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DRAFT DATED JANUARY 24, 1997
AMERICAN STANDARD COMPANIES INC.
8,600,000 SHARES
COMMON STOCK
($.01 PAR VALUE)
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UNDERWRITING AGREEMENT
(U.S. VERSION)
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February , 1997
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
SBC Warburg Inc.
Xxxxx Xxxxxx Inc.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx ASI Partners, L.P. ("ASI Partners" or the "Selling Stockholder"), a
stockholder of American Standard Companies Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 8,600,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 1,290,000 additional shares (the "Optional Shares") of
Common Stock ($.01 par value) ("Stock") of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof being collectively called the "Shares"). The Company's only significant
asset is all the outstanding common stock of American Standard Inc., a Delaware
corporation ("ASI").
It is understood and agreed to by all parties that the Selling Stockholder,
the Company and ASI are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Selling
Stockholders of up to a total of 2,472,500 shares of Stock (the "International
Shares"), including the overallotment option thereunder, through arrangements
with Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx & Co. International Limited,
SBC Warburg, a division of Swiss Bank Corporation, and Xxxxx Xxxxxx Inc.
(collectively, the "International Underwriters"). Anything herein or therein to
the contrary notwithstanding, the respective closings under this Agreement and
the International Agreement are hereby expressly made conditional on one
another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as used in Sections 2,3,4,9 and 11 herein,
and except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions
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thereof. All terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Prospectus (as hereinafter defined).
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-18015) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, delivered to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), is hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including all exhibits
thereto and including (x) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the registration statement at the time it was
declared effective and (y) the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of
the registration statement became effective, each as amended at the time
such part of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act (as information included in such documents incorporated by
reference may have been amended or modified in the Registration Statement
or the Prospectus), as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual or quarterly
report of the Company and any other documents filed by this Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied as to form in all
material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iii) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Act or
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the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents are filed with the Commission, will comply as to form
in all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein;
(iv) The Registration Statement complies as to form, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will comply as to form, in all material
respects with the requirements of the Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, which loss or interference would have a material
adverse effect, or would reasonably (based on information available to the
Company) be expected to have a prospective material adverse effect, on the
general affairs, financial position, stockholders' equity or consolidated
results of operations of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect"), otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock (other than, as contemplated by the
Registration Statement or the Prospectus, or pursuant to the American
Standard Employee Stock Ownership Plan (the "ESOP") or other employee
incentive or benefit plans) or any increase in the long-term debt of the
Company or any of its subsidiaries or any change that would have a Material
Adverse Effect otherwise than as set forth or contemplated in the
Prospectus (including, without limitation, borrowings in the ordinary
course of business under the Facilities);
(vi) The Company and its principal subsidiaries listed on Exhibit A
hereto (the "Principal Subsidiaries") have good title (or a comparable
interest with respect to foreign real property) with respect to their real
properties (other than liens, encumbrances, equities or claims existing
under or permitted by the Existing Credit Facilities or to be created under
the Amended Credit Facilities) and good and sufficient title (other than
liens, encumbrances, equities or claims existing under or permitted by the
Existing Credit Facilities or the Amended Credit Facilities) to all of
their other respective properties and assets reflected in the most recent
consolidated balance sheet contained in the Prospectus, in each case except
for (w) assets disposed of since the date of such consolidated balance
sheet and prior to the date of this Agreement in the ordinary course of
business, (x) assets acquired or disposed of since the date of such
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consolidated balance sheet in accordance with this Agreement, (y) assets
held under capital leases and (z) defects that in the aggregate do not
result in a Material Adverse Effect;
(vii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to possess such power or authority,
or to be so qualified, would not have a Material Adverse Effect; and each
Principal Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, and are fully
paid and non-assessable and conform in all material respects to the
description of the capital stock contained in the Prospectus; and all of
the issued shares of capital stock of each Principal Subsidiary have been
duly and validly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares and except as set forth in the
Prospectus) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims (other than liens,
encumbrances, equities or claims existing under or permitted by the
Existing Credit Facilities or to be created or permitted under the Amended
Credit Facilities);
(ix) The compliance by the Company and ASI with all of the provisions
of this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated, including
the Share Repurchase and the issuance of the Warrants, will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
of its Principal Subsidiaries is a party or by which the Company or any of
its Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Principal Subsidiaries is subject, nor
will such action result in any violation of the provisions of the Restated
Certificate of Incorporation or Amended By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its Principal
Subsidiaries or any of their properties except, in each case (other than
with respect to such Restated Certificate of Incorporation and Amended
By-laws), for such conflicts, violations, breaches or defaults which would
not have a Material Adverse Effect or impair the Company's ability to
perform its obligations hereunder or under the International Underwriting
Agreement; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company or ASI of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(x) Neither the Company nor any of its Principal Subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound except (other
than in respect of such Certificate of Incorporation or By-laws) for such
defaults which would not have a Material Adverse Effect;
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(xi) The statements set forth in the International Prospectus under
the caption "Certain United States Tax Consequences To Non-U.S. Holders,"
insofar as they purport to summarize Federal laws of the United States
referred to thereunder, fairly summarize such laws in all material
respects;
(xii) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xiii) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
controlled by a company required to register as an investment company, as
such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(xiv) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder; and
(xv) Except as referenced in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(b) The Selling Stockholder represents and warrants to, and agrees with,
each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the Selling Stockholder of this Agreement and
the International Underwriting Agreement, and for the sale and delivery of
the Shares to be sold by the Selling Stockholder hereunder, have been
obtained; and the Selling Stockholder has full right, power and authority
to enter into this Agreement and the International Underwriting Agreement,
and to sell, assign, transfer and deliver the Shares to be sold by the
Selling Stockholder hereunder.
(ii) The sale of the Shares to be sold by the Selling Stockholder
hereunder and under the International Underwriting Agreement and the
compliance by the Selling Stockholder with all of the provisions of this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or to which any of the property or
assets of the Selling Stockholder is subject, nor will such action result
in any violation of the provisions of the Partnership Agreement of the
Selling Stockholder or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Selling
Stockholder or the property of the Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to each Time
of Delivery (as defined in Section 4 hereof) the Selling Stockholder will
have, good and valid title to the Shares to be sold by the Selling
Stockholder hereunder, free and clear of all liens, encumbrances, equities
or claims, and, upon delivery of such Shares and payment therefor pursuant
hereto and pursuant to the International Underwriting Agreement, good and
valid title to such Shares, free and clear of all
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liens, encumbrances, equities or claims, will pass to the several
Underwriters and the several International Underwriters (assuming that the
several Underwriters and the several International Underwriters are without
notice of any adverse claim, as defined in the Uniform Commercial Code as
adopted in the State of New York (the "Code") and are otherwise bona fide
purchasers for the purposes of the Code and that such Underwriters' and
International Underwriters' rights are not limited by subsection (4) of
Section 8-302 of the Code);
(iv) The Selling Stockholder will distribute not more than 4,000,000
shares of Common Stock to its partners as soon as practicable after the
First Time of Delivery (as hereinafter defined in Section 4(a); and it will
receive a written agreement of each such partners that they will not offer,
sell or otherwise dispose of such shares and any other shares of Stock they
own during the period beginning from the date hereof and continuing to
, 1997, without the prior written consent of ASI Partners
and Xxxxxxx Xxxxx & Co.
(v) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(vi) The Preliminary Prospectus and the Registration Statement did,
and the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading provided that, with respect to the Selling Stockholder, this
clause (vii) shall apply only to the extent that any statements or
omissions made in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto are made in reliance
upon and in conformity with written information furnished to the Company
by, or on behalf of, the Selling Stockholder expressly for use therein;
provided further that, for all purposes of this Agreement and the
International Underwriting Agreement, the only information furnished to the
Company by the Selling Stockholder expressly for use in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any amendment or
supplement thereto, are the statements pertaining to the number of shares
owned and the number of shares proposed to be sold by ASI Partners under
the caption "Principal and Selling Stockholders"; and
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
2. Subject to the terms and conditions herein set forth, (a) the Selling
Stockholder agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling
Stockholder, at a purchase price per share of $ , the number of Firm Shares
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Selling
Stockholder by a fraction, the numerator of which is the aggregate number of
Firm Shares to be purchased by such Underwriter as set forth opposite the name
of such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the Underwriters from
the Selling Stockholder hereunder, (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Selling Stockholder agrees to sell each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Selling Stockholder, at the purchase price per share set forth in clause (a) of
this Section 2, that
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portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
ASI Partners hereby grants to the Underwriters the right to purchase at
their election up to 1,290,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to ASI
Partners, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and ASI Partners otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours prior
notice to ASI Partners, shall be delivered by or on behalf of ASI Partners to
Xxxxxxx, Xxxxx & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer to
the account specified by the Selling Stockholder in Federal (same-day) funds.
The Company will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 0000 (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on February , 1997 or such
other time and date as Xxxxxxx, Xxxxx & Co. and ASI Partners may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by Xxxxxxx, Sachs & Co. in the written notice given by
Xxxxxxx, Xxxxx & Co. of the Underwriters' election to purchase such Optional
Shares, or such other time and date as Xxxxxxx, Sachs & Co. and ASI Partners may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery," such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery," and each such time and date for delivery is herein
called a "Time of Delivery."
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(1) hereof, will be delivered at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New York
City time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence, will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable,
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such earlier time as may be required by Rule 430A(a)(3) under the Act, to
make no further amendment or any supplement to the Registration Statement
or Prospectus prior to the last Time of Delivery which shall be disapproved
by you promptly after reasonable notice thereof, to advise you, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or (to the
Company's knowledge) threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use their best efforts to
obtain the withdrawal of such order.
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may reasonably request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation, file a
general consent to service of process, or subject itself to taxation in any
jurisdiction;
(c) Prior to 1:00 p.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make such statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document to be incorporated by reference in
the Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to the Company's securityholders as
soon as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Company,
Rule 158);
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(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder and under the International Underwriting Agreement, any Stock or
common equity securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans or other plans for the benefit of
employees (including, without limitation, the ESOP) or the Stockholders
Rights Agreement existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of Xxxxxxx, Xxxxx & Co.;
(f) To furnish to the Company's stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail; and
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional publicly available information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission).
6. The Company and ASI covenant and agree with the several Underwriters
that (a) the Company and ASI, jointly and severally, will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Company's
and the Selling Stockholders' counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the International Underwriting Agreement, the
Agreement between Syndicates, the Selling Agreement, the Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) the filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Shares; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; (vii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; and (viii) all expenses and taxes
incident to the sale and delivery of the Shares to be sold by the Selling
Stockholder to the Underwriters hereunder. Xxxxxxx, Sachs & Co. agrees to pay
New York State stock transfer tax, and the Company and ASI, jointly and
severally, agree to reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs
if such tax payment is not rebated on the day of payment and for any portion of
such tax payment not rebated. It is understood, however, that except as provided
in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own
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costs and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and the Selling Stockholder herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Stockholder shall have performed in all material respects all of their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the matters covered in paragraphs (i), (ii) (only with
respect to the description of the Stock contained in the Prospectus),
(iii), and the first clause of (vii) relating to compliance as to form of
subsection (c) below as well as such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Debevoise & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance reasonably satisfactory to you, to the effect that:
(i) Each of the Company and ASI has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company issued concurrently with the consummation of the Acquisition
have been duly authorized, validly issued and are fully paid and
non-assessable and conform as to legal matters in all material respects
to the description of the Stock incorporated by reference in the
Prospectus;
(iii) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(iv) No consent, approval, authorization, order, registration or
qualification of or with any State of New York or Delaware or U.S.
Federal court or governmental agency or body is required for the sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act of the Shares, and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters (as to which such
counsel need not express an opinion);
(v) The statements set forth in the International Prospectus under
the caption "Certain United States Tax Consequences To Non-U.S.
Holders," insofar as they purport
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to summarize Federal laws of the United States referred to thereunder,
fairly summarize such laws in all material respects;
(vi) The Company is not an "investment company" or an entity
"controlled" by a company required to register as an "investment
company", as such terms are defined in the Investment Company Act; and
(vii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the documents incorporated by reference
therein and other than the financial statements and related schedules
and other financial information contained or incorporated by reference
therein, as to which such counsel need express no belief) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; and they do not know of any contracts
or other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus which are not filed or incorporated by reference as
required.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that such counsel has not checked the accuracy or
completeness of, or otherwise verified, and is not passing upon and assumes no
responsibility for the accuracy or completeness of, the information contained or
incorporated by reference in the Registration Statement or the Prospectus, or
any amendment or supplement thereto, except to the limited extent set forth in
the concluding clause of Section 7(c)(ii) above, in the course of the
preparation of the Registration Statement and the Prospectus by the Company,
such counsel participated in conferences with representatives of the Company,
the independent public accountants of the Company and the Underwriters and their
counsel with respect thereto, and that such counsel's examination of the
Registration Statement and the Prospectus and such counsel's participation in
the above-mentioned conferences did not cause such counsel to believe that the
Registration Statement or any amendment thereto (except as to the financial
statements and related schedules and other financial information contained or
incorporated by reference therein, as to which such counsel need not express a
belief), at the time the Registration Statement or amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(other than the financial statements and related schedules and other financial
information contained or incorporated by reference therein, as to which such
counsel need not express a belief), at the time it was filed pursuant to Rule
424(b) or on the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may state that they express no
opinion other than as to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the Federal laws of the United
States. No persons other than you shall be entitled to rely on such opinion, and
such opinion may not be furnished or referred to, or quoted from to, any other
person;
(d) Xxxxxxx X. Xxxxxxx, Esq., General Counsel for the Company and ASI,
shall have furnished to you his written opinion, dated such Time of Delivery, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
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(ii) All shares of the issued capital stock of the Company (other that
shares issued concurrently with the consummation of the Acquisition) have
been duly authorized, validly issued and are fully paid and non-assessable;
(iii) Each Principal Subsidiary incorporated within the United States
(a "U.S. Principal Subsidiary"), other than ASI, has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation; and all of the issued shares of capital
stock of each U.S. Principal Subsidiary and of ASI have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares and except as otherwise set forth
in the Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (other than liens,
encumbrances, equities or claims existing under or permitted by the
Existing Credit Facilities or the Amended Credit Facilities) (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect to matters of fact upon
certificates of officers of the Company or its subsidiaries and of
government officials, provided that such counsel shall state that he
believes that both you and he are justified in relying upon such opinions
and certificates);
(iv) To the best of such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(v) Neither the Company nor any of its U.S. Principal Subsidiaries is
in violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument known to such
counsel to which it is a party or by which it or any of its properties may
be bound except (other than with respect to such Certificate of
Incorporation or By-laws) for such defaults which would not have a Material
Adverse Effect;
(vi) The compliance by the Company and ASI with all of the provisions
of this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated, including
the Share Repurchase and the issuance of the Warrants, will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel to
which the Company or any of its U.S. Principal Subsidiaries is a party or
by which the Company or any of its U.S. Principal Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Restated Certificate of Incorporation or Amended By-laws of the Company or
any statue or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company
or any of its U.S. Principal Subsidiaries or any of their properties
except, in each case (other than with respect to such Restated Certificate
of Incorporation and Amended By-laws), for such conflicts, violations,
breaches or defaults which would not have a Material Adverse Effect or
impair the Company's ability to perform its obligations hereunder or under
the International Underwriting Agreement; and
(vii) The documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules and other financial
information contained therein, as to which such counsel need express no
belief), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
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In addition to the matters set forth above, such opinion shall also include
a statement to the effect that such counsel has not checked the accuracy or
completeness of, or otherwise verified, and is not passing upon and assumes no
responsibility for the accuracy or completeness of, the information contained or
incorporated by reference in the Registration Statement or the Prospectus, or
any amendment or supplement thereto, in the course of the preparation of the
Registration Statement and the Prospectus by the Company, such counsel
participated in conferences with representatives of the Company, the independent
public accountants of the Company and the Underwriters and their counsel with
respect thereto, and that such counsel's examination of the Registration
Statement and the Prospectus and such counsel's participation in the
above-mentioned conferences did not cause such counsel to believe that the
Registration Statement or any amendment thereto (except as to the financial
statements and related schedules and other financial information contained or
incorporated by reference therein, as to which such counsel need not express a
belief), at the time the Registration Statement or amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(other than the financial statements and related schedules and other financial
information contained or incorporated by the reference therein, as to which such
counsel need not express a belief), at the time it was filed pursuant to Rule
424(b) or on the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may state that he expresses no
opinion other than as to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the Federal laws of the United
States. No persons other than you shall be entitled to rely on such opinion, and
such opinion may not be furnished or referred to, or quoted from, any other
person;
(e) Counsel for foreign Principal Subsidiaries of the Company satisfactory
to the Underwriters shall have furnished to you their written opinion, dated
such Time of Delivery, in form and substance reasonably satisfactory to you, to
the effect that:
(i) Each foreign Principal Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the issued
shares of capital stock of each such foreign Principal Subsidiary have been
duly and validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares and except as otherwise set
forth in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (other than
liens, encumbrances, equities and claims existing under or permitted by the
Credit Agreement), except where the failure to be in good standing would
not have a Material Adverse Effect;
(ii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which any foreign Principal Subsidiary is a party or of which
any property of any such foreign Principal Subsidiary is the subject which,
if determined adversely to such subsidiary, would individually or in the
aggregate have a Material Adverse Effect, and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(iii) No foreign Principal Subsidiary is in violation of its
Certificate of Incorporation or By-laws or other organizational documents
or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument known to
such counsel to which it is a party or by which it or any of its properties
may be bound except (other than with
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respect to such Certificate of Incorporation or By-laws or other
organizational documents) for such defaults which would not have a Material
Adverse Effect;
(f) The counsel for the Selling Stockholder shall have furnished to you
their written opinion with respect to the Selling Stockholder, dated such Time
of Delivery, in form and substance satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and delivered by or on
behalf of the Selling Stockholder; and the sale of the Shares to be sold by
the Selling Stockholder hereunder and the compliance by the Selling
Stockholder with all of the provisions of this Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms or provisions
of, or constitute a default under any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets of the
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the Partnership Agreement of the Selling
Stockholder or any order, rule or regulation known to such counsel and
applicable to the transactions contemplated by this Agreement of any court
or governmental agency or body having jurisdiction over the Selling
Stockholder or the property of the Selling Stockholder (where the
consequences of such conflict, breach, violation or default would affect
the ability of the Selling Stockholder to sell its Shares to the
Underwriters pursuant to this Agreement or materially affect the ability of
the Selling Stockholder to perform its other obligations under this
Agreement, except that such counsel shall not express any opinion as to
compliance with the registration or filing requirements or disclosure
provisions of the securities laws of the United States or the securities or
Blue Sky laws of any other jurisdiction, such counsel shall not express any
opinion as to the enforceability of the indemnification or contribution
provisions of Article 8 of this Agreement and such counsel shall not
express any opinion as to the accuracy or completeness of the Registration
Statement or Prospectus);
(ii) No consent, approval, authorization or order of any court or
governmental agency or body is required to be obtained by the Selling
Stockholder for the consummation of the transactions contemplated by this
Agreement in connection with the Shares to be sold by the Selling
Stockholder hereunder, except such consents, approvals, authorizations or
orders as have been obtained under the Act and such as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters;
(iii) Upon due delivery and payment for the Shares to be sold by the
Selling Stockholder at the First Time of Delivery as provided for in this
Agreement, the Underwriters will have good and valid title to the Shares so
transferred, free and clear of any liens, encumbrances, equities or claims
(assuming that the Underwriters are without notice of any adverse claim, as
defined in the Code and are otherwise bona fide purchasers for the purposes
of the Code and that such Underwriters' rights are not limited by
subsection (4) of Section 8-302 of the Code).
In rendering the opinion in paragraph (iii), such counsel may rely upon a
certificate of the Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on, the Shares sold by
the Selling Stockholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate,
and such counsel's opinion shall be limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the federal laws
of the United States;
(g) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Ernst & Young shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto;
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(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock (other than
pursuant to the ESOP or other employee incentive or benefit plans) or any
increase in the long-term debt of the Company or any of its subsidiaries or any
development involving a Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus (including, without limitations, borrowings in
the ordinary course of business under the Facilities), the effect of which, in
any such case described in clause (i) or (ii), is in the judgment of the
Underwriters so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(j) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency of war, if the effect of any such event
specified in this clause (iv) in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(k) The Shares to be sold at such Time of Delivery shall have been duly
listed on the Exchange;
(l) ASI Partners has obtained and delivered to the Underwriters executed
copies of an agreement from each of its partners who is to receive a
distribution of shares of Stock, substantially to the effect set forth in
Subsection 1(b)(v) hereof in form and substance reasonably satisfactory to you;
(m) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(n) The Company and the Selling Stockholder shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of officers of the
Company, ASI and the Selling Stockholder satisfactory to you as to the accuracy
of the representations and warranties of the Company, ASI and the Selling
Stockholder herein at and as of such Time of Delivery, as to the performance by
the Company, ASI and the Selling Stockholder of all of their obligations
hereunder to be performed at or prior to such Time of Delivery, and of officers
of the Company as to the matters set forth in subsections (a) and (h) of this
Section 7 and as to such other matters as you may reasonably request.
8. (a) The Company and ASI, jointly and severally, will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
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statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Company nor ASI shall be liable (i) in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein and (ii) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results solely from the fact that such Underwriter sold Common Stock
to a person as to whom the Company or ASI shall establish that there was not
sent by commercially reasonable means, at or prior to the written confirmation
of such sale, a copy of the Prospectus in any case where such delivery is
required by the Act, if the Company or ASI has previously furnished copies
thereof in sufficient quantity to such Underwriter and the loss, claim, damage
or liability of such Underwriter results from an untrue statement or omission of
a material fact contained in the Preliminary Prospectus that was corrected in
the Prospectus.
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Selling Stockholder expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the amount of each indemnity under this
subsection (b) shall be limited to an amount equal to the total net proceeds
received by the Selling Stockholder from the offering of the Shares purchased
under this Agreement.
(c) The Company and ASI will, jointly and severally, indemnify and hold
harmless the Selling Stockholder against any losses, claims, damages or
liabilities to which the Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse the
Selling Stockholder for any legal or other expenses reasonably incurred by the
Selling Stockholder in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and ASI shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in
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conformity with written information furnished to the Company by the Selling
Stockholder expressly for use therein.
(d) Each Underwriter will, severally and not jointly, indemnify and hold
harmless the Company, ASI and the Selling Stockholder against any losses,
claims, damages or liabilities to which the Company, ASI or the Selling
Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the
Company, ASI and the Selling Stockholder for any legal or other expenses
reasonably incurred by the Company, ASI or the Selling Stockholder in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(e) Promptly after receipt by an indemnified party under subsection (a),
(b), (c) or (d) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnifying party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(f) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b),
(c) or (d) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company, ASI and the Selling Stockholder on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (e) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but
17
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also the relative fault of the Company, ASI and the Selling Stockholder on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, ASI and the
Selling Stockholder on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, ASI or the Selling Stockholder on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing, the Selling Stockholder
shall not be obligated to make contributions hereunder which are on a basis
other than as specified in subsection (b) of this Section 8 or in the aggregate
exceed the amount for which it would have been liable pursuant to subsection (b)
of this Section 8 had indemnification been available thereunder.
The Company, ASI, the Selling Stockholder and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(f) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (f). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (f) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (f), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this subsection (f), the Selling Stockholder shall not be required to contribute
any amount in excess of the amount of total net proceeds received by the Selling
Stockholder from the offerings of the Shares purchased under this Agreement. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (f) to contribute are several in proportion to their respective
underwriting obligations and not joint. Each Selling Stockholder's obligations
in this subsection (f) to contribute are several and not joint.
(g) The obligations of the Company, ASI and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company, ASI and
the Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act, and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company or the Selling Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Selling Stockholder shall be entitled to a further period of thirty-six
hours within
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which to procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Selling Stockholder that you have so arranged for the
purchase of such Shares, or the Selling Stockholder notifies you that it has so
arranged for the purchase of such Shares, you or the Selling Stockholder shall
have the right to postpone such Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholder as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Selling Stockholder shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholder as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholder shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholder to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholder, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, ASI, the Selling Stockholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, ASI or the Selling Stockholder, or any officer or
director or controlling person of the Company, ASI or the Selling Stockholder,
and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Company, ASI or the Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the
Selling Stockholder as provided herein, the Company and ASI, jointly and
severally, will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company and
ASI shall then be under no further liability to any Underwriter in respect of
the Shares not so delivered except as provided in Sections 6 and 8 hereof.
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20
12. In all dealings hereunder (other than as provided in Section 1(b)(iv)),
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by you
jointly or by Xxxxxxx, Xxxxx & Co. on behalf of any Underwriter, and in all
dealings with the Selling Stockholder hereunder, you and the Company shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of the Selling Stockholder made or given by the Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of Xxxxxxx, Sachs & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and
if to the Company or ASI shall be delivered to or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; and if to the Selling Stockholder
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Selling Stockholder set forth on Schedule II; provided, however,
that any notice to an Underwriter pursuant to Section 8(e) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its underwriters' questionnaire, or telex
constituting such questionnaire, which address will be supplied to the Company
or the Selling Stockholder by you upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, ASI, the Selling Stockholder and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and ASI and each person who controls the Company, ASI, the Selling
Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, one for the Company, one for ASI, one for ASI
Partners and for each of the Underwriters plus one for each counsel, and upon
the acceptance hereof by you, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Company,
ASI and the Selling Stockholder.
Very truly yours,
American Standard Companies Inc.
By /s/
------------------------------------------
Name:
Title:
American Standard Inc.
By /s/
------------------------------------------
Name:
Title:
Xxxxx ASI Partners, L.P.,
by Xxxxx American Standard Partners, L.P.,
its general partner
By
------------------------------------------
Name:
Title: General Partner
By
------------------------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: General Counsel and Attorney-in-
Fact for the partners of Xxxxx ASI
Partners, L.P., attesting as to the
due authorization and approval of
the partners
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Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
SBC Warburg Inc.
Xxxxx Xxxxxx Inc.
By:
----------------------------------
(Xxxxxxx Xxxxx & Co.)
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SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
---------------------------------------------------------- --------------- ------------------
Xxxxxxx, Sachs & Co. .....................................
Xxxxxx Xxxxxxx & Co. Incorporated.........................
SBC Warburg Inc. .........................................
Xxxxx Xxxxxx Inc. ........................................
--------- -------
Total........................................... 8,600,000 1,290,000
========= =======
24
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- ------------------
ASI Partners............................................ 8,600,000 1,290,000
Address for Notices:
Xxxxx ASI Partners, L.P.
c/x Xxxxx & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
25
ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (iv)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/ or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with generally accepted
accounting principles;
(b) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
26
(C) as of , 1996, there have been any changes in the
consolidated capital stock or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or increases in stockholders' deficit or
other items specified by the Underwriters, or any increases or decreases
in any items specified by the Underwriters, in each case as compared
with amounts shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur, which may result from exchange rate movements, which may
result from the award of shares net of repurchases or which are
described in such letter; and
(D) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in clause (C) there were any decreases in consolidated
net revenues or consolidated net income or other items specified by the
Underwriters, or any increases in any items specified by the
Underwriters, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length
specified by the Underwriters, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Underwriters or
in documents incorporated by reference in the Prospectus specified by the
Underwriters, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
27
EXHIBIT A
PRINCIPAL SUBSIDIARIES*
JURISDICTION
NAME OF INCORPORATION
----------------------------------------------------------------------- -----------------
American Standard Inc.................................................. Delaware
Wabco Standard Trane Inc............................................... Canada (Ontario)
Wabco Westinghouse Equipments Automobiles SNC.......................... France
Societe Trane.......................................................... France
Wabco Standard GmbH.................................................... Germany
Wabco GmbH (formerly Wabco Westinghouse Fahrzeugbremsen)............... Germany
Ideal Standard GmbH.................................................... Germany
Ideal Standard SPA..................................................... Italy
Wabco Standard Trane BV................................................ Netherlands
American Standard Sanitaryware Thailand................................ Thailand
American Standard UK Ltd............................................... United Kingdom
---------------
* To be updated
