Irish High Court hearing and make representations in objection to the scheme.

Under the EC (Cross-Border Mergers) Regulations 2008 (as amended) governing the merger of an Irish public limited company and a company incorporated in the European Economic Area (the EEA includes all member states of the EU, Norway, Iceland and Liechtenstein), a shareholder (a) who voted against the special resolution approving the merger or (b) of a company in which 90% of the shares is held by the other company the party to the merger of the transferor company, has the right to request that the company acquire its shares for cash.

Similar rights apply in the case of a merger of an Irish public limited company into another company to which the provisions of the Irish Companies Act 2014 apply.

Disclosure of Interests in Shares

Under the Irish Companies Act 2014, there is a notification requirement for shareholders who acquire or cease to be interested in 3% of the shares of an Irish public limited company. Immediately following the consummation of the Scheme, a shareholder of New Linde must therefore make such a notification to New Linde if as a result of a transaction the shareholder will be interested in 3% or more of the shares of New Linde; or if as a result of a transaction a shareholder who was interested in more than 3% of the shares of New Linde ceases to be so interested. Where a shareholder is interested in more than 3% of the shares of New Linde, any alteration of his,

 

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her or its interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction, must be notified to New Linde. The relevant percentage figure is calculated by reference to the aggregate par value of the shares in which the shareholder is interested as a proportion of the entire par value of New Linde’s issued and outstanding share capital. Where the percentage level of the shareholder’s interest does not amount to a whole percentage this figure may be rounded down to the next whole number. All such disclosures should be notified to New Linde within five business days of the Reorganization or alteration of the shareholder’s interests that gave rise to the requirement to notify. Where a person fails to comply with the notification requirements described above no right or interest of any kind whatsoever in respect of any shares in New Linde held by such person shall be enforceable by such person, whether directly or indirectly, by action or legal proceeding. However, such person may apply to the court to have the rights attaching to the shares concerned reinstated.

In addition to the above disclosure requirement, New Linde, under the Irish Companies Act 2014, may by notice in writing require a person whom New Linde knows or has reasonable cause to believe to be, or at any time during the three years immediately preceding the date on which such notice is issued, to have been interested in shares comprised in New Linde’s relevant share capital to: (a) indicate whether or not it is the case, and (b) where such person holds or has during that time held an interest in the shares of New Linde, to give such further information as may be required by New Linde including particulars of such person’s own past or present interests in shares of New Linde. Any information given in response to the notice is required to be given in writing within such reasonable time as may be specified in the notice.

Where such a notice is served by New Linde on a person who is or was interested in shares of New Linde and that person fails to give New Linde any information required within the reasonable time specified, New Linde may apply to court for an order directing that the affected shares be subject to certain restrictions. Under the Irish Companies Act 2014, the restrictions that may be placed on the shares by the court are as follows:

 

•

any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued with shares and any issue of shares, shall be void;

 

•

no voting rights shall be exercisable in respect of those shares;

 

•

no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and

 

•

no payment shall be made of any sums due from New Linde on those shares, whether in respect of capital or otherwise.

Where the shares in New Linde are subject to these restrictions, the court may order the shares to be sold and may also direct that the shares shall cease to be subject to these restrictions.

In the event New Linde is in an offer period pursuant to the Irish Takeover Rules, accelerated disclosure provisions apply for persons holding an interest in New Linde’s securities of 1% or more.

Individuals who directly or indirectly own or control greater than 25% of the shares in New Linde will be required to provide information for disclosure in registers to be kept by New Linde and the Registrar of Beneficial Ownership of Companies and Industrial and Provident Societies.

Anti-Takeover Provisions

Irish Takeover Rules and Substantial Acquisition Rules

A transaction by virtue of which a third party is seeking to acquire 30% or more of the voting rights of New Linde will be governed by Irish Takeover Rules and will be regulated by the Panel. The “General Principles” of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.

 

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General Principles

The Irish Takeover Rules are built on the following “General Principles” which will apply to any transaction regulated by the Panel:

 

•

in the event of an offer, all holders of securities of the target company should be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected;

 

•

the holders of the securities in the target company must have sufficient time and information to enable them to reach a properly informed decision on the offer; where it advises the holders of securities, the board of the target company must give its views on the effects of implementation of the offer on employment, conditions of employment and the locations of the target company’s places of business;

 

•

the board of the target company must act in the interests of the company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the offer;

 

•

false markets must not be created in the securities of the target company, of the bidder, or of any other company concerned by the offer in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted;

 

•

a bidder must announce an offer only after ensuring that it can fulfill in full, any cash consideration, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration;

 

•

a target company must not be hindered in the conduct of its affairs for longer than is reasonable by an offer for its securities; and

 

•

a “substantial acquisition” of securities (whether such acquisition is to be effected by one transaction or a series of transactions) shall take place only at an acceptable speed and shall be subject to adequate and timely disclosure.

Mandatory Bid

If an acquisition of shares were to increase the aggregate holding of an acquirer and its concert parties to shares carrying 30% or more of the voting rights in New Linde, the acquirer and, depending on the circumstances, its concert parties would be required (except with the consent of the Panel) to make a cash offer for the outstanding shares at a price not less than the highest price paid for the shares by the acquirer or its concert parties during the previous 12 months. This requirement would also be triggered by an acquisition of shares by a person holding (together with its concert parties) shares carrying between 30% and 50% of the voting rights in New Linde if the effect of such acquisition were to increase the percentage of the voting rights held by that person (together with its concert parties) by 0.05% within a twelve-month period. A single holder (that is, a holder excluding any parties acting in concert with the holder) holding more than 50% of the voting rights of a company is not subject to this rule.

Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements

A voluntary offer is an offer that is not a mandatory offer. If a bidder or any of its concert parties acquire New Linde ordinary shares within the period of three months prior to the commencement of the offer period, the offer price must be not less than the highest price paid for New Linde ordinary shares by the bidder or its concert parties during that period. The Panel has the power to extend the “look back” period to 12 months if the Panel, having regard to the General Principles, believes it is appropriate to do so.

If the bidder or any of its concert parties has acquired New Linde ordinary shares (i) that represent more than 10% of the total New Linde ordinary shares during the period of 12 months prior to the commencement of the

 

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offer period or (ii) at any time after the commencement of the offer period, then the offer shall be in cash (or accompanied by a full cash alternative), and the price per ordinary share shall be not less than the highest price paid by the bidder or its concert parties during, in the case of (i), the period of 12 months prior to the commencement of the offer period and, in the case of (ii), the offer period. The Panel may apply this rule to a bidder who, together with its concert parties, has acquired less than 10% of the total ordinary shares of New Linde in the 12 month period prior to the commencement of the offer period if the Panel, having regard to the General Principles, considers it just and proper to do so.

An offer period will generally commence from the date of the first announcement of the offer or proposed offer.

Substantial Acquisition Rules

The Irish Takeover Rules also contain rules governing substantial acquisitions of shares that restrict the speed at which a person may increase his, her or its holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of New Linde. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of New Linde is prohibited if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of New Linde and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such New Linde.

Frustrating Action

Under the Irish Takeover Rules, the New Linde Board will not be permitted to take any action which might frustrate an offer for the shares of New Linde once the New Linde Board has received an approach which may lead to an offer or has reason to believe an offer is imminent, subject to certain exceptions. Potentially frustrating actions such as (i) the issue of shares, options or convertible securities, (ii) material acquisitions or disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any time during which the New Linde Board has reason to believe an offer is imminent. Exceptions to this prohibition are available where:

 

•

the action is approved by New Linde’s shareholders at a general meeting; or

 

•

with the consent of the Panel where:

 

•

the Panel is satisfied the action would not constitute a frustrating action;

 

•

the holders of 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting;

 

•

in accordance with a contract entered into prior to the announcement of the offer; or

 

•

the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business.

For other provisions that could be considered to have an anti-takeover effect, please see above “Description of New Linde Share Capital—Pre-emption Rights, Share Warrants and Share Options” and “Description of New Linde Share Capital—Disclosure of Interests in Shares,” in addition to “Description of New Linde Share Capital—Corporate Governance” below.

Corporate Governance

The New Linde Constitution will allocate authority over the management of New Linde to the New Linde Board. The New Linde Board may then delegate management of New Linde to committees of the New Linde Board, executives, or to a management team, but regardless, the directors will remain responsible, as a matter of Irish law, for the proper management of the affairs of New Linde.

 

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Duration; Dissolution; Rights upon Liquidation

New Linde’s duration will be unlimited. New Linde may be dissolved at any time by way of either a shareholders’ voluntary winding up or a creditors’ winding up. In the case of a shareholders’ voluntary winding up, the consent of not less than 75% of the shareholders of New Linde will be required. New Linde may also be dissolved by way of court order on the application of a creditor, or by the Registrar of Companies as an enforcement measure where New Linde has failed to file certain returns.

The rights of the shareholders to a return of New Linde’s assets on dissolution or winding up, following the settlement of all claims of creditors, may be prescribed in the New Linde Constitution or the terms of any preferred shares issued by the New Linde Board from time to time. The holders of preferred shares, if any, in particular may have the right to priority in a dissolution or winding up of New Linde. If the constitution contains no specific provisions in respect of a dissolution or winding up then, subject to the priorities of any creditors, the assets will be distributed to shareholders in proportion to the paid-up par value of the shares held. In the event of a winding up, holders of ordinary shares in New Linde will be entitled to share in any assets of New Linde remaining after satisfaction in full of its liabilities and satisfaction of such dividend and liquidation preferences of holders of other classes of securities of New Linde, including any preferred shares.

Uncertificated Shares

New Linde ordinary shareholders will not have the right to require New Linde to issue certificates for their shares (unless required by the Irish Companies Act 2014, any stock exchange, depository or any operator of any clearance or settlement system). New Linde will only issue uncertificated ordinary shares.

Stock Exchange Listing

As of the completion of the Reorganization, New Linde ordinary shares are expected to be listed on the NYSE under the trading symbol “LIN.”

No Sinking Fund

New Linde ordinary shares have no sinking fund provisions.

No Liability for Further Calls or Assessments

New Linde ordinary shares will not be liable to further calls and assessments beyond any consideration required in connection with their initial issuance or vesting.

Transfer and Registration of Shares

New Linde’s share register will be maintained by its transfer agent. Registration in this share register will be determinative of shareholding in New Linde. A shareholder of New Linde who only holds shares beneficially will not be the shareholder of record of such shares. Instead, the depository (for example, Cede & Co., as nominee for the Depositary Trust Company) or other nominee will be the shareholder of record of such shares. Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who also holds such shares beneficially through a depository or other nominee will not be registered in New Linde’s official share register, as the depository or other nominee will remain the shareholder of record of such shares.

A written instrument of transfer is required under Irish law in order to register on New Linde’s official share register any transfer of shares (i) from a person who holds such shares directly to any other person, (ii) from a person who holds such shares beneficially to a person who holds such shares directly, or (iii) from a person who holds such shares beneficially to another person who holds such shares beneficially where the transfer involves a

 

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change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer also is required for a shareholder who directly holds shares to transfer those shares into his or her own broker, bank or other institution account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid prior to registration of the transfer on New Linde’s official Irish share register.

Consistent with Linde’s practice, New Linde does not intend to pay nor to cause one of its affiliates to pay stamp duty in connection with share transfers made in the ordinary course of trading by a seller who holds shares directly to a buyer who holds the acquired shares beneficially. In other cases, New Linde may, in its absolute discretion, cause one of its affiliates to pay any stamp duty. The New Linde Constitution will provide that, in the event of any such payment, New Linde (i) may seek reimbursement from the transferor or transferee (at New Linde’s discretion), (ii) may set-off the amount of the stamp duty against any future dividends payable to the transferor or transferee (at New Linde’s discretion), and (iii) will have a lien against New Linde’s shares on which it has paid stamp duty. Parties to a share transfer may assume that any stamp duty arising in respect of a transaction in New Linde’s shares has been paid unless one or both of such parties is otherwise notified by New Linde.

The New Linde Constitution will delegate to its secretary (or assistant secretary or anyone nominated by either of them) the authority to execute an instrument of transfer on behalf of a transferring party. In order to help ensure that the official share register is regularly updated to reflect trading of New Linde ordinary shares occurring through normal electronic systems, New Linde intends to regularly produce any required instruments of transfer in connection with any transactions for which it pays stamp duty (subject to the reimbursement and set-off rights described above). In the event that New Linde notifies one or both of the parties to a share transfer that it believes stamp duty is required to be paid in connection with such transfer and that it will not pay such stamp duty, such parties may either themselves arrange for the execution of the required instrument of transfer (and may request a form of instrument of transfer from New Linde for this purpose) or request that New Linde execute an instrument of transfer on behalf of the transferring party in a form determined by New Linde. In either event, if the parties to the share transfer have the instrument of transfer duly stamped (to the extent required) and then provide it to New Linde’s transfer agent, the transferee will be registered as the legal owner of the relevant shares on New Linde’s official Irish share register (subject to the matters described below).

New Linde Board has general discretion to decline to register an instrument of transfer unless:

 

•

the instrument of transfer is duly stamped (if required by law) and lodged with New Linde accompanied by the certificate for the shares (if any) to which it relates and such other evidence as the New Linde Board may reasonably require to show the right of the transferor to make the transfer;

 

•

the instrument of transfer is in respect of only one class of shares;

 

•

in the case of a transfer to joint holders, the number of joint holders to which the share is to be transferred does not exceed four; and

 

•

it is satisfied that all applicable consents, authorizations, permissions, or approvals required to be obtained pursuant to any applicable law or agreement prior to such transfer have been obtained or that no such consents, authorizations, permissions or approvals are required.

The New Linde Board may also, in its absolute discretion, and without assigning any reason, refuse to register a transfer of any share which is not fully paid.

The registration of transfers may be suspended by the New Linde Board at such times and for such period, not exceeding in the whole 30 days in each year, as the directors may from time to time determine.

 

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COMPARISON OF RIGHTS OF SHAREHOLDERS

After the Scheme Effective Time, New Linde ordinary shares will have substantially the same rights (other than certain statutory rights resulting from the FSE listing as set out below) attached to them as are currently attached to the Linde ordinary shares. As such, there will be no material variation or differences between the shares of New Linde and the shares of Linde. You are urged to read the New Linde Constitution, which is attached to this Proxy Statement as Annex B, and the Linde Constitution, which has been filed by Linde with the SEC.

The provisions of the Shareholder Rights Directive (as amended by the Revised Shareholder Rights Directive (“SRD II”) currently apply to Linde ordinary shares as a result of the shares being listed on the FSE, which is a European Union (“EU”) regulated market. SRD II obligations have been transposed into the Irish Companies Act via the European Union (Shareholders’ Rights) Regulations 2020 (SI 81 of 2020) (“SRD II Regulations”) and apply to “traded PLCs,” that is public limited companies whose shares are admitted to trading on an EU regulated market such as the FSE. The SRD II Regulations aim to promote greater shareholder involvement in corporate governance and enhance the rights of shareholders by imposing certain minimum standards on the exercise of voting rights attaching to EU listed shares.

After the Scheme Effective Time, as a result of delisting from the FSE, the following shareholder rights and provisions provided for under the SRD II Regulations will no longer attach to New Linde ordinary shares:

Remuneration Reporting

The SRD II Regulations provide that traded PLCs must submit their director remuneration policy to an advisory shareholder vote at least once every four years and otherwise when a material change to the approved policy is proposed. Regardless of the outcome of the vote, the company must apply either the new policy or a previously approved policy. Where a proposed policy is rejected at the annual general meeting, the legislation requires the company to submit a revised policy to a vote at the next annual general meeting. In addition, a remuneration report must be put to an advisory vote at each annual general meeting and the company must explain in subsequent remuneration reports how such votes have been taken into account in formulating director remuneration. These obligations will not apply to New Linde after the Scheme Effective Time.

Material Related Party Transactions

Material transactions with a related party (as defined in the SRD II Regulations) must be approved by shareholders at a general meeting prior to the conclusion of the Reorganization . Shareholders will lose this right of approval as a result of Linde delisting from the FSE.

Proxy Advisors

The SRD II Regulations contain obligations for proxy advisors that provide services to shareholders with respect to shares of a traded PLC. Where a relevant proxy advisor applies a code of conduct, it is required to publicly disclose, on an annual basis, a reference to the code of conduct and a report on its application of the code of conduct. Where a relevant proxy advisor does not apply a code of conduct it must publicly disclose a reasoned explanation for its failure to do so and where a relevant proxy advisor departs from their code of conduct, it is required to publicly disclose details of such departure. Proxy advisors are also required to publicly disclose information in relation to the preparation of their research, advice and voting recommendations, which must remain publicly available on their website for at least three years from the date of publication. Proxy advisors must also identify and as soon as possible disclose to their clients, details of any actual or potential conflict of interest, or business relationships that may influence the preparation of research, advice or voting recommendations together with the actions undertaken to eliminate, mitigate or mange the actual or potential conflict of interest. These obligations will cease to apply to proxy advisors that provide services to New Linde shareholders after the Scheme Effective Time.

 

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Facilitation of the Exercise of Shareholder Rights

Intermediaries in respect of the shares of any traded PLC must facilitate the exercise of a shareholder’s right to participate and vote at general meetings and certain requirements for the transmission of information as between the issuer, intermediaries and shareholders apply. In particular, when votes are cast the shareholder must be sent as soon as practicable, confirmation of receipt of an electronic vote; and on request by a shareholder, confirmation that the shareholder’s vote has been validly recorded and counted at a general meeting. This requirement will no longer apply to intermediaries in respect of New Linde ordinary shares after the Scheme Effective Time.

 

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INFORMATION ON SHARE OWNERSHIP

Principal Holders

To Linde’s knowledge, the only beneficial owners of more than 5% of Linde’s ordinary shares are the following:

 

Name and Address of Beneficial Owner		Number of Shares Beneficially Owned				Percent of Shares Outstanding(c)
The Vanguard Group, 100 Vanguard Blvd., Malvern, PA 19355			45,664,381	(a)			9.25	%
The Capital Group Companies, Inc., Los Angeles, CA			34,768,250	(b)			7.03	%
BlackRock, Inc., 55 East 52nd Street, New York, NY 10055			34,672,357	(b)			7.02	%

 

(a)

Holdings as of December 31, 2021, as reported in SEC Schedules 13G filed by the Vanguard Group. According to its Schedule 13G, Vanguard and certain of its affiliates had no sole voting power, shared voting power as to 736,093 shares, shared dispositive power as to 1,996,352 shares, and sole dispositive power as to 43,668,029 shares.

(b)

According to the Form TR-1 provided to the Company on November 8, 2022, pursuant to the Irish Transparency Regulations 2007, as amended, The Capital Group Companies, Inc. and certain of its subsidiaries had voting power as to 34,768,250 shares as of November 7, 2022. According to the Form TR-1 provided to the Company on July 21, 2022, pursuant to the Irish Transparency Regulations 2007, as amended, BlackRock, Inc. and certain of its affiliates had voting power as to 34,672,357 shares as of July 20, 2022.

(c)	Based on 493,913,703 total shares outstanding on November 8, 2022 excluding shares held for the account of Linde.

 

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Executive Officers

The table below sets forth the beneficial ownership of Linde’s ordinary shares as of November 16, 2022, by each director and certain executive officers. No director or executive officer of Linde beneficially owned more than 1% of Linde’s ordinary shares, and directors and executive officers of Linde as a group (17 persons) beneficially owned approximately 0.7% of the outstanding shares as of that date.

 

				Shares Beneficially Owned and Other Equity Interests
Name		Position		Ordinary Shares				Stock Units(1)				Total				Stock Options(2)
Stephen F. Angel		Chairman of the Board			580,823				370,389				954,212				1,306,118
Sanjiv Lamba		Chief Executive Officer			47,084				13,320				60,404				79,178
Matthew J. White		Executive Vice President—Chief Financial Officer			49,750				10,657				60,408				351,120
Sean Durbin		Executive Vice President—EMEA			10,432				4,006				14,438				40,962
John Panikar		Executive Vice President—APAC			20,354				4,221				24,575				17,038
Prof. DDr. Ann-Kristin Achleitner		Director			2,852				609				3,461				0
Dr. Thomas Enders		Director			11,587				609				12,196				0
Edward G. Galante		Director			13,062				21,877				34,939				0
Joe Kaeser		Director			1,000				609				1,609				0
Dr. Victoria E. Ossadnik		Director			1,795				609				2,403				0
Prof. Dr. Martin H. Richenhagen		Director			5,951				609				6,560				0
Alberto Weisser		Director			0				609				609				0
Robert L. Wood		Director			15,830				2,901				18,731				0
Total					760,520				431,025				1,194,545				1,794,416
Directors, Nominees and Executive Officers as a group		17 persons			819,070				447,626				1,266,695				2,048,533

(1)

Includes Deferred Stock Units and/or Restricted Stock Units held. Deferred Stock Units are stock price-based units into which deferred compensation has been invested pursuant to the deferred compensation plans for management and for non-employee directors. Restricted Stock Units are stock price-based units granted as long-term incentive awards to management and as equity compensation to non-employee directors. Holders have no voting rights with respect to either Deferred Stock Units or Restricted Stock Units. The value of Deferred Stock Units and Restricted Stock Units varies with the price of Linde’s ordinary shares and, at the end of the deferral period or the restriction period, the units are payable in Linde ordinary shares on a one-for-one basis.

(2)	Represent shares that may be acquired upon exercise of options exercisable within 60 days of November 1, 2022.

 

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DISCLOSURE OF INTERESTS

Under the Irish Companies Act 2014, persons must notify us if, as a result of a transaction, they will become interested in 3% or more of our shares or, if as a result of a transaction, the person who was interested in 3% or more of our shares ceases to be so interested. Where a person is interested in 3% or more of our shares, that person must notify us of any alteration in his or her interest that brings his or her total interest through the nearest whole percentage, whether an increase or a reduction. The relevant percentage figure is calculated by reference to the aggregate nominal value of our issued share capital (or any such class of share capital in issue). Where the percentage level of that person’s interest does not amount to a whole percentage, this figure may be rounded down to the next whole number. We must be notified within five business days of the transaction or alteration of the person’s interests that gave rise to the notification requirement. If a person fails to comply with these notification requirements, the person’s interest with respect to any of our ordinary shares that it holds will not be enforceable, either directly or indirectly. However, such person may apply to the Irish High Court to have the rights attaching to such shares reinstated.

SHAREHOLDERS SHARING AN ADDRESS

If you share an address with another shareholder, you may receive only one set of proxy materials (including this Proxy Statement) unless you have provided contrary instructions. If you wish to receive a separate set of proxy materials now or in the future, you may contact the bank or broker, bank or other institution that manages your account or, if you are a shareholder of record, you may contact Computershare at the address cited above. Similarly, if you share an address with another shareholder and have received multiple copies of the proxy materials, you may contact the bank or broker, bank or other institution that manages your account or, if you are a shareholder of record, you may contact Computershare at the above address to request delivery of only a single copy of these materials to your household.

 

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WHERE YOU CAN FIND MORE INFORMATION

We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission (SEC) under the Exchange Act. The SEC maintains a website that contains reports, proxy statements, information statements and other information about issuers that file electronically with the SEC. The address of the website is http://www.sec.gov. We also maintain a website at https://investors.linde.com/regulatory-filings. Our website, and the information contained on or accessible through our website, is not part of this Proxy Statement.

The SEC allows us to “incorporate by reference” the information we file with them, which means we are assumed to have disclosed important information to you when we refer you to documents that are on file with the SEC. The information we have incorporated by reference is an important part of this Proxy Statement, and information that we file later with the SEC will automatically update and supersede this information.

We incorporate by reference the documents listed below that we have filed with the SEC: 

 

Filing		Period or Date Filed
•  Annual Report on Form 10-K (including the sections incorporated by reference therein from our definitive Proxy Statement on Schedule 14A filed with the SEC on May 2, 2022)		Fiscal year ended December 31, 2021
•  Quarterly Reports on Form 10-Q		Fiscal quarters ended March  31, 2022, June  30, 2022 and September 30, 2022
•  Current Reports on Form 8-K		March 31, 2022 and  July 29, 2022

We also incorporate by reference any future documents we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the shareholder vote to which this Proxy Statement relates; provided that information furnished and not filed by us under any item of any Current Report on Form 8-K including the related exhibits is not incorporated by reference. The information that we file later with the SEC under sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and before the shareholder vote will automatically update and supersede previous information included or incorporated by reference in this Proxy Statement.

You may request a copy of all filings and documents incorporated by reference herein, at no cost, by writing or telephoning us at the following address or telephone number:

Linde plc

Forge, 43 Church Street West

Woking, Surrey GU21 6HT

United Kingdom

Attention: Investor Relations

+44 1483 24220

We have not authorized anyone to give any information or make any representation about the Reorganization or about us that differs from or adds to the information in this Proxy Statement or in the documents incorporated by reference. Therefore, you should not rely upon any information that differs from or is in addition to the information contained in this Proxy Statement or in the documents incorporated by reference.

The information contained in this Proxy Statement speaks only as of the date on the cover, unless the information specifically indicates that another date applies.

 

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OTHER MATTERS

Linde knows of no other matters to be submitted at the EGM. If any other matters properly come before the EGM, it is the intention of the persons named in the Form of Proxy for the EGM to vote the shares they represent as the Board may recommend. Discretionary authority with respect to such other matters is granted by the execution of the proxy, whether through telephonic or Internet voting or, alternatively, by using a paper copy of the Form of Proxy for the EGM that has been requested.

It is important that your shares be represented at the Shareholder Meetings, regardless of the number of shares that you hold. You are, therefore, urged to vote by telephone or by using the Internet as instructed on the Forms of Proxy or, if so requested, by executing and returning, at your earliest convenience, the requested Forms of Proxy in the envelope that will have been provided or as instructed by your broker.

Irish Statutory Shareholder Proposal Deadline. To be considered timely pursuant to section 1104 of the Irish Companies Act 2014, a request by a shareholder (or shareholders) holding 3% of the issued share capital of Linde (representing at least 3% of the total voting rights of all of the shareholders having a right to vote at the EGM) to present a draft resolution for an item on the agenda of the EGM (but not the Court Meeting) under Section 1104 of the Irish Companies Act 2014 must be received by Linde in written or electronic form no later than                .

Shareholder Questions. Pursuant to section 1107 of the Irish Companies Act 2014, shareholders have a right to ask questions related to items on the agenda of the EGM and to have such questions answered by Linde subject to any reasonable measures that Linde may take to ensure the identification of shareholders. An answer is not required if (a) an answer has already been given on Linde’s website in the form of a “Q&A,” (b) it would interfere unduly with the preparation for the meeting or the confidentiality and business interests of Linde or (c) it appears to the Chairman of the meeting that it is undesirable in the interests of good order of the meeting that the question be answered.

            , 2022

 

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Annex A

THE SCHEME OF ARRANGEMENT

THE HIGH COURT

IN THE MATTER OF

LINDE PLC

AND IN THE MATTER OF

THE COMPANIES ACT 2014

SCHEME OF ARRANGEMENT

(UNDER CHAPTER 1 OF PART 9 OF THE COMPANIES ACT 2014)

BETWEEN

LINDE PLC

AND

THE HOLDERS OF THE SCHEME SHARES (AS HEREINAFTER DEFINED)

PRELIMINARY

 

A.	In this Scheme, unless inconsistent with the subject or context, the following expressions bear the following meanings:

 

“Act”		the Companies Act 2014, all enactments which are to be read as one with, or construed or read together as one with the Companies Act 2014 and every statutory modification and re-enactment thereof for the time being in force;
“Business Day”		any day, other than a Saturday, Sunday, public holiday or a day on which banks in Ireland or in New York are authorized or required by law or executive order to be closed;
“Cent”		a cent of a U.S. dollar;
“Circular”		the proxy statement dated , 2022 sent to Linde Shareholders of which this Scheme forms part;
“Court Meeting”		the meeting or meetings of Linde Shareholders or, if applicable, any class or classes of Linde Shareholders convened by order of the Irish Court to consider and vote on the Court Scheme of Arrangement Proposal, including any adjournment of such meeting(s) thereof;
“Court Order”		the order or orders of the Irish Court approving the Scheme under Section 453 of the Act;
“Court Scheme of Arrangement Proposal”		the proposal to be considered and voted on at the Court

 

A-1

		Meeting proposing that the Scheme, with or without amendment (but subject to such amendment being acceptable to each of Linde and New Linde, except for a technical or procedural amendment which is required for the proper implementation of the Scheme and does not have a substantive consequence on the implementation of the Scheme), be agreed to;
“Effective Date”		the date on which this Scheme becomes effective in accordance with its terms;
“Effective Time”		the time on the Effective Date at which the Scheme becomes effective in accordance with its terms;
“EGM”		the extraordinary general meeting of Linde Shareholders (and any adjournment thereof) to be convened in connection with the Scheme on , 2023, at or, if later, immediately after the conclusion or adjournment of the Court Meeting (it being understood that if the Court Meeting is adjourned, the EGM shall be correspondingly adjourned);
“€”		the euro, the lawful currency of Ireland;
“Existing New Linde Shares”		ordinary shares of €0.001 each in the capital of New Linde;
“Forms of Proxy”		the form of proxy for the Court Meeting and the form of proxy for the EGM, as the context may require;
“Irish Court”		the High Court of Ireland;
“Linde”		Linde plc, incorporated in Ireland with registered number 602527;
“Linde Deferred Shares”		deferred shares of €1.00 each in the capital of Linde;
“Linde Ordinary Shares”		ordinary shares of €0.001 each in the capital of Linde;
“Linde Shareholders”		holders of Linde Ordinary Shares;
“New Linde”		Rounderway plc, an Irish incorporated company with registration number 606357;
“New Linde Shares”		the new ordinary shares of €0.001 each in the capital of New Linde to be issued credited as fully paid to Scheme Shareholders pursuant to the Scheme;
“Parties”		Linde and New Linde, and “Party” shall mean either Linde on the one hand, or New Linde (whether individually or collectively), on the other hand (as the context requires);
“Register of Members”		the register of members maintained by Linde pursuant to the Act;
“Registrar of Companies”		the registrar of companies in Dublin, Ireland (being the “Registrar” as defined in Section 2 of the Act);
“Restricted Jurisdiction”		any jurisdiction in relation to which Linde or New Linde (as the case may be) is advised that, into or

 

A-2

		from which the release, publication or distribution of the Circular or related Forms of Proxy in whole or in part would or might infringe the laws of that jurisdiction or would or might require compliance with any governmental or other consent or any registration, filing or other formality with which either Party is unable to comply with or regards as unduly onerous to comply with;
“Restricted Overseas Shareholder”		a Linde Shareholder (including an individual, partnership, limited liability company, unincorporated organisation, trust, trustee, executor, administrator or other legal representative) in, or resident in, or any Linde Shareholder whom Linde believes to be in, or resident in, a Restricted Jurisdiction;
“Scheme” or “Scheme of Arrangement”		this scheme of arrangement between Linde and Linde Shareholders as set out in “Annex A – The Scheme of Arrangement” of the Circular and on such other terms and in such form not being inconsistent therewith as the Parties mutually agree in writing, including any revision thereof as may be so agreed between the Parties with or subject to any modifications, additions or conditions which the Irish Court may approve or impose;
“Scheme Consideration”		the New Linde Shares to be allotted and issued in accordance with clause 2.1 as consideration for the transfer to New Linde of the Scheme Shares;
“Scheme Record Time”		11.59 p.m. Eastern Time on the last Business Day before the Effective Date;
“Scheme Shareholder”		each holder of Scheme Shares;
“Scheme Shares”		the Linde Ordinary Shares in issue at the Scheme Record Time, excluding any Treasury Shares and, for the avoidance of doubt, any Linde Deferred Shares;
“Subsidiary”		has the meaning in Section 7 of the Act;
“Treasury Shares”		any shares held in Linde by Linde or any Subsidiary of Linde, but excluding any such shares held by Linde or a Subsidiary of Linde in the capacity of trustee only, where neither Linde nor any Subsidiary of Linde is beneficially interested in those shares under the terms of the relevant trust;
“US$” or “U.S. dollar”		United States dollar, being the lawful currency of the United States of America;
“US” or “United States”		the United States of America, its territories and possessions, any State of the United States of America and the District of Columbia and all other areas subject to its jurisdiction; and

 

A-3

and references to clauses are to clauses of this Scheme.

 

B.

The authorised share capital of Linde on the date hereof is €1,825,000 divided into 1,750,000,000 Ordinary Shares of €0.001 each, 25,000 A Ordinary Shares of €1.00 each, 25,000 Deferred Shares of €1.00 each and 25,000,000 preferred shares of €0.001 each. As of                , 2022, being the latest practicable date prior to the publication of the Circular, there were                Linde Ordinary Shares issued and credited as fully paid, of which                  Linde Ordinary Shares were held as Treasury Shares.

 

C.	The purpose of the Scheme is to provide for transfer of the Scheme Shares to New Linde in consideration for the allotment and issue of the New Linde Shares to the Scheme Shareholders.

 

D.

New Linde will rely on the Irish Court’s sanctioning of the Scheme for the purpose of qualifying for the exemption from the registration requirements of the U.S. Securities Act of 1933, as amended, provided by Section 3(a)(10) thereof with respect to the New Linde Shares to be issued pursuant to this Scheme.

 

E.

New Linde has agreed to submit to the terms of the Scheme. Each of Linde and New Linde undertakes to the Irish Court to be bound by and to execute and do and procure to be executed and done all such documents, acts and things as may be necessary or desirable to be executed or done by it for the purpose of giving effect to this Scheme.

 

F.	All references are to Irish time unless otherwise stated.

The Scheme

 

1.	Transfer of Scheme Shares

 

1.1

Pursuant to Chapter 1 of Part 9 of the Act, New Linde shall with effect from the Effective Time acquire all of the Scheme Shares (including the legal and beneficial interest therein) fully paid, free from all liens, equities, charges, encumbrances, rights of pre-emption and any other third party rights and other interests and together with all and any rights at the date of this Scheme or thereafter attached thereto including voting rights and the right to receive and retain in full all dividends and other distributions declared, paid or made thereon on or after the Effective Date (other than dividends or other distributions described in clause 1.3 below, which shall accrue for the benefit of the relevant Scheme Shareholder).

 

1.2

For such purposes, the Scheme Shares shall be transferred to New Linde by means of a form of transfer or other instrument of transfer and for such purpose New Linde may appoint any person to act, and who shall be authorised, as attorney or agent for any Scheme Shareholder to:

 

1.2.1

execute and deliver as transferor a form of transfer or other instrument or instruction of transfer in favour of New Linde and / or its nominee(s) on behalf of the Scheme Shareholder;

 

1.2.2

give a good receipt in respect of consideration received in respect of any such transfer; and

 

1.2.3

give such instructions and to do all other things which s/he may consider necessary or expedient in connection with such transfer, and may without the need for any further action being required to give effect thereto,

and every form, instrument, or instruction executed or delivered or other such thing done so shall be as effective as if it has been executed, delivered or done by the Scheme Shareholder to which such form, instrument, instruction, or thing relates.

 

1.3

Any dividend or other distribution declared, paid or made before the Effective Date in respect of any Scheme Shares shall accrue for the benefit of the relevant Scheme Shareholders by reference to the record date for such dividend or distribution.

 

2.	Conditions

The Scheme of Arrangement will not be completed unless, among other things, the following conditions are satisfied or, if allowed by law, waived:

 

2.1

a proxy statement has been filed with the SEC by Linde;

 

A-4

2.2

the approval of the Scheme by the requisite majority at the Court Meeting (or any adjournment thereof);

 

2.3

the passing of all resolutions (by the requisite majority of Linde shareholders at the EGM (or any adjournments thereof), as applicable);

 

2.4

the Irish Court’s approval of the Scheme (without material modification (but subject to any such material modification being acceptable to Linde and New Linde)) and the delivery of the Court Order to the Registrar of Companies;

 

2.5

the passing by New Linde of all such resolution or resolutions that are necessary to approve, implement and give effect to the Scheme and the acquisition of Scheme Shares pursuant to the Scheme or otherwise (including a resolution or resolutions to authorize the creation, allotment and issue of the New Linde ordinary shares);

 

2.6

there being no threatened, pending or effective decree, order, injunction or other legal restraint prohibiting the effectiveness of the Scheme;

 

2.7

the New Linde ordinary shares to be issued pursuant to the Scheme being authorized for listing on NYSE, subject to official notice of issuance;

 

2.8

all consents and governmental authorisations, if any, in connection with the Scheme and related transactions are obtained on terms acceptable to New Linde and are in full force and effect;

 

2.9

all conditions precedent for the effective implementation of the Scheme have been satisfied or, to the extent permitted by law, waived; and

 

2.10

all waivers and amendments, if any, have been obtained, which waivers and amendments address and cure any defaults that would otherwise result from the Scheme.

 

3.	Scheme Consideration for the transfer of the Scheme Shares

 

3.1

In consideration for the transfer of the Scheme Shares pursuant to clause 1.1, New Linde shall allot and issue New Linde Shares to (or for the account of) each Scheme Shareholder in accordance with clause 4 on the following basis:

1 New Linde Share for each Scheme Share

 

3.2

The New Linde Shares allotted and issued pursuant to clause 3.1 shall:

 

3.2.1

be issued credited as fully paid, shall be free from all liens, equities, charges, encumbrances, rights of pre-emption and any other third party rights and other interests of any nature whatsoever;

 

3.2.2

rank equally in all respects with all other Existing New Linde Shares in issue on the Effective Date; and

 

3.2.3

be entitled to all dividends and other distributions declared, paid or made by New Linde by reference to a record date on or after the Effective Date.

 

3.3

None of New Linde, Linde or their respective agents shall be liable to any Scheme Shareholder for any cash payment, dividends or distributions with respect to Scheme Shares delivered to a public official in compliance with any law relating to abandoned property, escheat or law permitting attachment of money or property or similar law.

 

4.	Settlement of Scheme Consideration

 

4.1

New Linde will appoint a transfer agent to effect the technical implementation of the settlement of the Scheme Consideration. For this purpose, on or immediately after the Effective Date, New Linde shall deposit, or cause to be deposited, with the transfer agent, for the benefit of the Scheme Shareholders’ certificates or, at New Linde’s option, evidence of shares in book-entry form representing the aggregate Scheme Consideration.

 

A-5

4.2

As soon as reasonably practicable following the Effective Date New Linde shall issue and allot, and cause the transfer agent to deliver, the New Linde Shares it is required to issue, allot and deliver to the persons entitled thereto in accordance with clause 3.1, unless otherwise properly directed by the person entitled thereto.

 

5.	Overseas Shareholders

 

5.1

The provisions of clauses 1, 3, 4 and 6 shall be subject to any prohibition or condition imposed by law. Without prejudice to the generality of the foregoing, if any Scheme Shareholder has a registered address in a jurisdiction outside Ireland or the United States, and New Linde is advised or reasonably believes that the allotment and / or issue of New Linde Shares to that Scheme Shareholder in accordance with this Scheme would or may infringe the laws of such jurisdiction or would or may require New Linde to observe any governmental or other consent or any registration, filing or other formality with which New Linde is unable to comply or which New Linde believes is unduly onerous to comply with, New Linde may, in its sole discretion, either:

 

5.1.1

determine that the New Linde Shares shall not be allotted and / or issued to such Scheme Shareholder but shall instead be allotted and issued to a nominee appointed by New Linde to act on behalf of and for the benefit of such Scheme Shareholder on terms that the nominee shall, as soon as practicable following the Effective Date, sell the New Linde Shares so allotted and issued and be sold in the open market in accordance with clauses 6.1 and 6.2; or

 

5.1.2

determine that the New Linde Shares shall be sold, in which event the New Linde Shares shall be issued to such Scheme Shareholder and New Linde shall appoint a person to act (and such person shall be authorised) on behalf of and for the benefit of such Scheme Shareholder to procure that any shares in respect of which New Linde has made such a determination shall as soon as practicable following the Effective Date be sold in the open market in accordance with clauses 6.1 and 6.2.

 

5.2

Notwithstanding the provisions of clause 5.1, Linde retains the right to permit the release, publication or distribution of the Circular and / or the Forms of Proxy to any Restricted Overseas Shareholder who satisfies Linde (such satisfaction to be determined subjectively by Linde, acting in its absolute discretion) that doing so will not infringe the laws of the relevant Restricted Jurisdiction or require compliance with any governmental or other consent or any registration, filing or other formality that Linde is unable to comply with or which Linde regards as unduly onerous to comply with.

 

6.	Sale and settlement in respect of certain New Linde Shares

 

6.1

To effect any sale of New Linde Shares in accordance with clauses 5.1.1 or 5.1.2, New Linde may appoint any person to act, and who shall be authorised, as attorney or agent for the Scheme Shareholder, without the need for any further action being required to give effect thereto, to:

 

6.1.1

execute and deliver as transferor a form of transfer or other instrument or instruction of transfer in favour of New Linde and / or its nominee(s);

 

6.1.2

give a good receipt in respect of consideration received in respect of any such transfer; and

 

6.1.3

give such instructions and to do all other things which s/he may consider necessary or expedient in connection with such sale or transfer,

on behalf of the Scheme Shareholder and every form, instrument, or instruction executed or delivered or other such thing done so shall be as effective as if it has been executed, delivered or done by the Scheme Shareholder to which such form, instrument, instruction, or thing relates.

 

6.2

Any sale of New Linde Shares effected in accordance with clauses 5.1.1 or 5.1.2 shall be at the market price and New Linde shall, as soon as reasonably practicable following the Effective Date, procure the

 

A-6

despatch to each person entitled thereto a cheque in respect of the net proceeds of such sale (after the deduction of all expenses and commissions), and rounded down to the nearest Cent.

 

6.3

Each mandate in force on the Effective Date relating to the payment of dividends or other distributions on any Scheme Shares and other instructions given to Linde by Scheme Shareholders shall, unless notice of revocation of such instructions is received by the transfer agent prior to the Scheme Record Time, be deemed to be an effective mandate or instruction to New Linde to pay and despatch any amount payable to any Scheme Shareholder under this Scheme in accordance with such mandate.

 

6.4

Subject to clause 6.3, all despatches of cheques pursuant to clause 6.2 shall be effected by sending each cheque by first class post / mail (or international standard post / mail, if overseas) in pre-paid envelopes addressed to the persons entitled thereto at their respective addresses as appearing in the Register of Members at the Scheme Record Time or, in the case of joint holders of Scheme Shares, at the address of the joint holder whose name stands first in such register in respect of such joint holding at the Scheme Record Time. None of New Linde, Linde or any person or nominee appointed by New Linde or their respective agents shall be responsible for any loss or delay in transition or delivery of any cheque sent in accordance with this clause 6.4 which shall be sent entirely at the risk of the persons entitled thereto.

 

6.5

Subject to clause 6.3, all cheques drawn in accordance with this clause 6 shall be in U.S. dollars drawn on a US clearing bank and shall be made payable to the persons respectively entitled to the moneys represented thereby (except that, in the case of joint holders, New Linde reserves the right to make such cheques payable to that one of the joint holders whose name stands first in the Register of Members in respect of such joint holding at the Scheme Record Time), and the despatch of any such cheque in accordance with 6.2 shall be a complete discharge of New Linde’s obligations under this Scheme to pay the monies represented thereby.

 

6.6

In the absence of bad faith or wilful default, none of New Linde, Linde, any person or nominee appointed by New Linde, Linde or their respective agents shall have any liability for any loss or damage arising as a result of sale or transfer (including as a result of the timing or terms of such sale or transfer) or any instrument of transfer executed and / or delivered or any other thing done for or on behalf of any Scheme Shareholder or otherwise pursuant to this Scheme.

 

7.	Certificates for Scheme Shares

With effect from the Effective Date all certificates representing Scheme Shares shall cease to have effect as documents of title to the shares comprised therein and every holder thereof shall be bound at the request of Linde to deliver up such certificate(s) to Linde or as it may direct.

 

8.	Authority pending registration of transfer

 

8.1

With effect from the Effective Time and until the Register of Members is updated to reflect the transfer of the Scheme Shares pursuant to clause 1:

 

8.1.1

each Scheme Shareholder irrevocably appoints New Linde (or such of its nominee(s) as are directed by New Linde) to exercise on its behalf any votes and any or all other rights and privileges (including, without limitation, the right to requisition the convening of a general meeting of Linde or of any class of shareholders of Linde) attaching to the Scheme Shares;

 

8.1.2

each Scheme Shareholder authorises Linde and / or its agents to send any notice, circular, warrant, document or other communication which may be required to be sent to such Scheme Shareholder as a member of Linde in respect of their Scheme Shares to New Linde (and / or such of its nominee(s) as are directed by New Linde) at New Linde’s registered office;

 

8.1.3

each Scheme Shareholder irrevocably appoints New Linde (or such of its nominee(s) as are directed by New Linde) and / or any one or more of its directors or agents to sign on behalf of

 

A-7

such Scheme Shareholder such documents, and to do such things, as may, in the opinion of New Linde and / or any one or more of its directors or agents, to be necessary or desirable in connection with the exercise of any votes or other rights or privileges attaching to the relevant Scheme Shares (including, without limitation, an authority to sign any consent to short notice of a general or separate class meeting of Linde as attorney or agent for, and on behalf of, such Scheme Shareholder and / or to attend and / or execute a form of proxy in respect of such Scheme Shares appointing any person nominated by New Linde and / or any one or more of its directors or agents to attend general and separate class meetings of Linde (or any adjournment thereof), and to exercise or refrain from exercising the votes attaching to the Scheme Shares on such Scheme Shareholder’s behalf); and

 

8.1.4

each Scheme Shareholder irrevocably undertakes:

 

(a)

not to exercise any votes or any other rights attaching to the relevant Scheme Shares without the prior written consent of New Linde; and

 

(b)

not to appoint a proxy or representative for, or to attend any general meeting or separate class meeting, of Linde.

 

9.	Dividend mandates and communications preferences

All mandates relating to the monetary payment of dividends on the Scheme Shares and other instructions, including in respect of shareholder communications (e.g. annual reports), given to Linde by Scheme Shareholders in force at the Scheme Record Time relating to their holdings of Scheme Shares will, unless amended or revoked, be deemed from the Effective Date to be an effective mandate or instruction to New Linde in respect of the corresponding New Linde Shares.

 

10.	The Effective Date

 

10.1

This Scheme shall become effective on delivery to the Registrar of Companies of the Court Order.

 

10.2

Unless this Scheme shall have become effective and unconditional on or before 30 June, 2023 or such later date as Linde and New Linde may agree, subject to receiving the consent of the Irish Court, in each case if required, this Scheme will never become effective.

 

11.	Modification

Linde and New Linde may jointly consent on behalf of all persons concerned to any modification of or addition to this Scheme or any condition that the Irish High Court may approve or impose.

 

12.	Governing Law

This Scheme shall be governed by and construed in accordance with the laws of Ireland and Linde and the Scheme Shareholders hereby agree that the Irish Court shall have exclusive jurisdiction to hear and determine any suit, action or proceeding or to settle any dispute which may arise in relation thereto and the sanction thereof.

Dated:                 ,                 

 

 

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Annex B

Companies Act 2014

PUBLIC LIMITED COMPANY

CONSTITUTION

OF

[NEW LINDE]

MEMORANDUM OF ASSOCIATION

 

1.	The name of the Company is [NEW LINDE].

 

2.	The Company is a public limited company, registered under Part 17 of the Companies Act 2014.

 

3.	The objects for which the Company is established are:

 

3.1

To carry on the business of a holding company and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company’s board of directors and to exercise its powers as a shareholder of other companies.

 

3.2

To carry on the businesses of manufacturer, distributor, wholesaler, retailer, service provider, investor, designer, trader and any other business (except the issuing of policies of insurance) which may seem to the Company’s board of directors capable of being conveniently carried on in connection with these objects or calculated directly or indirectly to enhance the value of or render more profitable any of the Company’s property.

 

3.3

To carry on all or any of the businesses as aforesaid either as a separate business or as the principal business of the Company.

 

3.4

To invest and deal with the property of the Company in such manner as may from time to time be determined by the Company’s board of directors and to dispose of or vary such investments and dealings.

 

3.5

To borrow or raise money or capital in any manner and on such terms and subject to such conditions and for such purposes as the Company’s board of directors shall think fit or expedient, whether alone or jointly and/or severally with any other person or company, including, without prejudice to the generality of the foregoing, whether by the issue of debentures or debenture stock (perpetual or otherwise) or otherwise, and to secure, with or without consideration, the payment or repayment of any money borrowed, raised or owing or any debt, obligation or liability of the Company or of any other person or company whatsoever in such manner and on such terms and conditions as the Company’s board of directors shall think fit or expedient and, in particular by mortgage, charge, lien, pledge or debenture or any other security of whatsoever nature or howsoever described, perpetual or otherwise, charged upon all or any of the Company’s property, both present and future, and to purchase, redeem or pay off any such securities or borrowings and also to accept capital contributions from any person or company in any manner and on such terms and conditions and for such purposes as the Company’s board of directors shall think fit or expedient.

 

3.6

To lend and advance money or other property or give credit or financial accommodation to any company or person in any manner either with or without security and whether with or

 

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without the payment of interest and upon such terms and conditions as the Company’s board of directors shall think fit or expedient.

 

3.7

To guarantee, indemnify, grant indemnities in respect of, enter into any suretyship or joint obligation, or otherwise support or secure, whether by personal covenant, indemnity or undertaking or by mortgaging, charging, pledging or granting a lien or other security over all or any part of the Company’s property (both present and future) or by any one or more of such methods or any other method and whether in support of such guarantee or indemnity or suretyship or joint obligation or otherwise, on such terms and conditions as the Company’s board of directors shall think fit, the payment of any debts or the performance or discharge of any contract, obligation or liability of any person or company (including, without prejudice to the generality of the foregoing, the payment of any capital, principal, dividends or interest on any stocks, shares, debentures, debenture stock, notes, bonds or other securities of any person, authority or company) including, without prejudice to the generality of the foregoing, any company which is for the time being the Company’s holding company or another subsidiary (as defined by the Act) of the Company’s holding company or a subsidiary of the Company or otherwise associated with the Company (including any arrangements of the Company or any of its subsidiaries described in paragraph 3.19), in each case notwithstanding the fact that the Company may not receive any consideration, advantage or benefit, direct or indirect, from entering into any such guarantee or indemnity or suretyship or joint obligation or other arrangement or transaction contemplated herein.

 

3.8

To grant, convey, assign, transfer, exchange or otherwise alienate or dispose of any property of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value thereof or for shares, debentures or securities and whether by way of gift or otherwise as the Company’s board of directors shall deem fit or expedient and where the property consists of real property to grant any fee farm grant or lease or to enter into any agreement for letting or hire of any such property for a rent or return equal to or less than the market or rack rent therefor or at no rent and subject to or free from covenants and restrictions as the Company’s board of directors shall deem appropriate.

 

3.9

To purchase, take on, lease, exchange, rent, hire or otherwise acquire any property and to acquire and undertake the whole or any part of the business and property of any company or person.

 

3.10

To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting out and improving buildings and conveniences and by planting, paving, draining, farming, cultivating, letting and by entering into building leases or building agreements and by advancing money to and entering into contracts and arrangements of all kinds with builders, contractors, architects, surveyors, purchasers, vendors, tenants and any other person.

 

3.11

To construct, improve, maintain, develop, work, manage, carry out or control any property which may seem calculated directly or indirectly to advance the Company’s interest and to contribute to, subsidise or otherwise assist or take part in the construction, improvement, maintenance, working, management, carrying out or control thereof.

 

3.12

To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments.

 

3.13

To engage in currency exchange, interest rate and commodity transactions including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars and any other foreign exchange, interest rate or commodity hedging arrangements and such other instruments as are similar to,

 

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or derived from, any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency, interest rate or commodity exposure or any other exposure or for any other purpose.

 

3.14

As a pursuit in itself or otherwise and whether for the purpose of making a profit or avoiding a loss or managing a currency, interest rate or commodity exposure or any other exposure or for any other purpose whatsoever, to engage in any currency exchange transactions, interest rate transactions and commodity transactions, derivative and/or treasury transactions and any other financial or other transactions, including (without prejudice to the generality of the foregoing) securitisation, treasury and/or structured finance transactions, of whatever nature in any manner and on any terms and for any purposes whatsoever, including, without prejudice to the generality of the foregoing, any transaction entered into in connection with or for the purpose of, or capable of being for the purposes of, avoiding, reducing, minimising, hedging against or otherwise managing the risk of any loss, cost, expense, or liability arising, or which may arise, directly or indirectly, from a change or changes in any interest rate or currency exchange rate or in the price or value of any property, asset, commodity, index or liability or from any other risk or factor affecting the Company’s business, including but not limited to dealings whether involving purchases, sales or otherwise in foreign currency, spot and/or forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars and/or any such other currency or interest rate or commodity or other hedging, treasury or structured finance arrangements and such other instruments as are similar to, or derived from any of the foregoing.

 

3.15

To apply for, establish, create, purchase or otherwise acquire, sell or otherwise dispose of and hold any patents, trade marks, copyrights, brevets d’invention, registered designs, licences, concessions and the like conferring any exclusive or non-exclusive or limited rights to use or any secret or other information and any invention and to use, exercise, develop or grant licences in respect of or otherwise turn to account or exploit the property, rights or information so held.

 

3.16

To enter into any arrangements with any governments or authorities, national, local or otherwise and to obtain from any such government or authority any rights, privileges and concessions and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions.

 

3.17

To establish, form, register, incorporate or promote any company or companies or person, whether inside or outside of Ireland.

 

3.18

To procure that the Company be registered or recognised whether as a branch or otherwise in any country or place.

 

3.19

To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction and to engage in any transaction in connection with the foregoing.

 

3.20

To acquire or amalgamate with any other company or person.

 

3.21

To acquire and undertake the whole or any part of the business, good-will and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which this Company is authorised to carry on, and as part of the consideration for such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into any arrangement for sharing profits, or for co-operation, or for mutual assistance with any such person, firm or company and to give or accept by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain or sell, mortgage or deal with any shares, debentures, debenture stock or securities so received.

 

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3.22

To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association, or do any other lawful act or thing with a view to preventing or resisting directly or indirectly any interruption of or interference with the Company’s or any other trade or business or providing or safeguarding against the same, or resisting or opposing any strike, movement or organisation which may be thought detrimental to the interests of the Company or its employees and to subscribe to any association or fund for any such purposes.

 

3.23

To make gifts to any person or company including, without prejudice to the generality of the foregoing, capital contributions and to grant bonuses to the directors or any other persons or companies who are or have been in the employment of the Company including substitute directors and any other officer or employee.

 

3.24

To establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit directors, ex-directors, employees or ex-employees of the Company or any subsidiary of the Company or the dependants or connections of such persons, and to grant pensions and allowances upon such terms and in such manner as the Company’s board of directors think fit, and to make payments towards insurance and to subscribe or guarantee money for charitable or benevolent objects or for any exhibition or for any public, general or useful object, or any other object whatsoever which the Company’s board of directors may think advisable.

 

3.25

To establish and contribute to any scheme for the purchase of shares or subscription for shares in the Company, its holding company or any of its or their respective subsidiaries, to be held for the benefit of the employees or former employees of the Company or any subsidiary of the Company including any person who is or was a director holding a salaried employment or office in the Company or any subsidiary of the Company and to lend or otherwise provide money to the trustees of such schemes or the employees or former employees of the Company or any subsidiary of the Company to enable them to purchase shares of the Company, its holding company or any of its or their respective subsidiaries and to formulate and carry into effect any scheme for sharing the profits of the Company, its holding company or any of its or their respective subsidiaries with its employees and/or the employees of any of its subsidiaries.

 

3.26

To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital or any debentures, debenture stock or other securities of the Company or in or about the formation or promotion of the Company or the conduct of its business.

 

3.27

To obtain any Act of the Oireachtas or provisional order for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company’s constitution or for any other purpose which may seem expedient and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company’s interests.

 

3.28

To adopt such means of making known the products of the Company as may seem expedient and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards and donations.

 

3.29

To undertake and execute the office of trustee and nominee for the purpose of holding and dealing with any property of any kind for or on behalf of any person or company; to act as trustee, nominee, agent, executor, administrator, registrar, secretary, committee or attorney generally for any purpose and either solely or with others for any person or company; to vest any property in any person or company with or without any declared trust in favour of the Company.

 

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3.30

To pay all costs, charges, fees and expenses incurred or sustained in or about the promotion, establishment, formation and registration of the Company.

 

3.31

To do all or any of the above things in any part of the world, and as principals, agents, contractors, trustees or otherwise and by or through trustees, agents or otherwise and either alone or in conjunction with any person or company.

 

3.32

To distribute the property of the Company in specie among the members or, if there is only one, to the sole member of the Company.

 

3.33

To do all such other things as the Company’s board of directors may think incidental or conducive to the attainment of the above objects or any of them.

NOTE: it is hereby declared that in this memorandum of association:

 

a)

the word “company”, except where used in reference to this Company, shall be deemed to include a body corporate, whether a company (wherever formed, registered or incorporated), a corporation aggregate, a corporation sole and a national or local government or other legal entity; and

 

b)

the word “person”, shall be deemed to include any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person’s personal representatives, successors or permitted assigns; and

 

c)

the word “property”, shall be deemed to include, where the context permits, real property, personal property including choses or things in action and all other intangible property and money and all estates, rights, titles and interests therein and includes the Company’s uncalled capital and future calls and all and every other undertaking and asset; and

 

d)

a word or expression used in this memorandum of association which is not otherwise defined and which is also used in the Companies Act 2014, as amended, shall have the same meaning here, as it has in the Companies Act 2014, as amended; and

 

e)

any phrase introduced by the terms “including”, “include” and “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, whether or not followed by the phrases “but not limited to”, “without prejudice to the generality of the foregoing” or any similar expression; and

 

f)

words denoting the singular number only shall include the plural number and vice versa and references to one gender includes all genders; and

 

g)

it is intended that the objects specified in each paragraph in this clause shall, except where otherwise expressed in such paragraph, be separate and distinct objects of the Company and shall not be in any way limited or restricted by reference to or inference from the terms of any other paragraph or the order in which the paragraphs of this clause occur or the name of the Company.

 

4.	The liability of the members is limited.

 

5.	The authorised share capital of the Company is €1,825,000 divided into 1,750,000,000 ordinary shares of €0.001 each, 25,000 A ordinary shares of €1.00 each, 25,000 deferred shares of €1.00 each and 25,000,000 preferred shares of €0.001 each.

 

6.

The shares forming the capital, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being.

 

B-5

[NEW LINDE]

ARTICLES OF ASSOCIATION

Interpretation and general

 

1.

Sections 83, 84 and, for the avoidance of doubt, 117(9) of the Act shall apply to the Company but, subject to that, the provisions set out in these Articles shall constitute the whole of the regulations applicable to the Company and no other “optional provisions” as defined by section 1007(2) of the Act shall apply to the Company.

 

2.	In these Articles:

 

2.1

“Act”, means the Companies Act 2014 and every statutory modification and re-enactment thereof for the time being in force;

 

2.2

“Adoption Date”, means the effective date of adoption of these Articles;

 

2.3

“Approved Nominee”, means a person appointed under contractual arrangements with the Company to hold shares or rights or interests in shares of the Company on a nominee basis;

 

2.4

“Article”, means an article of these Articles;

 

2.5

“Articles”, means these articles of association as from time to time and for the time being in force;

 

2.6

“Auditors”, means the auditors for the time being of the Company;

 

2.7

“A Ordinary Shares”, means the A ordinary shares of €1.00 each in the capital of the Company;

 

2.8

“Board”, means the board of Directors of the Company;

 

2.9

“Chairman”, means the person occupying the position of Chairman of the Board from time to time;

 

2.10

“Chief Executive Officer”, shall include any equivalent office;

 

2.11

“Clear Days”, means, in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and excluding the day for which notice is being given or on which an action or event for which notice is being given is to occur or take effect;

 

2.12

“Company”, means the company whose name appears in the heading to these Articles;

 

2.13

“Company Secretary”, means the person or persons appointed as company secretary or joint company secretary of the Company from time to time and shall include any assistant or deputy secretary;

 

2.14

“Deferred Shares”, means the deferred shares of €1.00 each in the capital of the Company;

 

2.15

“Directors”, means the directors for the time being of the Company or any of them acting as the Board;

 

2.16

“electronic communication”, has the meaning given to that word in the Electronic Commerce Act 2000 and in addition includes in the case of notices or documents issued on behalf of the Company, such documents being made available or displayed on a website of the Company (or a website designated by the Board);

 

2.17

“Exchange”, means any securities exchange or other system on which the shares of the Company may be listed or otherwise authorised for trading from time to time in circumstances where the Company has approved such listing or trading;

 

2.18

“Exchange Act”, means the Securities Exchange Act of 1934 of the United States, as amended;

 

B-6