DGAP-CMS: Linde plc: Release according to Article 50 of the WpHG [the German Securities Trading Act] with the objective of Europe-wide distribution

2019. március 08., péntek, 21:18





DGAP Post-admission Duties announcement: Linde plc / Third country release according to Article 50 Para. 1, No. 2 of the WpHG [the German Securities Trading Act]


Linde plc: Release according to Article 50 of the WpHG [the German Securities Trading Act] with the objective of Europe-wide distribution


08.03.2019 / 21:18


Dissemination of a Post-admission Duties announcement according to Article 50 Para. 1, No. 2 WpHG transmitted by DGAP - a service of EQS Group AG.


The issuer is solely responsible for the content of this announcement.





UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549


FORM 8-K


CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

DATE OF REPORT (Date of earliest event reported): March 1, 2019


Linde plc

(Exact name of registrant as specified in its charter)






















Ireland001-3873098-1448883
(State or other(Commission(I.R.S. Employer
jurisdictionFile Number)Identification No.)
of incorporation)












The Priestley Centre

10 Priestley Road

Surrey Research Park

Guildford, Surrey GU2 7XY

United Kingdom

(Address of principal executive offices)(Zip Code)

+44 1483 242200

(Registrant"s telephone numbers, including area code)

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


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








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

CFR 230.425)
















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

CFR 240.14a-12)
















Pre-commencement communications pursuant to Rule 14d-2(b) under the

Exchange Act (17 CFR 240.14d-2(b))
















Pre-commencement communications pursuant to Rule 13e-4(c) under the

Exchange Act (17 CFR 240.13e-4(c))








Indicate by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2
of this chapter).

Emerging growth company ☐

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










ITEM 2.01Completion of Acquisition or Disposition

of Assets.








On March 1, 2019, Linde Aktiengesellschaft ("Linde AG"), a stock
corporation incorporated under the laws of Germany and an indirect
subsidiary of Linde plc (the "Company"), completed the sale of the majority
of its industrial gases business in North America and certain industrial
gases business activities in South America to a consortium comprising
companies of the German industrial gases manufacturer Messer Group and CVC
Capital Partners Fund VII, pursuant to a Sale and Purchase Agreement, dated
July 16, 2018, as amended on September 22, 2018, October 19, 2018 and
February 20, 2019, by and among the Company, Linde AG, Praxair, Inc.,
Messer Group and CVC Capital Partners Fund VII (the "SPA"). Messer Group
and CVC Capital Partners Fund VII paid $2.97 billion in cash consideration
after purchase price adjustments for certain items relating to assets and
liabilities of the sold businesses.

The SPA was entered into as part of the commitments in connection with the
merger control review by the U.S. Federal Trade Commission (the "FTC") of
the previously completed combination of the businesses of Praxair, Inc. and
Linde AG under the Company (the "Business Combination").

Under the SPA, the Company had given an independent guarantee to MG
Industries GmbH, a purchaser entity that is part of the Messer Group, as of
the completion of the Business Combination for the full, due and timely
performance of any obligation of Linde AG and Praxair, Inc. under the SPA.
The SPA contains representations, warranties and covenants that can be
considered customary for a transaction of this nature.

For further information about the SPA, refer to the Company"s Quarterly
Report on Form 10-Q, filed with the Securities and Exchange Commission (the
"SEC") on November 9, 2018. The description of the SPA contained herein
does not purport to be complete and is qualified in its entirety by
reference to the SPA, as amended, a copy of which is incorporated herein by
reference to Exhibits 2.1, 2.2, 2.3 and 2.4 hereto.

The Company determined that Linde AG"s sale under the SPA of the majority
of its industrial gases business in North America and certain industrial
gases business activities in South America was significant under the
criteria of SEC Regulation S-X Rule 1-02(w). While the divestitures also
included Praxair, Inc."s business in Chile, this component of the
transaction was not material (assets of approximately $18 million). The
Company further determined that pro forma combined financial information
giving effect to the transactions contemplated by the SPA was not required
because the divested businesses described above were not a component of the
Company as of September 30, 2018, the Company"s most recent reporting date.
Accordingly, the previously reported financial information for that period
does not include the Linde AG divested businesses as it represented a
period prior to the Business Combination.

The Business Combination has been accounted for using the acquisition
method of accounting in accordance with Financial Accounting Standards
Board ("FASB") Accounting Standards Codification ("ASC") 805, "Business
Combinations", with Praxair, Inc. representing the accounting acquirer. As
such, the historical information to be reported in the Company"s upcoming
report on Form 10-K for the year ended December 31, 2018 (the "2018 Form
10-K") for periods prior to the consummation of the Business Combination
will represent the historical Praxair, Inc. financial position and results
of operations. As the results of operations and financial position of the
Company prior to the consummation of the Business Combination represent
Praxair, Inc. historical financial information that did not include the
divested Linde AG businesses, unaudited pro forma combined financial
information giving effect to the Linde AG divestitures is not filed with
this Current Report on Form 8-K.

The divested businesses of Linde AG will be presented as discontinued
operations in the 2018 Form 10-K, in accordance with FASB ASC 205-20,
"Discontinued Operations", as these businesses met the criteria for heldfor
-sale treatment upon consummation of the Business Combination. As
disclosed in the Company"s Form 12b-25, filed with the SEC on March 1,
2019, the Company intends to file the 2018 Form 10-K no later than by March
18, 2019. As of the date of this Current Report on Form 8-K, both the
Company"s and Praxair, Inc."s most recent fiscal period reported under the
Securities Exchange Act of 1934, as amended, is the period ended September
30, 2018.







ITEM 8.01Other Events.








As part of the Company"s, Praxair, Inc."s and Linde AG"s further
commitments in connection with the merger control review by the FTC, Linde
AG divested additional assets within the Americas for aggregate net
proceeds of $531 million (i) to Matheson Tri-Gas, Inc., five of Linde AG"s
HyCO facilities outside the Gulf Coast region, along with Linde AG"s
hydrogen pipeline in the Gulf Coast, intellectual property, customer
contracts, and other assets, (ii) to Celanese Corporation, Linde AG"s Clear
Lake, Texas plant, and (iii) to LyondellBasell Industries N.V., Linde AG"s
La Porte, Texas plant.

As disclosed in the Company"s Current Report on Form 8-K, filed with the
SEC on December 6, 2018, Praxair, Inc. previously completed the sale of the
majority of its businesses in Europe to Taiyo Nippon Sanso Corporation, an
affiliate of Mitsubishi Chemical Holdings Corporation, which were required
in connection with obtaining antitrust approval by the European Commission.

In addition, Praxair, Inc. and Linde AG have made certain other divestiture
commitments in connection with the merger control proceedings in China,
India and South Korea to the relevant antitrust authorities.







ITEM 9.01Financial Statements and Exhibits.















(d)Exhibits.






































































































ExhibitDescription ofExhibit
Number




*2.1Sale and PurchaseAgreement, dated July 16, 2018, by and among

Linde AG, Praxair,Inc., MG Industries GmbH, Messer Canada

Inc., MG IndustriesUSA, Inc. (the MG entities and Messer

Canada, Inc. beingcollectively referred to as "Messer"), and

Linde plc, withrespect to the sale of certain assets of Linde

AG in the Americasand certain assets of Praxair, Inc. to Messer

in connection withthe Business Combination Agreement dated as

of June 1, 2017, asamended, to effect a combination of the

businesses of LindeAG and Praxair, Inc. (incorporated by

reference to Exhibit2.2 to the Company"s Quarterly Report on

Form 10-Q, filedwith the SEC on November 9, 2018).



*2.2First Amendmentdated September 21, 2018 to the Sale and

Purchase Agreement,dated July 16, 2018, by and among Linde AG,

Praxair, Inc.,Messer, and Linde plc, with respect to the sale

of certainadditional assets of Linde AG in the Americas to

Messer in connectionwith the Business Combination Agreement

dated as of June 1,2017, as amended, to effect a combination

of the businesses ofLinde AG and Praxair, Inc. (incorporated by

reference to Exhibit2.3 to the Company"s Quarterly Report on

Form 10-Q, filedwith the SEC on November 9, 2018).



*2.3Second Amendmentdated October 19, 2018 to the Sale and Purchase

Agreement, datedJuly 16, 2018, as amended by the First

Amendment thereto,by and among Linde AG, Praxair, Inc., Messer,

and Linde plc, withrespect to the sale of certain additional

assets of Linde AGin the Americas to Messer in connection with

the BusinessCombination Agreement dated as of June 1, 2017, as

amended, to effect acombination of the businesses of Linde AG

and Praxair, Inc.(incorporated by reference to Exhibit 2.4 to

the Company"sQuarterly Report on Form 10-Q, filed with the SEC

on November 9,2018).



*2.4Third Amendmentdated February 20, 2019 to the Sale and Purchase

Agreement, datedJuly 16, 2018, as amended by the First and

Second Amendmentthereto, by and among Linde AG, Praxair, Inc.,

Messer, and Lindeplc, with respect to the sale of certain

additional assets ofLinde AG in the Americas to Messer in

connection with theBusiness Combination Agreement dated as of

June 1, 2017, asamended, to effect a combination of the

businesses of LindeAG and Praxair, Inc.





















*Certain schedules or similar attachments have been omitted pursuant to

Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish

supplemental copies of any of the omitted schedules or attachments upon

request by the SEC.









SIGNATURES

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



















LINDE PLC



Date: March 7, 2019By:/s/ Guillermo Bichara

Name:Guillermo Bichara

Title:General Counsel











Exhibit 2.4

Execution Version

Third Amendment of the Americas Sale and Purchase Agreement

dated 20 February 2019

This Third Amendment of the Americas Sale and Purchase Agreement (the "3rd
Amendment") is entered into by and between:












1.Linde Aktiengesellschaft, a stock corporation (Aktiengesellschaft)

organised under the laws of the Federal Republic of Germany, registered

with the commercial register ( Handelsregister ) of the local court

( Amtsgericht ) of Munich, Germany under registration number HRB

169850, having its registered address ( Geschäftsanschrift ) at

Klosterhofstraße 1, 80331 Munich, Germany,








- herein "Linde" -









2.Praxair, Inc., a corporation organised under the laws of Delaware, USA,

having its registered address at 10 Riverview Drive, Danbury,

Connecticut, CT06810, United States of America,








- herein "Praxair" and together with Linde "Sellers" -













3.Messer Industries GmbH (formerly MG Industries GmbH), a private limited

liability company (Gesellschaft mit beschränkter Haftung ) organised

under the laws of the Federal Republic of Germany, registered with the

commercial register ( Handelsregister ) of the local court

( Amtsgericht ) of Frankfurt am Main, Germany under registration number

HRB 111628, having its registered address at Messer-Platz 1, 65812 Bad

Soden am Taunus, Germany,








- herein "Purchaser" -










4.Messer Canada Inc., a corporation organised under the laws of Canada,

registered with the register of Corporations Canada under registration

number 1083715-6 having its registered address at 199 Bay Street, Suite

5300, Commerce Court West, Toronto, Ontario M5L 1B9, Canada,








- herein "Canadian Local Purchaser" -










5.Messer Industries USA, Inc. (formerly MG Industries USA, Inc.), a

company organised under the laws of Delaware, with registration number

6964345 and registered address at 251 Little Falls Drive, Wilmington,

New Castle, Delaware 19808, United States of America,








- herein "American Local Purchaser" -

(the Canadian Local Purchaser and the American Local Purchaser herein
collectively herein the "Local Purchasers ")

and










6.Linde Public Limited Company, a public limited company organised under

the laws of Ireland, having its business address at The Priestley

Centre, 10 Priestley Road, The Surrey Research Park, Guildford, Surrey

GU2 7XY, United Kingdom,








- herein "PLC" -

(each of Linde, Praxair, Purchaser, the Local Purchasers and PLC herein
also referred to individually as a " Party " and collectively as " Parties
").

- 2 -

RECITALS











(A)WHEREAS, inter alia, Linde, Praxair, and PLC have entered into a

business combination agreement as of 1 June 2017, as amended, to

effect a strategic combination of the businesses of Linde and Praxair

(herein " BCA " and the transactions contemplated by the BCA the "

Business Combination ").






























(B)WHEREAS, the Parties have entered into a sale andpurchase agreement

as of 16 July 2018 as amended by the First Amendmentof the Americas

Sale and Purchase Agreement dated 22 September 2018(the " 1 st

Amendment ") and the Second Amendment of the AmericasSale and

Purchase Agreement dated 19 October 2018 (the " 2 ndAmendment ") to

effect the sale and transfer of certain businesses ("SPA ") in order

to meet certain regulatory concerns with a view toclose the BCA.






















(C)WHEREAS, after the signing date of the 2nd Amendment, upon further

discussions with regulatory authorities and operational needs in

connection with the implementation of regulatory requirements, the

Parties wish to settle a number of issues and to amend the SPA as set

out herein.








NOW, THEREFORE, the Parties agree as follows:







1.INTERPRETATIONS








Unless otherwise provided herein or the context otherwise requires, words
and expressions defined for the purposes of the SPA will have the same
meaning in this 3 rd Amendment.







2.AMENDMENT OF SCHEDULES AND OF CLAUSE 1.1 OF THE SPA















2.1Amendment of the Index of Schedules




















(a)The Index of Schedules to the SPA shall be amended to read as


follows to reflect the insertion of new Schedules 25 through 30 to


the SPA:


































Schedule 1Target Companies and Ownership


Structure




Schedule 2Financial Line Items




Schedule 3Apportioning between DivestCo


Shares




Schedule 4Principles of Closing Statement




Schedule 5Form of Closing Statement












- 3 -






























































Schedule 6Closing Actions




Schedule 7Sellers" Warranties




Schedule 8Remedies and Limitations




Schedule 9Third Party Assurances Sellers"


Groups




Schedule 10Target Company Third Party Assurances




Schedule 11Debt Commitment Letter and Form of


Interim Facility




Schedule 12Equity Commitment Letter




Schedule 13Carve Out Steps




Schedule 14Welding Fumes Indemnification




Schedule 15Retained Business




Schedule 16Helium Perimeter Change




Schedule 17Perimeter Change I




Schedule 18Linde Canada Investments LLC


Dissolution




Schedule 19Financial Information




Schedule 20Sample Helium Contract Iwatani


Transfer Agreement




Schedule 21Financial Contract Information




Schedule 22Perimeter Change II Assets




Schedule 23Transfer Agreement Perimeter Change


II Assets




Schedule 24Perimeter Change II Employees




Schedule 25Additional 1,500 tons LOX tank La


Porte




Schedule 26Reliability increase of GOX Backup


System




Schedule 27Decatur Control Room Separation












- 4 -




















Schedule 28Changes in the allocation of CO²


contracts




Schedule 29Draft O2-Agreement between DivestCos


and LyondellBasell




Schedule 30Draft LOX back-up supply agreement


and GOX offtake agreement
























(b)To reflect changes in the scope of assets and contracts to be


transferred in the Transaction under the SPA and clarify certain


provisions, the Parties agree to replace the following Schedules to


the SPA by amended Schedules attached hereto as Annex 2(b) :





















*Schedule 3 (Apportioning between DivestCo Shares),





















*Schedule 5 (Form of Closing Statement),





















*Schedule 14 (Welding Fumes Indemnification), and





















*Schedule 22 (Perimeter Change II Assets),











and all references in the SPA to such Schedules (or parts thereof) shall be
read to refer to the revised Schedules to the SPA annexed hereto.

For Schedule 2 (Financial Line Items) and Schedule 5 (Form of Closing
Statement) to the SPA the Parties acknowledge - for the avoidance of
misunderstandings - that these Schedules have been prepared on the basis of
the status prior to the 1 st Amendment, the 2 nd Amendment and this 3 rd
Amendment and the indicated numbers (at 31 December 2017 which were added
for illustration purposes) do, therefore, not reflect any of the amendments
to the SPA.











(c)The Parties further agree to add the following Schedules to the SPA


as new Schedules attached hereto asAnnex 2(c) :





















*"Schedule 6 (Closing Actions)",





















*"Schedule 25 (Additional 1,500 tons LOX tank La Porte)",





















*"Schedule 26 (Reliability increase of GOX Backup System)",





















*"Schedule 27 (Decatur Control Room Separation)",





















*"Schedule 28 (Changes in the allocation of CO2 contracts)",






















*"Schedule 29 (Draft O2-Agreement between DivestCos and


LyondellBasell)", and












- 5 -











*"Schedule 30 (Draft LOX back-up supply agreement and GOX offtake


agreement)".


















2.2Amendment of clause 1.1 of the SPA (Definitions)






















(a)"Additional IP License Agreement means the executed or Agreed Form


(as the case may be) agreement relating to the licensing of certain


engineering IP currently envisaged to be entered into between Linde


AG on the one hand and Messer Industries USA, Inc. (previously MG


Industries USA, Inc.), on the other hand;"



























(b)"Assignment and Assumption Agreement means the executed or Agreed


Form (as the case may be) assignment and assumption agreement


between Linde Gas North America LLC as assignor and LyondellBassell


Acetyls LLC and Linde LLC as assignees regarding the assignment and


assumption of the rights and responsibilities under an Agreement for


Limitation on Appraised Value of Property for School District


Maintenance and Operations Taxes dated November 12, 2013;"
























(c)"Decatur HyCO Control Center means the control room currently shared


by Linde Gas North America LLC"s HyCO plant and Linde LLC"s


purification and liquefaction plant at Decatur to be separated as


set forth in Schedule 27;"





















(d)"Delineation Matters means the issues listed in clause 16.6;"
























(e)"Freezer Asset Transfer Agreement Columbia means the executed or


Agreed Form (as the case may be) asset transfer agreement relating


to the transfer of certain freezer assets between Linde AG and Linde


Colombia S.A.;"
























(f)"Helium Inventory means the helium inventory reserves held by the


Target Companies in the Bureau of Land Management reservoir (as


reported by the Bureau of Land Management in the report for the


calendar month in which the Financial Closing Date falls;"





















(g)"Idle ECOVARs has the meaning given to it in clause 16.6(d);"









































(h)"IP Transfer and Assignment Agreements meansthe executedor Agreed

Form (as the case may be) intellectualproperty transferand

assignment agreements between Linde AG on theone handand certain

Target Companies on the other hand whichprovide for thetransfer

and assignment of certain intellectualproperty rights bymembers of

Linde Group to certain Target Companies andvice versarelating

to, as the case may be, Brazil, Columbia andCanada;"















- 6 -











(i)The last paragraph of the definition of "Linde DivestCo Business"


shall be amended as follows:











"The Parties agree that (i) the addition of the Perimeter Change I
Businesses, the Perimeter Change I Assets and the Perimeter Change I
Contracts, (ii) the changes in the helium perimeter set out in Schedule 16,
(iii) the addition of the Perimeter Change II Assets and the Perimeter
Change II Employees and (iv) the swap of the contracts set out in Schedule
28 and the Perimeter Change III Employee shall each adjust the Linde
DivestCo Business and the Praxair DivestCo Business, respectively, sold
under this Agreement but are each not reflected in the Combined Carve Out
Financial Statements as of 31 December 2017;"











(j)"Perimeter Change III Contracts has the meaning given to it in


clause 16.6(e);"























(k)"Perimeter Change III Employee means the one (1) operation


technician to be transferred from Linde Group to Linde DivestCos as


listed in Schedule 27;".


















3.AMENDMENT OF CLAUSE 2 OF THE SPA (CARVE OUT)








A new Clause 2.4 shall be added to the SPA which shall read as follows:

"2.4 Carve-out scope










(a)For purposes of:






















(i)the definitions of "Sellers" Images" and "Sellers" Trademarks", the


IP Transfer and Assignment Agreements;























(ii)clause 2.1 last para. (payments to be made but still outstanding)


of the SPA, the Freezer Asset Transfer Agreement Colombia and the


IP Transfer and Assignment;
























(iii)clause 12 (Taxes) of the SPA and the allocation of Taxes under


other clauses of the SPA (such as clause 6.5 and clause 25.1 of


the SPA), the IP Transfer and Assignment Agreements and the


Freezer Asset Transfer Agreement Colombia;






















(iv)clause 25.1 of the SPA, the IP Transfer and Assignment Agreements


and the Freezer Asset Transfer Agreement Colombia; and






















(v)Schedule 7 paragraph 1.2 of the SPA, the IP Transfer and Assignment


Agreements and the Freezer Asset Transfer Agreement Colombia,











shall be considered to be Carve Out Agreements so that the transactions
contemplated by these agreements form part of the Carve Out.

- 7 -
















(b)For purposes of clause 12 (Taxes) of the SPA and the allocation of


Taxes under other clauses of the SPA (such as clause 6.5 and clause


25.1 of the SPA), the transfer of the rights and responsibilities


under the Agreement for Limitation on Appraised Value of Property


for School District Maintenance and Operations Taxes dated November


12, 2013 pursuant to the Assignment and Assumption Agreement shall


be considered to form part of the Carve Out.




























(c)The nomination by Purchaser pursuant to Section 3.3 of the SPA of


Linde Gas Puerto Rico, Inc. to become the acquirer of General Gases


of the Virgin Islands, Inc. shall not make such transfer become part


of the Carve Out or the Carve Out Agreements. Instead, the transfer


of the shares in General Gases of the Virgin Islands, Inc. to Linde


Gas Puerto Rico, Inc. shall be a Closing action and be deemed to


have occurred after the transfer of the shares in Linde Gas Puerto


Rico, Inc. to the American Local Purchaser."


















4.DELINEATION MATTERS AND PURCHASE PRICE ADJUSTMENT















4.1Reduction of the Purchase Price




















(a)Considering the delineation matters set forth under Section 4.2


below, the Parties agree to decrease the Enterprise Purchase Price


by an amount of 7,500,000 USD.











In addition, the Parties acknowledge and agree that the Delineation Matters
(other than the swap of contracts pursuant to Schedule 28) will not be
considered in the Closing Statement and for the calculation of the Initial
Purchase Price (but have been included in determining the decrease of the
Enterprise Purchase Price set out above), provided that volumes in transit
on the Financial Closing Date under the (additional) Perimeter Change II
Contracts shall be for the account of and paid to Sellers.











(b)To implement Section 4.1(a) first paragraph above, a new lit. (i)


shall be added to clause 4.1 of the SPA as follows:











"(i) subtracting an amount of 7,500,000 USD for the delineation matters set
out in Clause 16.6."












(c)As a consequence, the Initial Purchase Price and the Final Purchase


Price shall be calculated considering such changes outlined in


Section 4.1(a) through 4.1(b) above.












- 8 -







4.2Delineation Matters





















(a)Following further regulatory requirements and operational needs in


their implementation and alongside the preparations of the Carve


Out, the Parties have agreed to combine the handling of and


comprehensively agree on the following matters:





















*building of an additional 1,500 tons LOX tank at La Porte;





















*enhancement of the ASU reliability at La Porte;























*separation of Linde"s Decatur HyCo Control Center from Linde LLC"s


CO² plant as requested under the unbundling requirement from the


FTC;




























*transfer of the two idle disassembled ECOVAR assets (i) MicroLN (40


kscfh), manufactured by Cosmodyne in 1996/97, previously assembled


at a customer site in Derry, Republic of Northern Ireland, for


customer Seagate Technology and (ii) Flex-N (80 kscfh), manufactured


by Cryostar-France S.A. in 1997/98, previously assembled at a


customer site in Richmond, KY, for customer AGC Flat Glass North


America, each located at the Butler warehouse at 315 Bantam Ave,


Butler, PA 16001, USA, to Linde LLC;






















*reallocation of certain CO2 customers between members of Linde Group


and Linde DivestCos;






















*reallocation of certain laser gas customers between members of Linde


Group and Linde DivestCos;





















*requests by Linde DivestCos" employees in respect of LTIP;























*contribution by Linde to the capital expenditure required for the


additional tank at La Porte, the enhancement of the ASU at La Porte


and the separation at Decatur;























*priority contracting for the construction of the aforementioned


additional tank at La Porte and the enhancement of the ASU at La


Porte, to members of Linde Group;



























*payment by Purchaser to Linde of any shortfall if the external costs


(net amount, i.e. without VAT) incurred as cash out during the first


24 months from Closing or committed within such period and incurred


within a further period of 12 months fall short of the amount of


certain limits for (i) the construction of the additional tank at La


Porte, (ii) for the enhancement of the ASU at La Porte and (iii) for


the capital expenditures to separate the facilities at Decatur;






















*Purchaser supports Sellers to procure the signing, prior to Closing,


of an O2-Agreement between DivestCos and LyondellBasell; and












- 9 -












*entering into an additional LOX back-up supply agreement and GOX


offtake agreement between the relevant member of Linde Group and


DivestCo prior to Closing.






















(b)To implement section 4.2(a) above, a new Clause 16.6 shall be


inserted into the SPA as follows:











"16.6 Delineation Matters

The Parties have identified a number of issues, the commercial effects of
which they have set-off against each other by mutual agreement as is
reflected in the Enterprise Purchase Price as adjusted:












(a)The Purchaser shall build an additional 1,500 tons LOX tank at La


Porte to enhance its back-up capacity as further set out in Schedule


25.






















(b)The Purchaser shall enhance the ASU reliability at La Porte as


further set out in Schedule 26.



























(c)The Purchaser shall separate Linde"s Decatur HyCO Control Center


from Linde LLC"s CO 2 Plant as requested under the unbundling


requirement from the FTC as further set out in Schedule 27. This


entails the Perimeter Change III Employee. The transfer of the


Perimeter Change III Employee shall be implemented pursuant to the


EMA. Any operating expenses associated will be solely borne by


Purchaser.



































(d)Sellers shall procure that the two idle disassembled ECOVAR assets


(i) MicroLN (40 kscfh), manufactured by Cosmodyne in 1996/97,


previously assembled at a customer site in Derry, Republic of


Northern Ireland, for customer Seagate Technology and (ii) Flex-N


(80 kscfh), manufactured by Cryostar-France S.A. in 1997/98,


previously assembled at a customer site in Richmond, KY, for


customer AGC Flat Glass North America, each located at the Butler


warehouse at 315 Bantam Ave, Butler, PA 16001, USA, (the " Idle


ECOVARs ") are transferred to Linde LLC as part of the Carve Out by


way of including the transfer of the Idle ECOVARs into the Master


Carve Out and Asset Exchange Agreement, however on an "as is" basis


excluding any representation or warranty, liability or indemnity


with respect to the Idle ECOVARs, whether under the Carve Out


Agreements or the SPA or otherwise, with an aim of implementing the


necessary transfers prior to the Financial Closing Date.












- 10 -




























(e)Certain CO2 customers shall, prior to Closing, be allocated


differently between the members of Linde Group and Linde DivestCos


as set out in Schedule 28 and such reallocation shall be considered


part of the Carve Out. The CO 2 customer contracts transferred from


Linde Group to Linde DivestCos set out in Schedule 28 (the "


Perimeter Change III Contracts ") shall increase the Linde DivestCo


Business and those transferred pursuant to Schedule 28 from Linde


DivestCos to Linde Group shall reduce the Linde DivestCo Business.


The Sellers shall use reasonable endeavours to procure the transfer


of the Perimeter Change III Contracts from their current owners to


Linde North America Inc., Linde LLC or to another Target Company as


agreed between Sellers and Purchaser, or, if the current owner is


already a Target Company, that they are kept by such entity with an


aim of implementing the necessary transfers prior to the Financial


Closing Date. Schedule 5 of Exhibit A (Carve-out Agreement) of the


Master Carve Out and Asset Exchange Agreement shall apply to the


Perimeter Change III Contracts and Schedule 5 of Exhibit B (Reverse


Carve-out Agreement) shall apply to the contracts transferred from


Linde DivestCos to Linde Group pursuant to Schedule 28.





























(f)Certain laser gas customers shall be allocated differently between


members of Linde Group and Linde DivestCos as set out in the changes


to Schedules 22 and shall be considered part of the Carve Out. With


respect to the new laser gas customers that have been added by the


Third Amendment of the Americas Sale and Purchase Agreement dated 20


February 2019, subject to Section 13 thereof, the provisions of the


Second Amendment of the Americas Sale and Purchase Agreement dated


19 October 2018 relating to the Perimeter Change II Assets and to


the Perimeter Change II Customer Relationships apply.
























(g)The employees of the Linde DivestCos will no longer participate in


any LTIP of members of Linde Group. Should they request or should it


be required that they participate in any future LTIP or comparable


program, this shall be for the sole account of Purchaser.




























(h)Linde contributes an amount of (i) up to six (6) million USD to the


additional tank at La Porte, (ii) up to four (4) million USD to the


enhancement of the ASU at La Porte and (iii) up to three (3) million


USD to the capital expenditure required for the separation of the


Linde Decatur HyCO Control Center. The operational expenses for such


separation are for the account of Purchaser only. The contributions


by Linde shall be deemed to have been fully made by way of the


adjustment of the Enterprise Purchase Price under Clause 4.1(i).












- 11 -















(i)Purchaser will contract the construction of the additional tank at


La Porte as set out in Schedule 25 to members of Linde Group if


their offer is not higher than six (6) million USD. Purchaser will


contract the enhancement of the ASU at La Porte as set out in


Schedule 26 to members of Linde Group if their offer is not higher


than four (4) million USD.






























(j)If Purchaser"s/Linde DivestCos" external costs (net amount, i.e.


without VAT) actually incurred as cash out during the first 24


months from Closing or committed to be incurred during such period


and actually incurred within a period of 12 months thereafter (i)


for the construction of the additional tank at La Porte fall short


of six (6) million USD, (ii) for the enhancement of the ASU at La


Porte falls short of four (4) million USD or (iii) for the capital


expenditures to separate the facilities at Decatur as set out in


Schedule 27 falls short of three (3) million USD, in each case,


Purchaser shall pay to Linde the amount of such shortfall;























(k)Purchaser shall support Sellers to sign, prior to Closing, an O2-


Agreement between DivestCos and LyondellBasell as set out in


Schedule 29; and























(l)Sellers shall procure that, prior to Closing, the relevant member of


Linde Group enters into an additional LOX back-up supply agreement


and GOX offtake agreement with DivestCo as set out in Schedule 30."


















4.3Amendment of Transaction Documents and Carve Out Agreements








The Parties will separately agree in good faith and document any amendments
required with respect to the Transaction Documents (including the
Additional IP License Agreement) and Carve Out Agreements (if any) to
reflect the inclusion of the Delineation Matters, in particular the changes
in the contracts and employees transferring, in the Transaction under the
SPA.







4.4Amendment of clause 6.1 of the SPA









- 12 -

To implement Section 4.1(a) second paragraph above, Clause 6.1 of the SPA
shall be amended and read as follows:

"Sellers shall, or shall procure that its accountants shall, after Closing
prepare a draft statement showing, as at the Financial Closing Date, the
Financial Debt, Cash, Working Capital, Inter-Company Payables and InterCompany
Receivables of the Target Companies as a whole by adding the
respective figures for the Linde DivestCo Business and for the Praxair
DivestCo Business (" Closing Statement "). For purposes of the Closing
Statements, (i) the Helium Iwatani Contract, (ii) any purchase price
payments to be made by Linde LLC but still outstanding under the Helium
Container Transfer Agreement and the helium containers transferred or to be
transferred under the Helium Container Transfer Agreement (iii) the Linde
LAR Enid Plant, (iv) the Perimeter Change II Assets, (v) the Delineation
Matters - other than the swap of contracts set out in Schedule 28 -, and
(vi) the claims by Target Company against JSW as specified in clause 16.6
will not be considered, provided that volumes in transit on the Financial
Closing Date under the Helium Iwatani Contract, the Perimeter Change II
Contracts as supplemented by the Third Amendment of the Americas Sale and
Purchase Agreement dated 20 February 2019 shall be for account of and paid
to Sellers. The Closing Statement shall set out the calculation of the
Final Purchase Price and the Final Inter- Company Payment Amount and be in
the form set out in Schedule 5.

Sellers shall deliver the draft Closing Statement to Purchaser within sixty
(60) Business Days following Closing. The Closing Statement shall be
prepared in accordance with the accounting principles and methodology set
out in Schedule 4."







4.5Interpretation of clause 4.1 of the SPA








Since the inclusion of the Delineation Matters into the Transaction shall
be reflected by a decrease in the Enterprise Purchase Price as set forth in
Section 4.1 above, clause 4.1(g) of the SPA shall be disregarded for
purposes of the calculation of the Final Purchase Price with respect to the
inclusion of the Delineation Matters under this 3 rd Amendment.







4.6Amendment of clause 15.6 of the SPA (Agreements as of Closing)








The list after the first paragraph of clause 15.6 of the SPA shall be
supplemented by the following lit. (m) to reflect the additional agreement
entered into:











"(m)the Third Amendment of the Americas Sale and Purchase Agreement


dated 20 February 2019."












- 13 -







5.AMENDMENT OF CLAUSE 5.9 OF THE SPA (CANADA CASH AMOUNT)








To clarify the Parties" mutual understanding on the Canada Cash Amount,
clause 5.9 of the SPA shall be amended and read as follows:

"5.9Canada Cash Amount

The Parties agree that an amount equal to the Cash position held by Linde
Canada Ltd. in excess of CAD 10,000,000 as of the Financial Closing Date ("
Canada Cash Amount ") shall be treated as follows:












(a)For the avoidance of doubt, the Canada Cash Amount and the further


Cash amount of CAD 10,000,000 shall constitute Cash and shall be


included in the Closing Statement.



























(b)The Canada Cash Amount shall not be paid with the Initial Purchase


Price pursuant to clause 4.2 and payment shall be deferred until the


earliest point in time at which Purchaser has been able to extract


the Canada Cash Amount by way of a loan, at the latest, however,


until five (5) Business Days after the Closing (the " Canada Cash


Extraction "). Such deferred portion of the Initial Purchase Price


shall not bear any interest.
























(c)Purchaser shall procure that Linde Canada Ltd. will be merged into


Local Canadian Purchaser by way of amalgamation as soon as


reasonably practical after the Closing (expected to occur with


effect as of the end of the fiscal year of Linde Canada Ltd.)."



















6.AMENDMENT OF CLAUSE 8.2(A) OF THE SPA (COMMITMENTS AND PROCESSES

REGARDING CLOSING CONDITIONS )








To reflect the certain Acquirer Agreement Containing Revised Decision and
Order a new sentence shall be added after the last sentence of the second
paragraph of Clause 8.2(a) of the SPA that end with "., in case of
Perimeter Changes in accordance with clause 8.2(c)." as follows:

"The Parties agree that the Acquirer Agreement Containing Revised Decision
and Order to be executed by shareholders of the Purchaser and the FTC as
soon as possible hereafter in the File No. 171-0068 does not trigger any
compensation claims or claims to discuss compensation by Purchaser against
Sellers."

- 14 -







7.AMENDMENT OF CLAUSE 14.2 OF THE SPA








To reflect the agreement that certain details of the concept of rebranding
shall be changed and certain maximum timelines for identified rebranding
exercises shall be prolonged, the wording of Clause 14.2 (a) (ii) 3. of the
SPA shall be amended and read as follows:

"3. from tools and products relating to the Business and any materials
(print or electronic) used in connection with, or related to, any products
or services of the Business, provided that any Names including (in whole or
in part) any of Sellers" Trademarks, if any,


















(A)- subject to clause 14(b)(ii) - on any neckring of cylinders (but,


for the avoidance of doubt, not the shoulder) being part of the


Business, shall have to be removed latest upon the first cylinder


testing of the cylinder at a cylinder testing facility undertaken in


the regular cylinder testing period in accordance with the regular


course of business (occurring after a transition period of at least


one (1) month) by, or on behalf of, any member of Purchaser Group


after the Closing Date (but, in any event, within ten (10) years of


the Closing Date);

























(B)- subject to clauses 14.2(a)(ii)3.(A) and 14.2(b)(ii) - on any


cylinders being part of the Business, shall have to be removed


latest upon the first filling of the relevant cylinder by, or on


behalf of, any member of Purchaser Group after the Closing Date


(but, in any event, within ten (10) years of the Closing Date); and



























(C)on any freezers, tanks or other installations being part of the


Business, but not located at a site of the Business on the Closing


Date, shall have to be removed latest upon the first routine


inspection or other visit (e.g. for maintenance or re- filling) of


the relevant freezer, tank or other installation by, or on behalf


of, any member of Purchaser Group after the Closing Date (but, in


any event, within two (2) years of the Closing Date)."


















8.AMENDMENT OF CLAUSE 16 OF THE SPA (POST-CLOSING COVENANTS)








A new Clause 16.6 shall be added to the SPA which shall read as follows:

"16. 6. ASU Pipeline JSW Mingo Junction

- 15 -

Under a letter of intent signed between a Target Company and SSW Steel USA
Ohio, Inc. ("JSW") on 16 October 2018 and amended on 3 December 2018, the
Target Company has a claim for a payment of USD 3.7 million for the
purchase of a LOX/LIN station financed by Linde and a further claim for a
penalty of USD 0.2 million if the Target Company is not awarded the supply
contract for LOX and/or LIN. The Purchaser undertakes to procure (i) that
any claim for payment against JSW is pursued and (ii) that monies received,
net of any tax effects, and after external duties and reasonable external
costs incurred for collection, are passed on to Linde without further
deduction."








9.AMENDMENT OF CERTAIN INFORMATION IN SCHEDULE 1 OF THE SPA (TARGET

COMPANIES AND OWNERSHIP STRUCTURE )








The information set out with respect to General Gases of the Virgin
Islands, Inc. in Schedule 1 under A. II. 2. shall be amended and shall read
as follows:

[intentionally omitted]








10.AMENDMENT OF PARAGRAPH 1.3 OF SCHEDULE 7 OF THE SPA (FINANCIAL

MATTERS)




















(a)Purchaser acknowledges that the swap of the contracts set out in


Schedule 28 is not reflected in the Combined Carve Out Financial


Statements. This is also set forth in Section 2.2(i) above.






















(b)To implement Section 10(a) above, paragraph 1.3(a) of Schedule 7 to


the SPA shall be amended and shall read as follows:

























"(a)The Combined Carve Out Financial Statements were prepared in


accordance with the requirements of all relevant laws and the


relevant accounting principles then in force save as disclosed


therein and subject to the basis of preparation and the assumptions


made therein to reflect the separation of the












- 16 -


















respective business and, on the basis of the knowledge of the respective

management when they were prepared, present fairly, in all material

respects, the combined carve-out financial position of the respective

Target Companies as of the date to which they relate, and the respective

Target Companies" combined carve-out financial performance and such

companies" combined carve-out cash flows for the periods to which they

relate, provided that they neither take into account (i) the changes in

the helium perimeter set out in Schedule 16 nor (ii) the addition of the

Perimeter Change I Businesses, the Perimeter Change I Assets, and the

Perimeter Change I Contracts, nor (iii) the addition of the Perimeter

Change II Assets, nor (iv) the swap of the contracts set out in Schedule

28."
















11.AMENDMENT OF PARAGRAPH 1.9 OF SCHEDULE 7 OF THE SPA (CONTRACTUAL

MATTERS)








A new paragraph 1.9(e) shall be added to Schedule 7 to the SPA which shall
read as follows:

"(e) With respect to the Perimeter Change III Contracts, there are no
material unremedied breaches by the Sellers" Groups or the Target Companies
or, to Sellers" Knowledge, by the counterparties of such contracts. All
Perimeter Change III Contracts subject to the terms specified in Schedule
28, are in full force and effect. For the purposes of this warranty under
Schedule 7 paragraph 1.9(e) reference to Sellers" Knowledge means the
actual knowledge as of the date hereof of Dr Harald Voigts after having
made due inquiry with Mr Robert Capellman without any further inquiry."







12.AMENDMENT OF SCHEDULE 14 OF THE SPA (WELDING FUMES INDEMNIFICATION)








The Parties clarify their mutual understanding on the relationship of the
indemnity provided in Schedule 14 towards the liability of any insurer for
the indemnified claims by introducing a new subparagraph to paragraph 2 of
Schedule 14 of the SPA.








13.INTERPRETATION OF THE SPA WITH RESPECT TO TIME PERIODS "AS OF THE DATE

OF THIS AGREEMENT" OR SIGNING








The Parties agree that with respect to the inclusion of the Delineation
Matters into the Transaction any undertaking, warranty, right or obligation
shall, in relation to the Delineation Matters, not be given as of the date
of the SPA but as of the date of this 3 rd Amendment and as of Closing, as
the case may be provided for in the SPA. Therefore, any reference in the
SPA to "the date of this Agreement" or the signing of the SPA shall, with
respect to the Delineation Matters, be interpreted and construed, except
for clause 8.5 of the SPA, to mean exclusively a reference to the date of
this 3 rd Amendment.

- 17 -







14.MISCELLANEOUS















14.1Entirety of 3rd Amendment








This 3rd Amendment contains the entirety of the amendments to the SPA
agreed by the Parties at this time which shall otherwise remain unamended.







14.2Provisions applied mutatis mutandis








The content of clauses 25, 26, and 27 of the SPA shall apply to this 3rd
Amendment mutatis mutandis as if contained in this 3 rd Amendment and
being a part hereof.

[Signatures to follow]

- 18 -

Date:20/02 2019

For and on behalf of LINDE AG
























/s/ Matthias von Plotho
/s/ Dr. Harald Voigts
Name:Matthias von PlothoName:Dr. Harald Voigts
Title:Programme ManagerTitle:Head of Legal - M&A















Date: 20 February 2019

For and on behalf of PRAXAIR, INC.












/s/ Guillermo Bichara
Name:Guillermo Bichara
Title:Director









Date: 20 February 2019

For and on behalf of LINDE PUBLIC LIMITED COMPANY













/s/ C JCossins
Name:C J Cossins
Title:Permanent Representative









Date: 20 February 2019

For and on behalf of MESSER INDUSTRIES GMBH



























/s/Michael Beck/s/ CarstenKnecht
Name: MrMichael BeckName: MrCarsten Knecht
Title:Managing DirectorTitle:Managing Director

(Geschäftsführer)
(Geschäftsführer)















Date: 20 February 2019

For and on behalf of MESSER INDUSTRIES GMBH



























/s/Michael Beck/s/ CarstenKnecht
Name: MrMichael BeckName: MrCarsten Knecht
Title:Managing DirectorTitle:Managing Director

(Geschäftsführer)
(Geschäftsführer)















Date: 20 February 2019

For and on behalf of MESSER CANADA INC.













/s/Carsten Knecht
Name:Mr Carsten Knecht
Title:Chief Executive Officer (CEO)









Date: 20 February 2019

For and on behalf of MESSER INDUSTRIES USA, INC.













/s/Michael Beck
Name:Mr Michael Beck
Title:Managing Director






















08.03.2019 The DGAP Distribution Services include Regulatory Announcements, Financial/Corporate News and Press Releases.
Archive at www.dgap.de













Language: English
Company: Linde plc

The Priestley Centre, 10 Priestley Road

GU2 7XY Guildford

United Kingdom
Internet: www.linde.com





 
End of News DGAP News Service





785739  08.03.2019 



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