EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 12, 2000 (this
"Agreement"), among AVON PRODUCTS, INC., a New York corporation (the "Company")
and XXXXXXX XXXXX XXXXXX INC., BANC OF AMERICA SECURITIES LLC, CHASE SECURITIES
INC., DEUTSCHE BANK SECURITIES INC., X.X. XXXXXX SECURITIES INC. and XXXXXX
XXXXXXX & CO. INCORPORATED (the "Initial Purchasers") of the Zero Coupon
Convertible Senior Notes due 2020, to be issued pursuant to the provisions of
an Indenture dated as of July 12, 2000 between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee").
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Applicable Conversion Price" means, as of any date of
determination, the Applicable Principal Amount per $1,000 principal amount
at maturity of Notes as of such date of determination divided by the
Conversion Rate in effect as of such date of determination or, if no Notes
are then outstanding, the Conversion Rate that would be in effect were
Notes then Outstanding.
(b) "Applicable Principal Amount" means, as of any date of
determination, with respect to each $1,000 principal amount at maturity of
Notes, (i) the sum of the initial issue price of such Notes ($475.66) plus
accrued original issue discount with respect to such Notes through such
date of determination or, if no Notes are then outstanding, such sum
calculated as if Notes were then outstanding, or (ii) if the Notes have
been converted to semiannual coupon notes pursuant to Section 12 of the
Indenture, the Restated Principal Amount (as defined in the Indenture).
(c) "Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of
New York are authorized or obligated by law or executive order to close.
(d) "Closing Date" means the date on which the Notes are initially
issued.
(e) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(f) "Conversion Rate" shall have the meaning assigned such term in
the Indenture.
(g) "Deferral Notice" has the meaning assigned thereto in Section
3(g).
(h) "Deferral Period" has the meaning assigned thereto in Section
3(g).
(i) "Effective Time" means the time and date as of which the
Commission declares the Shelf Registration effective or as of which the
Shelf Registration otherwise becomes effective.
(j) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(k) "Holder" means each Initial Purchaser for so long as it owns any
Registrable Securities, and such of its respective successors and assigns
who acquire Registrable Securities, directly or indirectly, from such
person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(l) "Indenture" means the Indenture dated as of July 12, 2000,
between the Company and The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
(m) "Material Event" has the meaning assigned thereto in Section
3(b)(vi).
(n) "Notes" means the Zero Coupon Convertible Senior Notes due 2020,
to be issued under the Indenture and sold by the Company to the Initial
Purchasers, and securities (other than the Shares) of the Company issued
in exchange therefor or in lieu thereof pursuant to the Indenture.
(o) "Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the
Selling Security Holder Notice and Questionnaire attached as Appendix A to
the Offering Memorandum of the Company dated July 7, 2000 relating to the
Notes.
(p) "Notice Holder" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company on or prior to such date.
(q) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(r) "Prospectus" means the prospectus included in any Shelf
Registration, as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.
(s) "Purchase Agreement" means the Purchase Agreement dated July 7,
2000 among the Company and the Initial Purchasers.
(t) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) in
the circumstances contemplated by Section 2(a), a registration statement
registering such Securities under the Securities Act has been declared or
becomes effective and such Securities have been
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sold or otherwise transferred by the Holder thereof pursuant to such
effective registration statement; (ii) such Securities are sold pursuant
to Rule 144 under circumstances in which any legend borne by such
Securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or such Securities are eligible to
be sold pursuant to paragraph (k) of Rule 144; or (iii) such Securities
shall cease to be outstanding (including, in the case of the Notes, upon
conversion into Shares).
(u) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(v) "Registration Default Damages" has the meaning assigned thereto
in Section 2(c).
(w) "Registration Expenses" has the meaning assigned thereto in
Section 5.
(x) "Resale Period" means the period beginning on the date the Shelf
Registration becomes effective and ending on the earlier of (i) the Shelf
Registration ceasing to be effective or (ii) the second anniversary of the
Closing Date.
(y) "Restricted Holder" means (i) a Holder that is an affiliate of
the Company within the meaning of Rule 405 or (ii) a broker-dealer who
receives Securities for its own account but did not acquire the Securities
as a result of market-making activities or other trading activities.
(z) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act.
(aa) "Securities" means, collectively, the Notes and the Shares.
(bb) "Securities Act" means the Securities Act of 1933.
(cc) "Shares" means the shares of common stock of the Company, par
value $0.25 per share, into which the Notes are convertible or that have
been issued upon any conversion from Notes into common stock of the
Company.
(dd) "Shelf Registration" has the meaning assigned thereto in Section
2(a).
(ee) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time
to time.
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2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act as promptly
as practicable but in any event within 120 days after the Closing Date a
"shelf" registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may
be adopted by the Commission (the "Shelf Registration"). The Company
agrees to use its commercially reasonable efforts to cause the Shelf
Registration to become or be declared effective within 180 days after the
Closing Date and to keep such Shelf Registration continuously effective
for a period ending on the earlier of (i) the second anniversary of the
Closing Date or (ii) such time as there are no longer any Registrable
Securities outstanding. The Company further agrees to supplement or make
amendments to the Shelf Registration, as and when required by the rules,
regulations or instructions applicable to the registration form used for
such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to
the Holders of the Registrable Securities copies of any such supplement or
amendment prior to its being used or promptly following its filing with
the Commission.
(b) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration and
related Prospectus, it will do so only in accordance with this Section
2(b) and Section 3(g). Each Holder of Registrable Securities wishing to
sell Registrable Securities pursuant to a Shelf Registration and related
Prospectus agrees to deliver a Notice and Questionnaire to the Company at
least three (3) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration. From and after the
date the Shelf Registration is declared effective, the Company shall, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within five (5) Business Days after such date,
(i) if required by applicable law, file with the Commission a
post-effective amendment to the Shelf Registration or prepare and, if
required by applicable law, file a supplement to the related Prospectus or
a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling security
Holder in the Shelf Registration and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers
of the Registrable Securities in accordance with applicable law and, if
the Company shall file a post-effective amendment to the Shelf
Registration, use commercially reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities Act
as promptly as is practicable; (ii) provide such Holder copies of any
documents filed pursuant to Section 2(b)(i); and (iii) notify such Holder
as promptly as practicable after the effectiveness under the Securities
Act of any post-effective amendment filed pursuant to Section 2(b)(i);
provided that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in clauses
(i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(g). Notwithstanding
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anything contained herein to the contrary, the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
security Holder in any Shelf Registration or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the
provisions of Section 2(b) of this Agreement (whether or not such Holder
was a Notice Holder at the time the Shelf Registration was declared
effective) shall be named as a selling security Holder in the Shelf
Registration or related Prospectus in accordance with the requirements of
this Section 2(b).
(c) If any of the following events (any such event a "Registration
Default") shall occur, then liquidated damages (the "Registration Default
Damages") shall become payable in respect of the Securities as follows:
(i) if the Shelf Registration is not filed with the Commission
within 120 days following the Closing Date, then commencing on the
121st day after the Closing Date, Registration Default Damages shall
accrue on the Applicable Principal Amount of any outstanding Notes
that are Registrable Securities and the Applicable Conversion Price
of any outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first 120 days following such 121st day
and 0.5% per annum thereafter; or
(ii) if the Shelf Registration is not declared effective by the
Commission on or prior to the 180th day following the Closing Date,
then commencing on the 181st day after the Closing Date, Registration
Default Damages shall accrue on the Applicable Principal Amount of
any outstanding Notes that are Registrable Securities and the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the first 120
days following such 181st day and 0.5% per annum thereafter; or
(iii) if the Shelf Registration has been declared effective but
such Shelf Registration ceases to be effective (other than pursuant
to Section 3(g) hereof) at any time prior to the earlier of (A) two
years from the Closing Date or (B) the time at which there ceases to
be any Registrable Securities, then commencing on the day such Shelf
Registration ceases to be effective, Registration Default Damages
shall accrue on the Applicable Principal Amount of any outstanding
Notes that are Registrable Securities and the Applicable Conversion
Price of any outstanding Shares that are Registrable Securities at a
rate of 0.25% per annum for the first 120 days following such date on
which the Shelf Registration ceases to be effective and 0.5% per
annum thereafter; or
(iv) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 3(g) hereof, then commencing on the day the
aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period, Registration
Default Damages shall accrue on the Applicable Principal Amount of
any outstanding Notes that are Registrable Securities and the
Applicable
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Conversion Price of any outstanding Shares that are Registrable
Securities at a rate of 0.25% per annum for the first 120 days and
0.5% per annum thereafter;
provided, however, that the Registration Default Damages rate on the
Securities shall not exceed in the aggregate 0.5% per annum; provided
further, however, that (1) upon the filing of the Shelf Registration (in
the case of clause (i) above), (2) upon the effectiveness of the Shelf
Registration (in the case of clause (ii) above), (3) upon the
effectiveness of the Shelf Registration which had ceased to remain
effective (in the case of clause (iii) above), (4) upon the termination of
the Deferral Period that caused the limit on the aggregate duration of
Deferral Periods in a period set forth in Section 3(g) to be exceeded (in
the case of clause (iv) above) or (5) upon the termination of certain
transfer restrictions on the Securities as a result of the application of
Rule 144(k), Registration Default Damages on the Securities as a result of
such clause, as the case may be, shall cease to accrue.
(d) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the
applicable Effective Time and any reference herein to any post-effective
amendment to a registration statement shall be deemed to include any
document incorporated therein by reference as of a time after such
Effective Time.
(e) Notwithstanding any other provision of this Agreement, no Holder
of Registrable Securities who does not comply with the provisions of
Section 3(d), if applicable, shall be entitled to receive Registration
Default Damages unless and until such Holder complies with the provisions
of such section, if applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At the Effective Time of the Shelf Registration, the Company
shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to the
Shelf Registration, the Company shall:
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration on any form which
may be utilized by the Company and which shall permit the disposition
of the Registrable Securities in accordance with the intended method
or methods thereof, as specified in writing by the Holders of the
Registrable Securities, and use its commercially reasonable efforts
to cause such registration statement to become effective in
accordance with Section 2(a) above;
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(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the Prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such registration statement for the period specified
in Section 2(a) and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such registration statement, and furnish to the Holders of
the Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply, as to all matters within the Company's control,
with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the Holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the Holders of the Registrable
Securities to be included in such registration statement, (B) the
underwriters (which term, for purposes of this Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) the sales
or placement agent, if any, therefor, (D) counsel for such
underwriters or agent and (E) not more than one counsel for all the
Holders of such Registrable Securities who so request of the Company
in writing the opportunity to participate in the preparation of such
registration statement, each Prospectus included therein or filed
with the Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the Resale Period, make
available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(b)(iv), who shall certify to the Company
that they have a current intention to sell their Registrable
Securities pursuant to the Shelf Registration, such financial and
other information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt
prior written notice of such requirement and the opportunity to
contest the same or seek an appropriate protective order), or (C)
such information is required to be set forth
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in such registration statement or the Prospectus included therein or
in an amendment to such registration statement or an amendment or
supplement to such Prospectus in order that such registration
statement, Prospectus, amendment or supplement, as the case may be,
does not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vi) promptly notify the selling Holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof named in the
Shelf Registration or a supplement thereto, and confirm such notice
in writing, (A) when such registration statement or the Prospectus
included therein or any Prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (B) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration
statement or the initiation or written threat of any proceedings for
that purpose, (C) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
or written threat of any proceeding for such purpose, (D) of the
occurrence of (but not the nature of or details concerning) any event
or the existence of any fact (a "Material Event") as a result of
which any Shelf Registration shall 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, or any Prospectus shall 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, in the
light of the circumstances under which they were made, not misleading
(provided, however, that no notice by the Company shall be required
pursuant to this clause (D) in the event that the Company either
promptly files a Prospectus supplement to update the Prospectus or a
Form 8-K or other appropriate Exchange Act report that is
incorporated by reference into the Shelf Registration, which, in
either case, contains the requisite information with respect to such
Material Event that results in such Shelf Registration no longer
containing any untrue statement of material fact or omitting to state
a material fact necessary to make the statements contained therein
not misleading), (E) of the determination by the Company that a
post-effective amendment to a Shelf Registration will be filed with
the Commission, which notice may, at the discretion of the Company
(or as required pursuant to Section 3(g)), state that it constitutes
a Deferral Notice, in which event the provisions of Section 3(g)
shall apply or (F) at any time when a Prospectus is required to be
delivered under the Securities Act, that such registration statement,
Prospectus, Prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder;
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(vii) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Holder of Registrable Securities,
promptly incorporate in a Prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission relating to the terms of the sale of
such Registrable Securities, including information with respect to
the principal amount at maturity or number of Registrable Securities
being sold by such Holder or agent or to any underwriters, the name
and description of such Holder, agent or underwriter, the offering
price of such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any
other terms of the offering of the Registrable Securities to be sold
by such Holder or agent or to such underwriters; and make all
required filings of such Prospectus supplement or post-effective
amendment promptly after notification of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(ix) furnish to each Holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(b)(iv) an
executed copy (or, in the case of a Holder of Registrable Securities,
a conformed copy) of such registration statement, each such amendment
or supplement thereto (in each case including all exhibits thereto)
and such number of copies of such registration statement (excluding
exhibits thereto) and of the Prospectus included in such registration
statement (including each preliminary Prospectus and any summary
Prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder; and
the Company hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use
of such Prospectus (including any such preliminary or summary
Prospectus) and any amendment or supplement thereto by each such
Holder and by any such agent and underwriter, in each case in the
form most recently provided to such person by the Company in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus (including any such preliminary or summary
Prospectus) or any supplement or amendment thereto; and
(x) use its commercially reasonable efforts to (A) register or
qualify, to the extent required by law, the Registrable Securities to
be included in such registration statement under such securities laws
or blue sky laws of such United States jurisdictions as any Holder of
such Registrable Securities and each placement or sales agent, if
any, therefor and underwriter, if any, thereof shall reasonably
request, and (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers,
sales and
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dealings therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(a) and
for so long as may be necessary to enable any such Holder, agent or
underwriter to complete its distribution of Securities pursuant to
such registration statement but in any event not later than the date
through which the Company is required to keep the Shelf Registration
effective pursuant to Section 2(a); provided, however, that the
Company shall not be required for any such purpose to (1) qualify as
a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(b)(x), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders.
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company, such
obligation shall be subject to the provision of such information by such
party; provided that the Company shall use its reasonable best efforts to
obtain the necessary information from any party responsible for providing
such information.
(c) In the event that the Company would be required, pursuant to
Section 3(b)(vi)(D), to notify the selling Holders of Registrable
Securities, the placement or sales agent, if any, therefor or the managing
underwriters, if any, thereof named in the Shelf Registration or a
supplement thereto of the existence of the circumstances described
therein, the Company shall prepare and furnish to each such Holder, to
each placement or sales agent, if any, and to each such underwriter, if
any, a reasonable number of copies of a Prospectus supplemented or amended
so that, as thereafter delivered to purchasers of Registrable Securities,
such Prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder. Each Holder of
Registrable Securities agrees that upon receipt of any notice from the
Company, pursuant to Section 3(b)(vi)(D), such Holder shall forthwith
discontinue (and cause any placement or sales agent or underwriters acting
on their behalf to discontinue) the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable
Securities until such Holder (i) shall have received copies of such
amended or supplemented Prospectus and, if so directed by the Company,
such Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession
of the Prospectus covering such Registrable Securities at the time of
receipt of such notice or (ii) shall have received notice from the Company
that the disposition of Registrable Securities pursuant to the Shelf
Registration may continue.
(d) The Company may require each Holder of Registrable Securities as
to which any registration pursuant to Section 2(a) is being effected to
furnish to the Company such information regarding such Holder and such
Holder's intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, but only
to the extent that such information is required in
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order to comply with the Securities Act. Each such Holder agrees to notify
the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Holder to the Company or of the
occurrence of any event in either case as a result of which any Prospectus
relating to such registration contains or would contain an untrue
statement of a material fact regarding such Holder or such Holder's
intended method of disposition of such Registrable Securities or omits to
state any material fact regarding such Holder or such Holder's intended
method of disposition of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading, and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so
that such Prospectus shall not contain, with respect to such Holder or the
disposition of such Registrable Securities, 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.
(e) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
(f) Upon the occurrence of a Material Event, the Company shall as
promptly as practicable prepare and file a post-effective amendment to the
Shelf Registration or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf
Registration and Prospectus so that such Shelf Registration does 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, and such Prospectus does 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,
in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective
amendment to a Shelf Registration, use all commercially reasonable efforts
to cause it to be declared effective as promptly as is reasonably
practicable.
(g) Upon the occurrence or existence of any pending corporate
development or any other Material Event that, in the sole judgment of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration and the related Prospectus, the Company shall give notice
(without notice of the nature or details of such events) to the Notice
Holders that the availability of the Shelf Registration is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each Notice
Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or
until it is advised in writing by the Company that the Prospectus may be
used, and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such
Prospectus. The period during which the availability of the Shelf
Registration and any Prospectus is
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suspended (the "Deferral Period") shall, without the Company incurring any
obligation to pay liquidated damages pursuant to Section 2(c), not exceed
forty-five (45) days in any three (3) month period or ninety (90) days in
any twelve (12) month period.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with
a Notice and Questionnaire as required pursuant to Section 2(b) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration under applicable law or
pursuant to SEC comments. Each Holder further agrees not to sell any
Registrable Securities pursuant to the Shelf Registration without delivering,
or causing to be delivered, a Prospectus to the purchaser thereof and,
following termination of the Effectiveness Period, to notify the Company,
within 10 business days of request, of the amount of Registrable Securities
sold pursuant to the Shelf Registration and, in the absence of a response, the
Company may assume that all of the Holder's Registrable Securities were so
sold.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and blue sky laws referred to in Section 3(b)(x) hereof,
including reasonable fees and disbursements of one counsel for the placement or
sales agent or underwriters, if any, in connection with such qualifications,
(c) all expenses relating to the preparation, printing, distribution and
reproduction of each registration statement required to be filed hereunder,
each Prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing, the certificates representing
the Securities and all other documents relating hereto, (d) fees and expenses
of the Trustee under the Indenture, and of any escrow agent or custodian, and
of the registrar and transfer agent for the Shares, (e) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (f) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance) and (g) reasonable fees, disbursements and
expenses of one counsel for the Holders of Registrable Securities retained in
connection with the Shelf Registration, as selected by the Company (unless
reasonably objected to by Holders of at least a majority in aggregate
Applicable Principal Amount and Applicable Conversion Price of the Registrable
Securities being registered), and fees, expenses and disbursements of any other
persons, including special
12
experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any Holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
documented request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such Holders (severally or jointly),
other than the counsel and experts specifically referred to above.
6. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the Holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each Prospectus (including any preliminary or summary Prospectus)
contained therein or furnished pursuant to Section 3(c) hereof and any
further amendments or supplements to any such registration statement or
Prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
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; and at all times subsequent to the Effective Time
when a Prospectus would be required to be delivered under the Securities
Act, other than from (i) such time as a notice has been given to Holders
of Registrable Securities pursuant to Section 3(b)(vi)(D) hereof until
(ii) such time as the Company furnishes an amended or supplemented
Prospectus pursuant to Section 3(c) hereof or such time as the Company
provides notice that offers and sales pursuant to the Shelf Registration
may continue, each such registration statement, and each Prospectus
(including any summary Prospectus) contained therein or furnished pursuant
to Section 3(b) hereof, as then amended or supplemented, will conform in
all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder; 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 or on behalf of a Holder of Registrable Securities expressly
for use therein.
(b) Any documents incorporated by reference in any Prospectus
referred to in Section 6(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of
13
such documents will contain or contained an untrue statement of a material
fact or will omit or omitted 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 a Holder of
Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated
will not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, except to the extent that any
such contravention would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, any indenture or instrument
relating to indebtedness for money borrowed or any agreement to which the
Company is a party or any order, rule, regulation or decree of any court
or governmental agency or authority located in the United States having
jurisdiction over the Company or any property of the Company; and, to the
best knowledge of the Company, no consent, authorization or order of, or
filing or registration with, any court or governmental agency or authority
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the
Securities Act contemplated hereby, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
7. Indemnification.
(a) Indemnification by the Company. In connection with the Shelf
Registration, the Company shall, and it hereby agrees to, indemnify and
hold harmless each of the Holders of Registrable Securities included in
such Shelf Registration, and each person who is named in such Shelf
Registration or a supplement thereto as an underwriter in any offering or
sale of such Registrable Securities and each person who controls any such
person (each, a "Participant") against any losses, claims, damages or
liabilities, joint or several, to which such Participant may become
subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law 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 registration
statement under which such Registrable Securities were registered under
the Securities Act, or any preliminary, final or summary Prospectus
contained therein or furnished by the Company to any such Participant, 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 the Company shall, and it hereby agrees to, reimburse each
such Participant for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any
14
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable to any such person 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 such registration statement, or preliminary,
final or summary Prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such Participant expressly for use therein; provided, further,
that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense (1) arising from an offer or sale of Registrable
Securities occurring during a Deferral Period, if Notice Holders received
a Deferral Notice, or (2) the Participant fails to deliver at or prior to
the written confirmation of sale, the most recent Prospectus, as amended
or supplemented, and such Prospectus, as amended or supplemented, would
have corrected such untrue statement or alleged untrue statement of a
material fact. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Indemnification by Participants. Each Participant, severally and
not jointly, agrees to indemnify and hold harmless the Company, each of
the Company's directors, officers and employees and each person who
controls the Company within the meaning of either the Securities Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Company, but only with reference to written information furnished to the
Company by or on behalf of such Participant specifically for use in any
registration statement, or any preliminary or final or summary Prospectus
contained therein or any amendment or supplement thereto. This indemnity
agreement will be acknowledged by each Participant that is not an Initial
Purchaser in such Participant's Notice and will be in addition to any
liability which any such person may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or (b) of notice of the commencement of any action, such indemnified party
will, 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 will not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under Section 7(a) or
(b). In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential conflicting interests between them, the
indemnified party or parties shall have the right to select separate
counsel to participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense
of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
Section 7(a) or (b)
15
for any legal or other expenses subsequently incurred by such indemnified
party (other than reasonable costs of investigation) in connection with
the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the immediately preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate national counsel, approved by
the indemnifying party, representing the indemnified parties who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action.
(d) Contribution. Each party hereto agrees that, if for any reason
the indemnification provisions contemplated by Section 7(a) or Section
7(b) are unavailable to or insufficient to hold harmless an indemnified
party 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 fault of the indemnifying party and the indemnified party 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 fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 7(d) were determined by pro rata
allocation (even if the Participants 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 in this Section 7(d). 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 shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Participant shall be required to
contribute any amount in excess of the amount by which the dollar amount
of
16
the proceeds received by such Participant from the sale of any Registrable
Securities exceeds the amount of any damages which such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities 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. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations in this Section 7(d) to
contribute shall be several in proportion to the aggregate principal
amount at maturity or number of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each Participant and each person, if any, who controls any
Participant within the meaning of the Securities Act or the Exchange Act;
and the obligations of the Participants contemplated by this Section 7
shall be in addition to any liability which the respective Participants
may otherwise have and shall extend, upon the same terms and conditions,
to each officer, employee and director of the Company (including any
person who, with his consent, is named in any registration statement as
about to become a director of the Company), and to each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. Rule 144.
The Company covenants to the Holders of Registrable Securities that the
Company shall use its commercially reasonable efforts to timely file the
reports required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
or successor rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities in connection with that
Holder's sale pursuant to Rule 144, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly
18
given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified
mail, postage prepaid, return receipt requested) as follows: If to the
Company, to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Treasurer; if to an Initial Purchaser, to it at the
address for the Initial Purchasers set forth in the Purchase Agreement;
and if to a Holder, to the address of such Holder set forth in the
security register, a Notice and Questionnaire or other records of the
Company or to such other address as the Company or any such Holder may
have furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(b) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the respective successors and assigns of the parties
hereto. In the event that any transferee of any Holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to be
bound by and to perform, all of the applicable terms and provisions of
this Agreement.
(c) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any Holder of Registrable Securities, any
director, officer or partner of such Holder, any agent or underwriter or
any director, officer or partner thereof, or any controlling person of any
of the foregoing, and shall survive delivery of and payment for the
Registrable Securities pursuant to the Purchase Agreement and the transfer
and registration of Registrable Securities by such Holder.
(d) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
(e) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contain the entire understanding
of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively)
only by a written instrument
18
duly executed by the Company and the Holders of at least a majority of the
Shares constituting Registrable Securities at the time outstanding (with
Holders of Notes deemed to be the Holders, for the purposes of this
Section, of the number of outstanding Shares into which such Notes are or
would be convertible or exchangeable as of the date on which such consent
is requested). Each Holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(f), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such Holder.
(g) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the
Holders of Registrable Securities shall be made available for inspection
and copying on any business day by any Holder of Registrable Securities
for proper purposes only (which shall include any purpose related to the
rights of the Holders of Registrable Securities under the Securities, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(a) above, or at the office of the Trustee
under the Indenture.
(h) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
19
Agreed to and accepted as of the date referred to above.
Very truly yours,
AVON PRODUCTS, INC.
By: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Group Vice President,
Finance and Treasurer
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC
Chase Securities Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxxx Xxxx
Title: Managing Director
20
