As filed with the Securities and Exchange Commission on August 1, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN STANDARD INC.
(Exact name of registrant as specified in its charter)
DELAWARE 25-0900465
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
One Centennial Avenue
Piscataway, NJ 08855-6820
(732) 980-6000
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
AMERICAN STANDARD COMPANIES INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3465896
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
One Centennial Avenue
Piscataway, NJ 08855-6820
(732) 980-6000
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
(Exact name of registrant as specified in its charter)
------------------------
Richard A. Kalaher, Esq.
Vice President, General Counsel & Secretary
American Standard Inc.
One Centennial Avenue
P.O. Box 6820
Piscataway, NJ 08855-6820
(732) 980-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Michael A. Becker, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement. If any of the
securities being registered on this Form are being offered pursuant to dividend
or interest reinvestment plans, check the following box.[ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<TABLE>
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CALCULATION OF REGISTRATION FEE
==================================== ================== ======================== ======================== ===================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO AGGREGATE PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- ------------------------------------ ------------------ ------------------------ ------------------------ -------------------
<S> <C> <C> <C> <C>
Debt Securities $1,000,000,000 100% $1,000,000,000 $303,030.30
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Debt Guarantees (2) (2) none (3)
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(1) Estimated solely for purposes of calculating the registration fee.
(2) The additional registrant will not be paid any portion of the proceeds in
respect of the Guarantee.
(3) Pursuant to Rule 457(n) under the Securities Act of 1933, no registration
fee is required with respect to this Guarantee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 1, 1997
PROSPECTUS
$1,000,000,000
AMERICAN STANDARD INC.
UNCONDITIONALLY GUARANTEED AS TO PAYMENT OF
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
AMERICAN STANDARD COMPANIES INC.
SENIOR DEBT SECURITIES
SENIOR SUBORDINATED DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
American Standard Inc. (the "Issuer") may offer from time to time its
debt securities (the "Debt Securities") which may be either senior debt
securities (the "Senior Debt Securities") or senior subordinated debt securities
(the "Senior Subordinated Debt Securities") or subordinated debt securities (the
"Subordinated Debt Securities"). The Senior Debt Securities will be
unconditionally guaranteed (the "Senior Debt Guarantees") as to payment of
principal, premium, if any, and interest by the Issuer's parent, American
Standard Companies Inc. (the "Guarantor"), the Senior Subordinated Debt
Securities will be unconditionally guaranteed on a senior subordinated basis
(the "Senior Subordinated Debt Guarantees") as to the payment of principal,
premium, if any, and interest by the Guarantor, and the Subordinated Debt
Securities will be unconditionally guaranteed on a subordinated basis (the
"Subordinated Debt Guarantees" and, together with the Senior Debt Guarantees,
the Senior Subordinated Debt Guarantees and the Subordinated Debt Guarantees,
the "Debt Guarantees") as to the payment of principal, premium, if any and
interest by the Guarantor. All of the indebtedness reflected in the Guarantor's
consolidated financial statements constitutes indebtedness of its consolidated
subsidiaries, including the Issuer.
The Debt Securities may be offered as a single series or as two or more
separate series in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale and to be set forth in an accompanying
Prospectus Supplement. The terms of each series of Debt Securities, including,
where applicable, the specific designation, aggregate principal amount,
authorized denominations, maturity, rate or rates and time or times of payment
of any interest, any terms for optional or mandatory redemption or payment of
additional amounts or any sinking fund provisions, any initial public offering
price, the proceeds to the Issuer and any other specific terms in connection
with the offering and sale of such series, will be set forth in a Prospectus
Supplement or Prospectus Supplements. The Senior Debt Securities and the Senior
Debt Guarantees, when issued, will be unsecured and will rank pari passu with
all other unsecured and unsubordinated indebtedness of the Issuer and the
Guarantor, respectively; the Senior Subordinated Debt Securities and the Senior
Subordinated Debt Guarantees , when issued, will be unsecured and will be
subordinated in right of payment to all Senior Debt (as defined herein) of the
Issuer and Senior Debt (as defined herein) of the Guarantor, respectively; and
the Subordinated Debt Securities and the Subordinated Guarantees, when issued,
will be unsecured and will be subordinated in right of payment to all Senior and
Senior Subordinated Debt (as defined herein) of the Issuer and Senior and Senior
Subordinated Debt (as defined herein) of the Guarantor, respectively. The terms
of certain series of the Debt Securities may not restrict the incurrence of
additional indebtedness.
<PAGE>
SEE "RISK FACTORS" ON PAGES 9-11 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
The Debt Securities may be sold directly by the Issuer, through agents
designated from time to time or to or through underwriters or dealers. See "Plan
of Distribution." If any agents of the Issuer or any underwriters are involved
in any sale of Debt Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Issuer from such sale also will be set forth in a Prospectus
Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is _________, 1997.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of such State.
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<PAGE>
AVAILABLE INFORMATION
American Standard Companies Inc. (the "Guarantor") and its direct
wholly-owned subsidiary, American Standard Inc. (the "Issuer" and together with
the Guarantor and their consolidated subsidiaries, "American Standard" or the
"Company"), are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith file reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Guarantor and the Issuer may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the Commission's
Regional Offices located at Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60611 and 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such materials can be obtained upon written
request from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. In addition, such material of
the Guarantor may also be inspected and copied at the office of the New York
Stock Exchange, Inc. ("NYSE"), 20 Broad Street, New York, New York 10005. The
Commission maintains a Website that contains reports, proxy and information
statements and other information regarding reporting companies under the
Exchange Act, including the Guarantor and the Issuer, at http://www.sec.gov.
This Prospectus constitutes part of a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Issuer and the Guarantor with the
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Debt Securities offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. This Prospectus, which constitutes a part of the Registration
Statement, does not contain all the information set forth in the Registration
Statement, certain items of which are contained in schedules and exhibits to the
Registration Statement as permitted by the rules and regulations of the
Commission. Statements made in this Prospectus as to the contents of any
contract, agreement or other document referred to are not necessarily complete;
with respect to each such contract, agreement or other document filed as an
exhibit to the Registration Statement, reference is made to the exhibit for a
more complete description of the matter involved, and each such statement shall
be deemed qualified in its entirety by such reference. Reference is made to the
Registration Statement and to the exhibits thereto, as well as to the documents
incorporated by reference in this Prospectus, for further information with
respect to the Issuer and the Guarantor, as well as the Debt Securities.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Guarantor (File No. 1-11415) and
the Issuer (File No. 33-64450) with the Commission pursuant to the Exchange Act
are incorporated herein by reference:
1. The Guarantor's Annual Report on Form 10-K for the year
ended December 31, 1996, including portions incorporated
therein of the Issuer's definitive Proxy Statement dated March
26, 1997.
2. The Guarantor's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997.
3. The Guarantor's Form 8-K filed July 15, 1997.
4. The Issuer's Annual Report on Form 10-K for the year
ended December 31, 1996.
5. The Issuer's Quarterly Reports on Form 10-Q for the
quarter ended March 31, 1997.
6. All other documents filed by the Guarantor and the Issuer
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities.
The Guarantor will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
documents incorporated herein by reference, other than exhibits to such
information (unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to American Standard Companies
Inc., One Centennial Avenue, P.O. Box 6820, Piscataway, NJ 08855-6820,
Attention: Office of the Secretary; telephone: (732) 980-6000.
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Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or super-
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<PAGE>
seded for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
statement so modified shall not be deemed to constitute part of this Prospectus
except as so modified, and any statements so superseded shall not be deemed to
constitute part of this Prospectus.
AMERICAN STANDARD(R), IDEAL STANDARD(R), STANDARD(R), TRANE(R) and
WABCO(R) are registered trading marks OF the Issuer. PORCHER(R) is a registered
trademark of Porcher S.A., a subsidiary of the Issuer.
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<PAGE>
THE COMPANY
The Issuer is a globally oriented manufacturer of high quality,
brand-name products in three major product groups: air conditioning systems (59%
of 1996 sales); bathroom and kitchen fixtures and fittings (25% of 1996 sales);
and braking and control systems for medium-sized and heavy trucks, buses,
trailers and utility vehicles (16% of 1996 sales). American Standard is a market
leader in each of these business segments in the principal geographic areas in
which it competes. The Company's brand names include TRANE(R) and AMERICAN
STANDARD(R) for air conditioning systems, AMERICAN STANDARD(R), IDEAL
STANDARD(R), STANDARD(R) and PORCHER(R) for plumbing products and WABCO(R) for
braking and related systems. The Company emphasizes technologically advanced
products such as air conditioning systems that utilize energy-efficient
compressors and environmentally preferred refrigerants, water-saving plumbing
products and commercial vehicle braking and related systems (including antilock
braking systems) that utilize electronic controls. At December 31, 1996,
American Standard had 106 manufacturing facilities in 35 countries.
American Standard Companies Inc. (the "Guarantor") is a Delaware
corporation that has as its only significant asset all the outstanding common
stock of American Standard Inc., a Delaware corporation (the "Issuer").
Hereinafter, "American Standard" or "the Company" will refer to the Guarantor
and the Issuer, including the Issuer's subsidiaries.
OVERVIEW OF BUSINESS SEGMENTS
Through 1996 American Standard operated three business segments: Air
Conditioning Products, Plumbing Products and Automotive Products. In January
1997, the Issuer announced formation of its Medical Systems Group.
AIR CONDITIONING PRODUCTS. American Standard is a leading U.S.
manufacturer of air conditioning systems for both domestic and export sales, and
also manufactures air conditioning systems outside the United States. Air
Conditioning Products manufactures "applied" (customer engineered,
site-assembled) and "unitary" (self-contained, factory-assembled) air
conditioning systems that are sold primarily under the TRANE(R) and AMERICAN
STANDARD(R) names. Air Conditioning Products' sales to the commercial and
residential markets represented approximately 75% and 25%, respectively, of Air
Conditioning Products' total sales in 1996. Approximately 60% of Air
Conditioning Products' sales in these periods was to the replacement, renovation
and repair markets, which have been less cyclical than the new residential and
commercial construction markets. Management believes that Air Conditioning
Products is well positioned for growth because of its
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high quality, brand-name products, significant existing market shares, the
introduction of new product features such as electronic controls, the expansion
of its broad distribution network and conversion to products utilizing
environmentally preferred refrigerants.
PLUMBING PRODUCTS. American Standard is a leading manufacturer in
Europe, the U.S. and a number of other countries of bathroom and kitchen
fixtures and fittings for the residential and commercial construction markets
and retail sales channels. Plumbing Products manufactures and distributes its
products under the AMERICAN STANDARD(R), IDEAL STANDARD(R), STANDARD(R) and
PORCHER(R) names. Of Plumbing Products' worldwide 1996 sales, approximately 74%
was derived from operations outside the United States and 26% was derived from
operations in the United States. Management believes that Plumbing Products is
well positioned for growth due to the high quality of its brand-name products,
significant existing market shares in a number of countries and the expansion of
existing operations in developing market areas throughout the world (principally
the Far East, Latin America and Eastern Europe).
AUTOMOTIVE PRODUCTS. American Standard is a leading manufacturer,
primarily in Europe and Brazil, of braking and related systems for the
commercial and utility vehicle industry. Its most important products are
pneumatic braking systems and related electronic and other control systems
(including ABS) marketed under the WABCO(R) name for medium-size and heavy
trucks, tractors, buses, trailers and utility vehicles. American Standard
supplies vehicle manufacturers such as Mercedes-Benz, Volvo, Iveco (Fiat), RVI
(Renault) and Rover. Management believes that Automotive Products is well
positioned to benefit from any future improvement in market conditions in Europe
and Brazil and increasing demand for ABS and other sophisticated electronic
control systems in a number of markets (including the commercial vehicle market
in the United States, where phase-in of ABS is mandated beginning in 1997), as
well as from the technological advances embodied in the Issuer's products and
its close relationships with a number of vehicle manufacturers.
MEDICAL SYSTEMS. In January 1997 the Company announced formation of its
Medical Systems Group to pursue initiatives in the medical diagnostics field.
For the last several years the Company had supported the development of two
small medical diagnostic products groups focusing on test instruments using
laser technology and reagents. The Company had invested an aggregate of
approximately $40 million in the development of these businesses through
December 31, 1996. On June 30, 1997, the Company acquired the European medical
diagnostic business of Sorin Biomedica S.p.A. ("Sorin"), an affiliate of the
Fiat Group, and, in a merger, all outstanding shares of INCSTAR Corporation, a
biotechnology company based in Stillwater, Minnesota, in which Sorin indirectly
owned a 52% interest. Sorin and INCSTAR develop and market test reagents for
clinical diagnostics and
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<PAGE>
medical research and in 1996 had sales of approximately $80 million and $40
million, respectively. The aggregate cost of the acquisition was approximately
$210 million, including fees and expenses and was funded with borrowings under
the Company's existing bank facilities.
RISK FACTORS
Prospective investors should consider carefully the following risk
factors, as well as other information set forth or incorporated by reference in
this Prospectus.
SUBSTANTIAL LEVERAGE
At March 31, 1997, the Company's total indebtedness was approximately
$2.2 billion, including short-term debt and the current portion of long-term
debt. At March 31, 1997, the Company had scheduled principal payments of $18
million, $26 million and $164 million for the years 1997, 1998 and 1999,
respectively. In January 1997, the Issuer entered into the $1.75 billion amended
and restated credit facility (the "Facilities"), consisting of a $1.375 billion
revolving credit facility and a $375 million periodic access facility. At March
31, 1997, the Issuer had unused borrowing capacity under the Facilities of
approximately $1.015 billion.
Borrowings under the Facilities are also available to provide financing
to redeem certain outstanding public debt securities of the Issuer and for other
general corporate purposes. Subject to restrictions in the Facilities and its
other debt instruments, the Issuer and its Subsidiaries may incur additional
indebtedness from time to time to finance capital expenditures, joint ventures,
acquisitions or other expenditures.
The Company's substantial leverage could have important consequences,
including: limiting its ability to obtain additional financing; the need to use
substantial portions of operating cash flow to meet interest and principal
repayment obligations; exposure to interest rate fluctuations due to floating
interest rates; increased vulnerability to changes in general economic
conditions, competitive pressures and changes in government regulations; and
potential limitations on its ability to realize some or all of the benefit of
significant business opportunities. In addition, the Company's results of
operations reflect the effects of purchase accounting and significant interest
expense resulting from its highly leveraged capital structure.
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RANKING OF DEBT SECURITIES
The indebtedness under the Facilities is secured by pledges of stock of
the Issuer's and its foreign and domestic subsidiaries. In addition, borrowings
under the Facilities are guaranteed by the Guarantor, the Issuer and certain
subsidiaries of the Issuer.
The Debt Securities will not be secured and the Senior Subordinated
Debt Securities and the Subordinated Debt Securities will be subordinated to all
Senior Debt, in the case of the Senior Subordinated Debt Securities, and Senior
and Senior Subordinated Debt in the case of Subordinated Debt Securities. The
Debt Securities will also be effectively subordinated to creditors (including
the lenders under the facilities and other lenders, tax authorities and trade
creditors) and preferred stockholders (if any) of the Issuer's subsidiaries.
INTERNATIONAL OPERATIONS
The Company conducts significant non-U.S. operations through
subsidiaries in most of the major countries of Western Europe, Brazil, the
People's Republic of China ("PRC"), Thailand, Mexico, the Philippines, Bulgaria,
the Czech Republic, Central American countries, Canada, Malaysia, South Korea,
Taiwan, Australia and Egypt. In addition, the Company conducts business in these
and other countries through affiliated companies and partnerships in which it
owns 50% or less of the equity interest of such entities. The Company has
manufacturing operations in 35 countries. International operations are subject
to a number of special risks, including currency exchange rate fluctuations,
trade barriers, exchange controls, governmental expropriation, political risks
and risks of increases in taxes. In addition, various jurisdictions outside the
United States have laws limiting the right and ability of non-U.S. subsidiaries
and affiliates to pay dividends and remit earnings to affiliated companies
unless specified conditions are met.
The Company's financial performance on a U.S. dollar denominated basis
can be significantly affected by fluctuations in currency exchange rates. Such
fluctuations have much less effect on local operating results, however, because
generally the Company sells its products within the countries in which they are
manufactured. The asset exposure of foreign operations to the effects of
exchange volatility has been partly offset by the denomination in foreign
currencies of a portion of the Company's borrowings. The Company from time to
time enters into agreements in order to reduce its foreign currency exposure.
These agreements have not been and are not expected to be material.
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TAX MATTERS
The Company has from time to time reorganized and restructured, and may
in the future reorganize and restructure, its international operations based on
certain assumptions it believes to be correct relating to the various tax laws
(including capital gains and withholding tax laws), U.S. and international tax
treaty developments, international currency exchange and capital repatriation
laws and other relevant laws applicable in non-U.S. jurisdictions. While
management believes that such assumptions are correct, there can be no assurance
that taxing or other authorities will reach the same conclusion. If such
assumptions are incorrect, or if such laws were changed or modified, the Company
may experience adverse tax and other financial consequences.
In connection with examinations of the tax returns of the Company's
German subsidiaries for the years 1984 through 1990, German tax authorities have
raised questions regarding the treatment of certain significant matters. In
prior years the Company paid approximately $17 million (at June 30, 1997
exchange rates) of a disputed German income tax. A suit is pending to obtain a
refund of this tax. In March 1996 the Company received an assessment, which it
has appealed, for additional taxes of approximately $62 million (at June 30,
1997 exchange rates) (principally relating to the 1988 to 1990 period), plus
interest, for the tax return years under audit. In addition, significant
transactions similar to those which gave rise to such assessment occurred in
years subsequent to 1990. In June 1997, the German tax authorities commenced an
audit of the years 1991 through 1994. Having assessed additional taxes for the
1988-1990 period, the German tax authorities might, after completing the current
audit, propose tax adjustments for the 1991-1994 period that could be as much as
50% higher. The Company, on the basis of the opinion of German legal counsel,
Meilicke & Partner, believes the German tax returns are substantially correct as
filed and any such adjustments would be inappropriate and intends to vigorously
contest any adjustments which have been or may be assessed. Accordingly, the
Company has not recorded any loss contingency at March 31, 1997 with respect to
such matters.
The Company has agreed with the German tax authorities to make a
partial security deposit in respect of the additional taxes and interest
assessed in March 1996. Approximately $11 million (at June 30, 1997 exchange
rates) was paid in January 1997 and, in addition, the Company has applied
approximately $6 million (at June 30, 1997 exchange rates) of tax refunds due it
with respect to the 1996 tax year to the security deposit. The tax authorities
have granted a staying order for the balance of the additional taxes and
interest assessed in March 1996, under which no further payment or other
security will be required from the Company before litigation of the matter or a
final resolution. During litigation, the Company would expect renewal of the
staying order. Upon final resolution, the
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Company will be obligated to pay any tax liability in excess of the security
deposit or the Company will receive a refund of any excess security deposit
(with interest accruing on the additional tax from the date of assessment or the
refund amount from the date of deposit, respectively).
As a result of German tax legislation, first effective in 1994, the
Company's tax provision in Germany was higher in 1994, 1995 and 1996, and will
continue to be higher in 1997 and in the future. As a result of this German tax
legislation and the related additional tax provisions, the Company believes its
tax exposure to the major issues under the audit referred to above will be
reduced starting with the 1994 tax year and continuing thereafter into future
years.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of Debt Securities offered
by this Prospectus and the applicable Prospectus Supplement for general
corporate purposes, which may include the reductions of outstanding borrowings,
the repayment of outstanding debt, stock repurchases, acquisitions, additions to
working capital or capital expenditures.
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES
Three
Months
Ended
Year Ended December 31, March 31,
---------------------------------------- ---------
1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earning to Fixed Charges(1)............... (2) (2) (2) 1.6 (2) (2) 1.4
</TABLE>
(1) For purposes of computing the ratio of earnings to fixed charges, fixed
charges consist of interest on debt (including capitalized interest),
amortization of debt discount and expense, and a portion of rentals
determined to be representative of interest. Earnings consist of
consolidated net income before income taxes, plus fixed charges other
than capitalized interest but including the amortization thereof,
adjusted by the excess or deficiency of dividends over income of
entities accounted for by the equity method.
(2) Earnings were insufficient to cover fixed charges for the years ended
December 31, 1992, 1993, 1994 and 1996 and the three months ended March
31, 1996, by $56.8 million, $80.5 million, $78.5 million, $37.5 million
and $203.7 million, respectively. The three months ended March 31, 1996
and the year 1996 included a non-cash asset impairment charge resulting
from the adoption of Statement of Financial Accounting Standards No.
121. Excluding that charge the ratio of earnings to fixed charges in
those periods would have been 1.5 and 1.9, respectively.
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DESCRIPTION OF DEBT SECURITIES AND DEBT GUARANTEES
The following description sets forth certain general terms and
provisions of the Debt Securities and Debt Guarantees to which any Prospectus
Supplement may relate. The particular terms of the Debt Securities and Debt
Guarantees offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may not apply to the Debt Securities and Debt Guarantees
so offered will be described in the Prospectus Supplement relating to such Debt
Securities and Debt Guarantees.
The Senior Debt Securities and the Senior Debt Guarantees are to be
issued under an Indenture (the "Senior Indenture"), among the Issuer, the
Guarantor and the trustee to be named therein. The Senior Subordinated Debt
Securities and the Senior Subordinated Debt Guarantees are to be issued under a
separate Indenture (the "Senior Subordinated Indenture"), also among the Issuer,
the Guarantor and the trustee to be named therein. The Subordinated Debt
Securities and the Subordinated Debt Guarantees are to be issued under a
separate Indenture (the "Subordinated Indenture"), also among the Issuer, the
Guarantor and the trustee to be named therein. The Senior Indenture, the Senior
Subordinated Indenture and the Subordinated Indenture are sometimes referred to
collectively as the "Indentures." The Indentures are subject to and qualified by
the Trust Indenture Act of 1939, as amended (the "TIA"). Copies of the
Indentures have been filed as exhibits to the Registration Statement. The
trustees under the Indentures are collectively hereinafter referred to as the
"Trustee." The following summaries of certain provisions of the Debt Securities,
the Debt Guarantees and the Indentures do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture applicable to a particular series of Debt Securities
and the related Debt Guarantees, including the definitions therein of certain
terms. Capitalized terms not otherwise defined herein shall have the meaning
given in the Indentures.
TERMS
General. The Debt Securities will be direct unsecured obligations of
the Issuer. The Senior Debt Securities and Senior Debt Guarantees will rank pari
passu with other unsecured unsubordinated obligations of the Issuer and the
Guarantor, respectively; the Senior Subordinated Debt Securities and Senior
Subordinated Debt Guarantees will be unsecured and will be subordinated in right
of payment to all Senior Debt of the Issuer and Senior Debt of the Guarantor,
respectively; and the Subordinated Debt Securities and Subordinated Debt
Guarantees will be unsecured and will be subordinated in right of payment to all
Sen-
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ior Debt and Senior Subordinated Debt of the Issuer and Senior Debt and Senior
Subordinated Debt of the Guarantor, respectively.
The particular terms of the Debt Securities offered by a Prospectus
Supplement will be described in the applicable Prospectus Supplement, along with
any applicable modifications of or additions to the general terms of the Debt
Securities as described herein and in the Indentures and any applicable federal
income tax considerations. Accordingly, for a description of the terms of any
series of Debt Securities, reference must be made to both the Prospectus
Supplement relating thereto and the description of the Debt Securities set forth
in this Prospectus.
Except as set forth in any Prospectus Supplement, the Debt Securities
may be issued without limit as to aggregate principal amount (up to the maximum
aggregate amount of Debt Securities registered under the Registration
Statement), in one or more series, in each case as established from time to time
by the Company or as set forth in the applicable Indenture or in one or more
indentures supplemental to the applicable Indenture. All Debt Securities of one
series need to be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the holders of the Debt
Securities of such series, for issuance of additional Debt Securities of such
series.
The Indentures provide that the Company may, but need not, designate
more than one Trustee thereunder, each with respect to one or more series of
Debt Securities. Any Trustee under the Indentures may resign or be removed with
respect to one or more series of Debt Securities, and a successor Trustee may be
appointed to act with respect to such series. In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the Indenture
separate and apart from the trust administered by any other Trustee, and, except
as otherwise indicated herein, any action described herein to be taken by each
Trustee may be taken by each such Trustee with respect to, and only with respect
to, the one or more series of Debt Securities for which it is Trustee under the
Indenture.
The following summaries set forth certain general terms and provisions
of the Indenture and the Debt Securities. The Prospectus Supplement relating to
a series of Debt Securities being offered will contain further terms of such
Debt Securities, including the following specific terms.
(1) The title of such Debt Securities;
(2) The aggregate principal amount of such Debt Securities and
any limit on such aggregate principal amount;
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(3) The price (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued and, if
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of
acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable;
(5) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at
which such Debt Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on
which any such interest will be payable, the record dates for
such interest payment dates, or the method by which such dates
shall be determined, the persons to whom such interest shall
be payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve
30-day months;
(7) The place or places where the principal of and interest, if
any, on such Debt Securities will be payable, where such Debt
Securities may be surrendered for registration of transfer or
exchange and where notices or demands to or upon the Issuer in
respect of such Debt Securities and the Indenture may be
served;
(8) The period or periods, if any, within which, the price or
prices at which and the other terms and conditions upon which
such Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, as a whole or in
part, at the option of the Issuer;
(9) The obligation, if any, of the Issuer to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and
the period or periods within which, the price or prices at
which and the other terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased, as a whole
or in part, pursuant to such obligation;
(10) If other than U.S. dollars, the currency or currencies in
which such Debt Securities are denominated and payable, which
may be a foreign currency or
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units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating
thereto;
(11) Whether the amount of payments of principal of (and premium,
if any) or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method
(which index, formula or method may, but need not be, based on
the yield on or trading price of other securities, including
United States Treasury securities, or on a currency,
currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be
determined;
(12) Whether the principal of (and premium, if any) or interest on
the Debt Securities of the series are to be payable, at the
election of the Issuer or a holder thereof, in a currency or
currencies, currency unit or units or composite currency or
currencies other than that in which such Debt Securities are
denominated or stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are denominated or
stated to be payable and the currency or currencies, currency
unit or units or composite currency or currencies in which
such Debt Securities are to be so payable;
(13) Provisions, if any, granting special rights to the holders of
Debt Securities of the series upon the occurrence of such
events as may be specified;
(14) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to
Debt Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants described herein;
(15) Whether and under what circumstances the Issuer will pay any
additional amounts on such Debt Securities in respect of any
tax, assessment or governmental charge and, if so, whether the
Issuer will have the option to redeem such Debt Securities in
lieu of making such payment;
(16) Whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities and the terms upon
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which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any
Debt Securities of the series are to be issuable initially in
temporary global form and whether any Debt Securities of the
series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange
such interests for Debt Securities of such series and of like
tenor or any authorized form and denomination and the
circumstances under which any such exchanges may occur, if
other than in the manner provided in the Indenture, and, if
Registered Securities of the series are to be issuable as a
Global Security, the identity of the depository for such
series;
(17) The date as of which any Bearer Securities of the series and
any temporary Global Security representing outstanding Debt
Securities of the series shall be dated if other then the date
of original issuance of the first Security of the series to be
issued;
(18) The Person to whom any interest of any Registered Security of
the series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, the manner in which, or the Person to whom,
any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest
payable on a temporary Global Security on an Interest Payment
Date will be paid if other than in the manner provided in the
Indenture;
(19) Whether such Debt Securities will be issued in certificated
or book entry form;
(20) The applicability, if any, of the defeasance and covenant
defeasance provisions of the Indenture to the Debt Securities
of the series;
(21) If the Debt Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange
of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, then the form and/or terms of such
certificates, documents or conditions; and
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(22) Any other terms of the series (which terms shall not be
inconsistent with the provisions of the Indenture).
If so provided in the applicable Prospectus Supplement, the Debt
Securities may be issued at a discount below their principal amount and provide
for less than the entire principal amount thereof to be payable upon declaration
of acceleration of the maturity thereof ("Original Issue Discount Securities").
In such cases, all material U.S. federal income tax and other considerations
applicable to Original Issue Discount Securities will be described in the
applicable Prospectus Supplement.
Except as may be set forth in any Prospectus Supplement, the Indenture
does not contain any provisions that would limit the ability of the Guarantor or
its Subsidiaries to incur indebtedness or that would afford holders of Debt
Securities protection in the event of a highly leveraged or similar transaction
involving the Issuer or its Subsidiaries or in the event of a change of control.
Reference is made to the applicable Prospectus Supplement for information with
respect to any deletions from, modifications of, or additions to, the Events of
Default or covenants of the Issuer that are described below, including any
addition of a covenant or other provision providing event risk or similar
protection.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in
book-entry form consisting of one or more global securities (the "Global
Securities") that will be deposited, or on behalf of, a depositary identified in
the applicable Prospectus Supplement relating to such series. Global Securities
may be issued in either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement relating to such series.
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof. Where Debt Securities of any series are issued in
bearer form, the special restrictions and considerations, including special
offering restrictions and special federal income tax considerations, applicable
to any such Debt Securities and to payment on and transfer and exchange of such
Debt Securities will be described in the applicable Prospectus Supplement.
Bearer Debt Securities will be transferable by delivery.
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Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the applicable Trustee, the
address of which will be stated in the applicable Prospectus Supplement;
provided that, at the option of the Issuer, payment of interest may be made by
check mailed to the address of the person entitled thereto as it appears in the
applicable register for such Debt Securities or by wire transfer of funds to
such person at an account maintained within the United States.
Unless otherwise specified in the applicable Prospectus Supplement, any
interest not punctually paid or duly provided for on any Interest Payment Date
with respect to a Debt Security in registered form ("Defaulted Interest") will
forthwith cease to be payable to the holder on the applicable Regular Record
Date and may either be paid to the Person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, in which case notice thereof shall be given to the holder of such Debt
Security not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner, all as more completely described in the
Indenture.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for any
authorized denomination of other Debt Securities of the same series and of a
like aggregate principal amount and tenor upon surrender of such Debt Securities
at the corporate trust office of the applicable Trustee or at the office of any
transfer agent designated by the Issuer for such purpose. In addition, subject
to certain limitations imposed upon Debt Securities issued in book-entry form,
the Debt Securities of any series may be surrendered for registration of
transfer or exchange thereof at the corporate trust office of the applicable
Trustee or at the office of any transfer agent designated by the Issuer for such
purpose. Every Debt Security in registered form surrendered for registration of
transfer or exchange must be duly endorsed or accompanied by a written
instrument of transfer, and the person requesting such action must provide
evidence of title and identity satisfactory to the applicable Trustee or
transfer agent. No service charge will be made for any registration of transfer
or exchange of any Debt Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. If the applicable Prospectus Supplement refers to any transfer agent
(in addition to the applicable Trustee) initially designated by the Issuer with
respect to any series of Debt Securities, the Issuer may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that the Issuer will be
required to maintain a transfer agent in each place of payment for such series.
The Issuer may at any time designate additional transfer agents with respect to
any series of Debt Securities.
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Neither the Issuer nor any Trustee shall be required to (a) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before the selection of any
Debt Securities for redemption and ending at the close of business on (i) if
such Debt Securities are issuable only as Registered Securities, the day of
mailing of the relevant notice of redemption and (ii) if such Debt Securities
are issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if such Debt Securities are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (b) register the transfer of or exchange any Debt
Security, or portion thereof, so selected for redemption, in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part; (c)
exchange any Bearer Security so selected for redemption except that, to the
extent provided with respect to such Bearer Security, such Bearer Security may
be exchanged for a Registered Security of that series and of like tenor,
provided that such Registered Security shall be simultaneously surrendered for
redemption; or (d) issue, register the transfer of or exchange any Debt Security
that has been surrendered for repayment at the option of the holder, except the
portion, if any, of such Debt Security not to be so repaid.
Payment in respect of Debt Securities in bearer form will be made in
the currency and in the manner designated in the applicable Prospectus
Supplement, subject to any applicable laws and regulations, at such paying
agencies outside the United States as the Issuer may appoint from time to time.
The paying agents outside the United States, if any, initially appointed by the
Issuer for a series of Debt Securities will be named in the applicable
Prospectus Supplement. Unless otherwise provided in the applicable Prospectus
Supplement, the Issuer may at any time designate additional paying agents or
rescind the designation of any paying agents, except that, if Debt Securities of
a series are issuable in registered form, the Issuer will be required to
maintain at least one paying agent in each place of payment for such series and
if Debt Securities of a series are issuable in bearer form, the Issuer will be
required to maintain at least one paying agent in a place of payment outside the
United States where Debt Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Indentures provide that the the Issuer or the Guarantor may without
the consent of the holders of any outstanding Debt Securities, consolidate with,
or sell, lease or convey all or substantially all of its assets to, or merge
with or into, any other entity provided that (a) either the Issuer or the
Guarantor, as the case may be, shall be the continuing entity, or the successor
entity formed by or resulting from any such consolidation or merger or which
shall have received the transfer of such assets is organized under the laws of
any domestic
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jurisdiction and expressly assumes the Guarantor's or the Issuer's
obligations to pay principal of (and premium, if any) and interest on all of the
Debt Securities and the due and punctual performance and observance of all of
the covenants and conditions contained in the Indenture; (b) immediately after
giving effect to such transaction and treating any indebtedness that becomes an
obligation of the Guarantor or the Issuer as a result thereof as having been
incurred by the Guarantor or the Issuer at the time of such transaction, no
Event of Default under the Indenture, and no event which, after notice or the
lapse of time, or both, would become such an Event of Default shall have
occurred and be continuing; and (c) an officers' certificate and legal opinion
covering such conditions shall be delivered to each Trustee.
RANKING OF SENIOR DEBT SECURITIES
The payment of the principal of and premium, if any, and any interest
on the Senior Debt Securities will rank pari passu with all other unsecured
unsubordinated obligations of the Issuer.
SUBORDINATION OF SENIOR SUBORDINATED DEBT SECURITIES
The payment of the principal of and premium, if any, and any interest
on the Senior Subordinated Debt Securities (including making any deposit
pursuant to the provisions described under "Defeasance" or repurchasing,
redeeming or otherwise retiring any Senior Subordinated Debt Securities
(collectively, "pay the Debt Securities")) will, to the extent set forth in the
Senior Subordinated Indenture, be subordinated in right of payment to the prior
payment in full of all Senior Debt of the Issuer. Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, assignment for the benefit of creditors, marshalling of
assets or any bankruptcy, insolvency or similar proceedings of the Issuer, the
holders of all Senior Debt of the Issuer will first be entitled to receive
payment in full of all amounts due or to become due thereon before the Holders
of the Senior Subordinated Debt Securities will be entitled to receive any
payment or distribution in respect of the principal of, premium, if any, or any
interest on the Senior Subordinated Debt Securities, and in the event that,
notwithstanding the foregoing, the Trustee under the Senior Subordinated
Indenture or the Holder of any Senior Subordinated Debt Security receives any
payment or distribution of assets of any kind or character before all Senior
Debt of the Issuer is paid in full, then such payment or distribution will be
required to be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other person making
payment or distribution of assets of the Issuer for application to the payment
of all Senior Debt of the Issuer remaining unpaid, to the extent necessary to
pay all Senior Debt of the Issuer in full. No payments on account of
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principal, premium, if any, or any interest in respect of the Senior
Subordinated Debt Securities may be made if there shall have occurred and be
continuing (i) a default in any payment with respect to any Senior Debt of the
Issuer (a "payment event of default"), (ii) an event of default (other than a
payment event of default) with respect to any Senior Debt of the Issuer
resulting in the acceleration of the maturity thereof, or (iii) any event of
default (other than a payment event of default) with respect to any Senior Debt
of the Issuer permitting the holders thereof to accelerate the maturity thereof
after the Issuer or the Trustee under the Senior Subordinated Indenture is
notified (a "Payment Notice") of such event by a representative of a holder of
Senior Debt of the Issuer (until, in the case of this clause (iii), the earlier
of (A) 180 days thereafter and (B) the date, if any, on which such event is
cured or waived or the related indebtedness is discharged); and in the event
that the Issuer makes any payment to the Trustee under the Senior Subordinated
Indenture or the Holder of any Senior Subordinated Debt Security prohibited by
the foregoing, then such payment will be required to be paid over and delivered
forthwith to the appropriate Agent Bank (as defined herein). In the case of
clause (iii), after such 180 days, the Issuer may resume payments on the Senior
Subordinated Debt Securities unless such Specified Senior Debt has been
accelerated. In addition, no more than one Payment Notice may be given in any
consecutive 360-day period regardless of the number of non-payment defaults with
respect to Senior Debt during such period. A failure to make any payment with
respect to the Senior Subordinated Debt Securities as a result of the rights of
the holders of Senior Debt described in this paragraph will not have any effect
on the right of the holders of the Senior Subordinated Debt Securities to
accelerate the maturity thereof as a result of such payment default. No event of
default which had occurred and was continuing on the date of receipt by the
Issuer of a Payment-Notice and was known to any holder of Specified Senior Debt
or its Representative with respect to which the first Payment Notice was given
may be made the basis for the delivery of a second Payment Notice from such
Representative whether or not within any consecutive 360-day period, unless such
event of default has been cured or waived for a period of not less than 90
consecutive days.
The Issuer will agree in the Senior Subordinated Indenture that it will
not issue, assume, guarantee, incur or otherwise become liable, directly or
indirectly, for any indebtedness, guarantee or obligation which is both
subordinate or junior in ranking in any respect to any Senior Debt and senior to
the Senior Subordinated Debt Securities.
Subject to the payment in full of all Senior Debt of the Issuer, the
Holders of the Senior Subordinated Debt Securities shall be subrogated to the
rights of the holders of Senior Debt of the Issuer to receive payments or
distributions of assets of the Issuer applicable to Senior Debt of the Issuer
until the Senior Subordinated Debt Securities are paid in full.
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By reason of such subordination, in the event of insolvency, the
holders of Senior Debt of the Issuer may recover more, ratably, than the Holders
of the Senior Subordinated Debt Securities.
At March 31, 1997, the Issuer had outstanding approximately $1,343
million of Senior Debt.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The payment of the principal of and premium, if any, and any interest
on the Subordinated Debt Securities (including making any deposit pursuant to
the provisions described under "Defeasance" or repurchasing, redeeming or
otherwise retiring any Subordinated Debt Securities (collectively, "pay the Debt
Securities")) will, to the extent set forth in the Subordinated Indenture, be
subordinated in right of payment to the prior payment in full of all Senior and
Senior Subordinated Debt of the Issuer. The applicable Prospectus Supplement
will set forth any additional indebtedness to which the Subordinated Debt
Securities will be subordinate. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the Issuer, the holders of all
Senior and Senior Subordinated Debt of the Issuer will first be entitled to
receive payment in full of all amounts due or to become due thereon before the
Holders of the Subordinated Debt Securities will be entitled to receive any
payment or distribution in respect of the principal of, premium, if any, or any
interest on the Subordinated Debt Securities, and in the event that,
notwithstanding the foregoing, the Trustee under the Subordinated Indenture or
the Holder of any Subordinated Debt Security receives any payment or
distribution of assets of any kind or character before all Senior and Senior
Subordinated Debt of the Issuer is paid in full, then such payment or
distribution will be required to be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other person making payment or distribution of assets of the Issuer for
application to the payment of all Senior and Senior Subordinated Debt of the
Issuer remaining unpaid, to the extent necessary to pay all Senior and Senior
Subordinated Debt of the Issuer in full. No payments on account of principal,
premium, if any, or any interest in respect of the Subordinated Debt Securities
may be made if there shall have occurred and be continuing (i) a default in any
payment with respect to any Senior and Senior Subordinated Debt of the Issuer (a
"payment event of default"), (ii) an event of default (other than a payment
event of default) with respect to any Senior and Senior Subordinated Debt of the
Issuer resulting in the acceleration of the maturity thereof, or (iii) any event
of default (other than a payment event of default) with respect to any Senior
and Senior Subordinated Debt of the Issuer permitting the holders thereof to
accelerate the maturity thereof
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after the Issuer or the Trustee under the Subordinated Indenture is notified (a
"Payment Notice") of such event by a representative of a holder of Senior and
Senior Subordinated Debt of the Issuer (until, in the case of this clause (iii),
the earlier of (A) 180 days thereafter and (B) the date, if any, on which such
event is cured or waived or the related indebtedness is discharged); and in the
event that the Issuer makes any payment to the Trustee under the Subordinated
Indenture or the Holder of any Subordinated Debt Security prohibited by the
foregoing, then such payment will be required to be paid over and delivered
forthwith to the appropriate Agent Bank. In the case of clause (iii), after such
180 days, the Issuer may resume payments on the Subordinated Debt Securities
unless such Specified Senior Debt has been accelerated. In addition, no more
than one Payment Notice may be given in any consecutive 360-day period
regardless of the number of non-payment defaults with respect to Senior and
Senior Subordinated Debt during such period. A failure to make any payment with
respect to the Subordinated Debt Securities as a result of the rights of the
holders of Senior and Senior Subordinated Debt described in this paragraph will
not have any effect on the right of the holders of the Subordinated Debt
Securities to accelerate the maturity thereof as a result of such payment
default. No event of default which had occurred and was continuing on the date
of receipt by the Issuer of a Payment-Notice and was known to any holder of
Specified Senior Debt or its Representative with respect to which the first
Payment Notice was given may be made the basis for the delivery of a second
Payment Notice from such Representative whether or not within any consecutive
360-day period, unless such event of default has been cured or waived for a
period of not less than 90 consecutive days.
Subject to the payment in full of all Senior and Senior Subordinated
Debt of the Issuer, the Holders of the Subordinated Debt Securities shall be
subrogated to the rights of the holders of Senior and Senior Subordinated Debt
of the Issuer to receive payments or distributions of assets of the Issuer
applicable to Senior and Senior Subordinated Debt of the Issuer until the
Subordinated Debt Securities are paid in full.
By reason of such subordination, in the event of insolvency, the
holders of Senior and Senior Subordinated Debt of the Issuer may recover more,
ratably, than the Holders of the Subordinated Debt Securities.
At March 31, 1997, the Issuer had outstanding approximately $2,189
million of Senior and Senior Subordinated Debt.
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CERTAIN DEFINITIONS RELATING TO THE DEBT SECURITIES
"Agent Bank" means the appropriate agent or agents for banks from time
to time under any credit agreement, or any successor agent or agents thereto.
"Bank Debt" means the Senior Debt described in clause (i) of the
definition of "Senior Debt" or the Senior and Senior Subordinated Debt described
in clause (i) of the definition of Senior and Senior Subordinated Debt, as the
case may be.
"Senior Debt" is defined as (i) indebtedness for money borrowed and all
obligations, whether direct or indirect, under guarantees, letters of credit,
foreign currency or interest rate swaps, foreign exchange contracts, caps,
collars, options, hedges or other agreements or arrangements designed to protect
against fluctuations in currency values or interest rates, other extensions of
credit, expenses, fees, reimbursements, indemnities and all other amounts
(including interest at the contract rate accruing on or after the filing of any
petition in bankruptcy or reorganization relating to the Issuer or the
Guarantor, as applicable, whether or not a claim for post-filing interest is
allowed in such proceeding) owed by the Issuer or the Guarantor, as applicable,
in the documents relating to Facilities and any refinancing or any replacement
facility, (ii) the principal of and premium, if any, and accrued and unpaid
interest (including interest at the contract rate accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Issuer or the Guarantor, as applicable, whether or not a claim for post-filing
interest is allowed in such proceeding), whether existing on the date hereof or
hereafter incurred, in respect of (A) indebtedness of the Issuer or the
Guarantor, as applicable, for money borrowed, (B) express written guarantees by
the Issuer or the Guarantor, as applicable, of indebtedness for money borrowed
by any other person, (C) indebtedness evidenced by notes, debentures, bonds, or
other instruments of indebtedness for the payment of which the Issuer or the
Guarantor, as applicable, is responsible or liable, by guarantees or otherwise,
(D) obligations of the Issuer or the Guarantor, as applicable, for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (E) obligations of the Issuer or the Guarantor, as
applicable, under any agreement to lease, or any lease of, any real or personal
property which, in accordance with generally accepted accounting principles, is
classified upon the Issuer's or the Guarantor's, as applicable, consolidated
balance sheet as a liability, and (F) obligations of the Issuer or the
Guarantor, as applicable, under interest rate swaps, caps, collars, options and
similar arrangements and foreign currency hedges entered into in respect of any
such indebtedness or obligation, and (iii) modifications, renewals, extensions,
replacements, refinancings, and refundings of any such indebtedness, obligations
or guarantees, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
indebtedness, obligations or guarantees, or
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such modifications, renewals, extensions, replacements, refinancings, or
refundings thereof, are not superior in right of payment to the Senior
Subordinated Debt Securities or the Senior Subordinated Debt Guarantees, as
applicable; provided, that Senior Debt will not be deemed to include (a) any
obligation of the Issuer or the Guarantor, as applicable, to any Subsidiary
(other than obligations pledged pursuant to the Facilities as security for the
obligations of the Issuer thereunder), (b) any liability for Federal, state,
local or other taxes owed or owing by the Issuer or the Guarantor, as
applicable, (c) any accounts payable or other liability to trade creditors
arising in the ordinary course of business, (d) the 9 7/8% Senior Subordinated
Notes or the 10 1/2% Subordinated Discount Debentures or (e) any indebtedness,
guarantee or obligation of the Issuer or the Guarantor, as applicable, which is
subordinate or junior by its terms in any respect to any other indebtedness,
guarantee or obligation of the Issuer. If any Bank Debt is disallowed, avoided
or subordinated pursuant to the provisions of Section 548 of the U.S. Bankruptcy
Code or any applicable state fraudulent conveyance law, such Bank Debt will
still constitute Senior Debt.
"Senior and Senior Subordinated Debt" of any Person means (i) the
Senior Debt of such Person, (ii) with the respect to the Issuer, the Senior
Subordinated Debt Securities, (iii) with respect to the Guarantor, the Senior
Subordinated Debt Guarantees, and (iv) any other indebtedness, guarantee or
obligation of the Issuer or the Guarantor, as applicable, that would be Senior
Debt, but for the exclusions set forth in paragraphs (d) and (e) of the proviso
to such definition; unless, in any case, it is provided that such indebtedness,
guarantee or obligation are not superior in right of payment to the Subordinated
Debt Securities or the Subordinated Debt Guarantees.
"Specified Senior Debt" means (i) the Bank Debt and (ii) one or more
other issues of Senior Debt (taken together) or Senior and Senior Subordinated
Debt (taken together), as the case maybe, having an aggregate principal amount
then outstanding exceeding $100 million.
GENERAL SUBORDINATION PROVISIONS
Upon any payment or distribution of the assets of the Issuer upon a
total or partial liquidation or dissolution or reorganization of or similar
proceeding relating to the Issuer, the holders of Senior Debt or Senior and
Senior Subordinated Debt will be entitled to receive payment in full before the
holders of the Debt Securities being subordinated thereto are entitled to
receive any payment. Upon an Event of Default (other than any Event of Default
as a result of the bankruptcy of the Issuer), the Trustees or the holders of the
Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case
may be, looking to accelerate such Debt Securities must give the Representatives
of the holders of the Speci-
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fied Senior Debt 10 days' prior written notice before accelerating the Senior
Subordinated Debt Securities.
By reason of such subordination provisions contained in the Indentures,
in the event of insolvency, creditors of the Issuer who are holders of Senior
Debt may recover more, ratably, than the holders of the Senior Subordinated Debt
Securities or Subordinated Debt Securities being subordinated thereto and
creditors of the Issuer who are not holders of Senior Debt or of the Senior
Subordinated Debt Securities or Subordinated Debt Securities being subordinated
thereto may recover less, ratably, than holders of Senior Debt and may recover
more, ratably, than the holders of such Senior Subordinated Debt Securities or
Subordinated Debt Securities.
CERTAIN COVENANTS
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Debt Securities that is not described in
this Prospectus. Unless otherwise indicated in the applicable Prospectus
Supplement, the Debt Securities will include the following covenants of the
Issuer and the Guarantor:
Existence. Except as permitted under "--Merger, Consolidation or Sale
of Assets," the Indentures require each of the Issuer and the Guarantor to do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; provided, however, that the Issuer
or the Guarantor shall not be required to preserve any right or franchise if it
determines that the preservation thereof is no longer desirable in the conduct
of its business.
Maintenance of Properties. The Indentures require the Issuer and the
Guarantor to cause all of their material properties used or useful in the
conduct of their business or the business of any subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Issuer or the Guarantor may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Guarantor, the Issuer and their subsidiaries shall
not be prevented from selling or otherwise disposing of their properties for
value in the ordinary course of business.
Insurance. The Indentures require the Issuer and Guarantor to cause
each of their and their subsidiaries' insurable properties to be insured against
loss or damage at least equal to their then full insurable value with insurers
of recognized responsibility and, if de-
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scribed in the applicable Prospectus Supplement, having a specified rating from
a recognized insurance rating service.
Payment of Taxes and Other Claims. The Indentures require the Issuer
and Guarantor to pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon them or any subsidiary or upon the income profits
or property of the Issuer or Guarantor or any of their subsidiaries and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Issuer or Guarantor or any of their
subsidiaries; provided, however, that the Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Unless otherwise provided in the applicable Prospectus Supplement, the
Indentures provide that the following events are "Events of Default" with
respect to any series of Debt Securities issued thereunder: (a) default in the
payment of any interest on any Debt Security of such series when such interest
becomes due and payable that continues for a period of 30 days (whether or not,
in the case of the Senior Subordinated Debt Securities or the Subordinated Debt
Securities, payment is prohibited by the subordination provisions thereof); (b)
default in the payment of the principal of (or premium, if any, on) any Debt
Security of such series when due and payable (whether or not, in the case of the
Senior Subordinated Debt Securities or the Subordinated Debt Securities, payment
is prohibited by the subordination provisions thereof); (c) default in making
any sinking fund payment as required for any Debt Security of such series
(whether or not, in the case of the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, payment is prohibited by the subordination
provisions thereof); (d) default in the performance, or breach, of any other
covenant or warranty of the Issuer or the Guarantor in the Indentures with
respect to the Debt Securities of such series and continuance of such default or
breach for a period of 60 days after written notice as provided in the
Indentures; (e) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Guarantor or the Issuer (or
by any subsidiary the repayment of which the Issuer has guaranteed or for which
the Issuer is directly responsible or liable as obligor or guarantor) having an
aggregate principal amount outstanding of at least $20,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, without
such indebtedness having been dis-
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charged, or such acceleration having been rescinded or annulled, within a period
of 30 days after written notice to the Issuer as provided in the Indentures; (f)
certain events of bankruptcy, insolvency or reorganization, or court appointment
of a receiver, liquidator or trustee of the Guarantor, the Issuer or any
Significant Subsidiary of the Issuer; and (g) any other event of default
provided with respect to a particular series of Debt Securities. The term
"Significant Subsidiary" has the meaning ascribed to such term in Regulation S-X
promulgated under the Securities Act.
If an Event of Default under the Indentures with respect to Debt
Securities of any series at the time outstanding occurs and is continuing, then
in every such case the applicable Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of that series will have the right to
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or indexed securities, such portion of the
principal amount as may be specified in the terms thereof) of, and premium, if
any, on, all the Debt Securities of that series to be due and payable
immediately by written notice thereof to the Issuer (and to the applicable
Trustee if given by the holders); provided that in the case of an Event of
Default described under the clause (f) with respect to the Issuer of the
preceding paragraph, acceleration is automatic. However, at any time after such
a declaration of acceleration with respect to Debt Securities of such series has
been made, but before a judgment or decree for payment of the money due has been
obtained by the applicable Trustee, the holders of not less than a majority in
principal amount of outstanding Debt Securities of such series may rescind and
annul such declaration and its consequences if (a) the Issuer shall have
deposited with the applicable Trustee all required payments of the principal of
(and premium, if any) and interest on the Debt Securities of such series, plus
certain fees, expenses, disbursements and advances of the applicable Trustee,
and (b) all Events of Default, other than the non-payment of accelerated
principal (or specified portion thereof and the premium, if any), with respect
to Debt Securities of such series have been cured or waived as provided in the
Indentures. The Indentures will also provide that the holders of not less than a
majority in principal amount of the outstanding Debt Securities of any series
may waive any past default with respect to such series and its consequences,
except a default (i) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series or (ii) in respect of a covenant or
provision contained in the Indentures that cannot be modified or amended without
the consent of the holder of each outstanding Debt Security affected thereby.
The Indentures require each Trustee to give notice to the holders of
Debt Securities within 90 days of a default under the Indentures unless such
default shall have been cured or waived; provided, however, that such Trustee
may withhold notice to the holders of any series of Debt Securities of any
default with respect to such series (except a default in the
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payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund installment in
respect of any Debt Security of such series) if specified responsible officers
of such Trustee consider such withholding to be in the interest of such holders.
The Indentures provide that no holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to the
Indenture or for any remedy thereunder, except in the case of failure of the
applicable Trustee, for 60 days, to act after it has received a written request
to institute proceedings in respect of an Event of Default from the holders of
not less than 25% in principal amount of the outstanding Debt Securities of such
series, as well as an offer of indemnity reasonably satisfactory to it. This
provision will not prevent, however, any holder of Debt Securities from
instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on such Debt Securities at the respective due
dates or redemption dates thereof.
The Indentures provide that, subject to provisions in the Indentures
relating to its duties in case of default, a Trustee will be under no obligation
to exercise any of its rights or powers under the Indentures at the request or
direction of any holders of any series of Debt Securities then outstanding under
the Indentures, unless such holders shall have offered to the Trustee thereunder
reasonable security or indemnity. The holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under the Indentures, as the case may be) shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the applicable Trustee, or of exercising any trust
or power conferred upon such Trustee. However, a Trustee may refuse to follow
any direction which is in conflict with any law or the Indentures, which may
involve such Trustee in personal liability or which may be unduly prejudicial to
the holders of Debt Securities of such series not joining therein.
Within 120 days after the close of each fiscal year, the Issuer and
Guarantor will be required to deliver to each Trustee a certificate, signed by
one of the specified officers of the Issuer and Guarantor, stating whether or
not such officer has knowledge of any default under the Indentures and, if so,
specifying each such default and the nature and status hereof.
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indentures are permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all outstanding
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Debt Securities issued under the Indentures affected by such modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the holder or each such Debt Security affected thereby,
(a) change the stated maturity of the principal of, or any installment of
interest (or premium, if any) on, any such Debt Security; (b) reduce the
principal amount of, or the rate or amount of interest on, or any premium
payable on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount Security that would be due and payable
upon declaration of acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the holder of any such
Debt Security; (c) change the place of payment, or the coin or currency, for
payment of principal of (or premium, if any) or interest on any Debt Security;
(d) impair the right to institute suit for the enforcement of any payment on or
with respect to any such Debt Security; (e) modify or affect in any manner
adverse to the interest of holders of Debt Securities the obligation of the
Guarantor under the Debt Guarantees in respect of the due and punctual payment
of the principal of (and premium, if any) or interest on the Debt Securities;
(f) modify any of the foregoing provisions or any of the provisions relating to
the waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the holder of
such Debt Security; or (g) reduce the above-stated percentage of outstanding
Debt Securities of any series necessary to modify or amend the Indentures, to
waive compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indentures.
The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series, on behalf of all holders of Debt
Securities of that series, insofar as that series is concerned, may waive
compliance by the Issuer and the Guarantor with certain restrictive covenants of
the Indentures.
Modifications and amendments of the Indentures are permitted to be made
by the Issuer and the Guarantor and the respective Trustee thereunder without
the consent of any holder of Debt Securities for any of the following purposes:
(a) to evidence the succession of another person to the obligations of the
Issuer and the Guarantor under the Indentures; (b) to add to the covenants of
the Issuer and Guarantor for the benefit of the holders of all or any series of
Debt Securities or to surrender any right or power conferred upon the Issuer and
Guarantor in the Indentures; (c) to add events of default for the benefit of the
holders of all or any series of Debt Securities; (d) to add or change any
provisions of the Indentures to facilitate the issuance of, or to liberalize
certain terms of, Debt Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form, provided that such action
shall not adversely affect the interests of the holders of the Debt
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Securities of any series in any material respect; (e) to change or eliminate any
provisions of the Indentures, provided that any such change or elimination shall
become effective only when there are no Debt Securities outstanding of any
series created prior thereto which are entitled to the benefit of such
provision; (f) to secure the Debt Securities; (g) to establish the form or terms
of Debt Securities of any series; (h) to provide for the acceptance of
appointment by a successor Trustee or facilitate the administration of the
trusts under the Indentures by more than one Trustee; (i) to cure any ambiguity,
defect or inconsistency in the Indentures, provided that such action shall not
adversely affect the interests of holders of Debt Securities of any series
issued under the Indentures in any material respect; or (j) to supplement any of
the provisions of the Indentures to the extent necessary to permit or facilitate
defeasance and discharge of any series of such Debt Securities, provided that
such action shall not adversely affect the interests of the holders of the
outstanding Debt Securities of any series in any material respect.
The Indentures provide that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (a) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (b) the principal amount of
any Debt Security denominated in a foreign currency that shall be deemed
Outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount of such Debt Security (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent on
the issue date of such Debt Security of the amount determined as provided in (a)
above), (c) the principal amount of an indexed security that shall be deemed
Outstanding shall be the principal face amount of such indexed security at
original issuance, unless otherwise provided with respect to such indexed
security pursuant to the Indentures, and (d) Debt Securities owned by the Issuer
or the Guarantor or any other obligor upon the Debt Securities or any affiliate
of the Issuer or the Guarantor or of such other obligor shall be disregarded.
The Indentures contain provisions for convening meetings of the holders
of Debt Securities of a series. A meeting will be permitted to be called at any
time by the applicable Trustee, and also, upon request, by the Issuer or the
Guarantor or the holders of at least 25% in principal amount of the outstanding
Debt Securities of such series, in any such case upon notice given as provided
in the Indentures. Except for any consent that must be given by the holder or
each Debt Security affected by certain modifications and amendments of the
Indentures, any resolution presented at a meeting or adjourned meeting duly
reconvened
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at which a quorum is present may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding Debt Securities of
that series; provided, however, that, except as referred to above, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with the Indentures will be binding on all holders of Debt
Securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding Debt Securities
of a series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the holders of
not less than a specified percentage in principal amount of the outstanding Debt
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the outstanding Debt Securities of such series
will constitute a quorum.
Notwithstanding the foregoing provisions, the Indentures provide that
if any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that the Indentures expressly provide may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding Debt Securities affected thereby, or of the holders of
such series and one or more additional series: (a) there shall be no minimum
quorum requirement for such meeting, and (b) the principal amount of the
outstanding Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under the Indentures.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Issuer and Guarantor will be permitted, at their option, to
discharge certain obligations to holders of any series of Debt Securities
jointly issued under the Indentures that have not already been delivered to the
applicable Trustee for cancellation and that either have become due and payable
or will become due and payable within one year (or scheduled for redemption
within one year) by irrevocably depositing with the applicable Trustee, in
trust, funds in such currency or currencies, currency unit or units or composite
currency
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or currencies in which such Debt Securities are payable in an amount sufficient
to pay the entire indebtedness on such Debt Securities in respect of principal
(and premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
The Indentures provide that, unless otherwise indicated in the
applicable Prospectus Supplement, the Issuer may elect either (a) to defease and
be discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay additional amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities, and to hold moneys for payment in trust)
("defeasance") or (b) to be released from certain obligations with respect to
such Debt Securities under the Indentures (including the restrictions described
under "--Certain Covenants") or, if provided in the applicable Prospectus
Supplement, its obligations with respect to any other covenant, and any omission
to comply with such obligation shall not constitute an Event of Default with
respect to such Debt Securities ("covenant defeasance"), in either case upon the
irrevocable deposit by the Issuer with the applicable Trustee, in trust, of an
amount, in such currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are payable at stated
maturity, or Governmental Obligations (as defined below), or both, applicable to
such Debt Securities, which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium or Make-Whole Amount, if any)
and interest on such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Issuer or the Guarantor has delivered to the applicable Trustee an
opinion of counsel (as specified in the Indentures) to the effect that the
holders of such Debt Securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same time as would have been the case if such
defeasance or covenant defeasance had not occurred, and such opinion of counsel,
in the case of defeasance, will be required to refer to and be based upon a
ruling received from the Internal Revenue Service or a change in applicable
United States federal income tax law occurring after the date of the Indentures.
In the event of such defeasance, the holders of such Debt Securities would
thereafter be able to look only to such trust fund for payment of principal (and
premium, if any) and interest.
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"Government Obligations" means securities that are (a) direct
obligations of the United States of America or the government which issued the
foreign currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or (b)
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required be law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
If after the Issuer has deposited funds and/or Government Obligations
to effect defeasance or covenant defeasance with respect to Debt Securities of
any series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the Indentures or the terms of such Debt Security to
receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(b) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security will be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest on such Debt Security as they become due out
of the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
cessation of usage based on the applicable market exchange rate. "Conversion
Event" means the cessation of use (i) a currency, currency unit or composite
currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit or composite currency other than the ECU for the purposes for which it was
established. All payments of principal of (and premium, if any) and interest on
any Debt Security that is payable in a foreign currency that ceases to be used
by its government of issuance shall be made in U.S.
dollars.
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In the event the Issuer or the Guarantor effects covenant defeasance
with respect to any Debt Securities and such Debt Securities are declared due
and payable because of the occurrence of any Event of Default other than the
Event of Default described above in clause (d) under "--Events of Default,
Notice and Waiver" with respect to specified sections of the Indentures (which
sections would no longer be applicable to such Debt Securities) or described
above in clause (g) under "--Events of Default, Notice and Waiver" with respect
to any other covenant as to which there has been covenant defeasance, the amount
in such currency, currency unit or composite currency in which such Debt
Securities are payable, and Government Obligations on deposit with the
applicable Trustee, will be sufficient to pay amounts due on such Debt
Securities at the time of their stated maturity but may not be sufficient to pay
amounts due on such Debt Securities at the time of the acceleration resulting
from such Event of Default. However, the Issuer would remain liable to make
payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance, including
any modification to the provisions described above, with respect to the Debt
Securities of or within a particular series.
PAYMENT AND PAYING AGENTS
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest on any series of Debt
Securities will be payable to the corporate trust office of the Trustee, the
address of which will be stated in the applicable Prospectus Supplement;
provided that, at the option of the Issuer, payment of interest may be made by
check mailed to the address of the person entitled thereto as it appears in the
applicable register for such Debt Securities or by wire transfer of funds to
such person at an account maintained within the United States.
All moneys paid by the Issuer or Guarantor to a paying agent or a
Trustee for the payment of the principal of or any premium or interest on any
Debt Security which remain unclaimed at the end of two years after such
principal, premium, Make-Whole Amount or interest has become due and payable
will be repaid to the Issuer, and the holder of such Debt Security thereafter
may look only to the Issuer for payment thereof.
PLAN OF DISTRIBUTION
The Issuer may sell Debt Securities through underwriters or dealers,
directly to one or more purchasers, through agents or through a combination of
any such methods of sale. Any underwriter or agent involved in the offer and
sale of the Debt Securities will be named in the applicable Prospectus
Supplement.
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The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, or at negotiated prices.
In connection with the sale of Debt Securities, underwriters or agents
may receive compensation from the Issuer or from purchasers of Debt Securities,
for whom they may act as agents, in the form of discounts, concessions or
commission. Underwriters may sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of Debt Securities may be deemed to be underwriters under
the Securities Act, and any discounts or commission they receive from the Issuer
and any profit on the resale of Debt Securities they realize may be deemed to be
underwriting discounts and commissions under the Securities Act. Any such
underwriter or agent will be identified, and any such compensation received from
the Issuer will be described, in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement,
each series of Debt Securities will be a new issue with no established trading
market. The Issuer may elect to list any series of Debt Securities on an
exchange, but is not obligated to do so. It is possible that one or more
underwriters may make a market in a series of Debt Securities, but will not be
obligated to do so and may discontinue any market making at any time without
notice. Therefore, no assurance can be given as to the liquidity of the trading
market for the Debt Securities.
Under agreements into which the Issuer and Guarantor may enter,
underwriters, dealers and agents who participate in the distribution of Debt
Securities may be entitled to indemnification by the Issuer and Guarantor
against certain liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, the Issuer and/or the Guarantor in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, the Issuer
will authorize underwriters or other persons acting as the Issuer's agents to
solicit offers by certain institutions to purchase Debt Securities from the
Issuer pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment
-37-
<PAGE>
companies, educational and charitable institutions and others, but in all cases
such institutions must be approved by the Issuer, as the case may be. The
obligations of any purchaser under any such contract will be subject to the
condition that the purchase of the Debt Securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
In order to comply with the securities laws of certain states, if
applicable, the Debt Securities offered hereby will be sold in such jurisdiction
only through registered or licensed brokers or dealers. In addition, in certain
states Debt Securities may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
LEGAL MATTERS
Certain legal matters, including the legality of the Debt Securities
and the Debt Guarantees covered by this Prospectus will be passed upon for the
Issuer and the Guarantor by Richard A. Kalaher, Esq., Vice President, General
Counsel & Secretary of the Issuer, and for any underwriters, dealers or agents
by Cahill Gordon & Reindel (a partnership including a professional corporation),
New York, New York.
EXPERTS
The consolidated financial statements and schedules of American
Standard Inc. and American Standard Companies Inc. as of December 31, 1995 and
1996, and for each of the three years in the period ended December 31, 1996,
incorporated by reference in this Prospectus from their Annual Reports on Form
10-K for the year ended December 31, 1996, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their reports thereon incorporated
herein by reference, and have been so incorporated by reference in reliance upon
such reports given upon the authority of such firm as experts in accounting and
auditing.
Certain information with respect to German tax matters has been
included herein in reliance upon the authority of Meilicke & Partner in German
tax matters.
-38-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the registrant's expenses in connection with the
issuance of the Debt Securities being registered. Except for the registration
fee, the listed amounts are estimates.
Registration fee .................................... $ 303,030.30
Blue Sky fees and expenses .......................... 25,000.00
Trustee's fees ...................................... 25,000.00
Printing and duplicating expenses ...................
Legal fees and expenses .............................
Accounting fees and expenses ........................ $100,000.00
Miscellaneous ....................................... ___________
Total ...................................... $
===========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
II-1
<PAGE>
In accordance with the Delaware Law, the Restated Certificates of
Incorporation of each of the Issuer and Guarantor contains a provision to limit
the personal liability of the directors for violations of their fiduciary duty.
This provision eliminates each director's liability to the Company or its
respective stockholders for monetary damages except (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware Law providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions, or (iv) for any transaction from which a director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence.
Subsection (b) of Article EIGHTH of the Guarantor's Restated
Certificate of Incorporation and subsection (b) of Article SEVENTH of the
Issuer's Restated Certificate of Incorporation provides for indemnification of
directors and officers as follows:
The Corporation shall indemnify, to the fullest extent now or
hereafter permitted by the General Corporation Law of the State of
Delaware, any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he or she is or was or has agreed to become
a Director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a Director or
officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to be taken or
omitted in such capacity, and may to the same extent indemnify any
person who was or is a party or is threatened to be made a party to
such an action, suit or proceeding by reason of the fact that he or she
is or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request
of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding or any
appeal therefrom.
Article VI of the Amended By-Laws of each of the Issuer and the
Guarantor provides for indemnification of directors and officers as follows:
Section 6.1. Nature of Indemnity. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a Director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as
II-2
<PAGE>
a director of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, and may indemnify any person who was or is a party or is
threatened to be made a party to such an action, suit or proceeding by reason of
the fact that he is or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 6.2. Successful Defense. To the extent that a Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
6.1 hereof or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 6.3. Determination That Indemnification Is Proper. Any
Indemnification of a Director or officer of the Corporation under Section 6.1
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 6.1 hereof. Any indemnification of an employee or
agent of the Corporation under Section 6.1 hereof (unless ordered by a court)
II-3
<PAGE>
may be made by the Corporation upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 6.1 hereof. Any such
determination shall be made (1) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such Directors, or if such Directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
Section 6.4. Advance Payment of Expenses. Expenses (including
attorneys' fees) incurred by a Director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate. The Board of Directors may authorize the Corporation's
counsel to represent such Director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
Section 6.5. Procedure for Indemnification of Directors and Officers.
Any indemnification of a Director or officer of the Corporation under Sections
6.1 and 6.2, or advance of costs, charges and expenses to a Director or officer
under Section 6.4 of this Article, shall be made promptly, and in any event
within 30 days, upon the written request of the Director or officer. If a
determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to this Article is required, and the Corporation fails
to respond within sixty days to a written request for indemnity, the Corporation
shall be deemed to have approved such request. If the Corporation denies a
written request for indemnity or advancement of expenses, in whole or in part,
or if payment in full pursuant to such request is not made within 30 days, the
right to indemnification or advances as granted by this Article shall be
enforceable by the Director or officer in any court or competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses under Section 6.4 of this Article where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Section 6.1 of this
Article, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 6.1 of this Article, nor the fact that there has
been an actual determination by the Corporation (including its Board of Di-
II-4
<PAGE>
rectors, its independent legal counsel, and its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 6.6. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the General Corporation Law of the State of Delaware are in
effect. Any repeal or modification of these indemnification provisions shall not
affect any right or obligation then existing with respect to any state of facts
then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state
of facts. Such a "contract right" may not be modified retroactively without the
consent of such director, officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 6.7. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article,
provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the entire Board of
Directors.
Section 6.8. Severability. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ITEM 16. EXHIBITS.
II-5
<PAGE>
Exhibit No. Description
- ----------- -----------
(4) (i) Form of Indenture for the Senior Debt Securities.*
(ii) Form of Indenture for the Senior Subordinated Debt
Securities.*
(iii) Form of Indenture for the Subordinated Debt
Securities.*
(5) Opinion of Richard A. Kalaher, Esq., regarding the
legality of the securities being
registered.
(12) Computation of ratios of earnings to fixed charges of
the Issuer.
(23) (i) Consent of Ernst & Young LLP.
(ii) Consent of Richard A. Kalaher, Esq., included in
Exhibit (5).
(iii) Consent of Meilicke & Partner.
(24) Powers of Attorney.
(27) Financial Data Schedule; previously filed as Exhibit
27 by the Issuer in its Form 10-Q for the quarter
ended March 31, 1997, and herein incorporated by
reference.
- ----------------
*To be filed by amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement.
II-6
<PAGE>
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
II-7
<PAGE>
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Act.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Piscataway, State of New Jersey on July 31, 1997.
AMERICAN STANDARD INC.
By:/s/ EMMANUEL A. KAMPOURIS
--------------------------
(Emmanuel A. Kampouris)
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on July 31, 1997.
/s/ EMMANUAL A. KAMPOURIS Chairman, President and Chief
- --------------------------------------------- Executive Officer;
Director (Principal Executive
(Emmanuel A. Kampouris) Officer)
/s/ FRED A. ALLARDYCE Vice President and Chief
- --------------------------------------------- Financial Officer;
(Principal Financial Officer)
(Fred A. Allardyce)
/s/ G. RONALD SIMON Vice President and Controller
--------------------------------------------- (Principal Accounting Officer)
(G. Ronald Simon)
/s/ STEVEN E. ANDERSON* Director
- ----------------------------------------------
(Steven E. Anderson)
/s/ HORST HINRICHS* Director
- ----------------------------------------------
(Horst Hinrichs)
/s/ GEORGE H. KERCKHOVE* Director
- ----------------------------------------------
(George H. Kerckhove)
II-9
<PAGE>
/s/ SHIGERU MIZUSHIMA* Director
- ----------------------------------------------
(Shigeru Mizushima)
/s/ ROGER W. PARSONS* Director
- ----------------------------------------------
(Roger W. Parsons)
/s/ J. DANFORTH QUAYLE* Director
- ----------------------------------------------
(J. Danforth Quayle)
/s/ DAVID M. RODERICK* Director
- ----------------------------------------------
(David M. Roderick)
/s/ JOSEPH S. SCHUCHERT* Director
- ----------------------------------------------
(Joseph S. Schuchert)
*By: /s/ FREDERICK C. PAINE
-----------------------------------------
(Frederick C. Paine,
as attorney-in-fact)
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Piscataway, State of New Jersey on July 31 ,1997.
AMERICAN STANDARD COMPANIES INC.
By:/s/ EMMANUEL A. KAMPOURIS
----------------------------------------------
(Emmanuel A. Kampouris)
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on July 31, 1997.
/s/ EMMANUEL A. KAMPOURIS Chairman, President and Chief
- --------------------------------------- Executive Officer; Director (Principal
(Emmanuel A. Kampouris) Executive Officer)
/s/ FRED A. ALLARDYCE Vice President and Chief Financial
- --------------------------------------- Officer;(Principal Financial Officer)
(Fred A. Allardyce)
/s/ G. RONALD SIMON Vice President and Controller
- ---------------------------------------
(G. Ronald Simon) (Principal Accounting Officer)
/s/ STEVEN E. ANDERSON* Director
- ---------------------------------------
(Steven E. Anderson)
/s/ HORST HINRICHS* Directo
- ---------------------------------------
(Horst Hinrichs)
/s/ GEORGE H. KERCKHOVE* Director
- ---------------------------------------
(George H. Kerckhove)
II-11
<PAGE>
/s/ SHIGERU MIZUSHIMA* Director
- ---------------------------------------
(Shigeru Mizushima)
/s/ ROGER W. PARSONS* Director
- ---------------------------------------
(Roger W. Parsons)
/s/ J. DANFORTH QUAYLE* Director
- ---------------------------------------
(J. Danforth Quayle)
/s/ DAVID M. RODERICK* Director
- ---------------------------------------
(David M. Roderick)
/s/ JOSEPH S. SCHUCHERT* Director
- ---------------------------------------
(Joseph S. Schuchert)
*By: /s/ FREDERICK C. PAINE
- -----------------------------------------
(Frederick C. Paine,
as attorney-in-fact)
II-12
Exhibit 5
American Standard Inc.
American Standard Companies Inc.
One Centennial Avenue
P.O. Box 6820
Piscataway, NJ 08855
July 31, 1997
American Standard Inc.
American Standard Companies Inc.
One Centennial Avenue
P.O. Box 6820
Piscataway, NJ 08855
Gentlemen:
You have asked me, as General Counsel of American Standard Inc. ("Company")
and of American Standard Companies Inc. ("Guarantor"), to render my opinion
regarding certain matters in connection with a registration statement on Form
S-3 ("Registration Statement") to be filed by the Company and the Guarantor with
the Securities and Exchange Commission ("Commission") under the Securities Act
of 1933 ("Securities Act"). The Registration Statement relates to $1.0 billion
in principal amount of debt securities to be issued by the Company ("Debt
Securities") and guarantees ("Guarantees") to be issued by the Guarantor, fully
and unconditionally guaranteeing the Debt Securities.
I have examined, or caused to be examined, the restated certificates of
incorporation and by-laws of the Company and the Guarantor, each as amended to
date; the records of their corporate proceedings; the Registration Statement,
including the exhibits thereto; each form of indenture ("Indenture" and
collectively, the "Indentures") among the Company, the Guarantor and the trustee
to be named therein ("Trustee"), relating to the Debt Securities and the
Guarantees and such other documents as I have deemed necessary in connection
with the opinion hereinafter expressed.
Based upon the foregoing, I am of the opinion that, upon the taking of
appropriate corporate action by the Company and the Guarantor, the effectiveness
of the Registration Statement under the Securities Act, the qualification of one
or more of the forms of Indentures referred to above under the Trust Indenture
Act of 1939 in connection with an offering of Debt Securities, the due execution
and delivery of such Indenture or Indentures and each amendment thereof or
supplement thereto by the parties thereto (assuming that each such Indenture is
consistent with one of the forms of Indenture filed as an exhibit to the
Registration Statement) and the due execution of the Debt Securities on behalf
of the Company and of the Guarantees on behalf of the Guarantor, the Debt
Securities will be duly and validly authorized and, when the Debt Securities are
duly authenticated by the applicable Trustee and sold and delivered at the price
and in accordance with the terms set forth in the Registration Statement and the
supplement or supplements to the Prospectus included therein, the Debt
Securities will be valid and binding obligations of the Company, and the
Guarantees will be valid and binding obligations of the Guarantor, entitled to
the benefits of the applicable Indenture, except to the extent the foregoing may
be subject to the effect of any applicable bankruptcy, reorganization,
insolvency or other similar laws affecting creditors' rights generally and to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me appearing under the caption
"Legal Matters" in the Prospectus included therein.
Very truly yours,
/s/ RICHARD A. KALAHER
---------------------------
RICHARD A. KALAHER
AMERICAN STANDARD INC.
COMPUTATION OF THE RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Millions)
<TABLE>
<CAPTION>
For the Years ended December 31, Three Months Ended
March 31,
1992 1993 1994 1995 1996 1996 1997
<S> <C> <C> <C> <C> <C> <C> <C>
------ ------ ------ ------ ------ ------ -----
Income/(Loss) from continuing
operation before taxes $ (52.6) $ (80.5) $ (77.7) $ 141.8 $ (46.7) $(205.3) $ 25.1
Minus/(plus) equity in net in-
come of associated companies
net of dividends received 1.9 (1.8) (1.1) (11.0) (11.8) (2.3) 0.8
Amortization of capitalized interest 0.8 0.9 1.0 1.1 1.3 0.3 0.4
Interest Expense 288.9 277.9 259.4 213.3 198.2 51.5 48.8
Rental Expense factor 12.5 13.2 17.6 23.0 27.3 5.0 5.7
------ ------ ------ ------ ------ ===== =====
Earnings available for fixed charges $ 247.7 $ 213.3 $ 201.4 $ 390.2 $ 191.9 $ (146.2) $ 79.2
====== ====== ====== ====== ====== ====== =====
Interest Expense 288.9 277.9 259.4 213.3 198.2 51.5 48.8
Capitalized interest 3.1 2.7 2.9 4.0 3.9 1.0 1.0
Rental Expense factor 12.5 13.2 17.6 23.0 27.3 5.0 5.7
------ ------ ------ ------ ------ ====== =====
Fixed Charges $ 304.5 $ 293.8 $ 279.9 $ 240.3 $ 229.4 $ 57.5 $ 55.5
====== ====== ====== ====== ====== ====== =====
Ratio of Earnings to Fixed Charges (1) - (2) - (2) - (2) 1.6 - (2) - (2) 1.4
====== ====== ====== ====== ====== ====== =====
</TABLE>
1) For purposes of computing the ratio of earnings to fixed charges, fixed
charges consist of interest on debt (including capitalized interest),
amortization of debt discount and expense, and a portion of rentals
determined to be representative of interest. Earnings consist of
consolidated net income before income taxes, plus fixed charges other than
capitalized interest but including the amortization thereof, adjusted by
the excess or deficiency of dividends over income of entities accounted for
by the equity method.
2) Earnings were insufficient to cover fixed charges for the years ended
December 31, 1992, 1993, 1994, 1996 and the three months ended March 31,
1996, by $56.8 million, $80.5 million, $78.5 million, $37.5 million and
$203.7 million, respectively.
Exhibit 23.1.
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- ) and related Prospectus of American
Standard Inc. and American Standard Companies Inc. for the registration of
$1,000,000,000 of debt securities and to the incorporation by reference therein
of our reports dated February 13, 1997, with respect to the consolidated
financial statements and schedules of American Standard Inc. and American
Standard Companies Inc. incorporated by reference in their Annual Reports (Form
10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
/S/ ERNST & YOUNG LLP
New York, New York
August 1, 1997
Exhibit 23.3
CONSENT
MEILICKE & PARTNER
Poppeledorfer Allee 106
Bonn 53115 Germany
July 24, 1997
The undersigned is the German tax counsel identified in this Registration
Statement on Form S-3 filed with respect to an offering of debt securities of
American Standard Inc. (the "Company") and hereby consents to the references to
our firm as experts in German tax matters under the headings "Risk Factors Tax
Matters", "Management's Discussion and Analysis of Financial Condition and
Results of Operations Liquidity and Capital Resources" and "Experts", contained
in the prospectus and the materials incorporated therein by reference
constituting a part of such Registration Statement.
Yours truly,
MEILICKE & PARTNER
/s/ W. MEILICKE
- ---------------------
Dr. W. Meilicke
POWER OF ATTORNEY
The undersigned, the Chairman, President, Chief Executive Officer and a
Director of American Standard Inc. ("ASI") and American Standard Companies Inc.
("ASD"), each a Delaware corporation (ASI and ASD being referred to hereinafter
collectively as the "Corporations"), does hereby constitute and appoint Richard
A. Kalaher and Frederick C. Paine, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution, to execute and
deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the
offering and sale of the Debt Securities which such attorneys-in-fact and
agents, or any one of them, deem necessary or advisable to enable the
Corporation to comply with (a) the Securities Act and the other federal
securities laws of the United States of America (including, without limitation,
the Securities Exchange Act of 1934) and the rules, regulations and requirements
of the SEC in respect of any thereof, (b) the securities or Blue Sky laws of any
state or other governmental subdivision of the United States of America, (c) the
rules and regulations of the New York Stock Exchange or any other national or
foreign securities exchange or authorized interdealer quotation system, (d) the
requirements of the National Association of Securities Dealers, Inc. and (e) the
securities laws of any foreign jurisdiction, including, without limitation,
Canada; and the undersigned does hereby ratify and confirm as his own acts and
deeds all that such attorneys-in-fact and agents, and each of them, shall do or
cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may
exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 24 day of July, 1997.
/s/ Emmanuel A. Kampouris
----------------------------------
Name: Emmanuel A. Kampouris
Title: Chairman, President, Chief
Executive Officer and Director
<PAGE>
POWER OF ATTORNEY
The undersigned, the Vice President and Chief Financial Officer of
American Standard Inc. ("ASI") and American Standard Companies Inc. ("ASD"),
each a Delaware corporation (ASI and ASD being referred to hereinafter
collectively as the "Corporations"), does hereby constitute and appoint Richard
A. Kalaher and Frederick C. Paine, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution, to execute and
deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on
an appropriate form, proposed to be filed with the Securities and Exchange
Commission (the "SEC") for the purpose of registering under the Securities Act
of 1933, as amended (the "Securities Act"), debt securities of ASI, which
subject to the requirements applicable to any particular Form of Registration
Statement under the Securities Act may be guaranteed by ASD, in one or more
series in an aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statement or
Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may
exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 25 day of July, 1997.
/s/ FRED A. ALLARDYCE
--------------------------------
Name: Fred A. Allardyce
Title: Vice President and Chief
Financial Officer
<PAGE>
POWER OF ATTORNEY
The undersigned, the Vice President and Controller of American Standard
Inc. ("ASI") and American Standard Companies Inc. ("ASD"), each a Delaware
corporation (ASI and ASD being referred to hereinafter collectively as the
"Corporations"), does hereby constitute and appoint Richard A. Kalaher and
Frederick C. Paine, and each of them, as his true and lawful attorneys-in-fact
and agents, with full power of substitution, to execute and deliver in his name
and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25th day of July, 1997.
/s/ G. Ronald Simon
------------------------------
Name: G. Ronald Simon
Title: Vice President and Controller
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 27 day of July, 1997.
/s/ Steven E. Anderson
---------------------------
Name: Steven E. Anderson
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25 day of July, 1997.
/s/ Horst Hinrichs
-----------------------
Name: Horst Hinrichs
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25 day of July, 1997.
/s/ George H. Kerckhove
-----------------------
Name: George H. Kerckhove
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25 day of July, 1997.
/s/ Shigeru Mizushima
-----------------------
Name: Shigeru Mizushima
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25 day of July, 1997.
/s/ Roger W. Parsons
---------------------
Name: Roger W. Parsons
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 27 day of July, 1997.
/s/ J. Danforth Quayle
------------------------
Name: J. Danforth Quayle
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25 day of July, 1997.
/s/ David M. Roderick
----------------------
Name: David M. Roderick
Title: Director
<PAGE>
POWER OF ATTORNEY
The undersigned, a Director of American Standard Inc. ("ASI") and American
Standard Companies Inc. ("ASD"), each a Delaware corporation (ASI and ASD being
referred to hereinafter collectively as the "Corporations"), does hereby
constitute and appoint Richard A. Kalaher and Frederick C. Paine, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
a. One or more Registration Statements of the Corporation on an appropriate
form, proposed to be filed with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), debt securities of ASI, which subject to the
requirements applicable to any particular Form of Registration Statement under
the Securities Act may be guaranteed by ASD, in one or more series in an
aggregate principal amount not to exceed One Billion Dollars ("Debt
Securities"), to be offered for sale to the public and bearing such rate of
interest and having such maturity and other terms as the authorized officers of
the Corporation shall approve; and
b. Any and all supplements and amendments (including, without limitation,
post-effective amendments) to such Registration Statement or Statements;
and any and all other documents and instruments in connection with the offering
and sale of the Securities which such attorneys-in-fact and agents, or any one
of them, deem necessary or advisable to enable the Corporation to comply with
(a) the Securities Act and the other federal securities laws of the United
States of America (including, without limitation, the Securities Exchange Act of
1934) and the rules, regulations and requirements of the SEC in respect of any
thereof, (b) the securities or Blue Sky laws of any state or other governmental
subdivision of the United States of America, (c) the rules and regulations of
the New York Stock Exchange or any other national or foreign securities exchange
or authorized interdealer quotation system, (d) the requirements of the National
Association of Securities Dealers, Inc. and (e) the securities laws of any
foreign jurisdiction, including, without limitation, Canada; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise,
all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25 day of July, 1997.
/s/ Joseph S. Schuchert
-------------------------
Name: Joseph S. Schuchert
Title: Director
