Exhibit 1.1
AVON PRODUCTS,
INC.
(a New York
corporation)
$500,000,000
5.125% Notes due
2011
UNDERWRITING
AGREEMENT
dated January 5,
2006
Banc of America Securities
LLC
Citicorp Global Markets Inc.
AVON PRODUCTS,
INC.
(a New York
corporation)
5.125% Notes due
2011
UNDERWRITING
AGREEMENT
January 5, 2006
BANC OF AMERICA
SECURITIES LLC
40 West 57 th Street
New York, New York 10019
CITIGROUP
GLOBAL MARKETS INC.
390 Greenwich Street
New York, New York 10019
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 $500,000,000 aggregate principal amount of the
Company’s 5.125% Notes due 2011 (the “Notes”).
Banc of America Securities LLC and Citigroup Global Markets Inc.
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 May 13, 2003 (the
“Indenture”), between the Company and JPMorgan Chase
Bank, N.A., as trustee (the “Trustee”).
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No.
333-103432) for the registration of securities, including the
Notes, under the Securities Act of 1933, as amended (the
“1933 Act”), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the “1933 Act
Regulations”). Such registration statement has been declared
effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the
“1939 Act”). The Company has not filed any
post-effective amendments to the Registration Statement as of the
date of this Agreement. Such registration statement, including the
required information deemed to be a part thereof pursuant to Rule
430B(f) of the 1933 Act Regulations (the “Rule 430B
Information”), is referred to herein as the
“Registration Statement”; the prospectus included in
such registration statement is referred to herein as the
“Basic Prospectus”; and the Basic Prospectus, as
supplemented by the final prospectus supplement relating to the
offering of the Notes, in the forms first furnished to the
Underwriters by the Company for use in connection with the offering
of the Notes, is referred to herein as the
“Prospectus”; provided , however ,
that
all references
to the “Registration Statement” and the
“Prospectus” shall also be deemed to include all
documents incorporated therein by reference filed pursuant to the
Securities Exchange Act of 1934, as amended (the “1934
Act”), prior to 2:30 p.m. (Eastern time on the date of this
Agreement) (the “Initial Sale Time”); provided
further that if the Company files a registration statement with
the Commission pursuant to Rule 462(b) of the 1933 Act Regulations
(the “Rule 462(b) Registration Statement”), then all
references to “Registration Statement” shall also be
deemed to include the Rule 462(b) Registration Statement. A
“preliminary prospectus” shall be deemed to refer to
the Basic Prospectus, as supplemented by any prospectus supplement
that omitted, as applicable, the Rule 430B Information or other
information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the
initial delivery of the Prospectus to the Underwriters by the
Company. The term “Pricing Prospectus” shall mean the
preliminary prospectus, as amended or supplemented, relating to the
Notes immediately prior to the Initial Sale Time, including any
documents incorporated by reference therein at the Initial Sale
Time. For purposes of this Agreement, all references to the
Registration Statement, the Prospectus, the Pricing Prospectus or
the preliminary prospectus, or to any amendment or supplement to
any of the foregoing shall be deemed to include any copy filed with
the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system (“EDGAR”).
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 Prospectus, the Pricing Prospectus or
any preliminary 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 Prospectus, the Pricing Prospectus or
such preliminary prospectus, as the case may be, prior to the
Initial Sale Time, and all references in this Agreement to
amendments or supplements to the Registration Statement, the
Prospectus, the Pricing Prospectus or any preliminary prospectus
shall be deemed to include the filing of any document under the
1934 Act which is incorporated by reference in the Registration
Statement, the Prospectus, the Pricing Prospectus or such
preliminary prospectus, as the case may be, after the Initial Sale
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 1933 Act. The
Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose or are pending before or threatened by the
Commission.
The Registration
Statement complies, and as amended or supplemented, if applicable,
will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations. Each part of the
Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a
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material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to (A) statements or omissions
in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use therein or (B) that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the 1939
Act, of the Trustee.
The Pricing
Prospectus filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act
Regulations.
(2)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the Pricing Prospectus and the 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
1934 Act and the rules and regulations of the Commission thereunder
(the “1934 Act Regulations”).
(3) Disclosure
Package . The term “Disclosure Package” shall mean
(i) the Pricing Prospectus and (ii) the issuer free writing
prospectuses as defined in Rule 433 of the 1933 Act attached as
Schedule B hereto (the “Issuer Free Writing
Prospectus”). As of Initial Sale Time, the Disclosure Package
did 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 Not
Ineligible Issuer . As of the date of the execution and
delivery of this Agreement (with such date being used as the
determination date for purposes of this clause (4)), the Company
was not and is not an Ineligible Issuer (as defined in Rule 405 of
the 1933 Act).
(5) Issuer Free
Writing Prospectus . The Issuer Free Writing Prospectus does
not include any information that conflicts with the information
contained in the Registration Statement or the Prospectus. 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.
(6)
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
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connection with
the offering and sale of the Notes other than the Pricing
Prospectus, the Prospectus and the Issuer Free Writing
Prospectus.
(7) 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 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.
(8) 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 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.
(9)
Authorization of this Agreement . This Agreement has been
duly authorized, executed and delivered by the Company.
(10) 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.
(11) 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.
(12) No
Conflicts, No Required Consents . The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this
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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.
(13) 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).
(14)
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 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 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.
(15) Absence of
Proceeding . 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.
(16) 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
Prospectus, will not be, required to register as an
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“investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(17) 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.
(18)
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.
(19)
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 Securities Act.
(20)
Underwriters Not Fiduciaries . The Company hereby
acknowledges that (a) each of the Underwriters is acting as
principal and not as an agent or fiduciary of the Company and (b)
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).
(21)
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.
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(22) 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.
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 the
aggregate principal amount of Notes set forth opposite their names
on Schedule A at a purchase price of 99.272% of the principal
amount thereof payable on the Closing Date.
(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 January 10, 2006, 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”).
(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
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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
respectiv
