As filed with the Securities and Exchange Commission on November 25, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
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 (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)
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)
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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.
[X]
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. [ ]
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. [ ]
<PAGE>
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<TABLE>
<CAPTION>
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 $500,000,000 100% $500,000,000 $139,000
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Debt Guarantees $500,000,000 (2) (2) none (3)
=============================================================================================================================
</TABLE>
(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 Guarantees.
(3) Pursuant to Rule 457(n) under the Securities Act of 1933, no registration
fee is required with respect to the Guarantees.
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 November 25, 1998
PROSPECTUS
$500,000,000
Debt Securities
American Standard Inc. (as Issuer)
American Standard Companies Inc. (as Guarantor)
One Centennial Avenue
Piscataway, New Jersey 08855
(732) 980-6000
American Standard Inc. intends to offer at one or more times its debt
securities. American Standard Companies Inc. will unconditionally guarantee the
payment of principal, premium, if any, and interest on the debt securities. This
prospectus describes the general terms that will apply to all $500 million of
the debt securities we intend to offer under this Registration Statement. We
will describe the specific terms of each series of debt securities that we offer
in a supplement to this prospectus. Supplements will be made available at the
time of each offering of debt securities. You should read this prospectus and
the related supplement carefully before you invest.
Consider carefully the risk factors beginning on page 7 in this
prospectus.
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Neither the Securities and Exchange Commission nor any State Securities
Commission approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
---------------
The date of this Prospectus is .
[On left side of page]
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
Page
About This Prospectus..........................................................2
Where You Can Find More Information............................................3
The Company....................................................................6
Risk Factors...................................................................8
Use Of Proceeds...............................................................12
Ratio Of Earnings To Fixed Charges............................................12
Description Of Debt Securities................................................13
Plan Of Distribution..........................................................30
Legal Matters.................................................................32
Experts.......................................................................32
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC using a "shelf" registration process. Under the shelf process, we are
permitted to sell the securities described in this prospectus, in one or more
offerings, up to a total dollar amount of $500,000,000. This prospectus provides
you with a general description of the securities we may offer. Each time we
offer securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. In
deciding whether to invest in any of the securities being offered under this
registration statement, you should read both this prospectus and the prospectus
supplement relating to the particular offering you are considering, together
with additional information described under the heading "Where You Can Find More
Information."
The registration statement that contains this prospectus (including
exhibits to the registration statement) contains additional information about us
and the securities offered under this prospectus. That registration statement
can be read at the SEC's website or at the SEC office mentioned below under the
heading "Where You Can Find More Information."
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
American Standard Companies Inc. and its wholly-owned subsidiary,
American Standard Inc., file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
document we file at the SEC's public reference facilities maintained at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information about its public reference rooms. Our SEC
filings are also available to the public over the Internet at the SEC's website
at http://www.sec.gov. American Standard Companies Inc.'s SEC filings are also
available at the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
We "incorporate by reference" into this prospectus the information we
file with the SEC. That means that, rather than reprinting here all of the
information contained in our other documents filed with the SEC, we can disclose
important information to you by referring you to those documents that are
already filed. The information incorporated by reference is an important part of
this prospectus and information that we file with the SEC in the future will
automatically update and supersede what is printed in this prospectus. We
incorporate by reference the following documents that we have filed with the SEC
and all of our future filings with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until we have sold all the
securities offered by this prospectus:
o The Guarantor's Annual Report on Form 10-K for the year ended December
31, 1997, including portions incorporated therein of the Guarantor's
definitive Proxy Statement dated March 26, 1998.
o The Guarantor's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
o The Guarantor's Current Reports on Form 8-K filed January 9, 1998,
February 6, 1998 and February 10, 1998.
o The Issuer's Annual Report on Form 10-K for the year ended December 31,
1997.
o The Issuer's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
o The Issuer's Current Reports on Form 8-K filed January 9, 1998 and
February 6, 1998.
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<PAGE>
You may request a copy of these filings, at no cost, by writing or
calling us at the following address:
American Standard Companies Inc.
One Centennial Avenue
P.O. Box 6820
Piscataway, NJ 08855-6820
Attention: Office of the Secretary
Telephone: (732) 980-6000
You should rely only on the information incorporated by reference or
set forth in this prospectus and that is set forth in the applicable prospectus
supplement. We have not authorized anyone else to provide you with different
information. We may only use this prospectus to sell securities if it is
accompanied by a prospectus supplement. We are only offering our debt securities
in states where the offer is permitted. You should not assume that the
information in this prospectus or the applicable prospectus supplement is
accurate as of any date other than the dates on the front of those documents.
We provide information and make statements in this prospectus that are
considered forward-looking information or statements. Many of these statements
contain words such as "believes," "expects," "intends" and other similar words.
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward-looking information or statements. Many factors could cause actual
results to differ materially from those we believe, expect or intend will occur,
including:
(i) changes in future conditions in one or more of the various
geographic and/or product markets in which one or more of the Company's
businesses competes, including, without limitation, as to governmental
regulation (including attitudes as to competition by non-locally owned
businesses); general economic conditions; weather or climate; local or
non-local competitive factors; interest rate or currency fluctuations;
and/or other conditions or factors;
(ii) the ability to carry out successfully strategic corporate,
marketing, tax and/or sales plans; and
(iii) accuracy of assessments as to the effects of contingent
liabilities, including, without limitations, taxes.
We cannot predict the actual affect these factors will have on our results and
many of the factors and their effects are beyond our control. Given these
uncertainties, you should not place undue reliance on these forward-looking
statements.
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<PAGE>
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AMERICAN STANDARD(R), IDEAL STANDARD(R), STANDARD(R),
TRANE(R), WABCO(R), LARA(R), Copalis(R) and Dia Sorin(TM) and are registered
trademarks 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
American Standard is a globally oriented manufacturer of high quality,
brand-name products in three major product groups:
o air conditioning systems (60% of 1997 sales);
o bathroom and kitchen fixtures and fittings (24% of 1997 sales); and
o braking and control systems for medium-sized and heavy trucks, buses,
trailers and utility vehicles (16% of 1997 sales).
These percentages exclude the new Medical Systems segment which had sales of $50
million in the last six months of 1997, after the acquisition of Sorin and
INCSTAR (see below).
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, WABCO(R) for braking and related systems and LARA(R), Copalis(R) and
DiaSorin(TM) for medical diagnostic 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, "ABS") that utilize electronic
controls. At December 31, 1997, American Standard had 108 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 their consolidated 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 segment. As part of
its operating strategies, the Company routinely evaluates potential investments
in or acquisitions of new and related businesses.
-6-
<PAGE>
Air Conditioning Products. American Standard is a leading United States
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 1997. Approximately 65% of Air
Conditioning Products' sales in that period 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 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, conversion to products utilizing environmentally preferable
refrigerants and expansion of operations in developing market areas throughout
the world, principally in the Asia-Pacific area (although the expansion there is
expected to slow due to the unfavorable economic conditions existing in the
region in 1998) and Latin America.
Plumbing Products. American Standard is a leading manufacturer in
Europe, the United States, the Far East, Latin American and in 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' 1997 sales,
approximately 72% was derived from operations outside the United States and 28%
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, lower-cost product sourcing from Mexico and Eastern Europe 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 its strong market positions in Europe and Brazil and
increasing demand for ABS and other sophisticated electronic control systems in
a number of markets (including
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<PAGE>
the commercial vehicle market in the United States, where the mandated phase-in
of ABS began in 1997), as well as from the technological advances embodied in
the Company'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 segment to pursue initiatives in the medical diagnostics
field. For several years prior thereto, 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. To accelerate the commercialization of its technology
and expand the number of diagnostic tests covered by its products, 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 all outstanding
shares of INCSTAR Corporation ("INCSTAR"), a U.S. biotechnology company, in
which Sorin owned a 52% interest. Sorin and INCSTAR develop and market test
reagents for clinical diagnostics and medical research. The aggregate cost of
the acquisition was approximately $212 million, including fees and expenses.
RISK FACTORS
Before you invest in the debt securities, you should consider carefully
the following risk factors, in addition to the other information contained in
this prospectus.
Substantial Leverage
At September 30, 1998, our total indebtedness was approximately $2.46
billion. This amount includes short-term debt and the current portion of
long-term debt. At September 30, 1998, we had scheduled principal payments of
$16 million for 1998, $167 million for 1999 and $27 million for 2000. In January
1997, the Issuer entered into the $1.75 billion amended and restated credit
agreement (the "Facilities"), consisting of a $1.375 billion revolving credit
facility and a $375 million periodic access facility. At September 30, 1998, the
Issuer had unused borrowing capacity under the Facilities of approximately $626
million.
The Issuer is able to borrow under the Facilities to pay for the
redemption of certain of its outstanding public debt securities and for other
general corporate purposes. The Issuer and its subsidiaries may also borrow
under the Facilities or otherwise from time to time to finance capital
expenditures, joint ventures, acquisitions or other expenditures, subject to
restrictions in the Facilities and the Issuer's other debt instruments.
Our substantial leverage could have important consequences, including:
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<PAGE>
o the need to use substantial portions of operating cash flow to meet
interest and principal repayment obligations;
o exposure to interest rate fluctuations due to floating interest rates;
o increased vulnerability to changes in general economic conditions;
o competitive pressures and changes in government regulations;
o limiting our ability to obtain additional financing; and
o potential limitations on our ability to realize some or all of the
benefit of significant business opportunities.
In addition, our results of operations reflect the effects of purchase
accounting and significant interest expense resulting from our highly leveraged
capital structure.
Ranking of Debt Securities
The stock of the Issuer and its foreign and domestic subsidiaries has
been pledged to secure all indebtedness under the Facilities. In addition, the
Guarantor, the Issuer and certain subsidiaries of the Issuer have guaranteed the
repayment of the borrowings under the Facilities. The debt securities will not
be secured. The stock of the Issuer and its foreign and domestic subsidiaries
has been pledged to secure all indebtedness under the Facilities. In addition,
the Guarantor, the Issuer and certain subsidiaries of the Issuer have guaranteed
the repayment of the borrowings under the Facilities. The debt securities will
not be secured. Therefore, if the Issuer or the Guarantor were unable to pay
when due the amount of any principal or interest on the debt securities, the
ability of the holders of the debt securities to proceed against the equity
interests of the Issuer or any of its subsidiaries to satisfy such amounts would
be subject to the prior satisfaction in full of all amounts owing under the
Facilities. In addition, as secured creditors, the lenders under the Facilities
would control the disposition and sale of the equity of the Issuer and its
subsidiaries after an event of default under the Facilities and would not be
legally required to take into account the interests of unsecured creditor of the
Issuer or the Guarantor, such as the holders of the debt securities, with
respect to any such disposition or sale. In addition, all the debt securities
issuable under this prospectus will be effectively subordinated to creditors
(including possibly the lenders under the Facilities and other lenders, tax
authorities and trade creditors) and preferred stockholders (if any) of the
Issuer's subsidiaries. In addition, all the debt securities issuable under this
prospectus will be effectively subordinated to creditors (including possibly the
lenders under the Facilities and other lenders, tax authorities and trade
creditors) and preferred stockholders (if any) of the Issuer's subsidiaries.
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<PAGE>
International Operations
We conduct significant operations outside the United States,
principally through subsidiaries, in most of the major countries of Western
Europe, Bulgaria, the Czech Republic, Brazil, the People's Republic of China
("PRC"), Thailand, Mexico, the Philippines, Central American countries,
Malaysia, South Korea, Taiwan, Australia and Egypt.
In addition, we conduct business in these and other countries through
affiliated companies and partnerships in which we own 50% or less of the equity
interests of such entities. We have manufacturing operations in 35 countries.
International operations are subject to a number of special risks, including:
o currency exchange rate fluctuations,
o potential and changing restraints on trade barriers,
o exchange controls,
o the potential for governmental expropriation of assets,
o political risks and
o risks of increases in taxes.
In addition, various jurisdictions outside the United States have laws limiting
the right and ability of non-United States entities to pay dividends and remit
earnings to affiliated companies unless specified conditions are met.
Our financial performance on a U.S. dollar denominated basis can be
significantly affected by changes in currency exchange rates. Such changes have
much less effect on local operating results because we generally sell our
products in the same country 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. We also sometimes enter into agreements with the intent to reduce
our exposure to fluctuations in foreign currency values. These agreements have
not been and we do not expect them to be material.
Tax Matters
We have reorganized and restructured our international operations in
the past, and may do so again in the future, based on certain assumptions we
believe to be correct relating to:
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<PAGE>
o various tax laws (including capital gains and withholding tax laws),
o United States and international tax treaty developments,
o international currency exchange and capital repatriation laws and
o other relevant laws applicable in non-United States jurisdictions.
While we believe that such assumptions are correct, taxing or other authorities
may conclude otherwise, and we may experience adverse tax and other financial
consequences if our assumptions are incorrect, or if applicable tax laws are
changed or modified.
German tax authorities examined our German subsidiaries' tax returns
for the years 1984 through 1990 and raised questions about the treatment of
certain significant matters. In 1992, we paid approximately $18 million (at
September 30, 1998 exchange rates) of disputed German income tax. We then sued
to obtain a refund of this tax and our suit is still pending. In March 1996, we
received another assessment for additional taxes of approximately $65 million
(at September 30, 1998 exchange rates), plus interest, principally relating to
the 1988 to 1990 period. We are appealing this assessment. If our appeal is
denied we expect to bring a lawsuit in the German courts to have the assessment
declared incorrect.
We also engaged in significant transactions similar to those that gave
rise to the assessment after 1990. In June 1997, the German tax authorities
commenced an audit of the years 1991 through 1994. Because the German tax
authorities assessed additional taxes for the 1988-1990 period, they might,
after completing the current audit, propose tax adjustments for the 1991-1994
period that could be as much as 50% higher. In addition, we believe that the
German tax authorities may propose additional tax adjustments of approximately
$47 million (at September 30, 1998 exchange rates) for the years 1991-1994 with
respect to the repayment of an intercompany financing instrument. We are unable
to predict when this assessment will be made. We believe, based on the opinion
of German legal counsel, Meilicke Hoffmann & Partner, that the German tax
returns are substantially correct as filed and that any adjustments would be
inappropriate. Accordingly, we have not recorded any loss contingency at
September 30, 1998 with respect to such matters. We intend to vigorously contest
any adjustments that may be assessed.
We have agreed with the German tax authorities to make a partial
security deposit for the additional taxes and interest assessed in March 1996.
We paid approximately $12 million (at September 30, 1998 exchange rates) in
January 1997 and applied approximately $6 million (at September 30, 1998
exchange rates) of German tax refunds due us for the 1996 tax year to the
security deposit. The German tax authorities granted a staying order for the
balance of the additional taxes and interest assessed in March 1996. The staying
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<PAGE>
order provides that no further payment or other security will be required from
us before the matter is litigated or finally resolved. We expect the staying
order to be renewed during litigation. Upon final resolution, either we will
have to pay any tax liability that exceeds the amount of our security deposit
(with interest from the assessment date) or we will receive a refund of all or
any part of our security deposit that is greater than any tax that we owe (with
interest from the date of deposit).
Our tax provision in Germany was higher in 1994 through 1997, as a
result of German tax legislation first effective in 1994. Our tax provision will
continue to be higher in 1998 and in the future. As a result of the 1994
legislation and our higher tax provisions, we believe our tax exposure relating
to the major issues under the audit referred to above will be reduced starting
with the 1994 tax year and continuing thereafter.
USE OF PROCEEDS
Unless otherwise described in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of debt securities for general
corporate purposes, which may include the repayment of outstanding debt, stock
repurchases, certain investments, acquisitions, additions to working capital or
capital expenditures.
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is the Company's ratio of earnings to fixed charges for
the periods indicated:
<TABLE>
<CAPTION>
Nine
Months
Ended
Year Ended December 31, September 30,
---------------------------------------- -------------
1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earning to Fixed Charges(a)............... (b) (b) 2.0 1.3 2.0 1.9 2.5
</TABLE>
(a) For the purpose of computing the above ratios, 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.
(b) Earnings were insufficient to cover fixed charges for the years ended
December 31, 1993 and 1994 by $80.5 million and $16.0 million,
respectively. The year ended December 31, 1996 included a non-cash
asset impairment charge of $235.2 million resulting from the adoption
of Statement of Financial
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Accounting Standards No. 121. Excluding that charge, the ratio of
earnings to fixed charges in that period would have been 2.3.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt
securities. The prospectus supplement will describe the particular terms of the
debt securities offered by that prospectus supplement and will note the extent,
if any, to which the general provisions described below do not apply to the debt
securities so offered. The prospectus supplement relating to each
individual/separate offering of debt securities will also describe any
applicable federal income tax considerations. You should read both this
prospectus and the applicable prospectus supplement for a description of the
terms of each particular series of debt securities.
The debt securities will be issued under an indenture (the
"Indenture"), among the Issuer, the Guarantor and The Bank of New York, as
trustee. The Indenture is subject to and qualified by the Trust Indenture Act of
1939, as amended (the "TIA"). The Indenture has been filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
debt securities and the Indenture 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, including
the definitions therein of certain terms. Capitalized terms not otherwise
defined herein shall have the meaning given in the Indenture.
Terms
General. The debt securities (the "Debt Securities") will be direct
unsecured obligations of the Issuer and will be unconditionally guaranteed (the
"Debt Guarantees") as to payment of principal premium, if any, and interest by
the Guarantor. The Debt Securities and Debt Guarantees will rank pari passu with
other unsecured unsubordinated obligations of the Issuer and the Guarantor,
respectively.
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 Issuer or as set forth in the
Indenture or in one or more Indenture supplemental to the Indenture.
The Issuer may designate more than one Trustee under the Indenture,
with each Trustee acting with respect to one or more series of Debt Securities.
Any Trustee under the Indenture may resign or be removed with respect to one or
more series of Debt Securities,
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<PAGE>
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. Except as otherwise indicated herein, any action described 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 an Indenture.
Each prospectus supplement relating to a series of Debt Securities
being offered will contain specific terms of such series of Debt Securities.
Those specific terms will include some or all of the following:
(1) The title of the Debt Securities;
(2) The aggregate principal amount of the Debt Securities and any
limit on such aggregate principal amount;
(3) The price at which the 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 the 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 the
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;
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(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 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 or interest on the Debt Securities of
the series is 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;
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(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 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 than 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;
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(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
(22) Any other terms of the series (which terms shall not be
inconsistent with the provisions of the Indenture).
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.
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. Please see the applicable prospectus supplement for
information with respect to any deletions from, modifications of, or additions
to, the Events of Default or covenants that are described below.
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"). The Global Securities will be deposited with 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. We will describe the specific terms of the
depositary arrangement with respect to a series of Debt Securities in the
applicable prospectus supplement.
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Denomination, Interest, Registration and Transfer
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 applicable to
any such Debt Securities will be described in the applicable prospectus
supplement. Bearer Debt Securities will be transferable by delivery.
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. Even though we will designate the Trustee's corporate office as an
official place of payment, we may elect to pay interest by having the Trustee
either mail a check to the person listed in the applicable register for such
Debt Securities as the owner of the Debt Securities or by delivering funds to
such person, in accordance with their instructions, by wire transfer at an
account maintained within the United States.
If we do not pay or duly provide for any interest when due on a Debt
Security in registered form ("Defaulted Interest"), the interest will not be
payable to the holder on the applicable Regular Record Date. We may pay the
Defaulted Interest either 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 at any time
in any other lawful manner.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series may be exchanged or
transferred, pursuant to procedures in the Indenture.
No service charge (other than tax or other governmental charges) will be made
for any registration of transfer or exchange of any Debt Securities.
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
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(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.
We will make payment in respect of Debt Securities in bearer form 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. The Issuer may at any time designate additional paying
agents or rescind the designation of any paying agents, except that,
o 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
o 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 Indenture provides that 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 their assets to, or merge
with or into, any other entity provided that:
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(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 jurisdiction and expressly assumes
the Guarantor's or the Issuer's obligations under the Debt
Securities and the Indenture;
(b) immediately after giving effect to such transaction, no
default or Event of Default under the Indenture, shall have
occurred and be continuing; and
(c) an officers' certificate and legal opinion covering certain
of such conditions shall be delivered to each Trustee.
Certain Covenants
The applicable prospectus supplement will describe any material
covenants in respect of a series of Debt Securities that are 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," each of the Issuer and the Guarantor is required 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 Issuer and the Guarantor are required 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 Issuer and Guarantor are required to cause each of their
subsidiaries to maintain reasonably adequate insurance.
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Payment of Taxes and Other Claims. The Issuer and Guarantor are
required 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 neither the Issuer nor the Guarantor shall 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
Indenture 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;
(b) default in the payment of the principal of (or premium, if
any, on) any Debt Security of such series when due and
payable;
(c) default in making any sinking fund payment as required for any
Debt Security of such series;
(d) default in the performance, or breach, of any other covenant
or warranty of the Issuer or the Guarantor in the Indenture
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 Indenture;
(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)
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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 discharged,
or such acceleration having been rescinded or annulled, within
a period of 30 days after written notice to the Issuer as
provided in the Indenture;
(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 for any series of Debt Securities occurs and is
continuing, then the applicable Trustee or the holders of at least 25% in
principal amount of the Debt Securities of that series may 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; 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. If payment on
the Debt Securities has been accelerated, subject to certain conditions, the
holders of at least 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 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 Indenture.
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The holders of at least a majority in principal amount of the
outstanding Debt Securities of any series may also 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
Indenture that cannot be modified or amended without the
consent of the holder of each outstanding Debt Security
affected thereby.
The Issuer and Guarantor are required to file an annual certificate with the
Trustee stating whether they are in compliance with all conditions and covenants
under the Indenture.
The Indenture requires the Trustee to give notice to the holders of
Debt Securities within 90 days of a default under the Indenture unless such
default shall have been cured or waived. The 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 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.
No holders of Debt Securities of any series may institute any
proceedings with respect to the Indenture or for any remedy thereunder, except
if the applicable Trustee fails, for 60 days, to act after it has received
o a written request to institute proceedings in respect of an
Event of Default from the holders of at least 25% in principal
amount of the outstanding Debt Securities of such series, and
o 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 dates such payments
are due.
Subject to provisions in the Indenture relating to its duties in case
of default, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any holders
of any series of Debt Securities then outstanding under the Indenture, unless
such holders shall have offered to the Trustee thereunder
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reasonable security or indemnity. The holders of at least a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under the Indenture, 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 Indenture, 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.
Modification of the Indenture
We may modify and amend the Indenture only with the consent of the
holders of at least a majority in principal amount of all outstanding Debt
Securities issued under the Indenture affected by such modification or
amendment. No such modification or amendment may, without the consent of the
holder of 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, 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;
(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
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(g) reduce the above-stated percentage of outstanding Debt
Securities of any series necessary to modify or amend the
Indenture, 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 Indenture.
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 Indenture.
We may modify and amend the Indenture with the agreement of the 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
Indenture;
(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 Indenture;
(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 Indenture 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 Securities of any series in any
material respect;
(e) to change or eliminate any provisions of the Indenture,
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;
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(h) to provide for the acceptance of appointment by a successor
Trustee or facilitate the administration of the trusts under
the Indenture by more than one Trustee;
(i) to cure any ambiguity, defect or inconsistency in the
Indenture, provided that such action shall not adversely
affect the interests of holders of Debt Securities of any
series issued under the Indenture in any material respect; or
(j) to supplement any of the provisions of the Indenture 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.
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
Indenture, 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.
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The Indenture contains 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 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
Indenture. Except for any consent that must be given by the holders of each Debt
Security affected by certain modifications and amendments of the Indenture, any
resolution presented at a meeting or adjourned meeting duly reconvened 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, 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 Indenture 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 Indenture provides 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 Indenture expressly provides 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 Indenture.
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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 Indenture that have not already been delivered to the
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). This discharge will occur when we irrevocably deposit with the Trustee,
in trust, funds in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities are payable
and/or Government Obligations (as defined below) 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 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)
("indenture defeasance") or
(b) to be released from certain obligations with respect to such
Debt Securities under the Indenture (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 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, if any) and interest on
such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on
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the scheduled due dates therefor. Any such discharge shall result in a discharge
of the same obligations of the Guarantor.
Such a trust will only be permitted to be established if, among other
things, the Issuer or the Guarantor has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) 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. Such opinion of counsel, in the case of indenture
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 Indenture. In the event
of such indenture 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.
"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 indenture 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 Indenture 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,
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then 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 the
same 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 of (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 European Currency Unit ("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.
In the event the Issuer 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 Indenture (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 indenture defeasance or covenant defeasance,
including any modification to the provisions described above, with respect to
the Debt Securities of or within a particular series.
PLAN OF DISTRIBUTION
The Issuer may sell Debt Securities:
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o through underwriters or dealers,
o directly to one or more purchasers, or
o through agents.
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
commissions. 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.
Each series of Debt Securities to be offered hereunder 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
either the existence or liquidity of a trading market for the Debt Securities.
Under agreements into which the Issuer and Guarantor may enter, they
may agree to indemnify underwriters, dealers and agents who participate in the
distribution of Debt Securities 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 agents to solicit offers by certain institutions
to purchase Debt Securities from
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the Issuer pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include:
o commercial and savings banks,
o insurance companies,
o pension funds,
o investment companies,
o educational and charitable institutions.
The obligations of any purchaser under any such contract will be
subject to the condition that such purchase of the Debt Securities shall not at
the time of their delivery be prohibited under the laws of the jurisdiction to
which the purchaser is subject. The underwriters and 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
jurisdictions 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, 1996 and
1997, and for each of the three years in the period ended December 31, 1997,
incorporated by reference in American Standard Inc.'s, and American Standard
Companies Inc.'s Annual Reports on Form 10-K for the year ended December 31,
1997, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their reports thereon incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
reports given upon the authority of such firm as experts in accounting and
auditing.
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We have included certain information in the prospectus with respect to
German tax matters in reliance upon the authority of Meilicke Hoffmann & Partner
in German tax matters.
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<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 .................................. $139,000.00
Blue Sky fees and expenses ........................ 25,000.00
Trustee's fees .................................... 25,000.00
Printing and duplicating expenses ................. 250,000.00
Legal fees and expenses ........................... 100,000.00
Accounting fees and expenses ...................... 100,000.00
Miscellaneous ..................................... 6,000.00
-------------
Total .................................... $645,000.00
==============
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
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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.
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:
(a) 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:
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<PAGE>
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 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.
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<PAGE>
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)
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
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<PAGE>
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 Directors, 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
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<PAGE>
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.
Exhibit No. Description
- ---------- -----------
(1) Form of Underwriting Agreement (incorporated by reference to
Exhibit 1 to the Issuer's Registration Statement on Form S-3
(File No. 333-32627)).
(4) Indenture for the Senior Debt Securities
(incorporated by reference to Exhibit 4.1 to the
Issuer's Quarterly Report on Form 10-Q for the
Quarter Ended September 30, 1998).
(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 Hoffmann & Partner.
(24) Powers of Attorney.
(25) Statement of Eligibility on Form T-1 of The Bank of New York.
(27) Financial Data Schedule; previously filed as Exhibit
27 by the Issuer in its Form 10-Q for the quarter
ended September 30, 1998, and herein incorporated by
reference.
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
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<PAGE>
(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. 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 registrants 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.
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<PAGE>
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
either 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 registrants pursuant to the foregoing provisions or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by either
registrant of expenses incurred or paid by a director, officer or controlling
person of such 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 registrants will, unless in
the opinion of their 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.
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<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 November 25,
1998.
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 November 25, 1998.
<TABLE>
<CAPTION>
<S> <C>
/s/ EMMANUEL A. KAMPOURIS Chairman, President and Chief Executive Officer;
- ------------------------- Director (Principal Executive Officer)
(Emmanuel A. Kampouris)
/s/ GEORGE H. KERCKHOVE* Vice President and Chief Financial Officer;
- ------------------------- Director (Principal Financial Officer)
(George H. Kerchkhove)
/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)
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<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)
</TABLE>
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<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 November 25,
1998.
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 November 25, 1998.
<TABLE>
<CAPTION>
<S> <C>
/s/ EMMANUEL A. KAMPOURIS Chairman, President and Chief Executive Officer;
- ------------------------- Director (Principal Executive Officer)
(Emmanuel A. Kampouris)
/s/ GEORGE H. KERCKHOVE* Vice President and Chief Financial Officer;
- ------------------------- Director (Principal Financial Officer)
(George H. Kerchkhove)
/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)
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
</TABLE>
Exhibit 5
American Standard Inc.
Corporate Headquarters
One Centennial Avenue
P.O. 6820
Piscataway, NJ 08855-6820
November 24, 1998
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. (the "Company") and of American Standard Companies Inc. (the "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 $500 million in principal amount of senior 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; the indenture ("Indenture") dated as
of January 15, 1998 among the Company, the Guarantor and The Bank of New York as
Trustee ("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 the Indenture under the Trust Indenture Act of 1939 in
connection with an offering of Debt Securities, the due execution and delivery
of such Indenture and each amendment thereof or supplement thereto by the
parties thereto 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 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 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 Kalaher
Exhibit 12
AMERICAN STANDARD INC.
COMPUTATION OF THE RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Millions)
<TABLE>
<CAPTION>
Nine Months
Ended
For the Years ended December 31, September 30,
----------------------------------------------------- -------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) from continuing
operations before taxes $(80.5) $(15.2) $226.9 $57.6 $236.8 $164.4 $263.4
Equity in net (income) loss of
associated companies net of dividends
received 1.8 1.1 11.0 11.8 (2.9) (6.4) (2.6)
Amortization of capitalized interest 0.9 1.0 1.1 1.3 1.4 1.1 1.2
Interest expense 277.9 259.4 213.3 198.2 192.2 144.0 145.4
Rental expense factor 13.2 17.6 23.0 27.3 25.0 18.0 19.7
-------- -------- -------- -------- -------- -------- --------
Earnings available for fixed charges $213.3 $263.9 $475.3 $296.2 $452.5 $321.1 $427.1
======== ======== ======== ======== ======== ======== ========
Interest expense $277.9 $259.4 $213.3 $198.2 $192.2 $144.0 $145.4
Capitalized interest 2.7 2.9 4.0 3.9 3.8 2.9 2.9
Rental expense factor 13.2 17.6 23.0 27.3 25.0 18.0 19.7
-------- -------- ------- -------- -------- -------- --------
Fixed charges $293.8 $279.9 $240.3 $229.4 $221.0 $164.9 $168.0
Ratio of earnings to fixed charges (a) - (b) - (b) 2.0 1.3 2.0 1.9 2.5
======== ======== ======== ======== ======== ======== ========
</TABLE>
(a) For the purpose 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.
(b) Earnings were insufficient to cover fixed charges for the years ended
December 31, 1993 and 1994, by $80.5 million and $16.0 million,
respectively.
EXHIBIT 23.i
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
$500,000,000 of debt securities and to the incorporation by reference therein of
our reports dated February 16, 1998 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, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young L.L.P.
New York, New York
November 23, 1998
EXHIBIT 23.iii
CONSENT
MEILICKE HOFFMANN & PARTNER
Poppeledorfer Allese 106
Bonn 53115 Germany
November 24, 1998
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. guaranteed by American Standard Companies Inc. 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 references constituting a part of such Registration
Statement.
Yours truly,
MEILICKE HOFFMANN & PARTNER
/s/ Dr. W. Meilicke
Dr. W. Meilicke
Exhibit 24
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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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, Chief Financial 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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/s/ GEORGE H. KERCKHOVE
--------------------------
Name:` George H. Kerckhove
Title: Vice President, Chief Financial
Officer and Director
<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 George H. Kerckhove,
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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate or rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/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 Corporations 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 Five Hundred Million Dollars ("Debt Securities"),
to be offered for sale to the public and bearing such rate rates of
interest and having such maturity or maturities and other terms as the
authorized officers of the Corporations 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 Corporations 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 17th day of November, 1998.
/s/ JOSEPH S. SCHUCHERT
------------------------------
Name: Joseph S. Schuchert
Title: Director
Exhibit 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
----------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------
AMERICAN STANDARD INC.
(Exact name of obligor as specified in its charter)
Delaware 25-0900465
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
----------
AMERICAN STANDARD COMPANIES INC.
(Exact name of obligor as specified in its charter)
Delaware 13-3465896
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Centennial Avenue 08855-6820
Piscataway, NJ (Zip code)
(Address of principal executive offices)
----------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
<TABLE>
<CAPTION>
Name Address
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No.
33-29637.)\
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 23rd day of November, 1998.
THE BANK OF NEW YORK
By: /s/THOMAS C. KNIGHT
-------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business June 30, 1998, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal Reserve
Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................................ $ 7,301,241
Interest-bearing balances............................................ 1,385,944
Securities:
Held-to-maturity securities.......................................... 1,000,737
Available-for-sale securities........................................ 4,240,655
Federal funds sold and Securities pur
chased under agreements to resell................................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned 38,788,269
income..........................................................
LESS: Allowance for loan and
lease losses.................................................. 632,875
LESS: Allocated transfer risk
reserve....................................................... 0
Loans and leases, net of unearned income, allowance, and reserve .... 38,155,394
Assets held in trading accounts........................................ 1,307,562
Premises and fixed assets (including
capitalized leases).............................................. 670,445
Other real estate owned................................................ 13,598
Investments in unconsolidated
subsidiaries and associated
companies........................................................ 215,024
Customers' liability to this bank
on acceptances outstanding....................................... 974,237
Intangible assets...................................................... 1,102,625
Other assets........................................................... 1,944,777
---------
Total assets........................................................... $59,283,692
===========
<PAGE>
- 2 -
LIABILITIES
Deposits:
In domestic offices.................................................. $26,930,258
Noninterest-bearing.................................................. 11,579,390
Interest-bearing..................................................... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................................... 16,117,854
Noninterest-bearing.................................................. 187,464
Interest-bearing..................................................... 15,930,390
Federal funds purchased and Securities
sold under agreements to
repurchase....................................................... 2,170,238
Demand notes issued to the U.S.
Treasury......................................................... 300,000
Trading liabilities.................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year
or less.......................................................... 2,549,479
With remaining maturity of more than
one year through three years..................................... 0
With remaining maturity of more than
three years...................................................... 46,654
Bank's liability on acceptances executed
and outstanding.................................................... 983,398
Subordinated notes and debentures...................................... 1,314,000
Other liabilities...................................................... 2,295,520
---------
Total liabilities...................................................... 54,018,268
==========
EQUITY CAPITAL
Common Stock........................................................... 1,135,284
Surplus................................................................ 731,319
Undivided profits and capital
reserves........................................................... 3,385,227
Net unrealized holding gains
(losses) on available-for-sale
securities......................................................... 51,233
Cumulative foreign currency translation adjustments.................... (37,639)
---------
Total equity capital................................................... 5,265,424
---------
Total liabilities and equity capital................................... $59,283,692
===========
</TABLE>
<PAGE>
- 3 -
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
