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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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