Exhibit 1.1
ASTRAZENECA PLC
Debt Securities
UNDERWRITING AGREEMENT
________, 200__
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As representatives of the several Underwriters
named in Schedule I to
the applicable Pricing Supplement,
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
From time to time AstraZeneca PLC, a company organized under the laws of
England (the "Company"), proposes to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and subject to the terms
and conditions stated herein, to issue and sell to the firms named in Schedule
I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein), for whom ▇.▇. ▇▇▇▇▇▇ Securities Inc. are acting as
representatives (the "Representatives"), certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and pursuant to
the Indenture, dated as of _____, 2003 (the "Indenture"), between the Company
and JPMorgan Chase Bank (the "Trustee").
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firm(s) designated as
representative(s) of the Underwriters of such securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to the firm(s) acting as
representative(s) of the Underwriters and to Underwriters who act without any
firm being designated as their representative. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form F-3 (Registration No. 333- o,
and No. 33-83774, respectively) in respect of the Securities have been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statements and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectus contained therein,
have been declared effective by the Commission in such form; and no stop
order suspending the effectiveness of either registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Securities
Act of l933, as amended (the "Act"), being hereinafter called a
"Preliminary Prospectus"); the various parts of each registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in each registration statement at
the time such part of the registration statement became effective but
excluding Form T-1 and if applicable, including information contained in
the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act, each as amended at the time such part of the
registration statement became effective being hereinafter called the
"Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 6
of Form F-3 under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
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Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of
the date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects, to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) The consolidated financial statements and schedules, if any, of
the Company incorporated by reference in or filed with and as a part of
the Registration Statement and the Prospectus present fairly, in all
material respects, the consolidated
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financial position as of the respective dates and the consolidated results
of operations and cash flows for the respective periods covered thereby of
the Company in conformity with applicable generally accepted accounting
principles applied on a consistent basis throughout the periods involved;
(e) Since the latest date as of which information is given in the
Registration Statement and the Prospectus there has not been any material
change in the consolidated shareholders' equity or consolidated long-term
debt of the Company and its subsidiaries taken as a whole, or any material
adverse change, or any development reasonably likely to result in a
prospective material adverse change in or affecting the financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, otherwise than as set forth in the
Prospectus;
(f) To the best of the Company's knowledge, after due inquiry, and
other than as set forth in the Prospectus, there are no material legal or
governmental or regulatory proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject that are required to
be described in the Registration Statement or the Prospectus and are not
so described and there are no statutes or regulations that are required to
be described in the Registration Statement or the Prospectus and are not
so described;
(g) The Designated Securities have been duly authorized and, when
executed and authenticated in accordance with the Indenture and delivered
to and paid for by the Underwriters, will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to the effects
of applicable bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and equitable principles of
general applicability; the Indenture has been duly qualified under the
Trust Indenture Act; and the Designated Securities conform in all material
respects to the description thereof contained in the Prospectus as amended
or supplemented.
(h) The issue and sale of the Designated Securities and the
compliance by the Company with the Indenture, this Agreement and the
Pricing Agreement relating to the Designated Securities and the
consummation by the Company of the transactions contemplated herein and
therein will not contravene (x) any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement or other similar
agreement or instrument to which the Company is a party or by which the
Company is bound, or (y) any statute of the United Kingdom or any
political subdivision thereof, or any order, rule or regulation known to
the Company of any court or of any governmental agency or body in the
United States or the United Kingdom or any political subdivision thereof,
except in the case of clauses (x) and (y) above for such contraventions
which would not affect the validity or binding nature of the Designated
Securities or have a material adverse effect on the financial positions,
shareholders' equity or results of operations of the Company and its
consolidated subsidiaries considered as a whole;
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(i) No consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body
described in (h) above is required for the issue and sale of the
Designated Securities by the Company in the manner contemplated herein or
the consummation of the other transactions contemplated by this Agreement,
the Pricing Agreement or the Indenture;
(j) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the 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;
(k) KPMG Audit Plc are independent public accountants with respect to
the Company as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented. Each Underwriter represents and agrees
that (a) in relation to Designated Securities which have a maturity of one year
or more and which are to be admitted to the Official List of the U.K. Listing
Authority, it has not offered or sold and will not offer or sell any Designated
Securities to persons in the United Kingdom prior to admission of such
Designated Securities to listing in accordance with Part VI of the Financial
Services and Markets ▇▇▇ ▇▇▇▇ (the "FSMA"), except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the FSMA, (b) in relation to
Designated Securities which have a maturity of one year or more and which are
not to be admitted to the Official List of the U.K. Listing Authority, it has
not offered or sold and will not offer or sell any Designated Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995 or the FSMA, (c) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it
in relation to the Designated Securities in, from or otherwise involving the
United Kingdom and (d) it will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (with the meaning of
Section 21 of the FSMA) received by it in connection with the issue and sale of
such Designated Securities in circumstances in which Section 21(1) of the FSMA
does not apply to the Company.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the
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Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter at the office of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, against payment by such
Underwriter or on its behalf of the purchase price therefor in same day funds,
payable to the order of the Company in the funds specified in such Pricing
Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities. The Securities will be delivered by
the Company to the Representatives in the form of one or more global
Securities, representing all of the Securities, which will be registered in the
name of a nominee for The Depository Trust Company ("DTC") and deposited on
behalf of the Underwriters with Cede & Co. as custodian for DTC, for credit to
the respective participant accounts of the Underwriters unless otherwise
directed by you. Such global Securities will be made available for checking at
least twenty-four hours prior to the Time of Delivery through the facilities of
DTC.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare in consultation with the Representatives the
Prospectus, as amended and supplemented in relation to the applicable
Designated Securities, in a form approved by the Representatives, which
approval the Representatives agree they will not unreasonably withhold,
and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities or, if applicable, such earlier time
as may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery without prior consultation
with the Representatives for such Securities; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to advise
the Representatives, promptly after the Company receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension of
the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
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prospectus relating to the Securities or suspending any such
qualification, to use promptly its reasonable best efforts to obtain its
withdrawal;
(b) Promptly from time to time to use its reasonable best efforts to
qualify such Securities for offering and sale under the securities laws of
such jurisdictions as the Representatives may reasonably request and to
pay all expenses (including reasonable fees and disbursements of counsel)
in connection with such qualification and in connection with the
determination of the eligibility of such Securities for investment under
the laws of such jurisdictions as the Representatives may designate and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction or to take any other action which would subject it to
service of process in suits in any jurisdiction other than those arising
out of the offering or sale of the Designated Securities in such
jurisdiction;
(c) To furnish the Underwriters, without charge, with a copy of the
Registration Statement, with copies of the Prospectus as amended or
supplemented, including the exhibits and materials, if any, incorporated
by reference therein, in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Designated Securities and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an 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 when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; provided, however, if any
Underwriter is required to deliver a prospectus in connection with sales
of any of the Designated Securities at any time nine months or more after
the time of issue of the Prospectus, upon their request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many
copies as the Representatives may request of an amended or supplemented
Prospectus complying with Section 10(a) (3) of the Act;
(d) To make generally available to the Company's security holders and
to the Representatives as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement, an earnings statement of the
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Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of Delivery
and which are denominated in U.S. dollars and substantially similar to
such Designated Securities, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) except as provided in
the proviso contained in Section 5(c) hereof, the fees, disbursements and
expenses of counsel and accountants of the Company in connection with the
registration of the Designated Securities under the Act and the qualification
of the Indenture under the Trust Indenture Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Designated Securities;
(iii) all, expenses in connection with the qualification of the Designated
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees, disbursements and expenses
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Designated Securities; (v)
any filing fees incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Designated Securities;
(vi) the cost of preparing the Securities and of the delivery of the Designated
Securities to the Underwriters; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and (viii) except
as provided in the proviso contained in Section 5(c) hereof all reasonable
other costs and expenses incident to the performance of their obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Designated Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements
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of the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the time of Delivery
for such Designated Securities, true and correct in all material respects, the
condition that the Company shall have performed all, of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the
Underwriters, shall have furnished to the Representatives such opinion or
opinions, dated the Time of Delivery for such Designated Securities, with
respect to the validity of the Indenture, the Designated Securities, the
Registration Statement, the Prospectus as amended or supplemented 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 (such counsel
being entitled to state that they have assumed that any document referred
to in their opinion and executed by the Company has been duly authorized,
executed and delivered pursuant to English law and, as to all matters of
English law, their opinion is given in reliance upon, and is subject to
the qualifications set forth in, the opinion of the Counsel for the
Company required by subsection (c) of this Section 7);
(c) Counsel for the Company shall have furnished to the
Representatives a written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory to
the Representatives (such counsel being entitled to state that such
counsel has made no investigation of the laws of any country other than
England and that such counsel's opinion is confined to matters of English
law and, as to all matters governed by the laws of the United States and
the State of New York, such opinion is given in reliance upon, and is
subject to the qualifications set forth in, the opinion required by
subsection (e) of this Section 7), substantially to the effect that:
(i) The Company has been duly incorporated under the Companies
▇▇▇ ▇▇▇▇, as amended, and is an existing company with the requisite
power and authority to own its properties and assets and conduct its
business as described in the Prospectus as amended or supplemented;
(ii) No order or resolution for the winding up of the Company or
any of its material subsidiaries and no order for the administration
of the Company or any of its material subsidiaries has been made;
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(iii) This Agreement and the applicable Pricing Agreement have
been duly authorized, executed and delivered by the Company and the
consent to service of process contained in Section 15 of this
Agreement is a valid and binding agreement of the Company;
(iv) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Indenture, this Agreement and the Pricing Agreement relating to the
Designated Securities and the consummation by the Company of the
transactions contemplated herein and therein will not contravene (x)
the provisions of the Company's Memorandum and Articles of
Association, or (y) any statute of the United Kingdom or any
political subdivision thereof, or any order, rule or regulation known
to such Solicitor of any court or of any governmental agency or body
in the United Kingdom or any political subdivision thereof, except in
the case of clause (y) above for such contraventions which would not
affect the validity or binding nature of the Designated Securities or
have a material adverse effect on the financial position,
shareholders' equity or results of operations of the Company and its
consolidated subsidiaries considered as a whole;
(v) No consent, approval, authorization, order, registration or
qualification of or with any such court or any such governmental
agency or body described in (v) above is required for the issue and
sale of the Designated Securities by the Company in the manner
contemplated herein or the consummation of the other transactions
contemplated by this Agreement , the Pricing Agreement or the
Indenture;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
obligation of the Company; no taxes or recording fees are required to
be paid in the United Kingdom with respect to the execution of the
Indenture in the manner contemplated herein; and
(vii) The statements in the Prospectus set forth in the last
sentence under the caption "Enforcement of Certain Civil Liabilities"
and contained under the caption "United Kingdom Taxation" with
respect to matters of English law are true and correct in all
material respects.
In giving the opinion set forth in subparagraphs (iii), (iv), (v),
and (vi) of this subsection (c), such counsel may state that in the case
of default by the Company in the performance of its obligations under this
Agreement or any other agreement referred to in such opinion, any
proceedings in an English court to pursue remedies would be subject to the
following: (a) a judgment rendered by a court outside the United Kingdom
would not be enforced by the English courts without a retrial or
re-examination if such judgment was obtained by fraud or in a manner
opposed to natural justice or if the enforcement thereof were contrary to
United Kingdom public policy; and (b) in any proceedings to enforce in an
English court a foreign judgment it is open to the defendant to raise any
counterclaim which he could have
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brought if the action had originally been brought in England unless the
subject of the counterclaim was in issue and decided in the foreign
proceedings; and in giving the opinion in subparagraph (vii) above, such
counsel may assume that the Designated Securities conform to the specimen
thereof examined by such counsel.
(d) The Solicitor for the Company shall have furnished to the
Representatives a written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory to
the Representatives (such Solicitor being entitled to state that he has
made no investigation of the laws of any country other than England and
that his opinion is confined to matters of English law and, as to all
matters governed by the laws of the United States and the State of New
York, such opinion is given in reliance upon, and is subject to the
qualifications set forth in, the opinion required by subsection (e) of
this Section 7), substantially to the effect that:
(i) To the best of such Solicitor's knowledge, after due
inquiry, and other than as set forth in the Prospectus, there are no
material legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
that are required to be described in the Registration Statement or
the Prospectus and are not so described and there are no statutes or
regulations that are required to be described in the Registration
Statement or the Prospectus and are not so described; and
(ii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Indenture, this Agreement and the Pricing Agreement relating to the
Designated Securities and the consummation by the Company of the
transactions contemplated herein and therein will not contravene any
of the terms or provisions of any indenture, mortgage, deed of trust,
loan agreement or other similar agreement or instrument known to such
Solicitor to which the Company is a party or by which the Company is
bound, except for such contraventions which would not affect the
validity or binding nature of the Designated Securities or have a
material adverse effect on the financial position, shareholders'
equity or results of operations of the Company and its consolidated
subsidiaries considered as a whole.
(e) ▇▇▇▇▇ ▇▇▇▇ & Wardwe1l, United States counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
the Time of Delivery for such Designated Securities, in form and substance
reasonably satisfactory to the Representatives (such counsel being
entitled to state that they have assumed that any document referred to in
their opinion and executed by the Company has been duly authorized,
executed and delivered pursuant to Eng1ish law and, as to all matters
governed by the laws of England, their opinion is given in reliance upon,
and is subject to the same qualifications set forth in, the opinion
required by subsection (c) of this Section 7), substantially to the effect
that:
11
(i) This Agreement and the Pricing Agreement relating to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(ii) The Designated Securities have been duly authorized and,
when executed and authenticated in accordance with the Indenture and
delivered to and paid for by the Underwriters, will constitute valid
and binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized,
executed and delivered by the Company and assuming that the Indenture
has been duly authorized, executed and delivered by the Trustee the
Indenture will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms subject to the
effects of applicable bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally and
equitable principles of general applicability; the Indenture has been
duly qualified under the Trust Indenture Act; no taxes or recording
fees are required to be paid in the United States with respect to the
issuance of the Designated Securities in the manner contemplated
herein, except such as have been paid;
(iii) The Designated Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented;
(iv) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the Pricing
Agreement relating to the Designated Securities and the consummation
by the Company of the transactions herein and therein contemplated
will not contravene any statute of the United States or the State of
New York or any order, rule or regulation known to such counsel of
any court or governmental agency or body of the United States or the
State of New York, except for such contraventions which would not
affect the validity or binding nature of the Designated Securities or
have a material adverse effect on the financial position,
shareholders' equity or results of operations of the Company and its
consolidated subsidiaries considered as a whole;
(v) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body described in (iv) above is required for the issue and sale of
the Designated Securities by the Company in the manner contemplated
herein or the consummation by the Company of the other transactions
contemplated by this Agreement, the Pricing Agreement, the Indenture
or the Securities, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
12
(vi) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof as described in the 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;
(vii) The documents incorporated by reference in the Prospectus
(except as to the financial statements and supporting schedules
included or incorporated by reference therein, other financial or
statistical data included or incorporated by reference therein and
including, but without limit to the data included or incorporated by
reference therein relating to market size and market shares in the
pharmaceutical industry as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange
Act; and
(viii) Such counsel (1) is of the opinion that the Registration
Statement, at the time it became effective, and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities (except as to the financial statements and
supporting schedules included or incorporated by reference therein,
other financial or statistical data included or incorporated by
reference therein and including, but without limit to the data
included or incorporated by reference therein relating to market size
and market shares in the pharmaceutical industry, as to which such
counsel need express no opinion, and except for that part of the
Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-l) of the Trustee) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and (2) has no reason to believe that (except as
aforesaid), the Registration Statement (including the documents
incorporated by reference therein), at the time it became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading and (3) has no reason to
believe that the Prospectus, as of its date (except as aforesaid),
and the Prospectus as amended or supplemented, if applicable, prior
to the Time of Delivery (except as aforesaid) contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading.
In giving the opinions set forth in subparagraphs (vii) and (viii) of this
subsection (e) such counsel may state that such opinion is based on their
participation in the preparation of the Registration Statement and the
Prospectus and a review of the contents thereof but without independent check
or verification except for the matters referred to in subparagraph (iii) of
this subsection (e). Such opinion may also state that it is confined to matters
of the laws of the United States of America and the State of New York. Such
opinion may also state that such
13
counsel expresses no opinion or belief as to the statements of English law
or descriptions of legislation referred to in subparagraph (vii) of
paragraph (c) of this Section 7;
(f) On the date of an applicable Pricing Agreement and at the Time of
Delivery for such Designated Securities, KPMG Audit plc, the independent
accountants of the Company who have certified the financial statements of
the Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement, shall have furnished to the
Representatives a letter or letters, dated as of each such date and in
form and substance satisfactory to the Representatives, 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 the Registration Statement
and the Prospectus as amended or supplemented and as to such other matters
as the Representatives may reasonably request; and
(g) The Company shall have furnished or caused to be furnished to the
Representatives a certificate or certificates, dated the Time of Delivery
for the Designated Securities, of officers of the Company satisfactory to
the Representatives as to the accuracy of the representations and
warranties in all material respects of the Company in this Agreement and
the Pricing Agreement at and as of the Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed prior to such Time of Delivery, and as to the matters set forth
in Sections 7(a) and 11(i) hereof.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the prospectus as amended or
supplemented (if used within the period set forth in paragraph (c) of Section 5
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or are based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the foregoing indemnity with respect to
the Preliminary Prospectuses, Prospectuses
14
or any Prospectuses as amended or supplemented shall not inure to the benefit
of any Underwriter of Designated Securities (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased Designated Securities if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus, Prospectus or any Prospectus as amended or supplemented
is eliminated or remedied in the Prospectus as most recently amended or
supplemented (copies of which amendments and supplements were delivered to the
Representatives) and a copy of the Prospectus as most recently amended or
supplemented had not been furnished to such person at or prior to the written
confirmation of the sale of such Designated Securities to such person.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
Prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other Prospectus relating to the Securities, or any
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will, reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action (including any
governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
promptly notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. It is
understood that the
15
indemnifying party shall not, in connection with any action or related actions
in the same jurisdiction, be liable for the reasonable fees and expenses of
more than one separate firm for all such indemnified parties. The indemnifying
party shall not be liable for any settlement of any action effected without its
written consent but if settled with such consent, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of the
Designated Securities to which loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault 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 on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) 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
which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
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 subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be
16
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act and to the Underwriters'
affiliates, directors and officers; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company, the duly authorized
representative of the Company in the United States, and to each person, if any,
who controls the Company within the meaning of the Act or the Exchange Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that the Representatives have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives, the Company as provided in subsection (a) above, the aggregate
principal amount of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under
17
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of the Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company,
the duly authorized representative of the Company in the United States or any
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Designated Securities.
11. Any Pricing Agreement shall be subject to termination in the absolute
discretion of the Representatives, after consultation with the Company, if,
since the respective dates as of which information is given in the Prospectus,
as amended or supplemented relating to Designated Securities, in the case of
clause (i) below, or subsequent to the execution and delivery of the Pricing
Agreement and prior to the Time of Delivery of the Designated Securities, in
the case of clauses (ii) through (vii) below, (i) there shall have been a
material adverse change, or any development which in the reasonable judgment of
the Company will result in a material adverse change, in the business,
properties or financial condition of the Company and its consolidated
subsidiaries considered as a whole, otherwise than as set forth or contemplated
in the Prospectus, as amended or supplemented relating to such Securities; (ii)
there shall have occurred a downgrading in the rating accorded the Company's
senior debt securities by ▇▇▇▇▇'▇ Investor Services, Inc. ("Moody's") or
Standard & Poor's Corporation ("S&P") or, in the event that the Company's
senior debt securities are not rated by either Moody's or S&P, by another
"nationally recognized statistical rating organization" as such term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities Act;
(iii) no such organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its rating
of the Securities or of any other senior debt securities or preferred stock of
or guaranteed by the Company (other than an announcement with positive
implications of a possible upgrading); (iv) there shall have been a change or
development involving a prospective change in United States or United Kingdom
taxation affecting the Designated Securities or the
18
imposition of exchange controls by the United States or the United Kingdom
affecting the Designated Securities, otherwise than as set forth or
contemplated in the Prospectus; (v) trading in securities generally on the New
York Stock Exchange or the London Stock Exchange or any other exchange where
the Designated Securities are listed or intended to be listed shall have been
suspended or materially limited; (vi) a general moratorium on commercial
banking activities in the State of New York shall have been declared by either
Federal or New York State authorities or a general moratorium on commercial
banking activities in the United Kingdom shall have been declared by
authorities in the United Kingdom; (vii) there shall have occurred the outbreak
or escalation of hostilities involving the United States or the United Kingdom
or the declaration by the United States or the United Kingdom of a national
emergency or war; or (viii) there shall have occurred any change in financial
markets or other national or international calamity or crisis of such magnitude
and severity in its effect on the financial markets, as, in any such case
described in clauses (i) through (viii) above, in the judgment of the
Representatives, after consultation with the Company, to make it impracticable
to proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the Prospectus, as
amended or supplemented relating to such Securities.
12. If any Pricing Agreement shall be terminated by the Underwriters of
the Designated Securities pursuant to clause (i) of Section 11 hereof or
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 the Pricing Agreement, or if for
any reason the Company shall be unable to perform its obligations under the
Pricing Agreement, the Company will reimburse the Underwriters of such
Securities for all out-of-pocket expenses (including the fees and disbursements
of counsel) reasonably incurred by the Underwriters in connection with the
Designated Securities.
Notwithstanding the termination of any Pricing Agreement the provisions of
Section 8, 9 and 10 hereof shall remain in effect.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Investment Grade Syndicate Desk,
Tel: ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇; and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to its address set forth in
the Registration Statement, Attention: Secretary, or such other address as the
Company shall notify in writing to ▇.▇. ▇▇▇▇▇▇ Securities Inc.; provided,
however, that any notice to an Underwriter of Designated Securities pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
19
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Designated
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. The Company hereby appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its authorized agent (the "Authorized Agent") upon
which process may be served in any action based on this Agreement which may be
instituted in any State or Federal court in The City, County and State of New
York by any Underwriter and expressly accepts the jurisdiction of any such
court in respect of such action. Such appointment shall be irrevocable so long
as any of the Designated Securities remain outstanding unless and until a
successor Authorized Agent shall be appointed and such successor shall accept
such appointment. The Company will take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment or appointments in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company (mailed or delivered as aforesaid) shall be deemed,
in every respect, effective service of process upon the Company.
Notwithstanding the foregoing, any action based on this Agreement or any
Pricing Agreement may be instituted by any Underwriter against the Company in
any competent court in the United Kingdom.
16. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
17. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
ASTRAZENECA PLC
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof:
---------------------------------
(▇.▇. ▇▇▇▇▇▇ Securities Inc.)
On behalf of each of the Underwriters
21
ANNEX I
Pricing Agreement
▇.▇. ▇▇▇▇▇▇ Securities Inc.
[Name(s) of Co-Representative(s), (1)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[▇.▇. ▇▇▇▇▇▇ contact details]
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
__________, 200___
Ladies and Gentlemen:
AstraZeneca PLC (the "Company") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated ___________
__, 200o (the "Underwriting Agreement"), between the Company on the one hand
and ▇.▇. ▇▇▇▇▇▇ Securities Inc. [and (names of Co-Representative(s) named
therein)] on the other hand, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment of the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from
22
ANNEX I
the Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [One for the Issuer and [each of] the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
ASTRAZENECA PLC
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
-----------------------------------
(▇.▇. ▇▇▇▇▇▇ Securities Inc.)
On behalf of each of the Underwriters
23
SCHEDULE I
Principal
Amount of
Designated
Securities to
be Purchased
-------------
▇.▇. ▇▇▇▇▇▇ Securities Inc..................................... $
[Name(s) of Co-Representative(s) (1)]..........................
[Names of other Underwriters]..................................
-----------
Total..................................................... $
===========
24
SCHEDULE II
Title of Designated Securities:
[___%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount
[$]
Price to Public:
% of the principal amount of the Designated Securities,
plus accrued interest from ____________ to __________
[and accrued amortization, if any, from __________ to _________________]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities,
plus accrued interest from ____________ to __________
[and accrued amortization, if any, from __________ to _________________]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture dated _________, 200o, between the Company and
[JPMorgan Chase Bank]
Maturity:
Interest Rate:
[___%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Date:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
25
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$]_________ or an integral multiple thereof,
[on or after __________, ____________ at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or before
_______, ____ %, and if] redeemed during the 12- month period beginning
_____________,
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after ______, __, at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption].
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$]__________ principal amount of Designated Securities on
____________ in each of the years _____ through _____ at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$]_________ principal amount of Designated Securities in the
years _____ through _____ at 100% of their principal amount plus accrued
interest].
[If Securities are extendable debt Securities, insert ---]
Extendable provisions:
Securities are repayable on ________, ___ [insert day and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be ___%, and thereafter annual interest
rate will be adjusted on __________, __ and ______, __ to a rate not less
than ___% of the effective annual interest rate on U.S. Treasury
26
obligations with ____-year maturities as of the [insert date 15 days prior
to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities insert ---]
Floating Rate provisions:
Initial annual interest rate will be ___% through ___[and thereafter
will be adjusted [monthly] [on each _________, _________, ________ and
__________] [to an annual rate of ____% above the average rate for
____-year [month] [securities] [certificates of deposit] issued by
________ and ________ [insert names of banks].] [and the annual interest
rate [thereafter] [from _________ through _________] will be the interest
yield equivalent of the weekly average per annum market discount rate for
____-month Treasury bills plus ___% of Interest Differential (the excess,
if any, of (i) then currently weekly average per annum secondary market
yield for ___-month certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per annum market discount
rate for ___-month Treasury bills); [from _________ and thereafter the
rate will be the then current interest yield equivalent plus ___% of
Interest Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location for Delivery of Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*
---------
* A description of particular tax, accounting or other unusual features
(such as the addition of event risk language) of the Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
27
