Exhibit 1.1
AVON PRODUCTS, INC.
(a New York corporation)
4.800% Notes due 2013
5.750% Notes due 2018
UNDERWRITING AGREEMENT
dated
February 27, 2008
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
EXECUTION VERSION
AVON PRODUCTS, INC.
(a New York corporation)
4.800% Notes due 2013
5.750% Notes due 2018
UNDERWRITING AGREEMENT
February 27, 2008
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
and
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
As Representatives of the Several Underwriters
Named in the Attached Schedule A
Ladies and Gentlemen:
Avon Products, Inc., a New York corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A hereto (the “Underwriters”), acting severally and not
jointly, the respective principal amounts set forth in such Schedule A hereto of (i) $250,000,000 aggregate principal amount of the Company’s 4.800% Notes due 2013 (the “5-Year Notes”) and (ii) $250,000,000 aggregate
principal amount of the Company’s 5.750% Notes due 2018 (the “10-Year Notes,” and together with the 5-Year Notes, the “Notes”). Citigroup Global Markets Inc. and Goldman, Sachs & Co. have agreed to act as
representatives of the several Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of February 27, 2008 (the “Original Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee (the
“Trustee”) as amended and supplemented by the First Supplemental Indenture, dated as of March 3, 2008, between the Company and the Trustee and the Second Supplemental Indenture, dated as of March 3, 2008, between the Company and
the Trustee (as amended and supplemented, the “Indenture”).
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 14 hereof.
All references in this Agreement to financial statements and schedules and other information which is “disclosed,” “contained,”
“included” or “stated” (or other references of like import) in the Registration Statement, the Preliminary Prospectus, the Final Prospectus shall be deemed to mean and include all such financial statements and schedules and other
information which are or are deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus, as the case may be, prior to the Execution Time, and all references in this Agreement to amendments
or supplements to the Registration Statement, the Preliminary Prospectus, the Final Prospectus shall be deemed to include the filing of any document under the Exchange Act which is incorporated by reference in the Registration Statement, the
Preliminary Prospectus, the Final Prospectus, as the case may be, after the Execution Time.
SECTION 1.
Representations and
Warranties of the Company
. The Company represents and warrants to each Underwriter as of the date hereof, as of the Initial Sale Time, as follows:
(1)
Compliance with Registration Requirements
. The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement,
as defined in Rule 405 on Form S-3 (No. 333-149402), including a related Base Prospectus, for registration under the Act of the offering and sale of the Notes. Such Registration Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Notes,
each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Notes in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all
information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the
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Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or
will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto).
(2)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(3)
Disclosure Package
. (i) The Disclosure Package and (ii) each electronic road show, when taken together as a whole
with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use
therein.
(4)
Company is a Well-Known Seasoned Issuer
. (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the
Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Notes in reliance on the exemption in Rule 163, and
(iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to
pay the fees required by the Commission relating to the Notes within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
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(5)
Company Not Ineligible Issuer
. (i) At the earliest time after the filing
of the Registration Statement that the Company or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2)) of the Act and (ii) as of the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(6)
Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus and the
final term sheet prepared and filed pursuant to Section 3(b) hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any
prospectus supplement deemed to be a part thereof that has not been superseded or modified. The preceding sentence does not apply to statements in or omissions from the Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
(7)
Distribution of Offering Material by the Company
. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in
connection with the offering and sale of the Notes other than the Preliminary Prospectus, the Final Prospectus and the Issuer Free Writing Prospectus.
(8)
Good Standing of Company
. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(9)
Good Standing of Subsidiaries
. Each significant subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business in all material respects as described in the Disclosure Package
and the Final Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. For purposes of this Agreement, a “significant subsidiary” is any subsidiary of the Company
that generates 5% or more of the Company’s revenue or income or that holds 5% or more of the Company’s assets.
(10)
Authorization of this Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
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(11)
The Indenture
. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized and, when executed and delivered by the Company and assuming due authorization, execution and delivery by the Trustee, will be a valid and binding agreement of the Company, enforceable in accordance with
its terms, subject to the enforceability applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or similar laws affecting creditors’ rights generally and general principles of equity.
(12)
The Notes
. The sale and issuance of the Notes have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, the Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations
of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or similar laws affecting creditors’ rights generally and general
principles of equity.
(13)
No Conflicts, No Required Consents
. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the Indenture and the Notes will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, except to the extent that any such
contravention would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under this Agreement, the Indenture or the Notes, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale
of the Notes.
(14)
No Material Adverse Change
. There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).
(15)
Intellectual
Property
. Each of the Company and its subsidiaries owns or possesses all patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, and trade names, in each case to the extent disclosed in the Disclosure Package or the Final Prospectus as being material to the business of the Company and its subsidiaries, taken as a
whole (collectively, the “Intellectual Property”), to the extent required by it for the employment thereof in connection with their respective businesses as currently operated by them, and neither the Company nor, to the Company’s
knowledge, any of its subsidiaries has
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received any written notice of infringement of asserted rights of others with respect to any of the Intellectual Property that if taken to a final judgment
could have a material adverse effect on the Company and its subsidiaries, taken as a whole. To the knowledge of the Company, the use of such Intellectual Property in connection with the business and operations of the Company and its subsidiaries
does not infringe on the rights of any person.
(16)
Absence of Proceedings
. There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject other than proceedings fairly
summarized in all material respects in the Disclosure Package or the Prospectus and proceedings that are not reasonably expected by the Company to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power
or ability of the Company to perform its obligations under this Agreement, the Indenture or the Notes.
(17)
Investment
Company Act
. The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Disclosure Package or the Final Prospectus, will not be, required to register as an
“investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(18)
Compliance with Environmental Laws
. To the knowledge of the Company, the Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(19)
Environmental Costs and Liabilities
. There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(20)
Independent Accountants
. To the knowledge of the Company, PricewaterhouseCoopers LLP, who has certified certain financial
statements of the Company and its subsidiaries, is an independent public accountant with respect to the Company and its subsidiaries as required by the Act.
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(21)
Underwriters Not Fiduciaries
. The Company hereby acknowledges that
(a) the purchase and sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other,
(b) each of the Underwriters is acting as principal and not as an agent or fiduciary of the Company and (c) its engagement of the Underwriters in connection with the Offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the Offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other
matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
(22)
Maintenance of Internal Controls and Procedures
. The Company and its consolidated subsidiaries
maintain systems of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; and (iii) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(23)
Disclosure Controls and
Procedures
. The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); as of December 31, 2007, and to the knowledge of the Company, at the
Execution Time, such disclosure controls and procedures are effective.
(24)
Compliance with the Sarbanes-Oxley Act of
2002
. The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 that are effective and the rules and regulations of the Commission that have been adopted and are effective thereunder.
(25)
No Unlawful Contributions or Other Payments
. To the knowledge of the Company, neither the Company nor any of
its subsidiaries nor any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
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(26)
No Conflict with Money Laundering Laws
. To knowledge of the Company, the
operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(27)
No Conflict with OFAC Laws
. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
SECTION 2.
Purchase, Sale and Delivery of the Notes
.
(a)
The Notes
. The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Notes upon the terms herein set forth. On the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company (i) the aggregate principal amount of 5-Year Notes set forth
opposite their names on Schedule A at a purchase price of 99.505% of the principal amount thereof and (ii) the aggregate principal amount of 10-Year Notes set forth opposite their names on Schedule A at a purchase price of 99.017% of the
principal amount thereof, payable on the Closing Date, respectively.
(b)
The Closing Date
. Delivery of certificates for the Notes
in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Shearman & Sterling LLP (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City
time, on March 3, 2008, or such other time and date thereafter as the Representatives and the Company shall agree (the time and date of such closing are called the “Closing Date”).
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(c)
Public Offering of the Notes
. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package, their respective portions of the Notes as soon after this Agreement has been executed as the Representatives, in their sole judgment, have determined is
advisable and practicable.
(d)
Payment for the Notes
. Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of the Notes to be purchased by them. It is understood that the Representatives have been
authorized, for their own account and the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes the Underwriters have agreed to purchase. The Representatives may (but shall
not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement.
(e)
Denominations; Registration
.
The Notes or certificates for
the Notes, as applicable, shall be in such denominations and registered in such names as the Representatives may request in writing at least two full business days prior to the Closing Date. The Notes or certificates for the Notes, as applicable,
will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Date, or at such other place and time as shall be agreed upon
by the Representatives and the Company or their respective counsel.
SECTION 3.
Covenants of the Company
. The Company covenants
with the Representatives and with each Underwriter as follows:
(a)
Representatives’ Review of Proposed Amendments and
Supplements
. During such period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection
with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or
any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you
reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Notes, any amendment to the Registration
Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the
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Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection
to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
Final Term Sheet
. The Company will prepare a final term sheet, containing solely a description of final terms of the Notes and the offering
thereof, in the form approved by you and attached as Schedule B hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c)
Delivery of Registration Statements and Prospectuses
. The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other production of all documents relating to the offering.
(d)
Continued Compliance with
Securities Laws
. The Company will comply with the Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Final
Prospectus. If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection
with use or delivery of the Final Prospectus,
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the Company promptly will (w) notify the Representatives of any such event, (x) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 3, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (y) use its best efforts to have any amendment to the
Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (z) supply any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(e)
Permitted Free Writing Prospectuses
. The Company agrees that, unless it has or shall have obtained the
prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will
not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the
Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 3(b) hereto; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule C hereto and any electronic road show; and provided further that the Underwriters are authorized to use the information with
respect to the final terms of the Notes in communications conveying customary information relating to the offering to investors. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(f)
Blue Sky Qualifications
. The Company will use its reasonable best efforts, in cooperation with the Representatives and counsel for the
Underwriters, to qualify or register the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect
for as long as necessary to complete the distribution of the Notes, up to one year from the date of this Agreement;
provided
,
however
, that the Company shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(g)
Earning Statement
. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earning statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(h)
Agreement Not to Offer or Sell Additional Securities
. During the period commencing on the date hereof and ending on the Closing Date, the
Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), sell, offer, contract to sell or otherwise dispose of any debt
11
securities of the Company similar to the Notes other than as contemplated by this Agreement with respect to the Notes and other than commercial paper issued
in the ordinary course of business).
(i)
No Manipulation of Price
. The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or grant the Company additional time in which to perform such covenants.
SECTION 4.
Payment of Expenses
. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the
Company’s accountants in connection with the issuance and sale of the Notes and all other fees or expenses (excluding fees or expenses of the Underwriters’ counsel) in connection with the preparation and filing of the Registration
Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus and the Final Prospectus and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the
Underwriters, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Notes to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Notes under state securities laws and all expenses in connection with the qualification of the Notes for offer and sale under state securities laws as
provided in Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum,
(iv) any fees charged by rating agencies for the rating of the Notes, (v) all document production charges and expenses of counsel to the Underwriters (but not including their fees for professional services) in connection with the
preparation of this Agreement, (vi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vii) the cost of the preparation, issuance and delivery of the Notes and (viii) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes. It is understood, however, that except as provided in this Section, Section 6, and the last
paragraph of Section 8, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsels, transfer taxes payable on resale of any of the Notes by them and any advertising expenses connected with any
offers they may make.
SECTION 5.
Conditions to Underwriters’ Obligations
. The several obligations of the Underwriters to
purchase and pay for the Notes are subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
12
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Company’s securities by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Act;
(ii) there shall not have occurred any
change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market
the Notes on the terms and in the manner contemplated in the Disclosure Package; and
(iii) there shall not be any stop order in effect
suspending the effectiveness of the Registration Statement, nor shall any proceedings for such purpose be pending before or threatened by the Commission.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Company, to the effect set forth in Section 5(a)(i) and to the effect that the
representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date (as if made on the Closing Date) and that the Company has complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Latham & Watkins LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A. The opinion of Latham & Watkins LLP described in this Section 5(c) shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an
opinion from the Associate General Counsel of the Company, dated the Closing Date, to the effect set forth in Exhibit B. The opinion of the Associate General Counsel of the Company described in this Section 5(d) shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an
opinion from counsel for the Underwriters with respect to the incorporation of the Company, the validity of the Indenture, the Notes, the Registration Statement, the Disclosure Package and the Final Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(f) The Underwriters shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case
may be, in form and
13
substance satisfactory to the Underwriters and the Company’s independent accountants, from the Company’s independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the
Disclosure Package and the Final Prospectus.
SECTION 6.
Indemnification and Contribution
. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Underwriter or any such controlling person in connection with defending or investigating any such action or claim) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Notes as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any
other preliminary prospectus supplement relating to the Notes, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 3(b) hereto, or
in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information furnished to the Company in writing by or on behalf of any Underwriter expressly for inclusion in the documents referred to in the foregoing indemnity.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 6(a) or 6(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. The failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph Section 6(a) or 6(b) unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the
14
indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in Section 6(a) or 6(b). In any such
proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to Section 6(a) above, and by the Company, in the case of parties indemnified pursuant to Section 6(b) above. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does
not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) To
the extent the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Notes or (ii) if the allocation provided by clause 6(d)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause 6(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with
the offering of the Notes shall be deemed to be in the same respective proportions as the net
15
proceeds from the offering of such Notes (before deducting expenses but after deduction of the discounts and commissions received by the Underwriters)
received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Final Prospectus, bear to the aggregate public offering price of the Notes. The
relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The
Underwriters’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective principal amounts of Notes they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by
pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 6(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter
or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Notes.
SECTION 7.
Termination
. This Agreement shall be subject to termination by notice given by the Representatives to the Company, if (a) after the execution and delivery of the Underwriting Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have
occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there
16
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the reasonable judgment
of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the sole judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Notes on the terms and in the manner contemplated in the Disclosure Package.
SECTION 8.
Defaulting
Underwriters
. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Notes that it has or they have agreed to purchase hereunder on such date, and the aggregate amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate amount of the Notes to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount
of Notes set forth opposite their respective names in Schedule A hereto bears to the aggregate amount of Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to
purchase the Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the amount of Notes that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such amount of Notes without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Notes
and the aggregate amount of Notes with respect to which such default occurs is more than one-tenth of the aggregate amount of Notes to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase
of such Notes are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either the Representatives or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Final Prospectus or in
any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
SECTION 9.
Counterparts
. This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.
Applicable
Law
. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
17
SECTION 11.
Headings
. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
SECTION 12.
Notices
. All notices and other
communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices shall be directed to the parties hereto as follows:
If to the Representatives:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Facsimile:
(212) 816-7912
Attention: General Counsel
and
Goldman,
Sachs & Co.
85 Broad Street, 23
rd
Floor
New York, New York 10004
Facsimile: (212) 902-9316
Attention:
Registration Department
With a copy to
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
Facsimile: (646) 848-8021
Attention: Joel S. Klaperman
If to the Company:
Avon Products, Inc.
1345 Avenue of the Americas
New York, New York 10105
Facsimile: (212) 282-6225
Attention: General Counsel
and
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Facsimile: (212) 751-4864
Attention:
Joshua Tinkelman
18
SECTION 13.
Representations and Covenants of the Underwriters
. Each of the several Underwriters
represents and agrees with the Company that such Underwriter will comply with or observe any restrictions or limitations set forth in the Disclosure Package or the Final Prospectus or required by applicable law, on persons to whom, or the
jurisdictions in which, or the manner in which, the Notes may be offered, sold, resold or delivered.
SECTION 14.
Definitions
. The
terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the
Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.
“Base
Prospectus” shall mean the base prospectus referred to in Section 1(1) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York
City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to
the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule C hereto, (iv) the final term sheet prepared and filed pursuant to Section 3(b) hereto, if any, and (v) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any Rule 462(b) Registration Statement became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Notes
that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
19
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to
the Base Prospectus referred to in Section 1(1) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in Section 1(1) above, including exhibits and financial statements and any prospectus supplement relating to the Notes that is
filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”, and “Rule 433” refer to such rules under
the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto
filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
20
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this Agreement, along with all counterparts, shall become a binding agreement between the Representatives and the Company in accordance with its terms.
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Very truly yours,
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AVON PRODUCTS, INC.
|
|
|
|
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By:
|
|
/s/ Richard J. Valone
|
|
|
|
|
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Name:
|
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Richard J. Valone
|
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Title:
|
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Vice President and Treasurer
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21
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the
date first above written.
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By: CITIGROUP GLOBAL MARKETS INC.
|
|
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|
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By:
|
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/s/ Brian D. Bednarski
|
|
|
|
|
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Name:
|
|
Brian D. Bednarski
|
|
Title:
|
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Director
|
|
|
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By: GOLDMAN, SACHS & CO.
|
|
|
|
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By:
|
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/s/ Goldman, Sachs & Co.
|
|
|
|
|
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Name:
|
|
|
|
Title:
|
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|
|
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Acting as Representatives of the several Underwriters named in the attached Schedule A
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SCHEDULE A
|
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Underwriters
|
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Aggregate Principal Amount to
Be Purchased
|
|
|
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4.800% Notes
due 2013
|
|
5.750% Notes
due 2018
|
|
Citigroup Global Markets Inc.
|
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$
|
117,660,000
|
|
$
|
117,660,000
|
|
Goldman, Sachs & Co.
|
|
|
51,366,000
|
|
|
51,366,000
|
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Banc of America Securities LLC
|
|
|
15,182,000
|
|
|
15,182,000
|
|
J.P. Morgan Securities Inc.
|
|
|
15,182,000
|
|
|
15,182,000
|
|
Deutsche Bank Securities Inc.
|
|
|
10,122,000
|
|
|
10,122,000
|
|
HSBC Securities (USA) Inc.
|
|
|
10,122,000
|
|
|
10,122,000
|
|
Lazard Capital Markets LLC
|
|
|
10,122,000
|
|
|
10,122,000
|
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Morgan Stanley & Co. Incorporated
|
|
|
10,122,000
|
|
|
10,122,000
|
|
Santander Investment Securities Inc.
|
|
|
10,122,000
|
|
|
10,122,000
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
250,000,000
|
|
$
|
250,000,000
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SCHEDULE B
Filed Pursuant to Rule 433
Registration No. 333-149402
February 27, 2008
Issuer Free Writing
Prospectus, dated February 27, 2008
Avon Products, Inc.
$250,000,000 4.800% Notes due 2013
The following information supplements the Preliminary Prospectus Supplement,
dated February 27, 2008, filed pursuant to Rule 424(b)(3) promulgated under the Securities Act, Registration No. 333-149402.
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|
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Issuer:
|
|
Avon Products, Inc.
|
|
|
|
|
Security:
|
|
4.800% Notes due 2013
|
|
|
|
|
Size:
|
|
$250,000,000
|
|
|
|
|
Trade Date:
|
|
February 27, 2008
|
|
|
|
|
Settlement Date:
|
|
March 3, 2008
|
|
|
|
|
Maturity Date:
|
|
March 1, 2013
|
|
|
|
|
Coupon:
|
|
4.800%
|
|
|
|
|
Interest Payment Dates:
|
|
March 1 and September 1, commencing September 1, 2008
|
|
|
|
|
Day Count:
|
|
30/360
|
|
|
|
|
Price to Public:
|
|
99.855%
|
|
|
|
|
Minimum Denomination:
|
|
$2,000 and integral multiples of $1,000 in excess thereof
|
|
|
|
|
Benchmark Treasury:
|
|
UST 2.875% due January 31, 2013
|
|
|
|
|
Benchmark Treasury Yield:
|
|
2.883%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+ 195 bps
|
|
|
|
|
Yield:
|
|
4.833%
|
|
|
|
|
Make-Whole Call:
|
|
T + 30 bps
|
|
|
|
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CUSIP:
|
|
054303 AT9
|
|
|
|
|
Anticipated Ratings:
|
|
A2 (negative outlook) by Moody’s Investors Service, Inc.
A (stable outlook) by Standard & Poor’s Ratings Services
|
|
|
|
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Joint Book-Running Managers:
|
|
Citigroup Global Markets Inc. and Goldman, Sachs & Co.
|
|
|
|
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Senior Co-Managers:
|
|
Banc of America Securities LLC and J.P. Morgan Securities Inc.
|
|
|
|
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Co-Managers:
|
|
Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., Lazard Capital Markets LLC, Morgan Stanley & Co. Incorporated, and Santander Investment Securities Inc.
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A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus and the preliminary prospectus supplement if you request it by calling Citigroup Global Markets Inc. toll free at 1-877-858-5407 or Goldman, Sachs & Co. at 1-866-471-2526.
Avon Products, Inc.
$250,000,000 5.750% Notes due 2018
The following information supplements the Preliminary Prospectus Supplement,
dated February 27, 2008, filed pursuant to Rule 424(b)(3) promulgated under the Securities Act, Registration No. 333-149402.
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Issuer:
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Avon Products, Inc.
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Security:
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5.750% Notes due 2018
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Size:
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$250,000,000
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Trade Date:
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February 27, 2008
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Settlement Date:
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March 3, 2008
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Maturity Date:
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March 1, 2018
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Coupon:
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5.750%
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Interest Payment Dates:
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March 1 and September 1, commencing September 1, 2008
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Day Count:
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30/360
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Price to Public:
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99.655%
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Minimum Denomination:
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$2,000 and integral multiples of $1,000 in excess thereof
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Benchmark Treasury:
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UST 3.500% due February 15, 2018
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Benchmark Treasury Yield:
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3.846%
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Spread to Benchmark Treasury:
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+ 195 bps
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Yield:
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5.796%
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Make-Whole Call:
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T + 35 bps
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CUSIP:
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054303 AU6
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Anticipated Ratings:
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A2 (negative outlook) by Moody’s Investors Service, Inc.
A (stable outlook) by Standard & Poor’s Ratings Services
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Joint Book-Running Managers:
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Citigroup Global Markets Inc. and Goldman, Sachs & Co.
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Senior Co-Managers:
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Banc of America Securities LLC and J.P. Morgan Securities Inc.
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Co-Managers:
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Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., Lazard Capital Markets LLC, Morgan Stanley & Co. Incorporated, and Santander Investment Securities Inc.
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A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus and the preliminary prospectus supplement if you request it by calling Citigroup Global Markets Inc. toll free at 1-877-858-5407 or Goldman, Sachs & Co. at 1-866-471-2526.
SCHEDULE C
Schedule of Free Writing Prospectuses included in the Disclosure Package
None
Exhibit A
Opinion of Latham & Watkins LLP
A-1
Exhibit B
Opinion of the In-house Counsel
B-1
Exhibit 4.1
EXECUTION VERSION
AVON PRODUCTS, INC.,
as Issuer
4.800% NOTES DUE 2013
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 3, 2008
To
INDENTURE
Dated
as of February 27, 2008
Deutsche Bank Trust Company Americas,
as
Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of the 3rd day of March,
2008, between AVON PRODUCTS, INC., a corporation duly organized and existing under the laws of the State of New York, as Issuer (herein called the “
Company
”), having its principal office at 1345 Avenue of the Americas, New
York, New York 10105-0196, and DEUTSCHE BANK TRUST COMPANY AMERICAS, with its principal office at 60 Wall Street, 27
th
Floor, New York, New York
10005 a banking corporation duly organized under the State of New York, as trustee (the “
Trustee
”).
RECITALS OF THE
COMPANY
WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of February 27, 2008 (the
“
Original Indenture
” and, together with this First Supplemental Indenture, the “
Indenture
”) providing for the issuance by the Company from time to time of its unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series (in the Original Indenture and herein called the “
Securities
”), and the Trustee is the successor Trustee under the Original Indenture; and
WHEREAS, simultaneously herewith, the Company is executing and delivering to the Trustee a Second Supplemental Indenture, dated as of March 3, 2008,
providing for the issuance by the Company of $250,000,000 aggregate principal amount of 5.750% Notes due March 1, 2018; and
WHEREAS,
the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture, including Section 3.01 thereof, has duly determined to make, execute and deliver to the Trustee this First
Supplemental Indenture to the Original Indenture as permitted by Sections 3.01 and 9.01 of the Original Indenture in order to establish the form or terms of, and to provide for the creation and issue of, a series of Securities under the
Original Indenture in the aggregate principal amount of $250,000,000; and
WHEREAS, all things necessary to make the Securities provided
for herein, when executed by the Company and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this First Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the terms of a
series of Securities, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this First Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL
APPLICATION
1.01
Definitions
. Each capitalized term that is used herein and is defined in the Original Indenture shall have the
meaning specified in the Original Indenture unless that term is otherwise defined herein.
1.02
Section References
. Each
reference to a particular section set forth in this First Supplemental Indenture shall, unless the context otherwise requires, refer to this First Supplemental Indenture.
ARTICLE II
TITLE AND TERMS OF SECURITIES
2.01
Title of the Securities
. This First Supplemental Indenture
hereby establishes a series of Securities designated as the “4.800% Notes due March 1, 2013” of the Company (collectively referred to herein as the “
Notes
”). For purposes of the Original Indenture, the Notes
shall constitute a single series of Securities.
2.02
Term of the Notes
. The Notes shall mature on March 1, 2013 (the
“
Stated Maturity
”). In the event that the Stated Maturity is not a Business Day, principal and interest payable at maturity shall be paid on the next succeeding Business Day with the same effect as if that Business Day were
the Stated Maturity and no interest shall accrue or be payable for the period from and after the Stated Maturity to the next succeeding Business Day.
2.03
Amount and Denominations; Currency of Payment
. The aggregate principal amount in which the Notes may be issued under this First Supplemental Indenture is initially limited to $250,000,000.
The Notes shall be issued in the form of one or more Registered Global Securities in the name of Cede & Co., as registered owner and nominee for
The Depository Trust Company, New York, New York (“
DTC
”). DTC shall initially act as Depositary for the Notes.
The
Notes shall be denominated in United States dollars in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
2.04
Interest and Interest Rates
. Each Note shall bear interest at the rate of 4.800% per annum from the date of issue or from the most recent Interest Payment Date (as defined in Section 2.05 below) to which interest on such Note has
been paid or duly provided for, commencing with the Interest Payment Date next succeeding the date of issue, until the principal thereof is paid or made available for payment. Interest shall be payable to the persons in whose name a Note is
registered on the fifteenth calendar day immediately preceding the applicable Interest Payment Date (the “
Regular Record Dates
”). Interest on each Note shall be computed on the basis of a 360-day year comprising twelve 30-day
months.
2.05
Interest Payments
. The interest payment dates for each Note shall be March 1 and September 1, in each year
(the “
Interest Payment Dates
”), commencing September 1, 2008 payable to the persons in whose name a Note is registered on the Regular Record Dates. Interest shall also be payable at maturity of any Note.
If an Interest Payment Date with respect to the Notes would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day with respect to the Notes and no interest shall accrue or be payable on such next succeeding Business Day for the period from and after such original Interest Payment Date to such next succeeding
Business Day.
Except as provided in the immediately preceding paragraph, interest payments shall be in the amount of interest accrued,
from the most recent date to which interest has been paid or, if no interest has been paid, from March 3, 2008 to, but excluding, the Interest Payment Date.
2.06
Place of Payment, Transfer and Exchange
. The Company authorizes and appoints the Trustee as the sole paying agent (the “
Paying Agent
”) with respect to the Notes represented by
Registered Global Securities, without prejudice to the Company’s authority to appoint additional paying agents from time to time pursuant to the Original Indenture. Payments of principal on each Note and interest thereon payable at maturity or
upon redemption shall be made in immediately available funds in such currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the request of the Holder, at the office or
agency of the Paying Agent in New York, New York or any other duly appointed Paying Agent,
provided
that the Note is presented to the Paying Agent in time for the Paying Agent to make the payments in immediately available funds in accordance
with its normal procedures. So long as any Notes are represented by a Registered Global Security, interest (other than interest payable at maturity or upon redemption) shall be paid in immediately available funds by wire
transfer to the Depositary for such Notes, on the written order of the Depositary. In addition, the Company may maintain a drop agent, in such location or
locations as the Company may select, to provide the Holders with an office at which they may present the Notes for payment. The Company hereby acknowledges that any drop agent maintained will accept Notes for presentment, take payment instructions
from the Holder and forward the Notes presented and any related payment instructions to the Paying Agent by overnight courier, for next day delivery. Notes presented as set forth in the previous sentence shall be deemed to be presented to the Paying
Agent on the Business Day next succeeding the day the Notes are delivered to the drop agent. Payment of interest (other than interest payable in accordance with the preceding provisions of this Section 2.06 will, subject to certain exceptions
provided in the Original Indenture, be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security register as of the applicable Regular Record Date or, at the option of the Company, by wire
transfer to an account maintained by such Person with a bank located in the United States.
The Company appoints the Trustee as the sole
Security Registrar with respect to the Notes. The Notes may be presented by the Holders thereof for registration of transfer or exchange at the office or agency of the Security registrar or any successor or co-registrar in New York, New York. In
addition, the Company may maintain a drop agent, in such location or locations as the Company may select, to provide the Holders with an office at which they may present the Notes for registration of transfer or exchange. The Company hereby
acknowledges that any drop agent maintained by the Company will accept Notes for registration of transfer or exchange and forward those Notes to the Security registrar by overnight courier, for next day delivery. Notes accepted as set forth in the
immediately preceding sentence shall be deemed to be presented to the Security registrar on the Business Day next succeeding the day that Notes are delivered to the drop agent.
2.07
No Sinking Fund
. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
2.08
Redemption at Option of the Company
. The Notes will be redeemable, as a whole or in part, at the Company’s option, at any time or from
time to time, by the Company mailing notice to the registered address of each holder of the Notes at least 30 days but not more than 60 days prior to the redemption. The redemption price will be equal to the greater of (1) 100% of the principal
amount of the Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on those Notes discounted, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at a
rate equal to the sum of the applicable Treasury Rate (as defined below) plus 30 basis points with respect to any Notes being redeemed. Accrued interest, if any, will be paid to the Redemption Date.
As used in this Section 2.08 only, the terms set forth below shall have the following respective meanings:
“
Comparable Treasury Issue
” means the United States Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Notes being redeemed. “
Independent Investment Banker
” means one of the Reference Treasury Dealers appointed by the Trustee at the Company’s written direction.
“
Comparable Treasury Price
” means, with respect to any Redemption Date, as determined by the Company (i) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such quotations.
“
Redemption Date
,” when used with respect to any Note to be redeemed, means the
date which is a Business Day fixed for such redemption by the Company pursuant to the Indenture.
“
Reference Treasury Dealer
Quotations
” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer, at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“
Reference Treasury Dealers
” means any four nationally recognized investment banking firms, and their successors, selected by the
Company that are each also a primary U.S. Government securities dealer. If any Reference Treasury Dealer shall cease to be a primary U.S. Government securities dealer, the Company will substitute another nationally recognized investment banking firm
that is a primary U.S. Government securities dealer.
“
Remaining Scheduled Payments
” means, with respect to the
Notes to be redeemed, the remaining scheduled payments of principal of and interest on those Notes that would be due after the related Redemption Date but for that redemption;
provided,
however, that if such Redemption Date is not an interest
payment date with respect to the Notes to be redeemed, the amount of the next succeeding scheduled interest payment on those Notes will be reduced by the amount of interest accrued on such Notes to such Redemption Date.
“
Treasury Rate
” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to
maturity (computed as of the second Business Day immediately preceding that Redemption Date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that Redemption Date.
On or after the Redemption Date, interest will cease to accrue on the Notes or any
portion of the Notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before the Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the
redemption price of and accrued interest on the Notes to be redeemed on that date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee, pro rata, by lot or by a method the Trustee deems to be
fair and appropriate.
2.09
Change of Control Repurchase Event
. If a Change of Control Repurchase Event (as defined below) occurs,
unless the Company has exercised its right to redeem the Notes pursuant to Section 2.08 hereof or has defeased the Notes pursuant to Article 12 of the Original Indenture, the Company will be required to make an offer to each Holder of Notes to
repurchase all or any part (in integral multiples of $1,000) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest, if any, on the Notes
repurchased to, but not including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control (as defined below), but after the public announcement of an
impending Change of Control, the Company will mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase
Notes with respect to which a Change of Control Repurchase Event shall have occurred on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice
shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, or the Exchange Act, and any other securities
laws and regulations thereunder, to the extent
those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent
that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have
breached the Company’s obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the Change of Control Repurchase Event payment date, the Company will, to the extent lawful: (i) accept for payment all Notes or portions of Notes (in integral multiples of $1,000) properly tendered pursuant to the Company’s
offer; (ii) deposit with the Trustee an amount equal to the aggregate repurchase price in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased by the Company.
The Trustee
will promptly mail to each holder of Notes properly tendered the repurchase price for the Notes, and the Trustee will promptly authenticate (upon its receipt of executed Notes from the Company) and mail (or cause to be transferred by book-entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer
in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company, and such third party purchases all Notes properly tendered and not withdrawn under its offer.
As used in this Section 2.09, the terms set forth below shall have the following respective meanings:
“
Below Investment Grade Rating Event
” means, the Notes are rated below Investment Grade by each of the Rating Agencies on any date
from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating
of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).
“
Change of
Control
” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company
or one of its subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock; (3) the first day on which a majority of the members of the
Company’s Board of Directors are not Continuing Directors; or (4) the adoption of a plan relating to the Company’s liquidation or dissolution. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of
Control if (i) (a) the Company becomes a wholly owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of
voting stock immediately prior to that transaction, and/or (ii)(a) the Company reincorporates in another jurisdiction and (b) the holders of the Company’s Voting Stock immediately following the reincorporation are substantially the same as
the holders of Voting Stock immediately prior to the reincorporation.
“
Change of Control Repurchase Event
” means
the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“
Continuing Directors
” means, as of any date of determination, any member of the
Board of Directors of the Company who (1) was a member of such Board of Directors on the date of the issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a
director).
“
Fitch
” means Fitch Ratings Ltd.
“
Investment Grade
” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of
Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch); or the equivalent
investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“
Moody’s
” means Moody’s Investors Service Inc.
“
Rating Agency
” means
(1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a
“nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“
S&P
” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc.
“
Voting Stock
” means the Company’s capital stock of any class or kind the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
2.10.
Form and Other Terms of the Notes
. Attached hereto as
Annex A
is a form of a Note denominated in United States dollars, which form is
hereby established as a form in which Notes may be issued. In addition, any Note may be issued in such other form as may be provided by, or not inconsistent with, the terms of the Original Indenture and this First Supplemental Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representation in respect of, and shall not be responsible in any manner whatsoever for and in respect
of, the validity or sufficiency of this First Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements
are made solely by the Company.
Except as expressly amended hereby, the Original Indenture, as heretofore amended and supplemented, shall
continue in full force and effect in accordance with the provisions thereof and the Original Indenture is in all respects hereby ratified and confirmed. This First Supplemental Indenture and all its provisions shall be deemed a part of the Original
Indenture in the manner and to the extent herein and therein provided.
THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
This First Supplemental Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and
year first above written.
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AVON PRODUCTS, INC.
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By:
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/s/ Richard J. Valone
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Name:
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Richard J. Valone
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Title:
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Vice President and Treasurer
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
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By
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/s/ Annie Jaghatspanyan
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Name:
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Annie Jaghatspanyan
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Title:
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Assistant Vice President
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By
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/s/ Wanda Camacho
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Name:
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Wanda Camacho
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Title:
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Vice President
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Annex A
GLOBAL SECURITY
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF) DTC,
ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
AVON PRODUCTS, INC.
4.800% Notes due 2013
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CUSIP NO. 054303 AT9
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$250,000,000
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Avon Products, Inc., a corporation duly organized and existing under the laws of the State of New
York (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co., or registered assigns, the principal sum of Two
Hundred and Fifty Million Dollars ($250,000,000) (which amount may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, in accordance with the rules and procedures of the
Depositary) on March 1, 2013, and to pay interest thereon from the most recent Interest Payment Date to which interest has been paid or duly provided for, or if no interest has been paid, from and including March 3, 2008, semiannually in
arrears in cash on March 1 and September 1 in each year, commencing September 1, 2008 at the rate of 4.800% per annum, until the principal hereof is paid or made available for payment. Interest will be computed on the basis of a 360 day
year comprised of twelve 30 day months.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar
day (whether or not a Business Day), immediately preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of and interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in
such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided,
however, that at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the Security Register. If this Security is a Global Security, then notwithstanding the foregoing, each such payment will be made in accordance with the procedures of the
Depositary as then in effect.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication
hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated: March 3, 2008
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AVON PRODUCTS, INC.
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By:
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Name:
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Title:
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This is one of the Securities referred to in the within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
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By:
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Authorized Officer
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REVERSE OF GLOBAL SECURITY
This Security is one of a duly authorized issue of Securities of the Company designated as its 4.800% Notes due 2013 (herein called the
“Securities”), initially limited in aggregate principal amount to $250,000,000, issued under an Indenture dated as of February 27, 2008 (herein called the “Indenture”), between the Company and Deutsche Bank Trust Company
Americas, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
The Securities will bear interest, payable on each Interest Payment Date to Holders of record on the fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment Date, at 4.800% per annum until March 1, 2013 or the cancellation of the Securities.
The Securities are the Company’s unsecured senior obligation and rank equally with the Company’s other existing and future unsecured senior indebtedness. The Securities are redeemable, as a whole or in part, at the Company’s
option at any time or from time to time, by the Company mailing notice to the registered address of each Holder of Securities at least 30 days but not more than 60 days’ prior to the redemption. The redemption price will be equal to the greater
of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on those Securities discounted on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 30 basis points. Accrued interest, if any, will be paid to the Redemption Date.
Subject to payment by the Company of a sum sufficient to pay the amount due on redemption, interest on this Security (or portion hereof if this Security
is redeemed in part) shall cease to accrue upon the Redemption Date of this Security (or portion hereof if this Security is redeemed in part).
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities being redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities being redeemed. “Independent Investment Banker”
means one of the Reference Treasury Dealers appointed by the Trustee at the Company’s written direction.
“Comparable Treasury
Price” means, with respect to any Redemption Date, as determined by the Company (i) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date which is a Business Day fixed for such redemption by the Company pursuant to the Indenture.
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“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference
Treasury Dealer, at 5:00 p.m., New York City time, on the third business day preceding such Redemption Date.
“Reference Treasury
Dealers” means any four nationally recognized investment banking firms, and their successors, selected by the Company that are each also a primary U.S. Government securities dealer. If any reference Treasury Dealer shall cease to be a primary
U.S. Government securities dealer, the Company will substitute another nationally recognized investment banking firm that is a primary U.S. Government securities dealer.
“Remaining Scheduled Payments” means, with respect to the Securities to be redeemed, the remaining scheduled payments of principal of and interest on those Securities that would be due after the related
Redemption Date but for that redemption;
provided, however,
that if such Redemption Date is not an Interest Payment Date with respect to the Securities to be redeemed, the amount of the next succeeding scheduled interest payment on those
Securities will be reduced by the amount of interest accrued on such Securities to such Redemption Date.
“Treasury Rate” means,
with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the second Business Day immediately preceding that Redemption Date) of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.
On or after the Redemption Date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest). On or before
the Redemption Date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest on the Securities to be redeemed on that date. If less than all of the Securities are to be
redeemed, the Securities to be redeemed shall be selected by the Trustee, pro rata, by lot or by a method the Trustee deems to be fair and appropriate.
The Securities do not have the benefit of a sinking fund.
If a Change of Control Repurchase Event (as
defined below) occurs pursuant to Section 2.08 of the First Supplemental Indenture or has defeased the Securities pursuant to Article 12 of the Original Indenture, unless the Company has exercised its right to redeem such Securities, the Company
will make an offer to each Holder of the Securities to repurchase all or any part (in integral multiples of $1,000) of the Securities held by such Holder at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities
repurchased, plus any accrued and unpaid interest, if any, on the Securities repurchased to, but not including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any
Change of Control (as defined below), but after the public announcement of an impending Change of Control, the Company will mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may
constitute the Change of Control Repurchase Event and offering to repurchase the Securities with respect to which a Change of Control Repurchase Event shall have occurred on the payment
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date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice shall, if
mailed prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, or the Exchange Act, and any other securities laws
and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control Repurchase Event provisions of the Securities, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of
Control Repurchase Event provisions of the Securities by virtue of such conflict.
On the Change of Control Repurchase Event payment date,
the Company will, to the extent lawful:
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accept for payment all Securities or portions of Securities (in integral multiples of $1,000) properly tendered pursuant to the Company’s offer;
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deposit with the Trustee an amount equal to the aggregate repurchase price in respect of all Securities or portion of Securities properly tendered; and
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deliver or cause to be delivered to the Trustee the Securities properly accepted, together with an officers’ certificate stating the aggregate principal amount
of Securities being purchased by the Company.
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The Trustee will promptly mail to each Holder of Securities properly
tendered the repurchase price for the Securities, and the Trustee will promptly authenticate (upon its receipt of executed Securities from the Company) and mail (or cause to be transferred by book-entry) to each Holder a new Security equal in
principal amount to any unpurchased portion of any Securities surrendered;
provided
, that each new Security will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Securities upon a Change of Control Repurchase Event if a third party makes such an
offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company, and such third party purchases all Securities properly tendered and not withdrawn under its offer.
“Below Investment Grade Rating Event” means the Securities are rated below Investment Grade (as defined below) by each of the Rating Agencies
(as defined below) on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be
extended so long as the rating of the Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies).
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“Change of Control” means the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as
a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries, becomes the beneficial owner, directly or indirectly, of more
than 50% of the then outstanding number of shares of the Company’s Voting Stock (as defined below); (3) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors (as defined
below); or (4) the adoption of a plan relating to the Company’s liquidation or dissolution. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) (a) the Company becomes a wholly owned
subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of voting stock immediately prior to that transaction, and/or
(ii)(a) the Company reincorporates in another jurisdiction and (b) the holders of the Company’s Voting Stock immediately following the reincorporation are substantially the same as the holders of Voting Stock immediately prior to the
reincorporation.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment
Grade Rating Event.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the
Company who (1) was a member of such Board of Directors on the date of the issuance of the Securities; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).
“Fitch” means Fitch Ratings Ltd.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating
categories of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch); or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the
Company.
“Moody’s” means Moody’s Investors Service Inc.
“Rating Agency” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate
the Securities or fails to make a rating of the Securities publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act, selected by us as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
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“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill,
Inc.
“Voting Stock” means the Company’s Capital Stock of any class or kind the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
The Company may, from time to time, without the consent of the existing Holders of the Securities, issue additional securities under the Indenture having
the same terms as the Securities in all respects, except for the issue date, the issue price and the initial interest payment date. Any such additional securities will be consolidated with and form a single series with the Securities.
In addition to the Securities, the Company may issue other series of debt securities under the Indenture. There is no limit on the total aggregate
principal amount of debt securities that the Company may issue under the Indenture.
If an Event of Default shall occur and be continuing,
the principal amount of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The
Indenture contains provisions for defeasance at any time, upon compliance with certain conditions set forth therein, of (i) the entire Indebtedness evidenced by this Security or (ii) certain restrictive covenants and Events of Default with
respect to this Security.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Outstanding Securities, on behalf of the Holders of all the Securities, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of
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such Event of Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a
majority in principal amount of Outstanding Securities a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall
not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at
the office or agency of the Company in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. As
provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, or redemption of this Security in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and
procedures of the Depositary. The depository shall initially be The Depository Trust Company.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.
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ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your signature guaranteed:
I or we
assign and transfer this Security to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
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Date:
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Signed:
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(Sign exactly as your name appears on the other side of this Security)
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NOTICE: To be executed by an executive officer
Exhibit 4.2
EXECUTION VERSION
AVON PRODUCTS, INC.,
as Issuer
5.750% NOTES DUE 2018
SECOND SUPPLEMENTAL INDENTURE
Dated as of March 3, 2008
To
INDENTURE
Dated as of February 27, 2008
Deutsche Bank Trust Company
Americas,
as Trustee
SECOND SUPPLEMENTAL INDENTURE, dated as of the 3rd day of March,
2008, between AVON PRODUCTS, INC., a corporation duly organized and existing under the laws of the State of New York, as Issuer (herein called the “
Company
”), having its principal office at 1345 Avenue of the Americas, New
York, New York 10105-0196, and DEUTSCHE BANK TRUST COMPANY AMERICAS, with its principal office at 60 Wall Street, 27
th
Floor, New York, New York
10005 a banking corporation duly organized under the State of New York, as trustee (the “
Trustee
”).
RECITALS OF THE
COMPANY
WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of February 27, 2008 (the
“
Original Indenture
” and, together with this Second Supplemental Indenture, the “
Indenture
”) providing for the issuance by the Company from time to time of its unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series (in the Original Indenture and herein called the “
Securities
”), and the Trustee is the successor Trustee under the Original Indenture; and
WHEREAS, simultaneously herewith, the Company is executing and delivering to the Trustee a First Supplemental Indenture, dated as of March 3, 2008,
providing for the issuance by the Company of $250,000,000 aggregate principal amount of 4.800% Notes due March 1, 2013; and
WHEREAS,
the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture, including Section 3.01 thereof, has duly determined to make, execute and deliver to the Trustee this
Second Supplemental Indenture to the Original Indenture as permitted by Sections 3.01 and 9.01 of the Original Indenture in order to establish the form or terms of, and to provide for the creation and issue of, a series of Securities under the
Original Indenture in the aggregate principal amount of $250,000,000; and
WHEREAS, all things necessary to make the Securities provided
for herein, when executed by the Company and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this Second Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the terms of a series of Securities, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Second Supplemental Indenture and for
other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.01
Definitions
. Each capitalized term that is used herein and is defined
in the Original Indenture shall have the meaning specified in the Original Indenture unless that term is otherwise defined herein.
1.02
Section References
. Each reference to a particular section set forth in this Second Supplemental Indenture shall, unless the context otherwise requires, refer to this Second Supplemental Indenture.
ARTICLE II
TITLE AND TERMS OF SECURITIES
2.01
Title of the Securities
. This Second Supplemental Indenture
hereby establishes a series of Securities designated as the “5.750% Notes due March 1, 2018” of the Company (collectively referred to herein as the “
Notes
”). For purposes of the Original Indenture, the Notes
shall constitute a single series of Securities.
2.02
Term of the Notes
. The Notes shall mature on March 1, 2018 (the
“
Stated Maturity
”). In the event that the Stated Maturity is not a Business Day, principal and interest payable at maturity shall be paid on the next succeeding Business Day with the same effect as if that Business Day were
the Stated Maturity and no interest shall accrue or be payable for the period from and after the Stated Maturity to the next succeeding Business Day.
2.03
Amount and Denominations; Currency of Payment
. The aggregate principal amount in which the Notes may be issued under this Second Supplemental Indenture is initially limited to $250,000,000.
The Notes shall be issued in the form of one or more Registered Global Securities in the name of Cede & Co., as registered owner and nominee for
The Depository Trust Company, New York, New York (“
DTC
”). DTC shall initially act as Depositary for the Notes.
The
Notes shall be denominated in United States dollars in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
2.04
Interest and Interest Rates
. Each Note shall bear interest at the rate of 5.750% per annum from the date of issue or from the most recent Interest Payment Date (as defined in Section 2.05 below) to which interest on such Note has
been paid or duly provided for, commencing with the Interest Payment Date next succeeding the date of issue, until the principal thereof is paid or made available for payment. Interest shall be payable to the persons in whose name a Note is
registered on the fifteenth calendar day immediately preceding the applicable Interest Payment Date (the “
Regular Record Dates
”). Interest on each Note shall be computed on the basis of a 360-day year comprising twelve 30-day
months.
2.05
Interest Payments
. The interest payment dates for each Note shall be March 1 and September 1, in each year
(the “
Interest Payment Dates
”), commencing September 1, 2008 payable to the persons in whose name a Note is registered on the Regular Record Dates. Interest shall also be payable at maturity of any Note.
If an Interest Payment Date with respect to the Notes would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day with respect to the Notes and no interest shall accrue or be payable on such next succeeding Business Day for the period from and after such original Interest Payment Date to such next succeeding
Business Day.
Except as provided in the immediately preceding paragraph, interest payments shall be in the amount of interest accrued,
from the most recent date to which interest has been paid or, if no interest has been paid, from March 3, 2008 to, but excluding, the Interest Payment Date.
2.06
Place of Payment, Transfer and Exchange
. The Company authorizes and appoints the Trustee as the sole paying agent (the “
Paying Agent
”) with respect to the Notes represented by
Registered Global Securities, without prejudice to the Company’s authority to appoint additional paying agents from time to time pursuant to the Original Indenture. Payments of principal on each Note and interest thereon payable at maturity or
upon redemption shall be made in immediately available funds in such currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the request of the Holder, at the office or
agency of the Paying Agent in New York, New York or any other duly appointed Paying Agent,
provided
that the Note is presented to the Paying Agent in time for the Paying Agent to make the payments in immediately available funds in accordance
with its normal procedures. So long as any Notes are represented by a Registered Global Security, interest (other than interest payable at maturity or upon redemption) shall be paid in immediately available funds by wire
transfer to the Depositary for such Notes, on the written order of the Depositary. In addition, the Company may maintain a drop agent, in such location or
locations as the Company may select, to provide the Holders with an office at which they may present the Notes for payment. The Company hereby acknowledges that any drop agent maintained will accept Notes for presentment, take payment instructions
from the Holder and forward the Notes presented and any related payment instructions to the Paying Agent by overnight courier, for next day delivery. Notes presented as set forth in the previous sentence shall be deemed to be presented to the Paying
Agent on the Business Day next succeeding the day the Notes are delivered to the drop agent. Payment of interest (other than interest payable in accordance with the preceding provisions of this Section 2.06 will, subject to certain exceptions
provided in the Original Indenture, be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security register as of the applicable Regular Record Date or, at the option of the Company, by wire
transfer to an account maintained by such Person with a bank located in the United States.
The Company appoints the Trustee as the sole
Security Registrar with respect to the Notes. The Notes may be presented by the Holders thereof for registration of transfer or exchange at the office or agency of the Security registrar or any successor or co-registrar in New York, New York. In
addition, the Company may maintain a drop agent, in such location or locations as the Company may select, to provide the Holders with an office at which they may present the Notes for registration of transfer or exchange. The Company hereby
acknowledges that any drop agent maintained by the Company will accept Notes for registration of transfer or exchange and forward those Notes to the Security registrar by overnight courier, for next day delivery. Notes accepted as set forth in the
immediately preceding sentence shall be deemed to be presented to the Security registrar on the Business Day next succeeding the day that Notes are delivered to the drop agent.
2.07
No Sinking Fund
. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
2.08
Redemption at Option of the Company
. The Notes will be redeemable, as a whole or in part, at the Company’s option, at any time or from
time to time, by the Company mailing notice to the registered address of each holder of the Notes at least 30 days but not more than 60 days prior to the redemption. The redemption price will be equal to the greater of (1) 100% of the principal
amount of the Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on those Notes discounted, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at a
rate equal to the sum of the applicable Treasury Rate (as defined below) plus 35 basis points with respect to any Notes being redeemed. Accrued interest, if any, will be paid to the Redemption Date.
As used in this Section 2.08 only, the terms set forth below shall have the following respective meanings:
“
Comparable Treasury Issue
” means the United States Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Notes being redeemed. “
Independent Investment Banker
” means one of the Reference Treasury Dealers appointed by the Trustee at the Company’s written direction.
“
Comparable Treasury Price
” means, with respect to any Redemption Date, as determined by the Company (i) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such quotations.
“
Redemption Date
,” when used with respect to any Note to be redeemed, means the
date which is a Business Day fixed for such redemption by the Company pursuant to the Indenture.
“
Reference Treasury Dealer
Quotations
” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer, at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“
Reference Treasury Dealers
” means any four nationally recognized investment banking firms, and their successors, selected by the
Company that are each also a primary U.S. Government securities dealer. If any Reference Treasury Dealer shall cease to be a primary U.S. Government securities dealer, the Company will substitute another nationally recognized investment banking firm
that is a primary U.S. Government securities dealer.
“
Remaining Scheduled Payments
” means, with respect to the
Notes to be redeemed, the remaining scheduled payments of principal of and interest on those Notes that would be due after the related Redemption Date but for that redemption;
provided,
however, that if such Redemption Date is not an interest
payment date with respect to the Notes to be redeemed, the amount of the next succeeding scheduled interest payment on those Notes will be reduced by the amount of interest accrued on such Notes to such Redemption Date.
“
Treasury Rate
” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to
maturity (computed as of the second Business Day immediately preceding that Redemption Date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that Redemption Date.
On or after the Redemption Date, interest will cease to accrue on the Notes or any
portion of the Notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before the Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the
redemption price of and accrued interest on the Notes to be redeemed on that date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee, pro rata, by lot or by a method the Trustee deems to be
fair and appropriate.
2.09
Change of Control Repurchase Event
. If a Change of Control Repurchase Event (as defined below) occurs,
unless the Company has exercised its right to redeem the Notes pursuant to Section 2.08 hereof or has defeased the Notes pursuant to Article 12 of the Original Indenture, the Company will be required to make an offer to each Holder of Notes to
repurchase all or any part (in integral multiples of $1,000) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest, if any, on the Notes
repurchased to, but not including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control (as defined below), but after the public announcement of an
impending Change of Control, the Company will mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase
Notes with respect to which a Change of Control Repurchase Event shall have occurred on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice
shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, or the Exchange Act, and any other securities
laws and regulations thereunder, to the extent
those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent
that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have
breached the Company’s obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the Change of Control Repurchase Event payment date, the Company will, to the extent lawful: (i) accept for payment all Notes or portions of Notes (in integral multiples of $1,000) properly tendered pursuant to the Company’s
offer; (ii) deposit with the Trustee an amount equal to the aggregate repurchase price in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased by the Company.
The Trustee
will promptly mail to each holder of Notes properly tendered the repurchase price for the Notes, and the Trustee will promptly authenticate (upon its receipt of executed Notes from the Company) and mail (or cause to be transferred by book-entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer
in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company, and such third party purchases all Notes properly tendered and not withdrawn under its offer.
As used in this Section 2.09, the terms set forth below shall have the following respective meanings:
“
Below Investment Grade Rating Event
” means, the Notes are rated below Investment Grade by each of the Rating Agencies on any date
from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating
of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).
“
Change of
Control
” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company
or one of its subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock; (3) the first day on which a majority of the members of the
Company’s Board of Directors are not Continuing Directors; or (4) the adoption of a plan relating to the Company’s liquidation or dissolution. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of
Control if (i) (a) the Company becomes a wholly owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of
voting stock immediately prior to that transaction, and/or (ii)(a) the Company reincorporates in another jurisdiction and (b) the holders of the Company’s Voting Stock immediately following the reincorporation are substantially the same as
the holders of Voting Stock immediately prior to the reincorporation.
“
Change of Control Repurchase Event
” means
the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“
Continuing Directors
” means, as of any date of determination, any member of the
Board of Directors of the Company who (1) was a member of such Board of Directors on the date of the issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a
director).
“
Fitch
” means Fitch Ratings Ltd.
“
Investment Grade
” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of
Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch); or the equivalent
investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“
Moody’s
” means Moody’s Investors Service Inc.
“
Rating Agency
” means
(1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a
“nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“
S&P
” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc.
“
Voting Stock
” means the Company’s capital stock of any class or kind the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
2.10.
Form and Other Terms of the Notes
. Attached hereto as
Annex A
is a form of a Note denominated in United States dollars, which form is
hereby established as a form in which Notes may be issued. In addition, any Note may be issued in such other form as may be provided by, or not inconsistent with, the terms of the Original Indenture and this Second Supplemental Indenture.
ARTICLE III
MISCELLANEOUS
PROVISIONS
The Trustee makes no undertaking or representation in respect of, and shall not be responsible in any manner whatsoever for and
in respect of, the validity or sufficiency of this Second Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture, as heretofore amended and
supplemented, shall continue in full force and effect in accordance with the provisions thereof and the Original Indenture is in all respects hereby ratified and confirmed. This Second Supplemental Indenture and all its provisions shall be deemed a
part of the Original Indenture in the manner and to the extent herein and therein provided.
THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
This Second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and
year first above written.
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AVON PRODUCTS, INC.
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By:
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/s/ Richard J. Valone
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Name:
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Richard J. Valone
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Title:
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Vice President and Treasurer
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
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By
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/s/ Annie Jaghatspanyan
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Name:
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Annie Jaghatspanyan
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Title:
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Assistant Vice President
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By
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/s/ Wanda Camacho
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Name:
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Wanda Camacho
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Title:
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Vice President
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Annex A
GLOBAL SECURITY
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF) DTC,
ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
AVON PRODUCTS, INC.
5.750% Notes due 2018
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CUSIP NO. 054303 AU6
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$250,000,000
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Avon Products, Inc., a corporation duly organized and existing under the laws of the State of New
York (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co., or registered assigns, the principal sum of Two
Hundred and Fifty Million Dollars ($250,000,000) (which amount may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, in accordance with the rules and procedures of the
Depositary) on March 1, 2018, and to pay interest thereon from the most recent Interest Payment Date to which interest has been paid or duly provided for, or if no interest has been paid, from and including March 3, 2008, semiannually in
arrears in cash on March 1 and September 1 in each year, commencing September 1, 2008 at the rate of 5.750% per annum, until the principal hereof is paid or made available for payment. Interest will be computed on the basis of a 360 day
year comprised of twelve 30 day months.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar
day (whether or not a Business Day), immediately preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of and interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in
such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided,
however, that at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the Security Register. If this Security is a Global Security, then notwithstanding the foregoing, each such payment will be made in accordance with the procedures of the
Depositary as then in effect.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication
hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
11
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated: March 3, 2008
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AVON PRODUCTS, INC.
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By:
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Name:
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Title:
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Attest:
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Name:
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Title:
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This is one of the Securities referred to in the within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
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as Trustee
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By:
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Authorized Officer
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13
REVERSE OF GLOBAL SECURITY
This Security is one of a duly authorized issue of Securities of the Company designated as its 5.750% Notes due 2018 (herein called the
“Securities”), initially limited in aggregate principal amount to $250,000,000, issued under an Indenture dated as of February 27, 2008 (herein called the “Indenture”), between the Company and Deutsche Bank Trust Company
Americas, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
The Securities will bear interest, payable on each Interest Payment Date to Holders of record on the fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment Date, at 5.750% per annum until March 1, 2018 or the cancellation of the Securities.
The Securities are the Company’s unsecured senior obligation and rank equally with the Company’s other existing and future unsecured senior indebtedness. The Securities are redeemable, as a whole or in part, at the Company’s
option at any time or from time to time, by the Company mailing notice to the registered address of each Holder of Securities at least 30 days but not more than 60 days’ prior to the redemption. The redemption price will be equal to the greater
of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on those Securities discounted on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 30 basis points. Accrued interest, if any, will be paid to the Redemption Date.
Subject to payment by the Company of a sum sufficient to pay the amount due on redemption, interest on this Security (or portion hereof if this Security
is redeemed in part) shall cease to accrue upon the Redemption Date of this Security (or portion hereof if this Security is redeemed in part).
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities being redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities being redeemed. “Independent Investment Banker”
means one of the Reference Treasury Dealers appointed by the Trustee at the Company’s written direction.
“Comparable Treasury
Price” means, with respect to any Redemption Date, as determined by the Company (i) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date which is a Business Day fixed for such redemption by the Company pursuant to the Indenture.
14
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference
Treasury Dealer, at 5:00 p.m., New York City time, on the third business day preceding such Redemption Date.
“Reference Treasury
Dealers” means any four nationally recognized investment banking firms, and their successors, selected by the Company that are each also a primary U.S. Government securities dealer. If any reference Treasury Dealer shall cease to be a primary
U.S. Government securities dealer, the Company will substitute another nationally recognized investment banking firm that is a primary U.S. Government securities dealer.
“Remaining Scheduled Payments” means, with respect to the Securities to be redeemed, the remaining scheduled payments of principal of and interest on those Securities that would be due after the related
Redemption Date but for that redemption;
provided, however,
that if such Redemption Date is not an Interest Payment Date with respect to the Securities to be redeemed, the amount of the next succeeding scheduled interest payment on those
Securities will be reduced by the amount of interest accrued on such Securities to such Redemption Date.
“Treasury Rate” means,
with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the second Business Day immediately preceding that Redemption Date) of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.
On or after the Redemption Date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest). On or before
the Redemption Date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest on the Securities to be redeemed on that date. If less than all of the Securities are to be
redeemed, the Securities to be redeemed shall be selected by the Trustee, pro rata, by lot or by a method the Trustee deems to be fair and appropriate.
The Securities do not have the benefit of a sinking fund.
If a Change of Control Repurchase Event (as
defined below) occurs pursuant to Section 2.08 of the Second Supplemental Indenture or has defeased the Securities pursuant to Article 12 of the Original Indenture, unless the Company has exercised its right to redeem such Securities, the Company
will make an offer to each Holder of the Securities to repurchase all or any part (in integral multiples of $1,000) of the Securities held by such Holder at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities
repurchased, plus any accrued and unpaid interest, if any, on the Securities repurchased to, but not including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any
Change of Control (as defined below), but after the public announcement of an impending Change of Control, the Company will mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may
constitute the Change of Control Repurchase Event and offering to repurchase the Securities with respect to which a Change of Control Repurchase
15
Event shall have occurred on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date
such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date
specified in the notice.
The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, or the
Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control Repurchase Event. To the extent
that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Securities, the Company will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control Repurchase Event provisions of the Securities by virtue of such conflict.
On the
Change of Control Repurchase Event payment date, the Company will, to the extent lawful:
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accept for payment all Securities or portions of Securities (in integral multiples of $1,000) properly tendered pursuant to the Company’s offer;
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•
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deposit with the Trustee an amount equal to the aggregate repurchase price in respect of all Securities or portion of Securities properly tendered; and
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deliver or cause to be delivered to the Trustee the Securities properly accepted, together with an officers’ certificate stating the aggregate principal amount
of Securities being purchased by the Company.
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The Trustee will promptly mail to each Holder of Securities properly
tendered the repurchase price for the Securities, and the Trustee will promptly authenticate (upon its receipt of executed Securities from the Company) and mail (or cause to be transferred by book-entry) to each Holder a new Security equal in
principal amount to any unpurchased portion of any Securities surrendered;
provided
, that each new Security will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Securities upon a Change of Control Repurchase Event if a third party makes such an
offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company, and such third party purchases all Securities properly tendered and not withdrawn under its offer.
“Below Investment Grade Rating Event” means the Securities are rated below Investment Grade (as defined below) by each of the Rating Agencies
(as defined below) on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be
extended so long as the rating of the Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies).
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“Change of Control” means the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as
a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries, becomes the beneficial owner, directly or indirectly, of more
than 50% of the then outstanding number of shares of the Company’s Voting Stock (as defined below); (3) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors (as defined
below); or (4) the adoption of a plan relating to the Company’s liquidation or dissolution. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) (a) the Company becomes a wholly owned
subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of voting stock immediately prior to that transaction, and/or
(ii)(a) the Company reincorporates in another jurisdiction and (b) the holders of the Company’s Voting Stock immediately following the reincorporation are substantially the same as the holders of Voting Stock immediately prior to the
reincorporation.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment
Grade Rating Event.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the
Company who (1) was a member of such Board of Directors on the date of the issuance of the Securities; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).
“Fitch” means Fitch Ratings Ltd.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating
categories of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch); or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the
Company.
“Moody’s” means Moody’s Investors Service Inc.
“Rating Agency” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate
the Securities or fails to make a rating of the Securities publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act, selected by us as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
17
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill,
Inc.
“Voting Stock” means the Company’s Capital Stock of any class or kind the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
The Company may, from time to time, without the consent of the existing Holders of the Securities, issue additional securities under the Indenture having
the same terms as the Securities in all respects, except for the issue date, the issue price and the initial interest payment date. Any such additional securities will be consolidated with and form a single series with the Securities.
In addition to the Securities, the Company may issue other series of debt securities under the Indenture. There is no limit on the total aggregate
principal amount of debt securities that the Company may issue under the Indenture.
If an Event of Default shall occur and be continuing,
the principal amount of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The
Indenture contains provisions for defeasance at any time, upon compliance with certain conditions set forth therein, of (i) the entire Indebtedness evidenced by this Security or (ii) certain restrictive covenants and Events of Default with
respect to this Security.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Outstanding Securities, on behalf of the Holders of all the Securities, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of
18
such Event of Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a
majority in principal amount of Outstanding Securities a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall
not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at
the office or agency of the Company in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. As
provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, or redemption of this Security in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and
procedures of the Depositary. The depository shall initially be The Depository Trust Company.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.
19
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your signature guaranteed:
I or we
assign and transfer this Security to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
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Date:
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Signed:
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(Sign exactly as your name appears on the other side of this Security)
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NOTICE: To be executed by an executive officer
Exhibit 4.5
EXECUTION VERSION
AVON PRODUCTS, INC.
as Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
Indenture
Dated as of February 27, 2008
Certain Sections of this Indenture relating to Sections 310 through 318 of the Trust Indenture Act of
1939:
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Trust Indenture
Act
Section
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Indenture
Section
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§ 310
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(a) (1)
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6.09
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(a) (2)
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6.09
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(a) (3)
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Not Applicable
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(a) (4)
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Not Applicable
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(b)
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6.08
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6.10
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§ 311
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(a)
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6.13
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(b)
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6.13
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§ 312
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(a)
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3.13
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7.01
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7.02 (a)
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(b)
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7.02(b)
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(c)
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Not Applicable
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§ 313
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(a)
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7.03(a)
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(b) (1)
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7.03(a)
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(b) (2)
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7.03(a)
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(c) (1)
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7.03(a)
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(d)
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7.03(b)
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§ 314
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(a)
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7.04
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(b)
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Not Applicable
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(c) (1)
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1.02
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(c) (2)
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1.02
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(c) (3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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1.02
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(f)
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Not Applicable
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§ 315
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(a)
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6.01
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(b)
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6.02
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(c)
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6.01
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(d)
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6.01
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(e)
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5.14
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§ 316
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(a) (1) (A)
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5.12
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(a) (1) (B)
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5.13
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(a) (2)
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Not Applicable
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(b)
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5.08
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(c)
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1.04(c)
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§ 317
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(a) (1)
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5.03
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(a) (2)
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5.04
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(b)
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10.03
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§ 318
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(a)
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1.07
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
i
TABLE OF CONTENTS
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Page
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ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 1.01
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Definitions
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1
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SECTION 1.02
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Compliance Certificates and Opinions
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10
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SECTION 1.03
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Form of Documents Delivered to Trustee
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10
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SECTION 1.04
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Acts of Holders; Record Dates
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11
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SECTION 1.05
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Notices, Etc., to Trustee and Company
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12
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SECTION 1.06
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Notice to Holders; Waiver
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12
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SECTION 1.07
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Conflict with Trust Indenture Act
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13
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SECTION 1.08
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Effect of Headings and Table of Contents
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13
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SECTION 1.09
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Successors and Assigns
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13
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SECTION 1.10
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No Recourse Against Others
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13
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SECTION 1.11
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Separability Clause
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13
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SECTION 1.12
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Benefits of Indenture
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13
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SECTION 1.13
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Governing Laws
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13
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SECTION 1.14
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Legal Holidays
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14
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SECTION 1.15
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Patriot Act
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14
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ARTICLE 2.
SECURITY FORMS
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SECTION 2.01
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Forms Generally
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14
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SECTION 2.02
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Form of Face of Security
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14
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SECTION 2.03
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Form of Reverse of Security
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16
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SECTION 2.04
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Form of Trustee’s Certificate of Authentication
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19
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ARTICLE 3.
THE SECURITIES
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SECTION 3.01
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Amount Unlimited; Issuable in Series
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20
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SECTION 3.02
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Denominations
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23
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SECTION 3.03
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Execution, Authentication, Delivery and Dating
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23
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SECTION 3.04
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Temporary Securities
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24
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SECTION 3.05
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Registration; Registration of Transfer and Exchange
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25
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SECTION 3.06
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Mutilated, Destroyed, Lost and Stolen Securities
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26
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SECTION 3.07
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Payment of Interest; Interest Rights Preserved
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27
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SECTION 3.08
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Persons Deemed Owners
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28
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SECTION 3.09
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Book-entry Provisions for Global Securities
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28
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SECTION 3.10
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Cancellation
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29
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SECTION 3.11
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Treasury Securities
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30
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SECTION 3.12
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CUSIP Numbers
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30
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SECTION 3.13
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Holder Lists
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30
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i
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SECTION 3.14
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Computation of Interest
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30
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ARTICLE 4.
SATISFACTION AND DISCHARGE
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SECTION 4.01
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Satisfaction and Discharge of Indenture
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30
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SECTION 4.02
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Application of Trust Money
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31
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ARTICLE 5.
REMEDIES
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SECTION 5.01
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Events of Default
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32
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SECTION 5.02
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Acceleration of Maturity; Rescission and Annulment
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34
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SECTION 5.03
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Collection of Indebtedness and Suits for Enforcement by Trustee
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35
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SECTION 5.04
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Trustee May File Proofs of Claim
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35
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SECTION 5.05
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Trustee May Enforce Claims Without Possession of Securities
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35
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SECTION 5.06
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Application of Money Collected
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36
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SECTION 5.07
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Limitation on Suits
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36
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SECTION 5.08
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Unconditional Right of Holders to Receive Principal and Interest
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37
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SECTION 5.09
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Restoration of Rights and Remedies
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37
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SECTION 5.10
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Rights and Remedies Cumulative
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37
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SECTION 5.11
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Delay or Omission Not Waiver
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37
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SECTION 5.12
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Control by Holders
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37
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SECTION 5.13
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Waiver of Past Defaults
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37
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SECTION 5.14
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Undertaking for Costs
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38
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SECTION 5.15
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Waiver of Stay or Extension Laws
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38
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ARTICLE 6.
THE TRUSTEE
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SECTION 6.01
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Certain Duties and Responsibilities
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38
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SECTION 6.02
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Notice of Defaults
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39
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SECTION 6.03
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Certain Rights of Trustee
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39
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SECTION 6.04
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Trustee’s Disclaimer
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40
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SECTION 6.05
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May Hold Securities
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40
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SECTION 6.06
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Money Held in Trust
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40
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SECTION 6.07
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Compensation and Reimbursement. The Company agrees:
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40
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SECTION 6.08
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Disqualification; Conflicting Interests
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41
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SECTION 6.09
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Corporate Trustee Required; Eligibility
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41
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SECTION 6.10
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Resignation and Removal; Appointment of Successor
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42
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SECTION 6.11
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Acceptance of Appointment by Successor
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43
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SECTION 6.12
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Merger, Conversion, Consolidation or Succession to Business
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44
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SECTION 6.13
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Eligibility; Disqualification
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44
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SECTION 6.14
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Preferential Collection of Claims Against
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44
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ii
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ARTICLE 7.
HOLDERS’ LISTS AND REPORTS BY TRUSTEE
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SECTION 7.01
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Company to Furnish Trustee Names and Addresses of Holders
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44
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SECTION 7.02
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Preservation of Information; Communications to Holders
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45
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SECTION 7.03
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Reports by Trustee.
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45
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SECTION 7.04
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Reports by Company
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45
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ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 8.01
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Company May Consolidate, Etc., Only on Certain Terms
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46
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SECTION 8.02
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Successor Substituted
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46
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ARTICLE 9.
SUPPLEMENTAL INDENTURES
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SECTION 9.01
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Supplemental Indentures Without Consent of Holders
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47
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SECTION 9.02
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Supplemental Indentures with Consent of Holders
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47
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SECTION 9.03
|
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Limitations
|
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48
|
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SECTION 9.04
|
|
Execution of Supplemental Indentures
|
|
48
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SECTION 9.05
|
|
Effect of Supplemental Indentures
|
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48
|
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SECTION 9.06
|
|
Conformity with Trust Indenture Act
|
|
49
|
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SECTION 9.07
|
|
Reference in Securities to Supplemental Indentures
|
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49
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SECTION 9.08
|
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Trustee Protected
|
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49
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ARTICLE 10.
COVENANTS SECTION
|
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SECTION 10.01
|
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Payment of Principal and Interest
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49
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SECTION 10.02
|
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Maintenance of Office or Agency
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49
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SECTION 10.03
|
|
Money for Security Payments to Be Held in Trust
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50
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SECTION 10.04
|
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Statement by Officers as to Default
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51
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SECTION 10.05
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Existence
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51
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SECTION 10.06
|
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Liens
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51
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SECTION 10.07
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Limitation on Restricted Sale/Leaseback Transactions
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51
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SECTION 10.08
|
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Reports and Delivery of Certain Information
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51
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SECTION 10.09
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Resale of Certain Securities
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52
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SECTION 10.10
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Book-Entry System
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52
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SECTION 10.11
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Waiver of Certain Covenants
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52
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ARTICLE 11.
OPTIONAL REDEMPTION OF SECURITIES
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SECTION 11.01
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Applicability of Article
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52
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SECTION 11.02
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Election to Redeem; Notice to Trustee
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52
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SECTION 11.03
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Selection by Trustee of Securities to Be Redeemed
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53
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SECTION 11.04
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Notice of Redemption
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53
|
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SECTION 11.05
|
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Deposit of Redemption Price
|
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54
|
|
SECTION 11.06
|
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Securities Payable on Redemption Date
|
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54
|
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SECTION 11.07
|
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Securities Redeemed in Part
|
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55
|
iii
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ARTICLE 12.
DEFEASANCE AND COVENANT DEFEASANCE
|
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SECTION 12.01
|
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Company’s Option to Effect Defeasance or Covenant Defeasance
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55
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SECTION 12.02
|
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Defeasance and Discharge
|
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55
|
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SECTION 12.03
|
|
Covenant Defeasance
|
|
56
|
|
SECTION 12.04
|
|
Conditions to Defeasance or Covenant Defeasance
|
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56
|
|
SECTION 12.05
|
|
Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions
|
|
57
|
|
SECTION 12.06
|
|
Reinstatement
|
|
58
|
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|
ARTICLE 13.
SINKING FUNDS
|
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|
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SECTION 13.01
|
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Applicability of Article
|
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58
|
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SECTION 13.02
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
59
|
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SECTION 13.03
|
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Redemption of Securities for Sinking Fund
|
|
59
|
iv
INDENTURE, dated as of February 27, 2008, between AVON PRODUCTS, INC., a corporation duly organized and
existing under the laws of the State of New York, as Issuer (herein called the “Company”), having its principal office at 1345 Avenue of the Americas, New York, New York 10105-0196, and DEUTSCHE BANK TRUST COMPANY AMERICAS, a banking
corporation duly organized under the laws of the State of New York, as Trustee (herein called the “Trustee”).
RECITALS OF THE
COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01
Definitions
. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as
the singular;
(ii) all other terms used herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(iii) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP; and
(iv) the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition,
“control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Attributable Debt,” in respect to any Sale/Leaseback Transaction, means, as of any time of
determination, the present value (discounted at the rate per annum equal to the rate of interest implicit in the lease involved in such Sale/Leaseback Transaction, as determined in good faith by the Company) of the obligation of the lessee under
such Sale/Leaseback Transaction for rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges or any amounts required to be paid by such lessee thereunder contingent upon the amount of sales or similar contingent awards) during the remaining term of such lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). In the case of any lease which is terminable by the lessee upon the payment of a penalty, such rental payments shall also include the amount of such penalty, but no rental payments shall be
considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated.
“Board of
Directors” means, with respect to any Person, either the board of directors of such Person or any duly authorized committee of that board.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors, or alternatively, in the case of
the Company, by the Finance and Strategic Planning Committee of the Board of Directors of the Company pursuant to authority duly delegated to it by the Board of Directors of the Company, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or the Corporate Trust Office are authorized or obligated by law to close.
“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock,
including, without limitation, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties
at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a
successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by both (i) any of its Chairman of the Board, its Vice Chairman of the
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Board, its Chief Executive Officer, its Chief Finance and Strategy Officer, its President or any Vice President, and (ii) any of its Treasurer, its
Secretary, any Assistant Secretary or any Vice President (other than a Vice President signing pursuant to clause (i) above), and delivered to the Trustee.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities. “Independent Investment Banker”
means one of the Reference Treasury Dealers appointed by the Company.
“Comparable Treasury Price” means, with respect to any
Redemption Date, as determined by the Company (i) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Company
obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Consolidated Net Tangible
Assets” means the total assets which under United States Generally Accepted Accounting Principles (“GAAP”) would be included on the most recent audited annual consolidated balance sheet of the Company, after deducting therefrom,
without duplication, the sum of (i) all current liabilities and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and related expense and other like intangibles, which in each case under GAAP would be included on such
consolidated balance sheet.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of
the Trustee shall, at any particular time, be principally administered, which office is, at the date of this Indenture, located at 60 Wall Street, MSNYC, 60-2710, New York, New York 10005.
“corporation” means a corporation, association, company, joint-stock company or business trust.
“Default” means any event that is or with the passage of time or the giving of notice or both would become an Event of Default.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Defeasance” has the meaning specified in Section 12.02.
“Depositary” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean
such successor Depositary.
“Dollars” and “$”means the currency of The United States of America.
“ECU” means the European Currency Unit as determined by the Commission of the European Union.
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“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Event of Default”
has the meaning specified in Section 5.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Foreign Currency” means any currency or currency unit issued by a government other than the government of The United States of
America.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment
of the accounting profession, in each case, as in effect in the United States on the date hereof.
“Global Security” means a
Security in global form registered in the Security Register in the name of a Depositary or a nominee thereof.
“Holder” means a
Person in whose name a Security is registered in the Security Register.
“Indebtedness” means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of (i) borrowed money evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by a mortgage, pledge, lien, charge, encumbrance of any
security interest existing on property owned by such Person, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance that constitutes an accrued
expense or trade payable or (iv) any lease of property by such Person as lessee which is reflected in such Person’s consolidated balance sheet as a capitalized lease in accordance with GAAP, in the case of items of Indebtedness under
(i) through (iii) above to the extent that any such items (other than letters of credit) would appear as a liability on such Person’s consolidated balance sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Indebtedness of another Person.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof, including, the terms of a particular series of Securities established pursuant to the applicable provisions hereof, and for all purposes of this instrument and any such
supplemental indenture or terms of a particular series, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only upon Maturity, means interest
payable after Maturity.
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“Interest Payment Date” means, with respect to any Security, the Stated Maturity of an
installment of interest on such Security.
“Investments” means, with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the forms of loans, advances or capital contributions, purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
“Investment Company Act” means the Investment
Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“Issue Date” means, with
respect to any series of Securities, the date such series of Securities is originally issued under this Indenture.
“Lien” means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
“Maturity”, when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity, on a Redemption Date or by declaration of acceleration or otherwise.
“Officers’ Certificate” means a certificate signed by both (i) any of the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the Chief Finance and Strategy Officer,
the President or any Vice President, and (ii) any of the Treasurer, the Secretary, any Assistant Secretary, or any Vice President (other than a Vice President signing pursuant to clause (i) above), of the Company, and delivered to the
Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 10.04 shall be the principal executive, financial or accounting officer of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be external or in-house counsel for the Company, and who shall be acceptable
to the Trustee.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Outstanding,” when used with respect to any Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
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(ii) Securities, or portions thereof, for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such
Securities;
provided
that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given to the Holders as herein provided, or provision satisfactory to a Responsible Officer of the
Trustee shall have been made for giving such notice; and
(iii) Securities which have been paid or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held
by a protected purchaser in whose hands such Securities are valid obligations of the Company;
provided, however
, that, in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security which shall
be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the
principal amount of such Security and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of, interest on or Redemption Price of any Securities on behalf of the Company. The Trustee shall initially be the Paying Agent.
“Permitted Liens” means any of the following: (a) Liens on any Principal Property acquired by the Company or a Subsidiary after the date
of this Indenture to secure or provide for the payment or financing of all or any part of the purchase price thereof or construction of fixed improvements thereon (prior to, at the time of or within 180 days after the latest of the acquisition,
completion of construction or commencement of commercial operation thereof); (b) Liens on any shares of stock or Principal Property acquired by the Company or a Subsidiary after the date of this Indenture existing at the time of such
acquisition; (c) Liens on any shares of stock or Principal Property of a corporation which is merged into or consolidated with the Company or a Subsidiary or substantially all of the assets of which are acquired by the Company or a Subsidiary;
(d) Liens securing Indebtedness of a Subsidiary owing to the Company or another
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Subsidiary; (e) Liens existing at the date of the Indenture; (f) Liens on any Principal Property being constructed or improved securing loans to
finance such construction or improvements; (g) Liens in favor of governmental bodies of the United States or any State thereof or any other country or political subdivision thereof to secure partial, progress or advance payments pursuant to any
contract or statute, or to secure any Indebtedness incurred or guaranteed for the purpose of financing all or any part of the cost of acquiring, constructing or improving the property subject to such Liens; (h) Liens securing taxes, assessments
or governmental charges or levies not yet delinquent, or already delinquent but the validity of which is being contested in good faith; (i) Liens arising by reason of deposits necessary to qualify the Company or any Subsidiary to conduct
business, maintain self-insurance, or obtain the benefit of, or comply with, any law; (j) Liens arising out of judgments or awards against the Company or any Subsidiary with respect to which the Company or such Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review; provided that the Company or such Subsidiary shall have secured, within 60 days after the creation thereof, an effective stay of execution pending such appeal or review; and (k) extensions,
renewals or replacement of Liens referred to in the foregoing clauses provided that the Indebtedness secured is not increased nor the Lien extended to any additional assets.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Physical Securities” has the meaning specified in Section 2.01.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and
any premium or interest on the Securities of that series are payable specified as required by Section 3.01.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Principal Property” means any manufacturing plant, testing or research and development facility, distribution facility, processing plant or
warehouse (including, without limitation, land, fixtures and equipment), owned or leased by the Company or any domestic Subsidiary (including any of the foregoing acquired or leased after the date of this Indenture) and located within the United
States of America, its territories and possessions, unless the Board of Directors of the Company determines in good faith that such plant or facility is not of material importance to the total business conducted by the Company and its consolidated
Subsidiaries.
“Redemption Date” when used with respect to any Security to be redeemed, means any date which is a Business Day
fixed for such redemption by the Company pursuant to Section 11.04 of this Indenture.
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“Redemption Price” when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
“Reference Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Company by such Reference Treasury Dealer, at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Reference Treasury Dealers” means any four nationally recognized investment banking firms, and their successors, selected by the Company that are each also a primary U.S. Government securities dealer (a “Primary Treasury
Dealer”);
provided, however
, that if any Reference Treasury Dealer shall cease to be a primary U.S. Government securities dealer, the Company shall substitute another nationally recognized investment banking firm that is a Primary
Treasury Dealer.
“Remaining Scheduled Payments” means, with respect to each Security to be redeemed, the remaining scheduled
payments of principal thereof and interest thereon that would be due after the related Redemption Date but for that redemption;
provided, however
, that if such Redemption Date is not an Interest Payment Date with respect to such Security, the
amount of the next succeeding scheduled interest payment thereon shall be reduced by the amount of interest accrued thereon to such Redemption Date.
“Regular Record Date” for the interest payable on any Interest Payment Date with respect to any Security, means such date or dates specified in the Security (whether or not a Business Day), as the case may
be, immediately preceding the relevant Interest Payment Date relating to such Security.
“Responsible Officer” means any officer
of the Trustee within the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also, with respect to a particular matter, any other officer of the Trustee to whom such matter is referred
because of such officer’s knowledge and familiarity with the particular subject.
“Restricted Sale/Leaseback Transaction”
means any Sale/Leaseback Transaction entered into by the Company or any Significant Subsidiary after the date of this Indenture, except: (i) Sale/Leaseback Transactions entered into by and between the Company or a Subsidiary and one or more
Subsidiaries of the Company; (ii) Sale/Leaseback Transactions as to which, during the period commencing 6 months prior to and ending 12 months after entering into such Sale/Leaseback Transaction, the Company or a Subsidiary applies an amount
equal to the Attributable Debt with respect to such Sale/Leaseback Transaction to the acquisition, directly or indirectly and in whole or in part, of one or more Principal Properties or to the retirement of Indebtedness of the Company or any
Subsidiary; and (iii) Sale/Leaseback Transactions involving the taking back of a lease for a period of three years or less.
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“Sale/Leaseback Transaction” means any arrangement, directly or indirectly, with any Person
whereby the Company or any Subsidiary shall sell or transfer any Principal Property, whether now owned or hereafter acquired, and then or thereafter rent or lease as lessee such Principal Property or any part thereof which the Company or such
Subsidiary, as the case may be, intends to use for substantially the same purpose as the Principal Property being sold or transferred.
“Secured Debt” has the meaning specified in Section 10.06.
“Securities” has the meaning specified in the
first paragraph of the Recitals of the Company.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Security Register” and “Security Registrar” have the
respective meanings specified in Section 3.05.
“Significant Subsidiary” means any direct or indirect Subsidiary of the
Company that generates 5% (five percent) or more of the Company’s revenue or income or that holds 5% (five percent) or more of the Company’s assets.
“Special Record Date” for the payment of Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity,” when used with respect to the Securities or any installment of interest thereon, means the date specified in the Securities as the fixed date on which the principal thereof or such
installment of interest is due and payable.
“Subsidiary” means a corporation more than 50% of the outstanding voting stock of
which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock which ordinarily has voting
power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the second Business Day immediately preceding that
Redemption Date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed;
provided,
however
, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
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“Trustee” means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee;
provided, however
, that if at any time there is more
than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.
“U.S. Government Obligation” has the meaning specified in Section 12.04.
“Vice
President,” when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.
SECTION 1.02
Compliance Certificates and Opinions
. Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if
to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, stating that in the opinion of the signers or such counsel, as the case may be, all conditions precedent, if any, provided for in this Indenture and the
requirements of the Trust Indenture Act relating to the proposed action have been complied with.
Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this Indenture shall include
(i) a statement that each
individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary
to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 1.03
Form of Documents Delivered to Trustee
. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION
1.04
Acts of Holders; Record Dates
. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company. If any Securities are denominated in a currency other than that of the United States, then for the purposes of determining whether the Holders of the requisite
principal amount of Securities have taken any action with respect to the Securities of more than one series as herein described, the principal amount of such Securities shall be deemed to be that amount of United States dollars that could be
obtained for such principal amount on the basis of the spot rate of exchange into United States dollars for the currency in which such Securities are denominated (as evidenced to the Trustee by an Officers’ Certificate) as of the date the
taking of such action by the Holders of such requisite principal amount is evidenced to the Trustee as provided in the immediately preceding sentence. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
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(c) The Company may fix any day as the record date for the purpose of determining the Holders entitled to
give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 7.01) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 1.05
Notices, Etc., to Trustee and Company
. Any
request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at 60 Wall Street, New York, NY 10005, with a copy to Deutsche Bank National Trust Company, 25 DeForest Avenue, 2
nd
Floor, Mail Stop SUM01-0105, Summit, NJ 07901, or
(ii)
the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Treasurer.
SECTION 1.06
Notice to Holders; Waiver
. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. If a notice or communication is mailed or published in the manner provided for above, within the time prescribed, it is duly given, whether or not the Holder receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before
or after the event, and such
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waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07
Conflict with Trust Indenture Act
. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act
that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08
Effect
of Headings and Table of Contents
. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09
Successors and Assigns
. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.10
No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Securities.
SECTION 1.11
Separability Clause
. In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.12
Benefits of Indenture
. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the
Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13
Governing
Laws
.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES OF THE SECURITIES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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SECTION 1.14
Legal Holidays
. In any case where any Interest Payment Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or at the Stated Maturity,
provided
that no interest shall accrue with respect to such payment for the period
from and after such Interest Payment Date or Stated Maturity or, as the case may be.
SECTION 1.15
Patriot Act
. The parties hereto
acknowledge that in accordance with Section 326 of the USA Patriot Act, Deutsche Bank Trust Company Americas, like all financial institutions and in order to help fight the funding of terrorism and money-laundering, are required to obtain,
verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Agreement agree that they will provide Deutsche Bank Trust Company Americas with such information as
it may request in order for Deutsche Bank Trust Company Americas to satisfy the requirements of the USA Patriot Act.
ARTICLE 2.
SECURITY FORMS
SECTION 2.01
Forms
Generally
. The Securities of each series and the Trustee’s certificates of authentication shall be in substantially the forms set forth in this Article, or in such other form as shall be established by or pursuant to (i) a Board
Resolution of the Company, or (ii) in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor, the Internal Revenue Code of 1986, as amended, and
regulations thereunder, or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof.
Unless it is determined pursuant to a Company Order or as otherwise provided in this Indenture that non-Global Securities (“Physical Securities”) are to be issued, the Securities of each series shall be
issued in the form of Global Securities.
SECTION 2.02
Form of Face of Security
. [THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE].
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[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF) DTC, ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
AVON PRODUCTS, INC.
[Title of Security]
Avon Products, Inc., a corporation duly organized and existing under the laws of New York (herein
called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars [ INCLUDE IF SECURITY IS A GLOBAL SECURITY — (which amount may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the Depositary, in accordance with the rules and procedures of the Depositary)] on
, and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [semiannually] on
and
in each year, commencing at the rate of
% per annum,
until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall
be the
or
(whether or not a Business Day), as the case may be, immediately preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of and interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts;
provided, however
, that at the option of the Company payment of interest may be
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made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. If this Security is a Global
Security, then notwithstanding the foregoing, each such payment will be made in accordance with the procedures of the Depositary as then in effect.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has
caused this instrument to be duly executed under its corporate seal.
Dated:
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AVON PRODUCTS, INC.
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By
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Name:
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Title:
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Attest:
SECTION 2.03
Form of Reverse of Security
. This Security is one of a duly authorized issue
of Securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
[
], 2008 (herein called the “Indenture”), between the Company and Deutsche Bank Trust Company Americas, as
Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
[The Securities are redeemable in whole or in part, at the option of the Company at any time and from time to time, on not less than 30 or more than 60
days’ prior notice mailed to the Holders of the Securities, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities to be redeemed and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon discounted to the Redemption Date on a [semiannual] basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus
basis points,
together in either case with accrued interest on the principal amount being redeemed to the Redemption Date.
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Subject to payment by the Company of a sum sufficient to pay the amount due on redemption, interest on
this Security (or portion hereof if this Security is redeemed in part) shall cease to accrue upon the Redemption Date of this Security (or portion hereof if this Security is redeemed in part).]
[The Securities do not have the benefit of a sinking fund.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY — In the event of a deposit or withdrawal of an interest in this Security, including an exchange, transfer, repurchase or conversion of this Security in part only, the
Trustee, as custodian for the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and procedures of the Depositary.]
[INCLUDE IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY — If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[INCLUDE IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY — If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [— insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due
and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series shall terminate.]
[INCLUDE IF THE SECURITY IS AN ORIGINAL
ISSUE DISCOUNT SECURITY — This Security was issued with Original Issue Discount under Section 1272, 1273 and 1275 of the Internal Revenue Code of 1986, as amended. You may contact the Treasurer of the Company, at Avon Products, Inc., 1345
Avenue of the Americas, New York, NY 10105-0196, (212) 282-5000, who will provide you with any required information regarding the Original Issue Discount.]
The Indenture contains provisions for defeasance at any time, upon compliance with certain conditions set forth therein, of (i) the entire Indebtedness evidenced by this Security or (ii) certain restrictive
covenants and Events of Default with respect to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal
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amount of the Outstanding Securities of each series, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of
this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of Outstanding Securities of this series a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, rate, and in the currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or agency of the Company in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $2,000 and
any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a
different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your signature guaranteed:
I or we
assign and transfer this Security to:
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(Print or type name, address and zip code and social security or tax ID number of assignee)
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and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
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Date:
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Signed:
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(Sign exactly as your name appears on the other side of this Security)
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Signature Guarantee:
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NOTICE: To be executed by an executive officer.
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SECTION 2.04
Form of Trustee’s Certificate of Authentication
. This is one of the
Securities referred to in the within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
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as Trustee
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By
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Authorized Officer
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ARTICLE 3.
THE SECURITIES
SECTION 3.01
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Securities may differ between series in respect of any matters,
provided
that all series of
Securities shall be equally and ratably entitled to the benefits of this Indenture. There shall be (i) established in or pursuant to a Board Resolution and (subject to Section 3.03) set forth, or determined in the manner provided, in an
Officers’ Certificate, or (ii) established in one or more indentures supplemental hereto, at or prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities of that particular series from the Securities of any
other series);
(b) the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities
of the series will be issued;
(c) any limit upon the aggregate principal amount of the Securities of the series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06,
9.07 or 11.07 and except for any Securities which, pursuant to Section 3.03 of the Indenture, shall have not been issued and sold by the Company and are therefore deemed never to have been authenticated and delivered hereunder);
(d) the date or dates on which the principal and premium, if any, of the Securities of the series is payable;
(e) the Person to whom any interest, if any, on any Security of the series shall be payable if other than as set forth in
Section 3.07; the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial
index) at which the Securities of the series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date, for the
interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium or interest,
if any, on the Securities of the series shall be payable, where the Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such
series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means;
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(g) if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall
be evidenced;
(h) the obligation, if any, of the Company to permit the Securities of such Series to be converted into or
exchanged for common stock of the Company or other Securities or property of the Company and the terms and conditions upon which such conversion or exchange shall be effected (including, without limitation, the initial conversion or exchange price
or rate, the conversion or exchange period, any adjustment of the applicable conversion or exchange price or rate and any requirements relative to the reservation of such shares for purposes of conversion or exchange);
(i) if convertible or exchangeable, any applicable limitations on the ownership or transferability of the Securities or property into
which such Securities are convertible or exchangeable; and
(j) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series
shall be redeemed or purchased in whole or in part, pursuant to such obligation;
(k) the dates, if any, on which the price
or prices at which the Securities of the series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
(l) if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of
the series shall be issuable;
(m) the forms of the Securities of the series in fully registered form (and whether the
Securities will be issuable as Global Securities);
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 3.10;
(o) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Article 12 and if other than a Board Resolution, the manner in which any election by the Company to
defease those Securities shall be evidenced;
(p) whether the Securities of the series are to be issuable in whole or in
part in permanent global form, without coupons, and, if so, (i) the form of any legend or legends which shall be borne by any such permanent Global Security in addition to or in lieu of that set forth in Section 2.02, (ii) any
circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 3.05 in which such permanent Global
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Security may be exchanged in whole or in part for Securities registered, and in which any transfer of such permanent Global Security in whole or in part may
be registered, in the name of Persons other than the Depositary for such permanent Global Security or a nominee thereof and (iii) the Depositary with respect to any such permanent Global Security or Securities;
(q) the currency of denomination of the Securities of the series, which may be Dollars or any Foreign Currency, including, but not limited
to, the ECU, and if such currency of denomination is a composite currency other than the ECU, the agency or organization, if any, responsible for overseeing such composite currency;
(r) if the principal of, or any premium or interest on, any Securities of the series is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(s) the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the series will be
determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
(t) the provisions, if any, relating to any security or guarantee provided for the Securities of the series, and any subordination in
right of payment, if any, of the Securities of the series;
(u) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be determined);
(v) any addition to or change in the
Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.01;
(w) any addition to or change in the covenants set forth in Article Ten which applies to any Securities of the series;
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(x) any depositories, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such series if other than those appointed herein;
(y) the terms, if any, on
which Holders of Securities may convert or exchange any Securities of the series into any securities of any Person; and
(z)
any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(e)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to
Section 3.03) set forth in the Officers’ Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the authorized principal amount of any series may not be increased to provide for
issuance of additional Securities of such series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
SECTION 3.02
Denominations
. The Securities shall be issuable only in registered form and, unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, without coupons and in denominations
of $2,000 and any integral multiple of $1,000 in excess thereof.
SECTION 3.03
Execution, Authentication, Delivery and Dating
. The
Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its Chief Finance and Strategy Officer, its President or one of its Vice Presidents, attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from
time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted
by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
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(b) if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to
general equity principles.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing and subject, in the
case of a Security in permanent global form, to Section 2.02, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) directing such cancellation and stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04
Temporary Securities
. Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive
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Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
SECTION 3.05
Registration; Registration of Transfer and Exchange
. (a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and
in any other office or agency in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” (the “Security Registrar”) for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at an office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. As a
condition to the registration of transfer of any Restricted Securities, the Company or the Trustee may require evidence satisfactory to them as to the compliance with the restrictions set forth in the legend on such securities.
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No service charge shall be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or
11.07 not involving any transfer.
The Company shall not be required to exchange or register a transfer of any Security of a series
(i) during the 15-day period immediately preceding the mailing of any notice of redemption of any Security of that series, or (ii) after any notice of redemption has been given to Holders of Securities of that series, except, where such
notice provides that such Security is to be redeemed only in part, the Company shall be required to exchange or register a transfer of the portion thereof not to be redeemed.
(b) Neither the Trustee nor any of its agents shall (i) have any duty to monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation on any transfers or exchanges other than as specifically required hereunder.
SECTION 3.06
Mutilated, Destroyed, Lost and Stolen Securities
. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing an identification number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or has been called for redemption in
full, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and
all other Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07
Payment of
Interest; Interest Rights Preserved
. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
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Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08
Persons Deemed Owners
. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.09
Book-entry Provisions for Global Securities
. (a) The Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for the Depositary and (iii) bear legends as set forth on the face of the form of Security in Section 2.02.
Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.
(b) Transfers of the Global Securities shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred or exchanged, in whole or in part, for Physical Securities in accordance with the rules and procedures of the Depositary. In addition, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests in the Global Securities if (A) such Depositary has notified the Company (or the Company becomes aware) that the Depositary (i) is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act when the Depositary is required to be so registered to act as such Depositary and, in both such cases, no successor
Depositary shall have been appointed within 90 days of such notification or of the Company becoming aware of such event, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the
Outstanding Securities of such series shall have become due and payable pursuant to Section 5.02 and the Trustee has requested that Physical Securities be issued or (C) the Company has decided to discontinue use of book-entry transfers
through the Depositary (or a successor Depositary).
(c) In connection with any transfer or exchange of a portion of the beneficial
interest in the Global Security to beneficial owners pursuant to paragraph (b), the Security Registrar shall (if one or more Physical Securities are to be issued) reflect on its books and records the date and
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a decrease in the principal amount of the Global Security in an amount equal to the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of the entire Global Security to beneficial owners pursuant to paragraph (b), the Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of Physical Securities of
authorized denominations and the same tenor.
(e) Any Global Security issued hereunder shall bear a legend in substantially the following
form:
“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a security registered, and no transfer of this security in whole or in part may be registered, in the name of any person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the Indenture.”
(f) The Holder of the Global Securities may grant
proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.
(g) Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 3.01, payment of the principal of
and interest, if any, on any Global Security shall be made to the Holder thereof.
(h) Except as provided in Section 3.09(g), the
Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of Outstanding Securities of such series represented by a Global Security as shall be specified in a written statement of the Depositary with respect to
such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
SECTION 3.10
Cancellation
. The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange,
payment, redemption or cancellation and shall dispose of such cancelled Securities, all in accordance with its customary practices. If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee
for cancellation.
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SECTION 3.11
Treasury Securities
In determining whether the Holders of the required principal amount of Securities of a series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a series owned by the Company or an Affiliate of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent or waiver only Securities of a series that the Trustee knows are so owned shall be so disregarded.
SECTION 3.12
CUSIP Numbers
The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
SECTION 3.13
Holder Lists
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of
each series of Securities and shall otherwise comply with Trust Indenture Act. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee
may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each series of Securities.
SECTION 3.14
Computation of Interest
. Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of
a 360-day year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE
SECTION 4.01
Satisfaction and Discharge of Indenture
. This Indenture
shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and (B) Securities for whose payment money has
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theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not
theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one year, or
(C) will be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness evidenced by such Securities not theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the
deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any guarantor, as applicable, of such Securities is a party or by which the Company or any such guarantor, as
applicable, is bound;
(c) the Company or any guarantor of such Securities has paid or caused to be paid all other sums payable hereunder
by the Company;
(d) the Company has delivered irrevocable instructions to the Trustee for such Securities under this Indenture to apply
the deposited money toward the payment of such Securities at maturity or on the redemption date, as the case may be; and
(e) Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of Clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02
Application of Trust Money
. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company
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acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If such
Trustee or Paying Agent is unable to apply any proceeds in accordance with Section 4.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and any applicable guarantor’s obligations under this Indenture and the applicable Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 4,01
hereof;
provided
that if the Company has made any payment of principal of, premium, if any, or interest on, any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the funds held by the Trustee or Paying Agent.
ARTICLE 5.
REMEDIES
SECTION 5.01
Events of
Default
. “Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of the principal of any Security of that series at its Maturity; or
(b) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(c) default in the deposit of any sinking fund payment, when and as due by the terms of
a Security of that series; or
(d) default in the performance of any covenant, agreement or condition of the Company in this
Indenture or the Securities of that series (other than a covenant, agreement or condition a default in whose performance or whose breach is specifically dealt with elsewhere in this section or which has been expressly included in this Indenture
solely for the benefit of series of Securities other than that series), and continuance of such default for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
(e) a default under any bond, debenture, note or other evidence of Indebtedness for money borrowed by the
Company, whether such Indebtedness now
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exists or shall hereafter be created, which default shall constitute a failure to pay the principal of Indebtedness having an aggregate principal amount
outstanding of at least $100.0 million when due and payable after the expiration of any applicable grace period with respect thereto or shall have resulted in such Indebtedness becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such Indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 60 days after there shall have been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such
Indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder;
provided, however
, that, subject to the provisions of Sections 6.01 and 6.02, the
Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the
Company, from any Holder or from the holder of or trustee in respect of any such Indebtedness; or
(f) the entry by a court
having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(h) the occurrence of any other event of default with respect to the Securities of that series as provided in a supplemental indenture
applicable to such series of Securities or a Board Resolution pursuant to which such series of Securities is established.
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SECTION 5.02
Acceleration of Maturity; Rescission and Annulment
. (a) If an Event of Default
(other than those specified in Sections 5.01(f) and 5.01(g)) occurs with respect to any series of Outstanding Securities and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if the Securities of any such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all the
Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default specified in Sections 5.01(f) or 5.01(g), the principal amount (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all Outstanding Securities will ipso facto become due and payable without any declaration or other
Act on the part of the Trustee or any Holder.
(b) At any time after such a declaration of acceleration with respect to the Securities of
any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article
provided
, the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of the series,
(B) the principal of any Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by such Securities,
(C) to the extent that payment of
such interest is lawful, interest upon overdue interest at the rate borne by such Securities, and
(D) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07;
and
(ii) all Events of
Default, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 5.03
Collection of Indebtedness and Suits for Enforcement by Trustee
. The Company covenants that if
(i) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(ii) default is made in the payment of the principal of any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest, at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to the Securities of any series occurs and is continuing, the Trustee may in its discretion, subject to applicable
law, proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04
Trustee May File Proofs of Claim
. In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05
Trustee May Enforce Claims Without Possession of Securities
. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
35
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07, be for the
ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06
Application of
Money Collected
. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07; and
SECOND:
To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest, respectively.
SECTION 5.07
Limitation on Suits
. No Holder of
any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
series;
(ii) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(v) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders.
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SECTION 5.08
Unconditional Right of Holders to Receive Principal and Interest
. Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and (subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09
Restoration of Rights and Remedies
. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10
Rights and Remedies Cumulative
. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11
Delay or
Omission Not Waiver
. No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12
Control by Holders
. The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series,
provided
that
(i) such direction shall not be in conflict with any rule of law or with this Indenture, and
(ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 5.13
Waiver of Past Defaults
. The Holders of not less than a majority in principal amount of the Outstanding Securities affected by any
past default hereunder (all voting together as one class) may, on behalf of the Holders of all the Securities affected by such past default, waive such past default and its consequences, subject to the payment of the amounts required under
Section 5.02(b) (i) (D), except a default
(i) in the payment of the principal of or interest on any Security, or
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(ii) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14
Undertaking for Costs
. In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, in either case in respect to the Securities, a court may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorney’s fees, against any party litigant in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 25% in principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the maturity of such Security.
SECTION 5.15
Waiver of Stay or Extension Laws
. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE 6.
THE TRUSTEE
SECTION 6.01
Certain Duties and Responsibilities
. The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
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SECTION 6.02
Notice of Defaults
. The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act;
provided, however
, that in the case of any default of the character specified in Section 5.01(d), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default.
SECTION 6.03
Certain Rights of Trustee
. Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties, and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors of the Company, or the Finance and Strategic Planning Committee of the Board of Directors of
the Company, may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its selection and the written advice
of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
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(h) the Trustee shall not be charged with knowledge of any Default or Event of Default
(except as provided in Section 5.01(e)) with respect to the Securities unless either (i) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (ii) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any other obligor on such Securities or by any Holder of such Securities and such notice references the Securities generally or the Securities of a particular series and this Indenture;
(i) the Trustee may act through agents, attorneys, custodians, or nominees and shall not be responsible for the misconduct
or negligence of any agent, attorney, custodian, or nominee appointed with due care. No Depositary shall be deemed an agent, attorney, custodian, or nominee of the Trustee and the Trustee shall not be responsible for any act or omission by any
Depositary;
(j) in no event shall the Trustee be liable for the selection of investments or for investment losses incurred
thereon. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or failure to provide timely written direction; and
(k) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
provided
that the Trustee’s conduct does not constitute negligence or bad faith.
SECTION 6.04
Trustee’s Disclaimer
. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
SECTION 6.05
May Hold Securities
. The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06
Money Held in Trust
. Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.07
Compensation and Reimbursement. The Company agrees
:
(i) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(ii) except as
otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or
40
made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee (including its directors and officers) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.07 shall survive the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee. To secure the Company’s payment obligations in this Section 6.07, the Trustee shall have a Lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal
and interest on the Securities. Such Lien shall survive the satisfaction and discharge of this Indenture. When the Trustee incurs expenses or renders services after a Default or an Event of Default specified in Sections 5.01(f) or 5.01(g) hereof
occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under U.S. Code, Title 11 or any other similar foreign, federal or state law
for the relief of debtors.
In no event shall the Trustee be liable for any indirect, special or consequential loss or damage of any kind
whatsoever, including, but not limited to, lost profits.
In no event shall the Trustee be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, natural catastrophes, riot, loss or malfunctions of utilities, or government action, which delay, restrict or
prohibit the providing of the services contemplated by this Agreement.
SECTION 6.08
Disqualification; Conflicting Interests
. If the
Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 6.09
Corporate Trustee Required; Eligibility
. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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SECTION 6.10
Resignation and Removal; Appointment of Successor
. (a) No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent,
or
(iv) a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company
by a Company Order may remove the Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security of any series for at least six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect to such series of Securities and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a
Company Order, shall promptly appoint a successor Trustee with respect to the Securities of such series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular series) . If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to
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Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to Securities of any series and each appointment of a successor Trustee with respect to Securities of such series to
all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees to be co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
43
successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No such successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 6.12
Merger, Conversion, Consolidation or Succession to Business
. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13
Eligibility; Disqualification
. This Indenture shall always have a Trustee who satisfies the requirements of the Trust Indenture Act. The Trustee shall always have a combined capital ad surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition.
SECTION 6.14
Preferential Collection of Claims Against
. If and when the Trustee shall
be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
ARTICLE 7.
HOLDERS’
LISTS AND REPORTS BY TRUSTEE
SECTION 7.01
Company to Furnish Trustee Names and Addresses of Holders
. The Company will furnish or
cause to be furnished to the Trustee
(a) with respect to the Securities of any series, not more than 15 days after each
Regular Record Date, if any, for such series, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of the Securities of such series as of such Regular Record Date, and
44
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar;
provided, however
, that no such list need be furnished so long as the Trustee is acting as Security Registrar.
SECTION 7.02
Preservation of Information; Communications to Holders
. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list
furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.03
Reports by Trustee
(a) Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such May 15, in accordance with,
and to the extent required under the Trust Indenture Act.
(b) The Trustee shall transmit to Holders such other reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 7.04
Reports by Company
. The Company
shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act;
provided
that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission. In the event the Company is not subject to Section 13 or 15(d) of the Exchange Act, it shall file with the Trustee upon request the information required to be delivered pursuant to Rule 144A(d)
(4) under the Securities Act.
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ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01
Company May Consolidate, Etc., Only
on Certain Terms
. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, and the Company shall not permit any Person to consolidate
with or merge into the Company, in a transaction in which the Company is not the surviving entity, unless:
(i) in case the
Company shall consolidate with or merge into another Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and assets of the Company shall be a corporation, limited liability company, partnership or trust, shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of
and interest, if any, on all the outstanding Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Company as a
result of such transaction as having been incurred by the Company at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be
continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article.
SECTION 8.02
Successor Substituted
. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of all or substantially all of the properties and assets of the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
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ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.01
Supplemental Indentures Without Consent of Holders
.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities of one or more series without the consent of any Holder for certain purposes, including:
(a) evidencing the succession of another Person to the Company and such Person’s assumption of the Company’s obligations under the Indenture;
(b) adding to the Company’s covenants or Events of Default;
(c) establishing forms or terms of the Securities of a particular series; and
(d) curing ambiguities and other purposes which do not adversely affect the Holders of the Outstanding Securities of a particular series in any material
respect.
Upon the request of the Company authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 6.03 hereof, the Trustee will join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02
Supplemental Indentures with Consent of Holders
. The Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights
of the Holders of each such series. Except as provided in Section 5.13, the Holders of at least a majority in principal amount of the Outstanding Securities of each series by notice to the Trustee (including consents obtained in connection with
a tender offer or exchange offer for the Securities of such series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. Upon the request of the Company authorizing the execution of any such amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities as aforesaid, and upon receipt by the Trustee of the documents described in Section 6.03 hereof, the Trustee will join with the Company in the execution
of such amended or
47
supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.
After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby, a notice briefly describing the supplemental indenture or waiver.
Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03
Limitations
Without the
consent of each Holder affected, an amendment or waiver may not (with respect to any Securities held by a non-consenting Holder):
(a)
change the Stated Maturity of the principal of, or any installment of interest on, or the redemption price of, any such Security;
(b)
reduce the principal amount of or interest on, any such Security;
(c) change currency of payment of principal of or interest on, any such
Security;
(d) impair the right to institute suit for the enforcement of any payment on any such Security;
(e) reduce the percentage in principal amount of Outstanding Securities of a particular series, the consent of whose Holders is required for modification
or amendment of the Indenture, or for waiver of compliance with certain provisions of the Indenture or waiver of certain defaults; or
(f)
modify such provisions with respect to modification and waiver.
SECTION 9.04
Execution of Supplemental Indentures
. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall
be fully protected in relying upon, in addition to the documents required by Section 1.02, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.
SECTION 9.05
Effect of Supplemental Indentures
. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
48
Any amendment or waiver once effective shall bind every Holder of each series affected by such amendment
or waiver unless it is of the type described in any of clauses (a) through (f) of Section 9.03. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
SECTION 9.06
Conformity with
Trust Indenture Act
. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
SECTION 9.07
Reference in Securities to Supplemental Indentures
. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
SECTION 9.08
Trustee Protected
. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE 10.
COVENANTS SECTION
SECTION 10.01
Payment of Principal and Interest
. The Company covenants and agrees for the benefit of each series of Securities that it will duly
and punctually pay the principal of and any premium or interest on the Securities of that series in accordance with the terms of the Securities of that series and this Indenture.
SECTION 10.02
Maintenance of Office or Agency
. The Company shall maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.
49
The Company may also from time to time designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designation;
provided, however
, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the Holders of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 10.03
Money for Security Payments to Be Held in Trust
. If
the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of or interest on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall promptly notify the Trustee of its action
or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to 10:00
a.m., New York City time, on each due date of the principal of or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company shall cause
each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest on any Security of any series and remaining unclaimed for two years after
such principal or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
50
as trustee thereof, shall thereupon cease;
provided, however
, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each New York City Business Day and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining shall be repaid to the Company.
SECTION 10.04
Statement by Officers as to Default
. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.05
Existence
. Subject to Article Eight, the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (charter and statutory) and franchises;
provided, however
, that the Company shall not be required to preserve any such right or franchise if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.06
Liens
. The Company shall not, and shall not permit any Significant Subsidiary to issue, assume, incur or guarantee any Indebtedness
secured by a Lien, except Permitted Liens, on any Principal Property or any shares of Capital Stock of any Significant Subsidiary (“Secured Debt”), without at the same time securing, or causing such Significant Subsidiary to secure, the
outstanding Securities equally and ratably with such Secured Debt, unless after giving effect thereto, the aggregate amount of all such Secured Debt, together with all Attributable Debt of the Company and its Subsidiaries in respect of Restricted
Sale/Leaseback Transactions to which the restrictions apply, would not exceed 20% of Consolidated Net Tangible Assets.
SECTION 10.07
Limitation on Restricted Sale/Leaseback Transactions
. The Company shall not, and shall not permit any Significant Subsidiary to, enter into, assume, guarantee or otherwise become liable with respect to any Restricted Sale/Leaseback
Transaction involving any Principal Property, unless immediately after giving effect thereto the sum, without duplication, of (i) the aggregate principal amount of all Secured Debt then outstanding, and (ii) the aggregate principal amount
of all Attributable Debt in respect of Restricted Sale/Leaseback Transactions to which this restriction applies, would not exceed 20% of Consolidated Net Tangible Assets.
SECTION 10.08
Reports and Delivery of Certain Information
. Whether or not required by the rules and regulations of the Commission, so long as any Securities are outstanding, the Company shall furnish to the
Holders of the Securities (i) all quarterly and annual financial information that is substantially equivalent to that which would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to
file such
51
Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and, with respect to the
annual information only, a report thereon by the Company’s certified independent accountants and (ii) all reports that are substantially equivalent to that which would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports. In addition, whether or not required by the rules and regulations of the Commission, the Company shall file a copy of all such information with the Commission for public availability (unless the Commission will
not accept such a filing) and make such information available to investors who request it in writing.
SECTION 10.09
Resale of Certain
Securities
. During the period beginning on the Issue Date and ending on the date that is two years from the Issue Date, the Company shall not, and shall not permit any of its “affiliates” (as defined under Rule 144 under the Securities
Act or any successor provision thereto) to, resell any Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them. The Trustee shall have no responsibility in respect of the Company’s
performance of its agreement in the preceding sentence.
SECTION 10.10
Book-Entry System
. If the Securities cease to trade in the
Depositary’s book-entry settlement system, the Company covenants and agrees that it shall use reasonable efforts to make such other book-entry arrangements that it determines are reasonable for the Securities.
SECTION 10.11
Waiver of Certain Covenants
. The Company may omit in any particular instance to comply with any covenant or condition set forth in
Sections 10.06 and 10.07 if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of all series affected by such waiver, all voting together as one class, shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE 11.
OPTIONAL REDEMPTION OF SECURITIES
SECTION 11.01
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article.
SECTION 11.02
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed
52
by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the tenor, if applicable, of
the Securities to be redeemed, and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
SECTION 11.03
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of
any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.
The
Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date to each Holder of Securities to be redeemed, at the address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be redeemed,
(d) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
53
(e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price,
(f) the CUSIP numbers, if any, of such Security,
(g) for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the Security
to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion, and
(h) that
the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, and shall be irrevocable. The notice of redemption mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Security shall not affect the validity of the proceeding for the
redemption of any other Security.
SECTION 11.05
Deposit of Redemption Price
.
Prior to 10:00 a.m. New York City time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date, other than any Securities called for redemption on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 3.07 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
SECTION 11.06
Securities Payable on
Redemption Date
.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest), such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however
, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.07.
54
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 11.07
Securities Redeemed in Part
. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge to the Holder, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12.
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01
Company’s Option to Effect
Defeasance or Covenant Defeasance
. The Company may elect, at its option at any time, to have Section 12.02 or Section 12.03 applied to any series of the Outstanding Securities upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution.
SECTION 12.02
Defeasance and Discharge
. Upon the
Company’s exercise of its option (if any) to have this Section applied to the Outstanding Securities of any series, the Company shall be deemed to have been discharged from its obligations with respect to such series of Securities as provided
in this Section on and after the date the conditions set forth in Section 12.04 are satisfied (hereinafter called “Defeasance”) . For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such series of Securities and this Indenture insofar as such series of Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such series of Securities to
receive, solely from the trust fund described in Section 12.04 and as more fully set forth in such Section, payments in respect of the principal of and interest on such Securities when payments are due, (b) the Company’s obligations
with respect to such series of Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to the Outstanding Securities of any series notwithstanding the prior exercise of its option (if any) to have Section 12.03 applied to such series of Securities.
55
SECTION 12.03
Covenant Defeasance
. Upon the Company’s exercise of its option (if any) to have
this Section applied to any series of the Securities, (a) the Company shall, with respect to such series of Securities, be released from its obligations under Section 10.06, Section 10.07 and Article 8 and (b) the occurrence of
any event specified in Sections 5.01(d) (with respect to any of Section 10.06, Section 10.07 or Article 8) or 5.01(e) shall be deemed not to be or result in an Event of Default, in each case with respect to such series of Securities as
provided in this Section on and after the date the conditions set forth in Section 12.04 are satisfied (hereinafter called “Covenant Defeasance”) . For this purpose, such Covenant Defeasance means that, with respect to such series of
Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such series of Securities
shall be unaffected thereby.
SECTION 12.04
Conditions to Defeasance or Covenant Defeasance
. The following shall be the conditions
to the application of Section 12.02 or Section 12.03 to the then Outstanding Securities of any series:
(a) The Company shall
irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such series of Securities, (i) money in an amount, or (ii) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each
case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and interest, if any, on such series of Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such series of Securities. As used herein,
“U.S. Government Obligation” means (x) any security which is (1) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (2) an
obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case (1) or (2), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a) (2) of the Securities Act) as custodian with respect
to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held,
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
56
(b) In the event of an election to have Section 12.02 apply to such series of Securities, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such series of Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such series of Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(c) In the event of an election to have Section 12.03 apply to such
series of Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such series of Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such series of Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not
to occur.
(d) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that such series of Securities,
if then listed on any securities exchange, will not be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such series of Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event
specified in Sections 5.01(f) and 5.01(g), at any time on or prior to the 90
th
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90
th
day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such
Act).
(g) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which the Company is bound.
(h) Such Defeasance or Covenant Defeasance shall
not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(i) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
with respect to such Defeasance or Covenant Defeasance have been complied with.
SECTION 12.05
Deposited Money and U.S. Government
Obligations to be Held in Trust; Miscellaneous Provisions
. Subject to the provisions of the last paragraph of Section 10.03,
57
all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 12.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 12.04 in respect of the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such series of Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such series of Securities, of all sums due and to become due thereon in respect of principal and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.04 with respect to the Outstanding Securities of any series which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such series of Securities.
SECTION 12.06
Reinstatement
. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with
respect to the Outstanding Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such series
of Securities from which the Company has been discharged or released pursuant to Section 12.02 or 12.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such series of Securities, until
such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 12.05 with respect to such series of Securities in accordance with this Article;
provided, however
, that if the Company makes any
payment of principal of or interest on any such Security of that series following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such series of Securities to receive such payment from
the money so held in trust.
ARTICLE 13.
SINKING FUNDS
SECTION 13.01
Applicability of Article
. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of any series if so specified as contemplated by Section 3.01 for Securities of such series.
58
The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series
is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of the Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 13.02. Each sinking fund payment shall be applied to the redemption of the Securities
of any series as provided for by the terms of the Securities of such series.
SECTION 13.02
Satisfaction of Sinking Fund Payments with
Securities
. The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been converted in accordance with their terms
or which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of the Securities of such series as provided for by the terms of such series;
provided
that the Securities
to be so credited have not been previously so credited. The Securities to be so credited shall be received, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the
process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities to be so redeemed (or at such other prices as may be specified for such Securities as
contemplated in Section 3.01), for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 13.02, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment,
provided
,
however
, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by
the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
SECTION 13.03
Redemption of Securities for Sinking Fund
. Not less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 13.02 stating that such Securities have not been previously used as a credit
against any sinking fund payment and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.03 and cause notice of the
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redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.05, 11.06 and 11.07.
This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and
year first above written.
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AVON PRODUCTS, INC.
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By
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/s/ Richard J. Valone
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Name: Richard J. Valone
Title: Vice President and
Treasurer
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee,
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By
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/s/ Annie Jaghatspanyan
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Name: Annie Jaghatspanyan
Title: Assistant Vice
President
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By
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/s/ Wanda Camacho
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Name: Wanda Camacho
Title: Vice
President
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