Exhibit 99.3
January 7, 1998
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Corporate Trust Services
Ladies and Gentlemen:
Avon Products, Inc., a New York corporation (the "Company"), proposes
to make an offer (the "Exchange Offer") to exchange up to $100,000,000 principal
amount of its 6.55% Notes due 2007 (the "New Notes"), for a like principal
amount of its outstanding 6.55% Notes due 2007 (the "Old Notes"). The terms and
conditions of the Exchange Offer are set forth in a prospectus (the
"Prospectus") included in the Company's registration statement on Form S-4 (File
No. 333-41299), as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "SEC"), and proposed to be distributed
to all record holders of the Old Notes. The Old Notes and the New Notes are
collectively referred to herein as the "Notes." Capitalized terms used herein
and not defined shall have the respective meanings ascribed to them in the
Prospectus or accompanying Letter of Transmittal.
The Company hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Company on or
about January 8, 1998. The Letter of Transmittal accompanying the Prospectus (or
in the case of book entry securities, either the Letter of Transmittal or the
Automated Tender Offer Program ("ATOP") system) is to be used by the holders of
the Old Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Old Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
February 9, 1998, or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (confirmed in writing) or written notice to you before 9:00 A.M., New York
City time, on the next business day after the previously scheduled Expiration
Date.
The Company expressly reserves the right, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any Old
Notes not theretofore accepted for exchange. The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer", in the Letter of Transmittal accompanying the Prospectus or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish an account with respect to the Old Notes at
The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may, until the Expiration Date, make book-entry delivery of
the Old Notes by causing the Book-Entry Transfer Facility to transfer such Old
Notes into your account in accordance with the Book-Entry Transfer Facility's
procedures for such transfer. In every case, however, a Letter of Transmittal
(or a manually executed facsimile thereof) or an Agent's Message, properly
completed and duly executed, with any required signature guarantees and any
other required documents must be transmitted to and received by you prior to the
Expiration Date or the guaranteed delivery procedures described in the Exchange
Offer must be complied with.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (and confirmation of book-entry transfers of Old
Notes into your account at the Book-Entry Transfer Facility) and any other
documents delivered or mailed to you by or for holders of the Old Notes, to
ascertain whether: (i) the Letters of Transmittal, certificates and any such
other documents are duly executed and properly completed in accordance with
instructions set forth therein and that such book-entry confirmations are in due
and proper form and contain the information required to be set forth therein,
(ii) the Old Notes have otherwise been properly tendered, (iii) the Old Notes
tendered in part are tendered in principal amounts of $100,000 and integral
multiples of $1,000 in excess thereof and that if any Old Notes are tendered for
exchange in part, the untendered principal amount thereof is $100,000 or any
integral multiple of $1,000 in excess thereof, and (iv) holders have provided
their Tax Identification Number or required certification. In each case where
the Letter of Transmittal or any other document has been improperly completed or
executed, or where book-entry confirmations are not in due and proper form or
omit certain information, or any of the certificates for Old Notes are not in
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proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of the Chairman, the President, any Vice
President, the Secretary or any Assistant Secretary (such approval, if given
orally, to be confirmed in writing) or any other person designated by such an
officer in writing, you are authorized to waive any irregularities in connection
with any tender of Old Notes pursuant to the Exchange Offer.
5. At the written request of the Company or its counsel, you shall
notify tendering holders of Old Notes in the event of any extension, termination
or amendment of the Exchange Offer. In the event of any such termination, you
will return all tendered Old Notes to the persons entitled thereto, at the
request and expense of the Company.
6. Tenders of Old Notes may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer," and Old Notes shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein. Notwithstanding
the provisions of this paragraph 6, Old Notes which the Chairman, the President,
any Vice President, the Secretary or any Assistant Secretary or any other
officer of the Company designated by any such person shall approve as having
been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing). New Notes are to be
issued in exchange for Old Notes pursuant to the Exchange Offer only (i) against
deposit with you prior to the Expiration Date or, in the case of a tender in
accordance with the guaranteed delivery procedures outlined in Instruction 1 of
the Letter of Transmittal, within three New York Stock Exchange trading days
after the Expiration Date of the Exchange Offer, together with executed Letters
of Transmittal and any other documents required by the Exchange Offer or (ii) in
the event that the holder is a participant in The Depository Trust Company
("DTC") system, by the utilization of DTC's ATOP and any evidence required by
the Exchange Offer.
7. You shall advise the Company with respect to any Old Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Notes.
8. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names
only if signed by all named holders;
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(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including those regarding any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the Security Registrar for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
9. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will exchange
such Old Notes for New Notes and cause such Old Notes to be canceled. Delivery
of New Notes will be made on behalf of the Company by you at the rate of $1,000
principal amount of New Notes for each $1,000 principal amount of the Old Notes
tendered promptly after notice (such notice if given orally, to be confirmed in
writing) of acceptance of said Old Notes by the Company; provided, however, that
in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old Notes
(or confirmation of book-entry transfer into your account at the Book- Entry
Transfer Facility), a properly completed and, except as described in the section
of the Prospectus captioned "The Exchange Offer--Procedures for Tendering", duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. Unless otherwise
instructed by the Company, you shall issue New Notes only in denominations of
$1,000 or any integral multiple thereof.
10. Tenders, pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date in accordance
with the terms of the Exchange Offer.
11. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Notes tendered
shall be given (and confirmed in writing) by the Company to you.
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12. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Notes tendered because of an invalid tender,
the occurrence of certain other events set forth in the Prospectus or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Notes (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them (or effected such book-entry transfer).
13. All certificates for reissued Old Notes, unaccepted Old Notes or
for New Notes (other than those effected by book-entry transfer) shall be
forwarded by (a) first-class certified mail, return receipt requested, under a
blanket surety bond obtained by you protecting you and the Company from loss or
liability arising out of the nonreceipt or nondelivery of such certificates or
(b) by registered mail insured by you separately for the replacement value of
each of such certificates.
14. As soon as practicable after the Expiration Date, you shall
arrange for cancellation of the Old Notes submitted to you or returned by DTC in
connection with ATOP. Such Old Notes shall be cancelled and retired by you as
you are instructed by the Company (or a representative designated by the
Company) in writing.
15. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
16. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or herein or
as may be subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates for the Old Notes deposited with you pursuant to the Exchange
Offer, and will not be required to and will make no representation as to the
validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other
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document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a proper
person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the written opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by you hereunder in good faith
and in accordance with the written opinion of such counsel; and
(h) shall not advise any person tendering Old Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all or any
portion of Old Notes or as to the market value, decline or appreciation in
market value of any Old Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the New Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
17. You shall take such action as may from time to time be requested
by the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the Company to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided, that such information shall relate
only to the procedures for accepting (or withdrawing from) the Exchange Offer.
The Company will furnish you with copies of such documents at your request.
18. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxxxx X'Xxxx, Senior Counsel, of
the Company (telephone number (000) 000-0000, facsimile number (000) 000-0000)
and to Xxxx Xxxx, Manager Corporate Finance, of the Company (telephone number
(212) 000- 0000, facsimile number (000) 000-0000) and such other person or
persons as the Company may request, daily (and more frequently during the week
immediately preceding
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the Expiration Date and if otherwise requested), up to and including the
Expiration Date, as to the number and aggregate principal amount of Old Notes
which have been duly tendered pursuant to the Exchange Offer and the items
received by you pursuant to the Exchange Offer and this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate in making
available to, the Company or any such other person or persons upon oral request
made from time to time prior to the Expiration Date of such other information as
it or he or she reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company and such person as the Company
may request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the Expiration
Date the Company shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the number and aggregate
principal amount of Old Notes tendered, the number and aggregate principal
amount of Old Notes accepted and the identity of any Participating
Broker-Dealers (as defined in the Letter of Transmittal) and the number and
aggregate principal amount of New Notes delivered to each, and deliver said list
to the Company.
19. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you shall be preserved by you for a period of
time at least equal to the period of time you preserve other records pertaining
to the transfer of securities, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials, upon consultation with the Company, in
accordance with your customary procedures.
20. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan, credit
or other agreement with you or for compensation owed to you hereunder.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on the Schedule attached hereto.
22. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
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23. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable attorneys' fees and expenses
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Old Notes reasonably believed by you in good faith to
be authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Old Notes; provided, however, that anything in this
Agreement to the contrary notwithstanding, the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile which is confirmed by letter, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or notice of commencement of
action. The Company shall be entitled to participate, at its own expense, in the
defense of any such claim or other action, and, if the company so elects, the
Company may assume the defense of any pending or threatened action against you
in respect of which indemnification may be sought hereunder, in which case the
Company shall not thereafter be responsible for the subsequently incurred fees
and disbursements of legal counsel for you under this paragraph so long as the
Company shall retain counsel reasonably satisfactory to you to defend such suit;
provided, that the Company shall not be entitled to assume the defense of any
such action if the named parties to such action include both you and the Company
and representation of both parties by the same legal counsel would, in the
written opinion of your counsel, be inappropriate due to actual or potential
conflicting interests between you and the Company. You understand and agree that
the Company shall not be liable under this paragraph for the fees and expenses
of more than one legal counsel for you.
24. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required, in certain
instances, to deduct thirty-one percent (31%) with respect to interest paid on
the New Notes and proceeds from the sale, exchange, redemption or retirement of
the New Notes from holders who have not supplied their correct Taxpayer
Identification Numbers or required certification. Such funds will be turned over
to the Internal Revenue Service in accordance with applicable regulations.
25. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of a written
approval from the Company, shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange
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of Old Notes, your check in the amount of all transfer taxes so payable, and the
Company shall reimburse you for the amount of any and all transfer taxes payable
in respect of the exchange of Old Notes; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
26. THIS AGREEMENT AND YOUR APPOINTMENT AS EXCHANGE AGENT HEREUNDER
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, AND WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
27. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and its successor and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
28. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, and all of which taken together
shall constitute one and the same agreement.
29. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
30. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
31. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
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If to the Company, to:
Avon Products, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Xx., Esq.
Senior Vice President,
General Counsel and Secretary
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
If to the Exchange Agent, to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Global Trust Services, Xxxxxxxx Xxxxx
32. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 19, 21, 23 and 25 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for New Notes, funds or property then held by you
as Exchange Agent under this Agreement.
33. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
AVON PRODUCTS, INC.
By:___________________________________
Name:
Title:
Accepted as of the date
first above written:
THE CHASE MANHATTAN BANK,
as Exchange Agent
By:______________________________
Name:
Title:
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FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
Covers review of the Letter of Transmittal, DTC ATOP voluntary offering
instruction ("VOI"), the Exchange Agent Agreement and other related
documentation, if any, as required by the Exchange Offer; set-up of records and
accounts; distribution of materials; all operational and administrative charges
and time in connection with the review, receipt and processing of Letters of
Transmittal/VOI, processing delivery of guarantees, legal items, withdrawals,
record keeping, and answering securityholders' inquiries pertaining to the
Exchange Offer.
Flat Fee: $2,500.00
NOTE
These fees are also subject to change should circumstances warrant.
Reimbursement for all out-of-pocket expenses, disbursements (including postage,
telex, fax, photocopying and advertising costs), and reasonable fees of counsel
(including their disbursements and expenses) incurred in the performance of our
duties will be added to the billed fees. Once appointed, if the Exchange Offer
should fail to close for reasons beyond our control, we reserve the right to
charge a fee not to exceed the amount of our acceptance fee and we will require
reimbursement in full for our legal fees and any out-of-pocket expenses related
to our responsibilities under the Exchange Agent Agreement.
Fees for any services not specifically covered in this or any other
applicable schedule will be based on the appraisal of services rendered.
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