EXHIBIT 1.1
AVON PRODUCTS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
________________, 2003
From time to time, AVON PRODUCTS, INC., a New York corporation (the
"Company"), may enter into one or more underwriting agreements substantially in
the form of Annex A that provide for the sale of designated securities to the
several underwriters named therein. The standard provisions set forth herein
may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933,
as amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters, as of the date of the Underwriting
Agreement, that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any 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, (iii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or (B) to that
part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee.
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(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each significant subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business in all
material respects as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. For purposes
of this Agreement, a "significant subsidiary" is any subsidiary of the
Company that generates 5% or more of the Company's revenue or income or
that holds 5% or more of the Company's assets.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized and, when executed and delivered by the
Company and assuming due authorization, execution and delivery by the
Trustee, will be a valid and binding agreement of the Company, enforceable
in accordance with its terms, subject to the enforceability applicable
bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or
similar laws affecting creditors' rights generally and general principles
of equity.
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements
of the Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
the availability of equitable remedies may be limited by equitable
principles of general applicability.
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(h) The sale and issuance of the Offered Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement,
in the case of the Underwriters' Securities, or by institutional investors
in accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent transfer or similar laws affecting creditors' rights generally
and general principles of equity.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture,
the Delayed Delivery Contracts and the Offered Securities 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 agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to
the Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Delayed Delivery Contracts or the
Offered Securities, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Offered Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) Each of the Company and its subsidiaries owns or possesses all
patents, patent rights, licenses, inventions, copyrights, know- how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, and trade names, in each case to the extent
disclosed in the Registration Statement or Prospectus as being material to
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the business of the Company and its subsidiaries, taken as a whole
(collectively, the "Intellectual Property"), to the extent required by it
for the employment thereof in connection with their respective businesses
as currently operated by them, and neither the Company nor, to the
Company's knowledge, any of its subsidiaries has received any written
notice of infringement of asserted rights of others with respect to any of
the Intellectual Property that if taken to a final judgment could have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. To the knowledge of the Company, the use of such Intellectual
Property in connection with the business and operations of the Company and
its subsidiaries does not infringe on the rights of any person.
(l) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject other than proceedings fairly
summarized in all material respects in [the Registration Statement or] the
Prospectus and proceedings that are not reasonably expected by the Company
to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform its
obligations under this Agreement, the Indenture, the Delayed Delivery
Contracts or the Offered Securities.
(m) The Company is not, and after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(n) To the knowledge of the Company, the Company and its subsidiaries
(i) are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
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(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) To the knowledge of the Company, PricewaterhouseCoopers LLP, who
has certified certain financial statements of the Company and its
subsidiaries, is an independent public accountant with respect to the
Company and its subsidiaries as required by the Securities Act.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
on the terms and subject to the conditions set forth in the Prospectus pursuant
to Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into
only with institutional investors approved by the Company of the types set
forth in the Prospectus. On the Closing Date, the Company will pay to the
Manager as compensation for the accounts of the Underwriters the commission set
forth in the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Purchase of the Securities by the Underwriters; Terms of Public
Offering. (a) The Company agrees to issue and sell the Offered Securities to
the several Underwriters named in the Underwriting Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from the Company the respective principal amount
of Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement at the purchase price set forth in the Underwriting
Agreement.
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(b) The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section 4 or
as alternative consideration may be provided for in the Underwriting Agreement,
payment for the Underwriters' Securities shall be made to the Company in
Federal or other funds immediately available at the time and place set forth in
the Underwriting Agreement against delivery of such Underwriters' Securities
for the respective accounts of the several Underwriters.
Certificates for the Underwriters' Securities shall be in definitive form
or global form, as specified by the Manager, and registered in such names and
in such denominations as the Manager shall request in writing not later than
two full business days prior to the Closing Date. The certificates evidencing
the Underwriters' Securities shall be delivered to the Manager on the Closing
Date for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Underwriters' Securities
to the Underwriters duly paid, against payment of the purchase price therefor
plus accrued interest, if any, to the date of payment and delivery.
5. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters to purchase and pay for the Underwriters' Securities are
subject to the performance by the Company of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of an Underwriting
Agreement and prior to each respective Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded the Company or any of
the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
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the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Manager, is material and adverse and that makes it,
in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus; and
(iii) there shall not be any stop order in effect suspending the
effectiveness of the Registration Statement, nor shall any
proceedings for such purpose be pending before or threatened by the
Commission.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an officer of the
Company, to the effect set forth in Section 5(a)(i) and to the effect that
the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date (as if made on the
Closing Date) and that the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, outside counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit A. The opinion of
Xxxxx Xxxx & Xxxxxxxx described in this Section 5(c) shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an
opinion from the General Counsel of the Company, dated the Closing Date,
to the effect set forth in Exhibit B. The opinion of the General Counsel
of the Company described in this Section 5(d) shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an
opinion from counsel for the Underwriters with respect to the
incorporation of the Company, the validity of the Indenture, the
Underwriters' Securities, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Manager may reasonably request, and such
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counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Underwriters and the Company's independent accountants, from the Company's
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained in this Agreement, the Company covenants with each
Underwriter as follows:
(a) To furnish to each Underwriter, without charge, a conformed copy
of the Registration Statement (including exhibits thereto) and, during the
period mentioned in Section 6(c) below, as many copies of the Prospectus,
any documents incorporated by reference therein (excluding exhibits
thereto) and any supplements and amendments thereto or to the Registration
Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not,
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in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with applicable law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request.
(e) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than (i) the
Offered Securities and (ii) commercial paper issued in the ordinary course
of business), without the prior written consent of the Manager.
(f) To pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the issuance and sale of the
Underwriters' Securities and all other fees or expenses (excluding fees or
expenses of the Underwriters' counsel) in connection with the preparation
and filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, including all printing costs
associated therewith, and the delivering of copies thereof to the
Underwriters, in the quantities herein above specified, (ii) all costs and
expenses related to the transfer and delivery of the Underwriters'
Securities to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or
legal investment memorandum in connection with the offer and sale of the
Securities under state securities laws and all expenses in connection with
the qualification of the Offered Securities for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the Blue Sky
or legal investment memorandum, (iv) any fees charged by rating agencies
for the rating of the Securities, (v) all document production charges and
expenses of counsel to the Underwriters (but not including their fees for
professional services) in connection with the preparation of this
Agreement, (vi) the costs and charges of the Trustee and any transfer
agent, registrar or depositary, (vii) the cost of the preparation,
issuance and delivery of the Underwriters' Securities, (viii) the costs
and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of
the
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Securities. It is understood, however, that except as provided in this
Section, Section 8, and the last paragraph of Section 10, the Underwriters
will pay all of their costs and expenses, including fees and disbursements
of their counsel, transfer taxes payable on resale of any of the
Securities by them and any advertising expenses connected with any offers
they may make.
7. Covenants of the Underwriters. Each of the several Underwriters
represents and agrees with the Company that it will comply with or observe any
restrictions or limitations set forth in the Prospectus or required by
applicable law, on persons to whom, or the jurisdictions in which, or the
manner in which, the Debt Securities may be offered, sold, resold or delivered.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished to the Company in
writing by or on behalf of any Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information furnished to the Company in writing by or on behalf of
any Underwriter expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
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"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential conflicting interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager, in the case
of parties indemnified pursuant to Section 8(a) above, and by the Company, in
the case of parties indemnified pursuant to Section 8(b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding 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 claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b)
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a
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result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Offered Securities or (ii) if the allocation provided by clause 8(d)(i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the offering
of the Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Offered Securities
(before deducting expenses but after deduction of the discounts and commissions
received by the Underwriters) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and the Underwriters on the other hand
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 or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 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 that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, 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
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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
13
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Offered Securities.
9. Termination. This Agreement shall be subject to termination by notice
given by the Manager to the Company, if (a) after the execution and delivery of
the Underwriting Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any
moratorium on commercial banking activities shall have been declared by Federal
or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets or any calamity
or crisis that, in the reasonable judgment of the Manager, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in the sole judgment of the Manager, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
10. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters' Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to
14
purchase pursuant to this Agreement be increased pursuant to this Section 10 by
an amount in excess of one-ninth of such amount of Underwriters' Securities
without the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Underwriters'
Securities and the aggregate amount of Underwriters' Securities with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Underwriters' Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such
Underwriters' Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15
ANNEX A
UNDERWRITING AGREEMENT
___________, 200_
Avon Products, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being
herein called the "Underwriters"), and we understand that AVON PRODUCTS, INC.,
a New York corporation (the "Company"), proposes to issue and sell [Currency
and Principal Amount] aggregate initial offering price of [Full title of Debt
Securities] (the "Debt Securities"). [(The Debt Securities are also referred to
herein as the "Offered Securities.")] The Debt Securities will be issued
pursuant to the provisions of an Indenture dated as of _______________, 2003
(the "Indenture") between the Company and JPMorgan Chase Bank, as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
respective principal amounts of Debt Securities set forth below opposite their
names at a purchase price of ____% of the principal amount of Debt Securities
[, plus accrued interest, if any, from [Date of Offered Securities] to the date
of payment and delivery](1), or in exchange for such other form of
consideration as provided for herein:
Principal Amount of
Name Debt Securities
---------------------------------------------------- -------------------
[Name of Manager]
[Insert syndicate list]
-------------------
--------------
(1) To be added only if the transaction does not close "flat" (i.e., when
the purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will be
computed on the basis of a 360-day year of twelve 30-day months.
Total.........................................
[The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.](2)
With respect to payment for the Offered Securities in cash, the
Underwriters will pay for such Offered Securities [(less any Offered Securities
sold pursuant to delayed delivery contracts)] upon delivery thereof at [office]
at ______ a.m. (New York City time) on ___________, 200_, or at such other
time, not later than 5:00 p.m. (New York City time) on __________, 200_, as
shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated ___________, 200_, and the Prospectus Supplement dated ____________,
200_, including the following:
Terms of Debt Securities
Maturity Date: _____________________
Interest Rate: _____________________
Redemption Provisions, if any: _____________________
Interest Payment Dates: _________________ and
_____________________
commencing ______________
_________
[(Interest accrues from: ______________________)](3)
Denomination: ______________
Consideration to Company (if other than
cash) ______________
[Other Terms:]
[The commission to be paid to the Underwriters in respect of the Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
-------------
(2) To be added only if delayed delivery contracts are contemplated.
(3) To be added only if the transaction does not close flat.
2
Underwriters shall be ___% of the principal amount of the Debt Securities so
purchased.](1)
All communications under this Underwriting Agreement shall be in writing
and effective only on receipt, and, if sent to the Underwriters, shall be
mailed, delivered or telefaxed to __________________, __________________, fax
no. _____________, attention:________________, with a copy to counsel for the
Underwriters at __________________, fax no. _____________,
attention:________________, or if sent to the Company, shall be mailed,
delivered or telefaxed to Avon Products, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000, attention: General Counsel, with
a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax no. (000) 000-0000, attention: Xxxxx Xxxxxx.
All provisions contained in the document entitled Avon Products, Inc.
Underwriting Agreement Standard Provisions (Debt Securities) dated _______,
2003, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in full herein, except
that (i) if any term defined in such document is otherwise defined herein, the
definition set forth herein shall control, (ii) all references in such document
to a type of security that is not an Offered Security shall not be deemed to be
a part of this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
------------
(1) To be added only if delayed delivery contracts are contemplated.
3
[SIGNATURE PAGE OF LEAD MANAGER(S)]
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[LEAD MANAGER(S)]
Acting severally on behalf of themselves and
the several Underwriters named herein
By: [LEAD MANAGER(S)]
By: _______________________________________
Name:
Title:
Accepted:
AVON PRODUCTS, INC.
By: ________________________________
Name:
Title:
4
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 200_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from AVON PRODUCTS, INC., a New
York corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto
(the "Securities"), offered by the Company's Prospectus dated
__________________, 200_ and Prospectus Supplement dated ________________,
200_, receipt of copies of which are hereby acknowledged, at a purchase price
stated in Schedule A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amount and numbers on the delivery dates set forth in Schedule A. Each such
date on which Securities are to be purchased hereunder is hereinafter referred
to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or in Federal or other funds
immediately available at the office of ______________________________, New
York, N.Y., at 10:00 a.m. (New York City time) on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written communication addressed to
the Company not less than five business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is
to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding agreement, as of the date first above written, between
the Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
_______________________________________
(Purchaser)
By: ___________________________________
___________________________________
(Title)
___________________________________
___________________________________
(Address)
Accepted:
AVON PRODUCTS, INC.
By: _______________________________
Name:
Title:
2
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print.)
Telephone No
Name (Including Area Code) Department
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
3
SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery:
Exhibit A
Opinion of Xxxxx Xxxx & Xxxxxxxx
The Opinion of Xxxxx Xxxx & Xxxxxxxx, outside counsel for the Company, to
be delivered pursuant to Section 5(c) of the Underwriting Agreement, shall be
to the effect that:
(1) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of New
York, and has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(2) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(3) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as such
enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and (B) general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or
in equity.
[(4) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as such enforcement may be limited by (A)
bankruptcy, insolvency reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and (B) general
principles of equity, regardless of whether enforcement is sought in
a proceeding at law or in equity.]
(5) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement[, in
A-1
the case of Underwriters' Securities, or by institutional investors
in accordance with the terms of the Delayed Delivery Contracts, in
the case of the Contract Securities,] will be entitled to the
benefits of the Indenture and will be valid and binding obligations
of the Company, enforceable in accordance with their terms except as
such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and (B) general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or
in equity.
(6) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture, [the Delayed Delivery Contracts] and the
Offered Securities will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by the Company of its obligations under the Underwriting Agreement,
the Indenture, [the Delayed Delivery Contract] or the Offered
Securities, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale
of the Offered Securities.
(7) the statements in the Prospectus under the captions
"Description of Debt Securities", "Plan of Distribution" and
"_______", in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize
the matters referred to therein.
(8) The Company is not, and after giving effect to the offering
and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(9) The statements under the caption "[Certain United States
Federal Income Tax Considerations]" in the Prospectus insofar as such
statements constitute a summary of the United States federal tax laws
referred to therein, are accurate and fairly summarize in all
material respects the United States federal tax laws referred to
therein.
A-2
(10) such counsel (A) has no reason to believe that (except for
financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief
and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) each part of the
Registration Statement, when such part became effective, contained
and, as of the date such opinion is delivered, contains any untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (B) has no reason to believe that
the Registration Statement and Prospectus (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion) do not comply as to form in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (C) has no reason to
believe that (except for financial statements and schedules as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
With respect to paragraph (10) above, Xxxxx Xxxx & Xxxxxxxx may state that
its belief is based upon its participation in the preparation of the Prospectus
(and any amendments or supplements thereto) and review and discussion of the
contents thereof and review of the documents incorporated by reference therein,
but is without independent check or verification except as specified.
A-3
Exhibit B
Opinion of the General Counsel
The opinion of the General Counsel of the Company, to be delivered
pursuant to Section 5(d) of the Underwriting Agreement, shall be to the effect
that:
(1) The Company is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(2) Each significant subsidiary(1) of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business in all material respects as described in the Prospectus
(which term includes for purposes of such opinion, all documents
incorporated by reference therein), and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(3) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture [, the Delayed Delivery Contracts] and the
Offered Securities will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company, or
any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole (except to the extent that any such
contravention would not have a material adverse effect (i) on the
Company and its subsidiaries, taken as a whole or (ii) on the power
or ability of the Company to
-------------
(1) A "significant subsidiary" is any subsidiary of the Company that
generates 5% or more of the Company's revenue or income or that holds 5% or
more of the Company's assets.
B-1
perform its obligations under the Underwriting Agreement, the
Indenture[, the Delayed Delivery Contracts] or Offered Securities or
to consummate the transactions contemplated by the Prospectus), or,
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary;
provided that such counsel expresses no opinion with respect to state
securities or Blue Sky laws; and provided further that insofar as
performance by the Company of its obligations under the Underwriting
Agreement, the Indenture[, the Delayed Delivery Contracts] and the
Offered Securities is concerned, such counsel expresses no opinion as
to bankruptcy, insolvency, moratorium, reorganization, fraudulent
transfer or similar laws relating to or affecting creditors' rights
or remedies generally or general principles of equity.
(4) The statements (A) under the caption "Item 3 - Legal
Proceedings" of the Company's most recent annual report on Form 10-K
and (B) in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports, if any, filed since such annual report, in each
case insofar as such statements constitute a summary of the documents
or proceedings referred to therein and as such statements may have
been updated or superseded by information included in the current
reports on Form 8-K, if any, filed since the date of such annual or
quarterly report, fairly summarize the matters referred to therein as
of the respective dates of such reports.
(5) Each of the Company and its subsidiaries owns or possesses
all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, and trade names, in each case
to the extent disclosed in the Registration Statement or Prospectus
as being material to the business of the Company and its
subsidiaries, taken as a whole (collectively, the "Intellectual
Property"), to the extent required by it for the employment thereof
in connection with their respective businesses as currently operated
by them, and neither the Company nor, to the knowledge of such
counsel, any of its subsidiaries has received any written notice of
infringement of asserted rights of others with respect to any of the
Intellectual Property that if taken to a final judgment could have a
material adverse effect on the Company and its subsidiaries, taken as
a whole. To the knowledge of such counsel, the use of such
Intellectual Property in connection with the business and
B-2
operations of the Company and its subsidiaries does not infringe on
the rights of any person.
(6) After due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other
than proceedings fairly summarized in all material respects in the
Registration Statement or Prospectus and proceedings which such
counsel believes are not reasonably expected by the Company to have a
material adverse effect (i) on the Company and its subsidiaries,
taken as a whole, or (ii) on the power or ability of the Company to
perform its obligations under the Underwriting Agreement, the
Indenture, or the Offered Securities.
(7) such counsel is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in
the Prospectus (except for financial statements and schedules and
other financial and statistical data included therein as to which
such counsel need not express any opinion) complied when so filed
with the Commission as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder.
The foregoing opinion shall be limited to the laws of the State of New
York and the federal laws of the United States of America.
B-3
