NOMINATION AGREEMENT

This NOMINATION AGREEMENT (the “ Agreement ”), dated March 26, 2018 (the “ Effective Date ”), is by and among Avon Products, Inc. (the “ Company ”), Barington Companies Equity Partners, L.P. (“ Barington ”), James A. Mitarotonda (the “ Designee ”) and the other entities and natural persons signatory hereto, including Shah Capital Management, Inc., Himanshu H. Shah, NuOrion Advisors, LLC and Guy Phillips (collectively, the “ Barington Group ” and each, a “ Barington Group Member ”).  The Company and each Barington Group Member is a “ Party ” to this Agreement and collectively they are the “ Parties .”

RECITALS

A.	The Barington Group beneficially owns, as of the Effective Date, 14,972,711 shares of common stock of the Company (the “ Common Stock ”), or approximately 3.4% of the shares of the Common Stock issued and outstanding as of January 31, 2018;

B.

Barington submitted a notice to the Company, dated March 16, 2018 (the “ Nomination Letter ”), notifying the Company of its intent to nominate candidates for election to the Company’s board of directors (the “ Board ”) at the 2018 annual meeting of shareholders of the Company (the “ 2018 Annual Meeting ”); and

C.	The Company and the Barington Group have determined to come to an agreement with respect to certain matters related to the 2018 Annual Meeting and certain other matters, as provided in this Agreement.

Accordingly, in consideration of the foregoing recitals and the mutual covenants and agreements contained herein, the Parties, intending to be legally bound hereby, agree as follows:

1.	Board Appointments; 2018 Annual Meeting.

(a)

The Company agrees to take all necessary actions to nominate the Designee for election at the 2018 Annual Meeting to serve as a director until the Company’s 2019 annual meeting of shareholders of the Company (the “ 2019 Annual Meeting ”).  The Company shall use the same level of effort with respect to the election of the Designee at the 2018 Annual Meeting that it exerts regarding the Company’s other nominees for election to the Board by the Company’s shareholders at the 2018 Annual Meeting, including recommending that the Company’s shareholders vote in favor of the election of the Designee at the 2018 Annual Meeting.  None of the Company, the Board or the Nominating & Corporate Governance Committee of the Board (the “ Nominating Committee ”) shall take any position, make any statements or take any action inconsistent with such recommendation.

(b)

Barington hereby irrevocably withdraws the Nomination Letter on the Effective Date and each Barington Group Member agrees not to nominate any person for election to the Board at the 2018 Annual Meeting.

(c)

The Designee covenants and agrees to tender his resignation from the Board and any committee thereof (i) immediately upon Barington and its Affiliates (as defined herein) ceasing to beneficially own shares of the Common Stock equal to or in excess of the Minimum Ownership Threshold (as defined herein) or (ii) promptly upon a material breach of this Agreement by any Barington Group Member, as reasonably determined by the Board, if such breach (if capable of being cured) has not been cured within 15 days following written notice thereof from the Company, in each case, unless the Company otherwise agrees in writing.  The “Minimum Ownership Threshold” means the beneficial ownership of at least 2,634,226 shares of Common Stock.

 

 

 

(d)

Recognizing that the Designee will be a member of the Board and have influence in determining the recommendations of the Board, during the Standstill Period (as defined herein), each Barington Group Member agrees to appear in person or by proxy for quorum purposes at any meeting of shareholders of the Company, including any adjournment or postponement thereof, and vote all of the shares of the Common Stock it beneficially owns (i) in favor of all persons nominated to serve as directors of the Company by the Board or the Nominating Committee and against any shareholder nominated directors, (ii) to ratify the appointment of the Company’s independent registered public accounting firm, (iii) in accordance with the Board’s recommendation with respect to the Company’s “say-on-pay” proposal and equity-compensation plans and any amendments thereto, (iv) in any manner each Barington Group Member desires with respect to mergers and acquisitions, liquidation or other fundamental change proposals, and (v) in accordance with the Board’s recommendation or abstaining from any other proposals.

(e)

Based on information provided by the Barington Group and the Designee, as of the Effective Date, the Board has reviewed and approved the qualifications of the Designee to serve as a member of the Board, and has determined that the Designee is (i) “independent” in accordance with the listing standards for the New York Stock Exchange and any other applicable director independence standards and (ii) otherwise qualified to serve as a director of the Company.

(f)

Except as expressly provided herein, upon election to the Board and during his service on the Board, the Designee shall have the same rights, obligations and benefits as all other Board members elected by holders of shares of the Common Stock and shall be subject to the same duties, protections, policies (including any applicable insider trading policy) and codes of conduct that are applicable to all members of the Board.  Consistent with his obligations as a director of the Company, the Designee agrees to keep confidential all non-public information concerning the Company and to not disclose or discuss any non-public information of the Company or discussions and matters considered in meetings of the Board or committees thereof in a manner consistent with the Designee’s fiduciary duties to the Company and in compliance with all Board policies and practices, provided, however , that the Designee may disclose such information to Barington and its Affiliates pursuant to the terms of the Confidentiality Agreement (as defined herein).  The “Confidentiality Agreement” means the confidentiality agreement entered into by and between the Company, the Designee and the other parties thereto, dated as of the Effective Date.  The Barington Group Members will not request or cause the Designee to engage in any communication in violation of this Agreement. To the extent not previously submitted, the Designee agrees to submit to the Company all reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of a new director as soon as practicable on or after the date of this Agreement.

 

 

 

(g)

i.

The Company shall prepare the Form 8-K being filed with respect to this Agreement and the Confidentiality Agreement (the “ 8-K ”), its proxy statement (as such term is defined in Rule 14a-1 promulgated by the U.S. Securities and Exchange Commission (the “ SEC ”) under the Securities Exchange Act of 1934, as amended, or the rules or regulations promulgated thereunder (the “ Exchange Act ”)) with respect to the 2018 Annual Meeting (the “ 2018 Proxy Statement” ) and all other soliciting materials (as such term is used in Rule 14a-6 promulgated by the SEC under the Exchange Act) with respect to the 2018 Annual Meeting (the “ 2018 Soliciting Materials ”) in accordance with, and consistent with, the Company’s obligations under this Agreement.  The Company shall provide the proposed form of the 8-K, the 2018 Proxy Statement and any 2018 Soliciting Materials to the Barington Representative (as defined herein) and its counsel in advance of filing such materials with the SEC in order to permit the Barington Group a reasonable opportunity to review and comment on such materials, and shall consider in good faith any comments received, with respect to the 2018 Proxy Statement, within two calendar days, and with respect to the 8-K and the 2018 Soliciting Materials, within 24 hours.  Except as otherwise required by applicable law, the Company shall use the same or substantially similar language, or any summary thereof, for the foregoing filings, in all other filings with the SEC that disclose, discuss, refer to or are being filed in response to or as a result of this Agreement, unless otherwise reviewed and agreed by the Barington Representative.

ii.

Each Barington Group Member (including the Designee) shall provide, as promptly as practicable, all information relating to such Barington Group Member (and other information, if any) required under applicable law to be included in the 8-K, the 2018 Proxy Statement and the 2018 Soliciting Materials and, during the Standstill Period, any other proxy statement or soliciting materials.  In the 8-K, the 2018 Proxy Statement and the 2018 Soliciting Materials, and, during the Standstill Period, any other proxy statement or soliciting materials, the Company shall present the same types of information in the same manner concerning the Designee as presented for the Company’s other independent directors and director nominees, as applicable.

iii.

If, in any filing that the Company makes with the SEC during the Standstill Period (other than the filing of the 8-K, the 2018 Proxy Statement and any 2018 Soliciting Materials), the Company proposes to make any substantive change to its previous disclosure regarding any of the Barington Group Members (including the Designee), or this Agreement or the Confidentiality Agreement, the Company shall provide the Barington Representative and its counsel with the proposed form of the filing, or the applicable portion thereof, in advance of filing such materials with the SEC for its review and comment, and shall consider in good faith any comments received from the Barington Representative and its counsel, with respect to proxy statements, within two calendar days, and with respect to all other filings with the SEC, within 24 hours.

2.	Standstill Provisions.

(a)

The “ Standstill Period ” means the period from the Effective Date through the later of (i) the date that is 15 calendar days prior to the Nomination Deadline Date (as defined herein) for the 2020 annual meeting of shareholders of the Company (the “ 2020 Annual Meeting ”) and (ii) the date that is three months following the date on which the Designee resigns or otherwise is no longer a member of the Board. Notwithstanding the foregoing sentence, (i) if the Board determines not to re-nominate the Designee at the 2020 Annual Meeting or any subsequent annual meeting, the Standstill Period shall expire 15 calendar days prior to the Nomination Deadline Date for the applicable annual meeting and (ii) solely in the event that the Board determines not to re-nominate the Designee for election to the Board at the 2019 Annual Meeting, the Standstill Period shall expire on the date that is 15 calendar days prior to the Nomination Deadline Date for the 2019 Annual Meeting so long as, prior to such date, the Designee has not resigned or otherwise is no longer a member of the Board.  During the Standstill Period, the Board shall inform the Designee of its intention to not re-nominate the Designee at any annual meeting of shareholders of the Company on or prior to the date that is 15 calendar days prior to the Nomination Deadline Date for the applicable meeting.  The “ Nomination Deadline Date ” shall mean, with respect to the applicable annual meeting of shareholders of the Company, the last business day on which shareholders of the Company may timely notify the Company of a nomination of director candidates.  Each of the Barington Group Members agrees that, during the Standstill Period, neither it nor any of such Barington Group Member’s Affiliates will, unless specifically requested or authorized in writing by a resolution of a majority of the Board, directly or indirectly:

 

 

 

i.

form, join in or in any other way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to shares of the Common Stock (other than with the Barington Group Members or one or more of the Barington Group Member’s Affiliates that agree to be bound by the terms and conditions of this Agreement) or deposit any shares of the Common Stock in a voting trust or similar arrangement or subject any shares of the Common Stock to any voting agreement or pooling arrangement or agreement, or grant any proxy with respect to any shares of the Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or take any action requiring it to report beneficial ownership of shares of the Common Stock on Schedule 13D under the Exchange Act (or any comparable or successor report);

ii.

solicit proxies or written consents of shareholders of the Company, or conduct any nonbinding referendum with respect to shares of the Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any shares of the Common Stock with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in favor of all persons nominated to serve as directors of the Company by the Board or the Nominating Committee;

iii.

seek to make, or make, a shareholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the shareholders of the Company, or initiate, encourage or participate in any “withhold” or similar campaign with respect to any meeting of the shareholders of the Company, or seek to advise, encourage, support or influence any person with respect to the voting or giving of written consents of any securities of the Company at any meeting of the shareholders (or written consent solicitation in lieu of a meeting of shareholders) of the Company, or make a request for a list of the Company’s shareholders or other books and records of the Company, or seek to nominate any director for election to the Board, seek to place a representative on the Board or seek the removal of any director from the Board, or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;

 

 

 

iv.

initiate, encourage, seek to effect or in any way assist with or facilitate any offer or proposal (with or without conditions), or negotiations, agreements or understandings whether or not legally enforceable, with respect to a merger, acquisition, tender offer, exchange offer, share exchange, recapitalization, restructuring, liquidation, dissolution, disposition or other transaction involving the Company or any of its subsidiaries or any material portion of its or their businesses;

v.

publicly disclose, or cause or facilitate the public disclosure (including the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of this Agreement, or bring any action or otherwise act to contest the validity of this Section 2 or seek a release from the restrictions contained in this Section 2;

vi.

unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) concerning the Company or aimed at influencing the management or direction of the Company;

vii.

unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (A) in support of any solicitation described in Section 2(a)(ii) (other than solicitations by the Company), (B) in support of any matter described in Section 2(a)(iii) or (C) concerning any potential matter described in Section 2(a)(iv); or

viii.

enter into any negotiations, agreements or understandings with any person with respect to the foregoing or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing.

(b)

Nothing contained in this Agreement shall limit in any respect the ability of the Designee to act in accordance with his fiduciary duties, as a director, to the Company and its shareholders; provided , however , that before so acting in a manner that would otherwise be a breach of this Agreement, he shall consult, to the extent reasonably practicable, with the chairman of the Board, the chair of a committee of the Board or the full Board.

3.	Representations and Warranties of the Company.

The Company represents and warrants to the Barington Group that (a) the Company has the corporate power and authority to execute and deliver this Agreement, (b) this Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid, binding obligation of the Company and is enforceable against the Company in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors or by general equity principles (collectively, “ Enforceability Exceptions ”) and (c) the execution, delivery and performance of this Agreement by the Company does not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to the Company or (ii) conflict with, result in any breach or violation of or constitute a default (or any event that with notice or lapse of time or both could constitute a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.

 

 

 

4.	Representations and Warranties of the Barington Group.

Each Barington Group Member represents and warrants to the Company solely as to itself that (i) if such Barington Group Member is not a natural person, its authorized signatory named on the signature page of this Agreement has the power and authority to execute and deliver this Agreement and any other documents or agreements to be entered into in connection with this Agreement, (ii) this Agreement has been duly and validly authorized, executed and delivered by such Barington Group Member, constitutes a valid, binding obligation of such Barington Group Members and is enforceable against such Barington Group Members in accordance with its terms, except as such enforcement may be limited by the Enforceability Exceptions, (iii) the execution, delivery and performance of this Agreement by such Barington Group Member does not and will not (A) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to any Barington Group Member or (B) conflict with, result in any breach or violation of, constitute a default (or any event that with notice or lapse of time or both could constitute a breach, violation or default) under or pursuant to, result in the loss of a material benefit under or give any right of termination, amendment, acceleration or cancellation of any organizational document (if such Barington Group Member is not a natural person), agreement, contract, commitment, understanding or arrangement to which such Barington Group Member is a party or by which such Barington Group Member is bound, (iv) as of the Effective Date, such Barington Group Member, together with such Barington Group Member’s Affiliates, beneficially owns in the aggregate the number of shares of the Common Stock set forth opposite such Barington Group Member’s name on Exhibit A and (v) as of the Effective Date, such Barington Group Member does not have, nor has any right to acquire, any interest in any other securities of the Company (or any rights, options or other securities convertible into, exercisable or exchangeable for such securities or any obligations measured by the price or value of any securities of the Company or any of its Affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks that correspond to the ownership of shares of the Common Stock, in each case (A) whether or not convertible, exercisable or exchangeable immediately or only after the passage of time or the occurrence of a specified event, (B) whether or not any of the foregoing would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated by the SEC under the Exchange Act), (C) whether or not to be settled by delivery of shares of the Common Stock, payment of cash or by other consideration and (D) without regard to any short position under any such contract or arrangement).

5.	Affiliates and Associates.

Each Barington Group Member agrees that it will cause its Affiliates and Associates under its Control to comply with such Barington Group Member’s obligations under this Agreement as if such Affiliate or Associate were party to this Agreement as a Barington Group Member and subject to all obligations of a Barington Group Member under this Agreement and that it shall be responsible for the failure of any such Affiliate or Associate to so comply.  As used in this Agreement, the terms “Affiliate,” “Associate”, “Control” and “Controlled” will have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act, and will include all persons or entities that, subsequent to the Effective Date, become Affiliates or Associates of any person or entity referred to in this Agreement.

 

 

 

6.	Public Announcements.

Neither the Company nor any Barington Group Member will issue any press release or public announcement or make any other public statement regarding this Agreement or the Confidentiality Agreement, except as required by law or the rules of any stock exchange or as agreed by the Company and the Barington Representative; provided that the Company may make public statements and include in its filings with the SEC statements, in each case, consistent with the disclosure regarding the Barington Group Members, this Agreement and the Confidentiality Agreement reviewed by the Barington Representative in accordance with Section 1(g).

7.	Mutual Non-Disparagement.

Except as required by law, beginning on the Effective Date and ending the later of (i) the date that is 15 calendar days prior to the Nomination Deadline Date for the 2020 Annual Meeting and (ii) the date on which the Standstill Period expires, each of the Barington Group Members and the Company shall refrain from making, and shall cause their agents, subsidiaries, Affiliates, successors, assigns, officers, employees, directors, attorneys or representatives not to make or cause to be made any public statement, announcement or other communication, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, calls into disrepute, defames, slanders or otherwise criticizes in any manner that would reasonably be likely to damage the business or reputation of (x) in the case of statements, announcements or other communications by any Barington Group Member, the Company or any of its subsidiaries, Affiliates, successors, assigns, officers (including former officers), directors (including former directors), employees, shareholders, agents, attorneys or representatives, or any of their products, services or business practices, and (y) in the case of statements, announcements or other communications by the Company, any Barington Group Member, its subsidiaries, Affiliates, successors, assigns, officers (including former officers), directors (including former directors), employees, shareholders, agents, investors, clients, attorneys or representatives, or any of their investments, services or business practices.

8.	Delay or Omission; Waiver.

It is agreed that no delay or omission by any Party to exercise any right, power or remedy accruing to it upon any breach or default of any other Party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by any Party of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by any Party of any breach or default under this Agreement, or any waiver by any Party of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in writing.  Any permission, consent, or approval of any kind or character under this Agreement shall be in writing and shall be effective only to the extent specifically set forth in such writing.  The failure of a Party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

 

 

 

 

9.

Notices.

All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email address set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal business hours at the address specified in this subsection:

 

	If to the Company:
		Avon Products, Inc.
		Building 6, Chiswick Park
		London W4 5HR
		United Kingdom
		Attention:	General Counsel
		Email:	james.thompson@avon.com

10.	Remedies; Forum and Governing Law.

The Parties recognize and agree that if for any reason any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy.   Accordingly, each Party agrees that in addition to other remedies each Party is entitled to at law or in equity, each Party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, exclusively in the Supreme Court of the State of New York, New York County or the United States District Court for the Southern District of New York.  In the event that any action shall be brought in equity to enforce the provisions of this Agreement, no Party shall allege, and each Party hereby waives the defense, that there is an adequate remedy at law.  Furthermore, each of the Parties irrevocably and unconditionally (a) consents to submit itself to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court for the Southern District of New York, and waives the right to trial by jury, (d) agrees to waive any bonding requirement under any applicable law, in the case any Party seeks to enforce the terms by way of equitable relief and (e) consents to service of process by a reputable overnight mail delivery service, signature requested, to the address of such Party’s principal place of business set forth in Section 9 or as otherwise provided by applicable law.  THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.

11.	Entire Agreement.

This Agreement and the Confidentiality Agreement contain the entire understanding of the Parties with respect to the subject matter hereof and thereof and may be amended only by an agreement in writing executed by the Company and the Barington Representative.

12.	Severability.

If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.

13.	Counterparts.

This Agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)), all of which together shall constitute a single agreement.

14.	Successors and Assigns.

The terms and conditions of this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their successors, heirs, executors and legal representatives. This Agreement, and the rights and obligations herein, shall not be assignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the Parties.

 

 

15.	No Third Party Beneficiaries.

This Agreement is solely for the benefit of the Parties and is not enforceable by any other persons.

16.	Interpretation and Construction.

Each Party and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the Parties shall be deemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation.  Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any Party that drafted or prepared it is of no application and is hereby expressly waived by each of the Parties, and any controversy over interpretations of this Agreement shall be decided without regard to events of drafting or preparation.  The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  The term “including” shall be deemed to mean “including without limitation” in all instances.

17.	Representative.

Each Barington Group Member hereby irrevocably appoints Barington Capital Group, L.P. as such Barington Group Member’s attorney-in-fact and representative (the “ Barington Representative ”), in such Barington Group Member’s place and stead, to do any and all things and to execute any and all documents and give and receive any and all notices or instructions in connection with this Agreement and the transactions contemplated hereby.  The Company will be entitled to rely, as being binding on each Barington Group Member, upon any action taken by the Barington Representative or upon any document, notice, instruction or other writing given or executed by the Barington Representative.

[The remainder of this page is intentionally blank.]

 

 

 

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized signatories of the Parties as of the Effective Date.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to Nomination Agreement]

 

 

 

 

 

 

 

[Signature Page to Nomination Agreement]

 

 

* Barington Affiliate

CONFIDENTIALITY AGREEMENT

 

Avon Products, Inc.

Building 6, Chiswick Park

London W4 5HR

United Kingdom

March 26, 2018

 

 

Ladies and Gentlemen:

 

This letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “ Board ”) of Avon Products, Inc. (the “ Company ”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Nomination Agreement (the “ Nomination Agreement ”), dated as of March 26, 2018, among the Company, the Designee and the other parties thereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not limited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of the Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to the terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding the Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information the disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject to the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “ Representatives ”), you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives (regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “ Evaluation Material ”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.

 

1.              The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of confidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by the Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively, the “ Company Representatives ”), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or (d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided , that in the case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other person with respect to such information at the time the information was disclosed to you.

 

 

2.              You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly confidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided , however , that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information for the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such information; provided , further , that you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such disclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege.  “ Legal Advice ” as used herein shall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or analysis of business strategy that is not protected by the attorney client or attorney work product privilege.

 

3.              In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in writing by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of doubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact that, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with respect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.

 

 

4.              You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall not directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief Executive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board concerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the prior consent of the Company; provided , however , the restriction in this sentence shall not in any way apply to the Designee acting in his capacity as a Board member.

 

5.              All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the Company, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or destroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the Evaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will have no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’ computer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may be. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the obligations contained herein.

 

6.              You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public information under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable best efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in violation of such laws.

 

 

7.              You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this letter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any owners or holders of any equity or other interest in you (except as has already been obtained).

 

8.              It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or default of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver by the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically set forth in writing.  Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be effective only to the extent specifically set forth in such writing.  The failure of the Company to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter agreement.

 

9.              All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email address set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal business hours at the address specified in this paragraph:

 

	with a copy (which will not constitute notice) to:
		Cravath, Swaine & Moore LLP
		Worldwide Plaza
		825 Eighth Avenue
		New York, NY 10019
		Attention:	George F. Schoen, Esq.
			Ting S. Chen, Esq.
		Email:	gschoen@cravath.com
			tchen@cravath.com

 

 

 

10.              You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be impractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy.  Accordingly, you and your Representatives agree that in addition to other remedies the Company is entitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and to enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York County or the United States District Court for the Southern District of New York.  In the event that any action shall be brought by the Company in equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative hereby waive the defense, that there is an adequate remedy at law.  Furthermore, you and your Representatives irrevocably and unconditionally (a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court for the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law, in the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight mail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law.  THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.

 

 

11.              This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject matter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such amendment is sought.

 

12.              If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.

 

13.              This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)), all of which together shall constitute a single agreement.

 

14.              The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their successors, heirs, executors and legal representatives.  This letter agreement, and the rights and obligations herein, shall not be assignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.

 

15.              This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.

 

16.              This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except that you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material constituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).

 

 

17.              No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter agreement.

 

18.              Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation.  Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard to events of drafting or preparation.  The term “including” shall be deemed to mean “including without limitation” in all instances.

 

 

 

 

 

 

 

[Signature Pages Follow]

 

 

Please confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.

 

 

	BARINGTON CAPITAL GROUP, L.P.
	By:	LNA Capital Corp., its general partner
	By:	/s/ James A. Mitarotonda
		Name:  James A. Mitarotonda
		Title:    President and CEO

 

	BARINGTON COMPANIES INVESTORS, LLC
	By:	/s/ James A. Mitarotonda
		Name:  James A. Mitarotonda
		Title:    Managing Member

 

	BARINGTON COMPANIES MANAGEMENT, LLC
	By:	/s/ James A. Mitarotonda
		Name:  James A. Mitarotonda
		Title:    Managing Member

 

 

 

 

SCHEDULE A

BARINGTON

 

 

1.	James A. Mitarotonda
2.	Barington Companies Equity Partners, L.P.
3.	Barington Capital Group, L.P.
4.	Barington Companies Investors, LLC
5.	Barington Companies Management, LLC

 

 

 

 

 

 

 

SCHEDULE B

 

 

1.	Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital Group, L.P. and such affiliates.