Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 9, 1999 (this
"Agreement"), among AVON PRODUCTS, INC., a New York corporation (the "Company")
and XXXXXXX XXXXX XXXXXX INC., X.X. XXXXXX SECURITIES INC., BANC OF AMERICA
SECURITIES LLC, CHASE SECURITIES INC., DEUTSCHE BANK SECURITIES INC., XXXXXX
XXXXXXX & CO. INCORPORATED, and WARBURG DILLON READ LLC (the "Initial
Purchasers") of the 6.90% Notes due 2004 (the "2004 Notes") and the 7.15% Notes
due 2009 (the "2009 Notes"), to be issued pursuant to the provisions of an
Indenture dated as of November 9, 1999 (the "Indenture") 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) "Closing Date" means the date on which the Securities are
initially issued.
(b) "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.
(c) "Effective Time", in the case of (i) an Exchange Offer, means the
time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, 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.
(d) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(e) "Exchange Offer" has the meaning assigned thereto in Section
2(a).
(f) "Exchange Offer Registration Statement" has the meaning assigned
thereto in Section 2(a).
(g) "Exchange Registration" has the meaning assigned thereto in
Section 3(f).
(h) "Exchange Securities" has the meaning assigned thereto in Section
2(a).
(i) "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.
(j) "Indenture" means the Indenture dated as of November 9, 1999,
between the Company and The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
(k) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(l) "Purchase Agreement" means the Purchase Agreement dated November
4, 1999 among the Company and the Initial Purchasers.
(m) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i)
such Securities have been exchanged for Exchange Securities in an Exchange
Offer as contemplated in Section 2(a); (ii) in the circumstances
contemplated by Section 2(b), a registration statement registering such
Securities under the Securities Act has been declared or becomes effective
and such Securities have been sold or otherwise transferred by the holder
thereof pursuant to such effective registration statement; (iii) 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 (iv) such Securities shall cease to be outstanding.
(n) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(o) "Registration Default Interest" has the meaning assigned thereto
in Section 2(c).
(p) "Registration Expenses" has the meaning assigned thereto in
Section 4.
(q) "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.
(r) "Restricted Holder" means (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities, or (iv) 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.
(s) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act.
(t) "Securities" means the 2004 Notes and the 2009 Notes, to be
issued under the Indenture and sold by the Company to the Initial
Purchasers, and securities (other than Exchange Securities) issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
(u) "Securities Act" means the Securities Act of 1933.
(v) "Shelf Registration" has the meaning assigned thereto in Section
2(b).
(w) "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.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company agrees to use
its reasonable best efforts to file under the Securities Act a
registration statement (the "Exchange Offer Registration Statement")
relating to an offer to exchange (the "Exchange Offer") any and all of the
Securities for a like aggregate amount of securities issued by the
Company, which have the same terms as the Securities (and are entitled to
the benefits of a trust indenture which has been qualified under the Trust
Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act, do not contain
restrictions on transfers and do not contain provisions for the additional
interest contemplated in Section 2(c) below (such new securities
hereinafter called "Exchange Securities"). The Company agrees to use its
reasonable best efforts to cause the Exchange Offer Registration Statement
to become filed with the Commission within 150 days after the Closing
Date, and to become effective under the Securities Act within 180 days
after the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Company
further agrees to use its reasonable best efforts to commence and complete
the Exchange Offer, for all Securities that have been properly tendered
and not withdrawn, within 225 days after the Closing Date. The Exchange
Offer will be deemed completed only if the Exchange Securities received by
holders (other than Restricted Holders) in the Exchange Offer for
Securities are, upon receipt, transferable by each such holder without
restriction imposed thereon by the Securities Act or the Exchange Act and
without material restrictions imposed thereon by the blue sky or
securities laws of a substantial majority of the States of the United
States of America. The Exchange Offer shall be deemed to have been
completed upon the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Securities that have been properly
tendered and not withdrawn before the expiration of the Exchange Offer,
which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer.
(b) If (i) because of any change in law or in applicable
interpretations by the staff of the Commission, the Company is not
permitted to effect the Exchange Offer or (ii) in the case of any holder,
other than a Restricted Holder, that participates in the Exchange Offer,
such holder does not receive Exchange Securities on the date of the
exchange that may be sold without restriction under state and federal
securities laws (other than due solely to the status of such holder as an
affiliate of the Company within the meaning of the Securities Act), then
in addition to or in lieu of conducting the Exchange Offer contemplated by
Section 2(a), the Company shall file under the Securities Act as promptly
as practicable 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 reasonable best efforts to
cause the Shelf Registration to become or be declared effective and to
keep such Shelf Registration continuously effective for a period ending on
the earlier of (iii) the second anniversary of the Closing Date or (iv)
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.
(c) If any of the following events (any such event a "Registration
Default") shall occur, then, as liquidated damages, additional interest
(the "Registration Default Interest") shall become payable in respect of
the Securities as follows:
(i) if the Exchange Offer Registration Statement or a Shelf
Registration is not filed with the Commission within 150 days
following the Closing Date, then commencing on the 151st day after
the Closing Date, Registration Default Interest shall accrue on the
principal amount of the Securities at a rate of 0.25 % per annum; or
(ii) if neither the Exchange Offer Registration Statement nor a
Shelf Registration is 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 Interest
shall accrue on the principal amount of the Securities at a rate of
0.25 % per annum; or
(iii) if either (A) the Company has not exchanged Exchange
Securities for all Securities validly tendered and not withdrawn, in
accordance with the terms of the Exchange Offer, on or prior to 225
days following the Closing Date, or (B) if applicable, the Shelf
Registration has been declared effective but such Shelf Registration
ceases to be effective at any time prior to two years from the
Closing Date, then commencing on (x) the 226th day after the Closing
Date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective, in the case of (B) above,
Registration Default Interest shall accrue on the principal amount of
Securities at a rate of 0.25% per annum.
provided, however, that the Registration Default Interest rate on the
Securities, shall not exceed in the aggregate 0.25% per annum; provided
further, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration (in the case of clause (i) above), (2) upon
the effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration (in the case of clause (ii) above), (3) upon the exchange of
Exchange Securities for all Securities validly tendered and not withdrawn (in
the case of clause (iii) (A) above), or upon the effectiveness of the Shelf
Registration which had ceased to remain effective (in the case of clause (iii)
(B) above), or (4) upon the termination of certain transfer restrictions on the
Securities as a result of the application of Rule 144(k), Registration Default
Interest on the Securities as a result of such clause (or the relevant
subclause thereof), 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 Interest 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 or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, 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, if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified herein):
(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 reasonable best efforts to cause
such registration statement to become effective as soon as
practicable thereafter;
(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(b) 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 require ment and the opportunity to
contest the same or seek an appropriate protective order), or (C)
such information is required to be set forth 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, or (D) 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;
(vii) use its reasonable best 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 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 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 reasonable best efforts to (A) register or qualify
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 dealings therein
in such jurisdictions during the period the Shelf Registration is
required to remain effective under Section 2(b) 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(b); 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 promptly 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(b) 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 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) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness thereof for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of the Exchange Offer
Registration Statement, and promptly provide each broker-dealer
holding Exchange Securities with such number of copies of the
prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request for use in connection with resales of Exchange
Securities;
(ii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in the Exchange Offer
Registration Statement, and confirm such advice in writing, (A) when
any prospectus amendment or supplement or post-effective amendment to
the Exchange Offer Registration Statement has been filed, and, with
respect to any post-effective amendment to the Exchange Offer
Registration Statement, when the same has become effective, (B) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Exchange Offer Registration Statement or the
initiation or threatening 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 Exchange Securities for sale
in any United States jurisdiction or the initiation or threatening in
writing of any proceeding for such purpose, or (D) at any time when a
prospectus is required to be delivered under the Securities Act, that
the Exchange Offer 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;
(iii) in the event that the Company would be required, pursuant
to Section 3(f)(ii)(D), to notify any broker-dealers holding Exchange
Securities, promptly prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter delivered to purchasers of such Exchange
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 or notify such broker-dealers that the offer and sale of
Exchange Securities pursuant to the Exchange Offer Registration
Statement may continue;
(iv) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Exchange Offer
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(v) use its reasonable best efforts to register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than
the commencement of the Exchange Offer, 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(f)(v), (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; and
(vi) make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective
date of such registration statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
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; provided that the Company shall
use its reasonable best efforts to obtain the necessary information from any
party responsible for providing such information.
4. 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 or Exchange Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(b)(x) and Section 3(f)(v) 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, (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 a Shelf Registration, as selected by the holders of at least a majority in
aggregate principal amount of the Registrable Securities being registered and
approved by the Company, and fees, expenses and disbursements of any other
persons, including special 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.
5. 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) or Section 3(f)
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) or Section 3(f)(ii)(D) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to
Section 3(c) or Section 3(f)(iii) hereof or such time as the Company
provides notice that offers and sales pursuant to the Exchange Offer
Registration Statement or the Shelf Registration, as the case may be, may
continue, each such registration statement, and each prospectus (including
any summary prospectus) contained therein or furnished pursuant to Section
3(b) or Section 3(f) 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 5(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 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.
6. Indemnification.
(a) Indemnification by the Company. In connection with a 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 a placement or sales agent or 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 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. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Indemnification by Participants. The Company may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2(b) and to entering into any
underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from each
Participant, severally and not jointly, 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 in addition to any liability
which any such person may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 6(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 6(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 6(a) or (b) 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 6(a) or Section
6(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 6(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 6(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 6(d), no Participant shall be required to
contribute any amount in excess of the amount by which the dollar amount
of 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 6(d) to contribute shall be several in proportion to the
principal amount 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 6 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 6
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.
7. Rule 144.
The Company covenants to the holders of Registrable Securities that the
Company shall use its reasonable best 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.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities which would be
inconsistent with the terms contained in this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly 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 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.
(c) 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.
(d) 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 and the
consummation of an Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
(f) 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.
(g) 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 duly executed by the Company
and the holders of at least a majority in aggregate principal amount of
the Registrable Securities at the time outstanding. 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 8(g),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such
holder.
(h) 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 8(b) above, or at the office of the Trustee
under the Indenture.
(i) 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.
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.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Chase Securities Inc.
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Warburg Dillon Read LLC
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
