EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 4, 1997 (this
"Agreement"), among AVON PRODUCTS, INC., a New York corporation (the "Company")
and XXXXXX XXXXXXX & CO. INCORPORATED, CHASE SECURITIES INC. and X.X. XXXXXX
SECURITIES INC., as the initial purchasers (the "Initial Purchasers") of the
6.55% Notes due 2007 of the Company.
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 August 1, 1997,
between the Company and The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
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(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 as of July
30, 1997 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 6.55% Notes due 2007, 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).
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(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 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 promptly
after the Exchange Offer Registration Statement has become effective for all
Securities that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. 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
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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 (i)
the second anniversary of the Closing Date or (ii) such time as there are no
longer any Registrable Securities outstanding. The Company further agrees to
supplement or make amendments to the Shelf Registration, as and when required by
the rules, regulations or instructions applicable to the registration form used
for such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to the
holders of the Registrable Securities copies of any such supplement or amendment
prior to its being used or promptly following its filing with the Commission.
(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 35 days after the date on
which the Exchange Offer Registration Statement was declared effective, 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 36th day after such
effective 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
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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
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Securities Act), if any, thereof, (C) the sales or placement agent, if any,
therefor, (D) counsel for such underwriters or agent and (E) not more than
one counsel for all the holders of such Registrable Securities who so
request of the Company in writing the opportunity to participate in the
preparation of such registration statement, each prospectus included
therein or filed with the Commission and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the Resale Period, make available at reasonable
times at the Company's principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(b)(iv), who
shall certify to the Company that they have a current intention to sell
their Registrable Securities pursuant to the Shelf Registration, such
financial and other information and books and records of the Company, and
cause the officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred to
in such Section, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that each such
party shall be required to maintain in confidence and not to disclose to
any other person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt prior written notice of
such requirement and the opportunity to contest the same or seek an
appropriate protective order), or (C) such information is required to be
set forth 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;
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(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
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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.
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(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;
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(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,
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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
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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 neces sary 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
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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 sen tence (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).
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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
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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.
-15-
(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.
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Agreed to and accepted as of the date referred to above.
AVON PRODUCTS, INC.
By: ______________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: ______________________________________
Name:
Title:
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