As filed with the Securities and Exchange Commission on
March 4, 2008
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form F-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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GlaxoSmithKline plc
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GlaxoSmithKline Capital Inc.
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GlaxoSmithKline Capital plc
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(
Exact name of Registrant as
specified in its charter
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(
Exact name of Registrant as
specified in its charter
)
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(Exact name of Registrant as
specified in its charter
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England and Wales
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Delaware
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England and Wales
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(
State or other jurisdiction
of
incorporation or organization
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(
State or other jurisdiction
of
incorporation or organization
)
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(
State or other jurisdiction
of
incorporation or organization
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Not Applicable
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51-0332587
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Not Applicable
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(
I.R.S. Employer Identification
No
.)
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(
I.R.S. Employer Identification
No
.)
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(
I.R.S. Employer Identification
No
.)
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980 Great West Road, Brentford
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1105 North Market Street, Suite 622
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980 Great West Road, Brentford
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Middlesex TW8 9GS, England
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Wilmington, Delaware 19801
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Middlesex TW8 9GS, England
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+44 (0) 20 8047 5000
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+1 (302) 651-8319
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+44 (0) 20 8047 5000
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(
Address and telephone number
of
Registrants principal executive offices
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(
Address and telephone number
of
Registrants principal executive offices
)
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(
Address and telephone number
of
Registrants principal executive offices)
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GlaxoSmithKline Capital Inc.
1105 North Market Street,
Suite 622
Wilmington, Delaware 19801
+1
(302) 479-8319
(Name, address and telephone
number of
agent for service)
Copies to:
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Donald F. Parman/Carol G. Ashe
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Sebastian R. Sperber, Esq.
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Robert J. Donatucci, Esq.
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Vice Presidents, Legal Operations,
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Cleary Gottlieb Steen & Hamilton LLP
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Sidley Austin LLP
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Corporate Functions U.S.
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55 Basinghall Street
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787 7th Avenue
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GlaxoSmithKline plc
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London EC2V 5EH, England
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New York, New York 10019
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One Franklin Plaza, (FP 2355)
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+44 (0) 20 7614 2200
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+1 (212) 839-5340
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Philadelphia, PA 19102
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+1
(215) 751-4172
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Approximate date of commencement of proposed sale to the
public:
From time to time after this Registration
Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is filed as a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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CALCULATION OF REGISTRATION FEE
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Amount to be Registered/Proposed Maximum
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Aggregate Offering Price per Unit/Proposed
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Amount of
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Title of Each Class of Securities to be Registered
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Maximum Aggregate Offering Price
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Registration Fee
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Debt securities of GlaxoSmithKline plc
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Indeterminate
(1)
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$0
(1)
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Guaranteed debt securities of GlaxoSmithKline Capital Inc.
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Guaranteed debt securities of GlaxoSmithKline Capital plc.
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Guarantees of GlaxoSmithKline plc in connection with guaranteed
debt
securities
(2)
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(1)
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The Registrants are registering an
indeterminate amount of the securities of each identified class
for offer from time to time at indeterminate offering prices. In
accordance with Rules 456(b) and 457(r), the Registrants
are deferring payment of all of the registration fee except,
pursuant to Rule 457(p), for $202,250 that has already been
paid with respect to $2,500,000,000 aggregate initial offering
price of securities that were previously registered by
GlaxoSmithKline plc, GlaxoSmithKline Capital Inc. and
GlaxoSmithKline Capital plc pursuant to registration statement
nos. 333-104121, 333-104121-01 and 333-104121-02, which were
initially filed March 28, 2003, and were not sold
thereunder.
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(2)
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No separate consideration will be
received for the guarantees in connection with the guaranteed
debt securities. Pursuant to Rule 457(n) under the
Securities Act, no separate fee is payable with respect to the
guarantees.
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PROSPECTUS
GlaxoSmithKline plc
Debt Securities
GlaxoSmithKline Capital
Inc.
Debt Securities
Fully and Unconditionally Guaranteed by
GlaxoSmithKline plc
GlaxoSmithKline Capital
plc
Debt Securities
Fully and Unconditionally Guaranteed by
GlaxoSmithKline plc
We may offer debt securities from time to time in one or more
series through this prospectus. The debt securities will be
issued by GlaxoSmithKline plc or through one of our finance
subsidiaries, GlaxoSmithKline Capital Inc. or GlaxoSmithKline
Capital plc. Any debt securities issued through GlaxoSmithKline
Capital Inc. and GlaxoSmithKline Capital plc will be fully and
unconditionally guaranteed by GlaxoSmithKline plc.
We will provide the specific terms of the debt securities we
offer in one or more supplements to this prospectus. You should
read this prospectus and any related prospectus supplement
carefully before you invest. Our debt securities may be
denominated in U.S. dollars or in any other currencies,
currency units or composite currencies as we may designate.
We may offer these debt securities through underwriters, agents
or dealers or directly to institutional purchasers. The
accompanying prospectus supplement will set forth the names of
any underwriters or agents and any applicable commissions or
discounts. The prospectus supplement will also set forth the
proceeds we will receive from any sale of debt securities.
Neither the Securities and Exchange Commission nor any state
securities commission nor any other regulatory body has approved
or disapproved of these securities or determined if this
prospectus or any accompanying prospectus supplement is truthful
or complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March 4, 2008.
Table of
Contents
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Page
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You should rely only on the information incorporated by
reference or provided in this prospectus or any prospectus
supplement. We have not authorized anyone else to provide you
with different information. You should not assume that the
information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of
these documents. We are not making an offer of these securities
in any state or jurisdiction where the offer is not permitted.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
using a shelf registration process. Under this shelf
process, we may sell any combination of the debt securities
described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the
debt securities we may offer. Each time we sell securities, we
will provide a prospectus supplement, attached to the front of
this prospectus, that will contain specific information about
the terms of that offering. Those terms may vary from the terms
described in this prospectus. As a result, the summary
description of the debt securities in this prospectus is subject
to, and qualified by reference to, the descriptions of the
particular terms of any debt securities contained in any related
prospectus supplement. The prospectus supplement may also add,
update or change information contained in this prospectus. You
should read both this prospectus and any related prospectus
supplement together with the additional information described
under the headings Where You Can Find More
Information and Incorporation of Certain Documents
by Reference.
This prospectus does not include all of the information
contained in the registration statement of which it is a part.
We refer you to the registration statement and the related
exhibits for a more complete understanding of our debt
securities and the shelf registration process.
As used in this prospectus, the term finance
subsidiaries refers to GlaxoSmithKline Capital Inc., a
Delaware corporation, and GlaxoSmithKline Capital plc, an
English public limited company. Any debt securities issued by
one of the finance subsidiaries will be fully and
unconditionally guaranteed by GlaxoSmithKline plc, an English
public limited company (which we refer to as
GlaxoSmithKline). The term guarantor
refers to
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GlaxoSmithKline in its capacity as guarantor of the debt
securities issued by GlaxoSmithKline Capital Inc.
and/or
GlaxoSmithKline Capital plc. Unless the context requires
otherwise, the terms we, our and
us refer to GlaxoSmithKline and its consolidated
subsidiaries.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual reports and other information with the SEC. You
may read and copy any document we file at the SECs public
reference room at 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. You may also obtain documents we
file with the SEC on the SEC website at www.sec.gov. The address
of the SECs internet site is provided solely for the
information of prospective investors and is not intended to be
an active link. Please visit this website or call the SEC at
1-800-732-0330
for further information about its public reference room. Reports
and other information concerning our business may also be
inspected at the offices of the New York Stock Exchange at
20 Broad Street, New York, New York 10005.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC and that is incorporated by reference will
automatically update and supersede information in this
prospectus and information previously incorporated by reference
herein.
Each document incorporated by reference is current only as of
the date of such document, and the incorporation by reference of
such documents shall not create any implication that there has
been no change in our affairs since the date thereof or that the
information contained therein is current as of any time
subsequent to its date. Any statement contained in such
incorporated documents shall be deemed to be modified or
superseded for the purpose of this prospectus to the extent that
a subsequent statement contained in another document we
incorporate by reference at a later date modifies or supersedes
that statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We hereby incorporate by reference our annual report on
Form 20-F
for the year ended December 31, 2007 (File
No. 001-15170).
We also incorporate by reference any future annual reports on
Form 20-F
we file with the SEC under the Securities Exchange Act of 1934,
as amended, or the Exchange Act, after the date of this
prospectus and prior to the time we sell all of the debt
securities described in this prospectus, and any future reports
on
Form 6-K
we furnish to the SEC during such period that are identified in
such reports as being incorporated by reference in this
prospectus.
You may request a copy of these filings, at no cost, by writing
or telephoning us at our principal executive offices at the
following address: GlaxoSmithKline plc, 980 Great West Road,
Brentford, Middlesex TW8 9GS, England, telephone +44 (0) 20
8047 5000, Attention: Company Secretary. Our Internet address is
www.gsk.com. We are not incorporating the contents of our
website into this prospectus.
PRESENTATION
OF FINANCIAL INFORMATION
We present our consolidated financial statements in pounds
Sterling and in accordance with International Financial
Reporting Standards as adopted by the European Union and also
with International Financial Reporting Standards as issued by
the International Accounting Standards Board, which we refer to
collectively as IFRS. When we refer to
£, we mean pounds Sterling. When we refer to
$, we mean U.S. dollars. Except where noted,
all financial information is presented in accordance with IFRS.
FORWARD-LOOKING
STATEMENTS
This prospectus and the information incorporated by reference in
this prospectus include forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and
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Section 21E of the Exchange Act. You should not place undue
reliance on these statements. In addition, in the future we, and
others on our behalf, may make statements that constitute
forward-looking statements. Such forward-looking statements may
include, without limitation, statements relating to the
following:
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our plans, objectives and goals;
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our future economic performance and prospects;
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the potential effect on our future performance of certain
contingencies; and
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assumptions underlying any such statements.
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You can identify forward-looking statements by the fact that
they do not relate strictly to historical or current facts.
Words such as believes, anticipates,
expects, intends, estimates
and plans and similar expressions are intended to
identify forward-looking statements but these are not the
exclusive means of identifying such statements. We do not intend
to update these forward-looking statements except as may be
required by applicable securities laws.
Forward-looking statements are subject to important risks,
uncertainties and assumptions that are difficult to predict. The
results or events predicted in forward-looking statements may
differ materially from actual results or events. Some of the
factors that could cause actual results or events to differ from
current expectations include the following:
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the cost, uncertainty and other risks associated with the
development of new pharmaceutical products that may never reach
the market or that may have limited marketability or
profitability, despite our significant investment of time and
money in their development;
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the unplanned loss of patents as a result of patent infringement
litigation, changes in intellectual property laws and
regulations or the weakness of intellectual property protection
in certain countries in which we operate;
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the outcome of current and future legal proceedings and
government investigations;
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the highly competitive nature of the pharmaceutical business and
potential innovations and technical advances by our competitors,
in addition to the intensification of price competition
resulting from consolidation in the industry;
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competition from producers of generic pharmaceutical products,
especially upon the loss of patents for our products due to
their expiration, successful legal challenges to our patents by
our competitors or the reduction and relaxation of patent
protection in some developing countries;
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new and possibly increasing levels of price controls with
respect to our products in many markets;
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the risks associated with the increasingly demanding regulatory
controls governing the pharmaceutical industry, which could
include increased costs of production and time for product
development and regulatory approval, as well as a heightened
risk that previously granted regulatory approvals could be
withdrawn;
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failures in compliance by our suppliers of key services and
materials or our own manufacturing facilities, which could lead
to product recalls and seizures, interruption of production and
delays in the approvals of new products pending resolution of
manufacturing issues, as well as potential fines or disgorgement
of profits;
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credit risks of our wholesalers due to increasing concentration
of wholesalers to whom we sell our products;
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our dependence on information technology systems, including
internet-based systems, for internal communication as well as
communication with customers and suppliers and the risk of
disruptions to these systems;
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changes in tax, inflation, interest or foreign currency exchange
rates and controls or other economic factors affecting our
businesses or the possibility of political unrest in countries
in which we do business;
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disruptions due to pandemic influenza, such as the suspension or
abrogation of intellectual property rights and disruptions to
sale, distribution and manufacturing networks;
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changes in environmental regulations, which could increase our
costs of compliance and otherwise affect our business;
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the strength of the global economy in general and the strength
of the economies of the countries in which we conduct our
operations in particular;
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the effects of changes in accounting policies or practices;
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competition for qualified employees;
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our ability to maintain sufficient liquidity and to access
capital markets; and
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acquisitions we may undertake in the future.
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We caution you that the foregoing list of important factors is
not exhaustive. When evaluating forward-looking statements, you
should carefully consider the foregoing factors and other
uncertainties and events, as well as the risk factors set forth
in our annual report on
Form 20-F
for the year ended December 31, 2007 and subsequent annual
reports on
Form 20-F
and other documents filed with the SEC and any risk factors
relating to us or a particular offering discussed or
incorporated by reference in the applicable prospectus
supplement.
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USE OF
PROCEEDS
Unless we tell you otherwise in a prospectus supplement, we will
use the net proceeds from the sale of the debt securities
described in this prospectus for our general corporate purposes,
including to refinance existing indebtedness. We may also invest
the net proceeds in marketable securities as part of our
liquidity management process.
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RATIOS OF
EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of
earnings to fixed charges computed under IFRS. Earnings for this
purpose have been calculated by (i) adding (a) profit
before taxation (after eliminating our share of profits of
associates and joint ventures), (b) fixed charges and
(c) distributed income of investments accounted for using
the equity method of accounting and (ii) subtracting from
that total (a) the amount of pre-tax earnings required to
pay dividends on outstanding preference shares and (b) the
minority interest in pre-tax profit of subsidiaries that have
not incurred fixed charges. Fixed charges consist of
(i) interest payable (including expense on debt and
interest in respect of finance leases), (ii) that portion
of operating lease rental expense representative of the interest
factor (being one-third of such rental expense) and
(iii) the amount of pre-tax earnings required to pay
dividends on outstanding preference shares.
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Year Ended December 31,
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2007
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2006
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2005
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2004
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2003
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Ratio of earnings to fixed charges IFRS
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15.9
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20.7
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14.7
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14.8
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19.3
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GLAXOSMITHKLINE
PLC
GlaxoSmithKline is a major global healthcare company engaged in
the creation, discovery, development, manufacture and marketing
of pharmaceutical and consumer health-related products. Our two
principal operational industry segments are pharmaceuticals
(prescription pharmaceuticals and vaccines) and consumer
healthcare (over-the-counter medicines, oral care and
nutritional healthcare).
GlaxoSmithKline is a public limited company incorporated under
the laws of England and Wales. Our shares are listed on the
London Stock Exchange and our American Depositary Shares are
listed on the New York Stock Exchange. On December 27,
2000, GlaxoSmithKline acquired Glaxo Wellcome plc and SmithKline
Beecham plc, both English public limited companies, through a
merger of the two companies. Both Glaxo Wellcome and SmithKline
Beecham were major global healthcare businesses.
Our corporate head office is in the London area at 980 Great
West Road, Brentford, Middlesex TW8 9GS, England, and our
telephone number is +44 (0) 20 8047 5000. We also have
operational headquarters in Philadelphia, Pennsylvania and
Research Triangle Park, North Carolina and operations in some
114 countries, with products sold in over 140 countries. Our
principal research and development facilities are in the United
Kingdom, the United States, Japan, Italy, Spain and Belgium, and
our products are currently manufactured in some 38 countries.
The major markets for our products are the United States,
France, Japan, the United Kingdom, Italy, Germany and Spain.
GLAXOSMITHKLINE
CAPITAL INC.
GlaxoSmithKline Capital Inc. is a Delaware corporation. It is a
wholly owned subsidiary of GlaxoSmithKline, and it exists for
the purpose of issuing debt securities, the proceeds of which
will be invested by it in marketable securities or advanced to,
or otherwise invested in, subsidiaries or affiliates of
GlaxoSmithKline. The principal executive offices of
GlaxoSmithKline Capital Inc. are located at 1105 North Market
Street, Suite 622, Wilmington, Delaware 19801. Its
telephone number is +1
(302) 651-8319.
GLAXOSMITHKLINE
CAPITAL PLC
GlaxoSmithKline Capital plc is a public limited company
incorporated under the laws of England and Wales. It is a
wholly-owned subsidiary of GlaxoSmithKline, and it exists for
the purpose of issuing debt securities, the proceeds of which
will be invested by it in marketable securities or advanced to,
or otherwise invested in, subsidiaries or affiliates of
GlaxoSmithKline. The principal executive offices of
GlaxoSmithKline Capital plc are located at 980 Great West Road,
Brentford, Middlesex TW8 9GS, England. Its telephone number is
+44 (0) 20 8047 5000.
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LEGAL
OWNERSHIP OF DEBT SECURITIES
Street
Name and Other Indirect Holders
We generally will not recognize investors who hold debt
securities in accounts at banks or brokers as legal holders of
those debt securities. Holding securities in accounts at banks
or brokers is called holding in street name. If an
investor holds debt securities in street name, we recognize only
the bank or broker or the financial institution the bank or
broker uses to hold the debt securities. These intermediary
banks, brokers and other financial institutions pass along
principal, interest and other payments on the debt securities,
either because they agree to do so in their customer agreements
or because they are legally required to do so. If you hold debt
securities in street name, you should check with your own
institution to find out:
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how it handles payments and notices with respect to securities;
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whether it imposes fees or charges;
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how it would handle voting if ever required;
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how and when you should notify it to exercise on your behalf any
rights or options that may exist under the debt securities;
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whether and how you can instruct it to send you securities
registered in your own name so you can be a direct holder as
described below; and
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how it would pursue rights under the debt securities if there
were a default or other event triggering the need for holders to
act to protect their interests.
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Registered
Holders
Our obligations, as well as the obligations of the trustee and
those of any third parties employed by us or the trustee, extend
only to persons who are registered as holders of debt
securities. As noted above, we do not have obligations to you if
you hold in street name or through other indirect means, either
because you choose to hold debt securities in that manner or
because the debt securities are issued in the form of global
securities as described below. For example, once we make payment
to the registered holder, we have no further responsibility for
the payment even if that holder is legally required to pass the
payment along to you as a street name customer but does not do
so.
Global
Securities
A global security is a special type of indirectly held security.
If we choose to issue debt securities in the form of global
securities, the ultimate beneficial owners of the debt
securities will be indirect holders. We do this by requiring
that the global security be registered in the name of a
financial institution we select and by requiring that the debt
securities represented by the global security not be registered
in the name of any other holder except in the special situations
described below. The financial institution that acts as the sole
registered holder of the global security is called the
depositary. Any person wishing to own a debt security may do so
indirectly through an account with a broker, bank or other
financial institution that in turn has an account with the
depositary. The prospectus supplement will indicate whether your
series of debt securities will be issued only as global
securities.
Transfers of debt securities represented by the global security
will be made only on the records of the depositary or its
nominee by transferring such debt securities from the account of
one broker, bank or financial institution to the account of
another broker, bank or financial institution. These transfers
are made electronically only and are also known as book-entry
transfers. Securities in global form are sometimes also referred
to as being in book-entry form.
As an indirect holder, your rights relating to a global security
will be governed by the account rules of your broker, bank or
financial institution and of the depositary, as well as general
laws relating to securities transfers. We will not recognize you
as a holder of debt securities and instead will deal only with
the depositary that holds the global security.
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You should be aware that if debt securities are issued only in
the form of a global security:
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you cannot have debt securities registered in your own name;
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you cannot receive physical certificates for your interest in
the debt securities;
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you will be a street name holder and must look to your own
broker, bank or financial institution for payments on the debt
securities and protection of your legal rights relating to the
debt securities;
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you may not be able to sell interests in the debt securities to
some insurance companies and other institutions that are
required by law to own securities in the form of physical
certificates;
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the depositarys policies will govern payments, transfers,
exchanges and other matters relating to your indirect interest
in the global security. We and the trustee will have no
responsibility for any aspect of the depositarys actions
or for its records of ownership interests in the global
security. We and the trustee also will not supervise the
depositary in any way; and
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the depositary will require that indirect interests in the
global security be purchased or sold within its system using
same-day
funds for settlement.
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In a few special situations described below, the global security
will terminate and the indirect interests in it will be
exchanged for registered debt securities represented by physical
certificates. After that exchange, the choice of whether to hold
debt securities in registered form or in street name will be up
to you. You must consult your broker, bank or financial
institution to find out how to have your interests in debt
securities transferred to your name, so that you will be a
registered holder.
Unless we specify otherwise in the prospectus supplement, the
special situations for termination of a global security are:
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when the depositary notifies us that it is unwilling or unable
to continue as depositary and we do not or cannot appoint a
successor depositary within 90 days;
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the depositary ceases to be a clearing agency registered under
the Exchange Act and we do not appoint a successor depositary
within 90 days;
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an event of default has occurred and is continuing and
beneficial owners representing a majority in principal amount of
the applicable series of debt securities have advised the
depositary to cease acting as the depositary; or
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we decide we do not want to have the debt securities of that
series represented by a global security.
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The prospectus supplement may also list additional situations
for terminating a global security that would apply only to the
particular series of debt securities covered by the prospectus
supplement. When a global security terminates, the depositary
(and not us or the trustee) is responsible for deciding the
names of the institutions that will be the initial registered
holders.
The Term
Holder as Used in this Prospectus and
Elsewhere
In the descriptions of the debt securities included in this
prospectus and any prospectus supplement, when we refer to the
holder of a given debt security as being entitled to
certain rights or payments, or being permitted to take certain
actions, we are in all cases referring to the registered holder
of the debt security.
While you would be the registered holder if you held a
certificated security registered in your name, it is likely that
the holder will actually be either the broker, bank or other
financial institution where you have your street name account,
or, in the case of a global security, the depositary. If you are
an indirect holder, you will need to coordinate with the
institution through which you hold your interest in a debt
security in order to determine how the provisions involving
holders described in this prospectus and any prospectus
supplement will actually apply to you. For example, if the debt
security in which you hold a beneficial interest in street name
can be repaid at the option of the holder, you cannot exercise
the option yourself by following the procedures described in the
prospectus supplement. Instead, you would need to cause the
institution through which you hold your interest to take those
actions on your behalf. Your institution may have procedures and
deadlines different from or additional to those described in the
prospectus supplement relating to the debt security.
10
DESCRIPTION
OF DEBT SECURITIES
This section describes the general terms that will apply to any
debt securities that we may offer pursuant to this prospectus.
The specific terms of any offered debt securities, and the
extent to which the general terms described in this section
apply to those debt securities, will be described in the related
prospectus supplement at the time of the offer.
General
As used in this prospectus, debt securities means
the debentures, notes, bonds, guarantees and other evidences of
indebtedness that GlaxoSmithKline issues or that a finance
subsidiary issues and GlaxoSmithKline fully and unconditionally
guarantees and, in each case, the trustee authenticates and
delivers under the applicable indenture. The debt securities
will be our direct unsecured obligations and will rank equally
and ratably without preference among themselves and at least
equally with all of our other unsecured and unsubordinated
indebtedness.
The debt securities will be issued in one or more series under
an indenture between GlaxoSmithKline and Law Debenture
Trust Company of New York, as trustee, or under indentures
among the finance subsidiaries, Law Debenture Trust Company
of New York, as trustee (as successor to Citibank, N.A.,
pursuant to Instruments of Resignation, Appointment and
Acceptance among the finance subsidiaries, the guarantor, Law
Debenture Trust Company of New York and Citibank, N.A.),
and GlaxoSmithKline, as guarantor. The indentures applicable to
GlaxoSmithKline, GlaxoSmithKline Capital Inc. and
GlaxoSmithKline Capital plc will each be qualified under the
Trust Indenture Act of 1939, as amended. In the following
discussion, we sometimes refer to these indentures collectively
as the indentures.
This prospectus briefly outlines the provisions of the
indentures. The terms of the indentures will include both those
stated in the indentures and those made part of the indentures
by the Trust Indenture Act. The forms of the indentures
have been filed as exhibits to the registration statement of
which this prospectus forms a part, and you should read the
indentures for provisions that may be important to you.
The indentures do not contain any covenants or other provisions
designed to protect holders of the debt securities against a
reduction in the creditworthiness of GlaxoSmithKline or the
finance subsidiaries in the event of a highly leveraged
transaction or that would prohibit other transactions that might
adversely affect holders of the debt securities.
Issuances
in Series
The indentures do not limit the amount of debt securities that
may be issued. The debt securities may be issued in one or more
series with the same or various maturities, at a price of 100%
of their principal amount or at a premium or a discount. Not all
debt securities of any one series need be issued at the same
time, and, unless otherwise provided, any series may be
reopened, without the consents of the holders of debt securities
of that series, for issuances of additional debt securities of
that series. Except in the limited circumstances described below
under Covenants Limitation on
Liens, the debt securities will not be secured by any
property or assets of GlaxoSmithKline, as issuer or guarantor,
or the finance subsidiaries.
The terms of any authorized series of debt securities will be
described in a prospectus supplement. These terms will include
some or all of the following:
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the title, aggregate principal amount and denominations of the
debt securities;
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the date or dates on which principal will be payable;
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the percentage of the principal amount at which the debt
securities will be issued and whether the debt securities will
be original issue discount securities for
U.S. federal income tax purposes. If original issue
discount debt securities are issued (generally, securities that
are issued at a substantial discount below their principal
amount), the special U.S. federal income tax and other
considerations of a purchase of original issue discount debt
securities will be described;
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the rate or rates, which may be fixed or variable, at which the
debt securities will bear interest;
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the interest payment dates;
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any optional or mandatory redemption terms;
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whether any sinking fund is required;
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the currency in which the debt securities will be denominated or
principal, premium or interest will be payable, if other than
U.S. dollars;
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whether the debt securities are to be issued as individual
certificates to each holder or in the form of global
certificates held by a depositary on behalf of beneficial owners;
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information describing any book-entry features;
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the names and duties of any co-trustees, depositaries,
authenticating agents, paying agents, transfer agents or
registrars for any series;
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the applicability of the defeasance and covenant defeasance
provisions described in this prospectus, or any modifications of
those provisions;
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any deletions from, modifications of or additions to the events
of default or covenants with respect to the debt
securities; and
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any other terms, conditions, rights or preferences of the debt
securities.
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Debt securities that have a maturity of less than one year from
their date of issue and in respect of which the proceeds are to
be received by us in the United Kingdom will have a minimum
denomination of £100,000 (or its equivalent in another
currency).
The prospectus supplement relating to any series of debt
securities may add to or change statements contained in this
prospectus. The prospectus supplement may also include, if
applicable, a discussion of certain U.S. federal income tax
and U.K. income tax considerations.
GlaxoSmithKline
Guarantees
Debt securities issued by the finance subsidiaries will be fully
and unconditionally guaranteed by GlaxoSmithKline. If for any
reason the applicable finance subsidiary does not make any
required payment in respect of its debt securities when due,
whether on the normal due date, on acceleration, redemption or
otherwise, GlaxoSmithKline will cause the payment to be made to
or to the order of the trustee. The holder of a guaranteed debt
security will be entitled to payment under the applicable
guarantee of GlaxoSmithKline without taking any action
whatsoever against the finance subsidiary.
Payment
and Transfer
The debt securities will be issued only as registered
securities, which means that the name of the holder will be
entered in a register that will be kept by the trustee or
another agent appointed by us. Unless stated otherwise in a
prospectus supplement, and except as described under
Book-Entry System below, payments of
principal, interest and additional amounts, if any, will be made
at the office of the paying agent or agents named in the
prospectus supplement or by check mailed to you at your address
as it appears in the register.
Unless other procedures are described in a prospectus supplement
and except as described under Book Entry
System below, you will be able to transfer registered debt
securities at the office of the transfer agent or agents named
in the prospectus supplement. You may also exchange registered
debt securities at the office of the transfer agent for an equal
aggregate principal amount of registered debt securities of the
same series having the same maturity date, interest rate and
other terms as long as the debt securities are issued in
authorized denominations.
Neither we nor the trustee will impose any service charge for
any transfer or exchange of a debt security; however, we may ask
you to pay any taxes or other governmental charges in connection
with a transfer or exchange of debt securities.
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Book-Entry
System
Debt securities may be issued under a book-entry system in the
form of one or more global securities. The global securities
will be registered in the name of a depositary or its nominee
and deposited with that depositary or its custodian. Unless
stated otherwise in the prospectus supplement, The Depository
Trust Company, New York, New York, or DTC, will be the
depositary if a depositary is used.
DTC has advised us as follows:
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DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code and a
clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act;
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DTC was created to hold securities of its participants and to
facilitate the clearance and settlement of securities
transactions, such as through transfers and pledges, among its
participants in such securities through electronic book-entry
changes to accounts of its participants, thereby eliminating the
need for physical movement of securities certificates;
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DTCs participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) own
DTC; and
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access to DTCs book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
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According to DTC, the foregoing information with respect to DTC
has been provided to the financial community for informational
purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
Following the issuance of a global security in registered form,
the depositary will credit the accounts of its participants with
the debt securities upon our instructions. Only persons who hold
directly or indirectly through financial institutions that are
participants in the depositary can hold beneficial interests in
the global securities. Since the laws of some jurisdictions
require certain types of purchasers to take physical delivery of
such securities in definitive form, you may encounter
difficulties in your ability to own, transfer or pledge
beneficial interests in a global security.
So long as the depositary or its nominee is the registered owner
of a global security, we and the trustee will treat the
depositary as the sole owner or holder of the debt securities
for purposes of the applicable indenture. Therefore, except as
set forth below, you will not be entitled to have debt
securities registered in your name or to receive physical
delivery of certificates representing the debt securities.
Accordingly, you will have to rely on the procedures of the
depositary and the participant in the depositary through whom
you hold your beneficial interest in order to exercise any
rights of a holder under the indenture. We understand that under
existing practices, the depositary would act upon the
instructions of a participant or authorize that participant to
take any action that a holder is entitled to take.
We will make all payments of principal, interest and additional
amounts, if any, on the debt securities to the depositary. It is
expected that the depositary will then credit participants
accounts proportionately with these payments on the payment date
and that the participants will in turn credit their
customers accounts in accordance with their customary
practices. Neither we nor the trustee will be responsible for
making any payments to participants or customers of participants
or for maintaining any records relating to the holdings of
participants and their customers, and you will have to rely on
the procedures of the depositary and its participants.
Global securities are generally not transferable. Physical
certificates will be issued to beneficial owners in lieu of a
global security only in the special situations described in the
sixth paragraph under the heading Legal Ownership of Debt
Securities Global Securities above.
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Consolidation,
Merger or Sale
We and the finance subsidiaries have agreed in the indentures
not to consolidate with or merge with or into any other person
or convey or transfer all or substantially all of our respective
properties and assets to any person (except that the finance
subsidiaries may merge into us), unless:
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we or the applicable finance subsidiary, as the case may be, are
the continuing person, or the successor expressly assumes by
supplemental indenture our obligations under the applicable
indenture;
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the continuing person is a U.S. or U.K. company or is
organized and validly existing under the laws of a jurisdiction
that is a member country of the Organisation for Economic
Cooperation and Development (or any successor) and, if it is not
a U.S. or U.K. company, the continuing person agrees by
supplemental indenture to be bound by a covenant comparable to
that described below under
Covenants Payment of Additional
Amounts with respect to taxes imposed in the continuing
persons jurisdiction of organization (in which case the
continuing person will benefit from a redemption option
comparable to that described below under
Optional Redemption for Tax Reasons in
the event of changes in taxes in that jurisdiction after the
date of the consolidation, merger or sale);
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immediately after the transaction, no default under the debt
securities has occurred and is continuing; and
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we deliver to the trustee an officers certificate and, if
neither we nor the applicable subsidiary are the continuing
person, an opinion of counsel, in each case stating, among other
things, that the transaction and the supplemental indenture, if
required, comply with these provisions and the indenture.
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Covenants
Payment
of Additional Amounts
Payments made by us under or with respect to the debt securities
will be free and clear of and without withholding or deduction
for or on account of any present or future tax, duty, levy,
impost, assessment or other governmental charge of any nature
whatsoever imposed or levied by or on behalf of (i) the
government of the United Kingdom or of any territory of the
United Kingdom or by any authority or agency therein or thereof
having the power to tax or (ii) the government of the
United States or any state or territory of the United States or
by any authority or agency therein or thereof having the power
to tax, which we refer to collectively as Taxes,
unless we are required to withhold or deduct Taxes by law.
If we are required to withhold or deduct any amount for or on
account of Taxes from any payment made with respect to the debt
securities, we will pay such additional amounts as may be
necessary so that the net amount received by each holder
(including additional amounts) after such withholding or
deduction will not be less than the amount the holder would have
received if the Taxes had not been withheld or deducted;
provided
that no additional amounts will be payable with
respect to Taxes:
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that would not have been imposed but for the existence of any
present or former connection between such holder or beneficial
owner of the debt securities (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power
over, such holder or beneficial owner, if such holder or
beneficial owner is an estate, trust, partnership or
corporation) and the United Kingdom or the United States or any
political subdivision or territory or possession thereof or
therein or area subject to its jurisdiction, including, without
limitation, such holder or beneficial owner (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or
having been a citizen or resident thereof or treated as a
resident thereof or domiciled thereof or a national thereof or
being or having been present or engaged in trade or business
therein or having or having had a permanent establishment
therein;
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that are estate, inheritance, gift, sales, transfer, personal
property, wealth or similar taxes, duties, assessments or other
governmental charges;
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payable other than by withholding from payments of principal of
or interest on the debt securities;
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that would not have been imposed but for the failure of the
applicable recipient of such payment to comply with any
certification, identification, information, documentation or
other reporting requirement to the extent:
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such compliance is required by applicable law or administrative
practice or an applicable treaty as a precondition to exemption
from, or reduction in, the rate of deduction or withholding of
such Taxes; and
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at least 30 days before the first payment date with respect
to which such additional amounts shall be payable, we have
notified such recipient in writing that such recipient is
required to comply with such requirement;
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that would not have been imposed but for the presentation of a
debt security (where presentation is required) for payment on a
date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof was
duly provided for, whichever occurred later;
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that are imposed on a payment to an individual and are required
to be made pursuant to European Council Directive 2003/48/EC or
any other Directive implementing the conclusions of the ECOFIN
Council meeting of November
26-27,
2000
on the taxation of savings income, or any law implementing or
complying with, or introduced in order to conform to, such
Directive;
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that would not have been imposed if presentation for payment of
the relevant debt securities had been made to a paying agent
other than the paying agent to which the presentation was
made; or
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any combination of the foregoing items;
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nor shall additional amounts be paid with respect to any payment
of the principal of or interest on any debt security to any such
holder who is a fiduciary or a partnership or a beneficial owner
who is other than the sole beneficial owner of such payment to
the extent a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to such additional amounts had it
been the holder of the debt security.
We have agreed in each indenture that at least one paying agent
for each series of debt securities will be located outside the
United Kingdom. We have also agreed that if we maintain a paying
agent with respect to a particular series of debt securities in
any member state of the European Union, we will maintain a
paying agent in at least one member state (other than the United
Kingdom) that will not be obliged to withhold or deduct taxes
pursuant to any law implementing European Council Directive
2003/48/EC or any other Directive implementing the conclusions
of the ECOFIN Council meeting of November
26-27,
2000
on the taxation of savings income, provided there is at least
one member state that does not require a paying agent to
withhold or deduct pursuant to such Directive.
Our obligation to pay additional amounts if and when due will
survive the termination of the indentures and the payment of all
amounts in respect of the debt securities.
Limitation
on Liens
We have agreed in the indentures not to incur or assume (or
permit any of our subsidiaries to incur or assume) any lien on
or with respect to any of our or our subsidiaries
property, assets or revenues, present or future, to secure any
relevant indebtedness (as this term is defined below) without
making (or causing our subsidiaries to make) effective provision
for securing the debt securities equally and ratably with such
relevant indebtedness as to such property, assets or revenues,
for as long as such relevant indebtedness is so secured.
The restrictions on liens will not apply to:
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liens arising by operation of law;
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liens on property, assets or revenues of any person, which liens
are existing at the time such person becomes a
subsidiary; and
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liens on property, assets or revenues of a person existing at
the time such person is merged with or into or consolidated with
us or any of our subsidiaries or at the time of a sale, lease or
other disposition to us of the properties of a person as an
entirety or substantially as an entirety.
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For purposes of the limitation on liens covenant, the term
relevant indebtedness means any of our debt that:
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is in the form of or represented by bonds, notes, loan stock,
depositary receipts or other securities issued (otherwise than
to constitute or represent advances made by banks or other
lending institutions);
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is denominated in, or confers any right of payment by reference
to, any currency other than the currency of the country in which
the issuer of the indebtedness has its principal place of
business, or is denominated in or by reference to the currency
of such country but more than 20% of which is placed or offered
for subscription or sale by or on behalf of, or by agreement
with, the issuer outside such country; and
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at its date of issue is, or is intended by the issuer to become,
quoted, listed, traded or dealt in on any stock exchange,
over-the-counter market or other securities market.
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Additional
Covenants
We may be subject to additional covenants, including restrictive
covenants in respect of a particular series of debt securities.
Such additional covenants will be set forth in the applicable
prospectus supplement and, to the extent necessary, in the
supplemental indenture or board resolution relating to that
series of debt securities.
Optional
Redemption for Tax Reasons
We may redeem any series of debt securities in whole but not in
part at any time, on giving not less than 30 nor more than
60 days notice of such redemption, at a redemption
price equal to the principal amount plus accrued interest, if
any, to the date fixed for redemption (except in the case of
discounted debt securities, which may be redeemed at the
redemption price specified by the terms of each series of such
debt securities), if:
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we determine that, as a result of any change in or amendment to
the laws or any regulations or rulings promulgated thereunder of
the United Kingdom (or of any political subdivision or taxing
authority thereof) or the United States (or of any political
subdivision or taxing authority thereof), or any change in the
application or official interpretation of such laws, regulations
or rulings, or any change in the application or official
interpretation of, or any execution of or amendment to, any
treaty or treaties affecting taxation to which any such
jurisdiction is a party, which change, execution or amendment
becomes effective on or after the issue date or such other date
specified in the debt securities of that series:
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we would be required to pay additional amounts (as described
under Covenants Payment of
Additional Amounts above) with respect to that series of
debt securities on the next succeeding interest payment date and
the payment of such additional amounts cannot be avoided by the
use of reasonable measures available to us; or
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withholding tax has been or would be required to be withheld
with respect to interest income received or receivable by the
applicable finance subsidiary directly from the guarantor (or
any affiliate) and such withholding tax obligation cannot be
avoided by the use of reasonable measures available to the
applicable finance subsidiary or the guarantor (or any
affiliate); or
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we determine, based upon an opinion of independent counsel of
recognized standing that, as a result of any action taken by any
legislative body of, taxing authority of, or any action brought
in a court of competent jurisdiction in, the United Kingdom (or
any political subdivision or taxing authority thereof) or the
United States (or any political subdivision or taxing authority
thereof) (whether or not such action was taken or brought with
respect to GlaxoSmithKline, as issuer or guarantor, or the
applicable finance subsidiary, as the case may be), which action
is taken or brought on or after the issue date or such other
date specified in the debt securities of that series, there is a
substantial probability that the circumstances described above
would exist;
provided
,
however
, that no such
notice of redemption may be given earlier than 90 days
prior to the earliest date on which we would be obligated to pay
such additional amounts.
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We will also pay to each holder, or make available for payment
to each such holder, on the redemption date any additional
amounts resulting from the payment of such redemption price.
Prior to the publication of any notice of redemption, we will
deliver to the trustee:
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an officers certificate stating that we are entitled to
effect a redemption and setting forth a statement of facts
showing that the conditions precedent of the right so to redeem
have occurred; or
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an opinion of counsel to the effect that the conditions
specified above have been satisfied.
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Any notice of redemption will be irrevocable once we deliver the
officers certificate to the trustee.
Events of
Default
Unless otherwise specified in a prospectus supplement, an event
of default with respect to a series of debt securities occurs
upon:
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default in payment of the principal (or premium, if any) of any
debt security of that series when due (including as a sinking
fund installment), and, in the case of technical or
administrative difficulties, the continuance of that default for
more than two business days;
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default in payment of interest on, or any additional amounts
payable in respect of, any debt security of that series when due
and payable, and the continuance of that default for
30 days;
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default in performing any other covenant in the indenture
applicable to that series for 60 days after the receipt of
written notice from the trustee or from the holders of 25% in
principal amount of the debt securities of that series;
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default under any bond, debenture, note or other evidence of
indebtedness for money borrowed of GlaxoSmithKline or either
finance subsidiary, as the case may be (not including any
indebtedness for which recourse is limited to property
purchased), having in any particular case an outstanding
principal amount in excess of $25,000,000 (or its equivalent in
any other currency) where any such failure results in such
indebtedness being accelerated and becoming due and payable
prior to its stated maturity and such acceleration shall not
have been rescinded or annulled or such indebtedness shall not
have been discharged;
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certain events of bankruptcy, insolvency or reorganization of
GlaxoSmithKline or either finance subsidiary, as the case may be;
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any other event of default provided with respect to that
particular series of debt securities.
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Any additional or different events of default applicable to a
particular series of debt securities will be described in the
prospectus supplement relating to such series.
An event of default with respect to a particular series of debt
securities will not necessarily constitute an event of default
with respect to any other series of debt securities.
The trustee may withhold notice to the holders of debt
securities of any default (except in the payment of principal,
premium or interest) if it, in good faith, considers such
withholding of notice to be in the best interests of the
holders. A default is any event which is an event of default
described above or would be an event of default but for the
giving of notice or the passage of time.
If an event of default occurs and continues, the trustee or the
holders of the aggregate principal amount of the debt securities
specified below may require us to repay immediately, or
accelerate:
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the entire principal of the debt securities of such
series; or
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if the debt securities are original issue discount securities,
such portion of the principal as may be described in the
applicable prospectus supplement.
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If the event of default occurs because of a default in a payment
of principal or interest on the debt securities of any series,
then the trustee or the holders of at least 25% of the aggregate
principal amount of debt securities of that series can
accelerate that series of debt securities. If the event of
default occurs because of a failure to perform any
17
other covenant in the applicable indenture or any covenant for
the benefit of one or more, but not all, of the series of debt
securities, then the trustee or the holders of at least 25% of
the aggregate principal amount of debt securities of all series
affected, voting as one class, can accelerate all of the
affected series of debt securities. If the event of default
occurs because of bankruptcy proceedings, then all of the debt
securities under the indenture will be accelerated
automatically. Therefore, except in the case of a default on a
payment of principal or interest on the debt securities of your
series or a default due to our bankruptcy or insolvency, it is
possible that you may not be able to accelerate the debt
securities of your series because of the failure of holders of
other series to take action.
The holders of a majority of the aggregate principal amount of
the debt securities of all affected series, voting as one class,
can rescind this accelerated payment requirement or waive any
past default or event of default or allow noncompliance with any
provision of the applicable indenture. However, they cannot
waive a default in payment of principal of, premium, if any, or
interest on any of the debt securities when due otherwise than
as a result of acceleration.
After an event of default, the trustee must exercise the same
degree of care a prudent person would exercise under the
circumstances in the conduct of her or his own affairs. Subject
to these requirements, the trustee is not obligated to exercise
any of its rights or powers under the applicable indenture at
the request, order or direction of any holders, unless the
holders offer the trustee reasonable indemnity. If they provide
this reasonable indemnity, the holders of a majority in
principal amount of all affected series of debt securities,
voting as one class, may direct the time, method and place of
conducting any proceeding for any remedy available to the
trustee, or exercising any power conferred upon the trustee, for
any series of debt securities. However, the trustee may refuse
to follow any direction that conflicts with law or the indenture
or is unduly prejudicial to the rights of other holders.
No holder will be entitled to pursue any remedy with respect to
the indenture unless the trustee fails to act for 60 days
after it is given:
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notice of default by that holder;
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a written request to enforce the indenture by the holders of not
less than 25% in principal amount of all outstanding debt
securities of any affected series; and
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an indemnity to the trustee, satisfactory to the trustee;
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and during this
60-day
period the holders of a majority in principal amount of all
outstanding debt securities of such affected series do not give
a direction to the trustee that is inconsistent with the
enforcement request. These provisions will not prevent any
holder of debt securities from enforcing payment of the
principal of (and premium, if any) and interest on the debt
securities at the relevant due dates.
If an event of default with respect to a series of debt
securities occurs and is continuing, the trustee will mail to
the holders of those debt securities a notice of the event of
default within 90 days after it occurs. However, except in
the case of a default in any payment in respect of a series of
debt securities, the trustee shall be protected in withholding
notice of an event of default if it determines in good faith
that this is in the interests of the holders of the relevant
debt securities.
Modification
of the Indentures
In general, rights and obligations of us and the holders under
the indentures may be modified if the holders of a majority in
aggregate principal amount of the outstanding debt securities of
each series affected by the modification consent to such
modification. However, each of the indentures provides that,
unless each affected holder agrees, an amendment cannot:
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make any adverse change to any payment term of a debt security
such as extending the maturity date, extending the date on which
we have to pay interest or make a sinking fund payment, reducing
the interest rate, reducing the amount of principal we have to
repay, changing the currency in which we have to make any
payment of principal, premium or interest, modifying any
redemption or repurchase right, or right to convert or exchange
any debt security, to the detriment of the holder and impairing
any right of a holder to bring suit for payment;
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waive any payment default;
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reduce the percentage of the aggregate principal amount of debt
securities needed to make any amendment to the applicable
indenture or to waive any covenant or default; or
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make any other change to the amendment provisions of the
applicable indenture.
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However, if we and the trustee agree, the applicable indenture
may be amended without notifying any holders or seeking their
consent if the amendment does not materially and adversely
affect any holder. We and the trustee are permitted to make
modifications and amendments to the applicable indenture without
the consent of any holder of debt securities for any of the
following purposes:
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to cure any ambiguity, defect or inconsistency in the indenture;
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to comply with sections of the indenture governing when we may
merge and substituted obligors;
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to comply with any requirements of the SEC in connection with
the qualification of the indenture under the
Trust Indenture Act;
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to evidence and provide for the acceptance by a successor
trustee of appointment under the indenture with respect to the
debt securities of any or all series;
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to establish the form or forms or terms of the debt securities
of any series or of the coupons appertaining to such debt
securities as permitted under the indenture;
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to provide for uncertificated debt securities and to make all
appropriate changes for such purpose;
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to provide for a further guarantee from a third party on
outstanding debt securities of any series and the debt
securities of any series that may be issued under the indenture;
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to change or eliminate any provision of the indenture;
provided
that any such change or elimination will become
effective only when there are no outstanding debt securities of
any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision;
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to supplement any of the provisions of the indenture to such
extent as will be necessary to permit or facilitate the
defeasance and discharge of any series of debt securities
pursuant to the indenture;
provided
that any such action
will not adversely affect the interests of the holders of such
or any other series of debt securities in any material
respect; or
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to make any change that does not materially and adversely affect
the rights of any holder of the debt securities.
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Defeasance
The term defeasance means discharge from some or all of the
obligations under the indentures. If we deposit with the trustee
sufficient cash or government securities to pay the principal,
interest, any premium and any other sums due to the stated
maturity date or a redemption date of the debt securities of a
particular series, then at our option:
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we will be discharged from our respective obligations with
respect to the debt securities of such series; or
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we will no longer be under any obligation to comply with the
restrictive covenants, if any, contained in the applicable
indenture and any supplemental indenture or board resolution
with respect to the debt securities of such series, and the
events of default relating to failures to comply with covenants
will no longer apply to us.
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If this happens, the holders of the debt securities of the
affected series will not be entitled to the benefits of the
applicable indenture except for registration of transfer and
exchange of debt securities and replacement of lost, stolen or
mutilated debt securities. Instead, the holders will only be
able to rely on the deposited funds or obligations for payment.
19
We must deliver to the trustee an opinion of counsel to the
effect that the deposit and related defeasance would not cause
the holders of the debt securities to recognize income, gain or
loss for U.S. federal income tax purposes. We may, in lieu
of an opinion of counsel, deliver a ruling to such effect
received from or published by the U.S. Internal Revenue
Service.
Substitution
of Issuer
We may at our option at any time, without the consent of any
holders of debt securities, cause GlaxoSmithKline or any other
subsidiary of GlaxoSmithKline to assume the obligations of the
applicable finance subsidiary under any series of debt
securities,
provided
that the new obligor executes a
supplemental indenture in which it agrees to be bound by the
terms of those debt securities and the relevant indenture. If
the new obligor is not a U.S. or U.K. company, it must be
organized and validly existing under the laws of a jurisdiction
that is a member country of the Organisation for Economic
Cooperation and Development (or any successor) and it must also
agree in the supplemental indenture to be bound by a covenant
comparable to that described above under
Covenants Payment of Additional
Amounts with respect to taxes imposed in its jurisdiction
of organization (in which case the new obligor will benefit from
a redemption option comparable to that described above under
Optional Redemption for Tax Reasons in
the event of changes in taxes in that jurisdiction after the
date of the substitution). In the case of such a substitution,
the applicable finance subsidiary will be relieved of any
further obligation under the assumed series of debt securities.
For U.S. federal income tax purposes, a substitution of
obligors as described above generally would be treated as a
deemed taxable exchange of debt securities for new debt
securities issued by the new obligor. As discussed further in
the applicable prospectus supplement, a United States person who
holds debt securities or owns a beneficial interest therein
generally will recognize capital gain or loss in an amount equal
to the difference between the issue price of the new debt
securities and such persons adjusted tax basis in the debt
securities. Such persons should consult their own tax advisors
regarding the tax consequences of a deemed taxable exchange in
the event of a substitution of obligors.
Information
Concerning the Trustee
Law Debenture Trust Company of New York will be the
trustee. The trustee will be required to perform only those
duties that are specifically set forth in the indentures, except
when a default has occurred and is continuing with respect to
the debt securities. After a default, the trustee must exercise
the same degree of care that a prudent person would exercise
under the circumstances in the conduct of her or his own
affairs. Subject to these requirements, the trustee will be
under no obligation to exercise any of the powers vested in it
by the indentures at the request of any holder of debt
securities unless the holder offers the trustee reasonable
indemnity against the costs, expenses and liabilities that might
be incurred by exercising those powers.
Governing
Law
The debt securities, the related guarantees and the indentures
will be governed by and construed in accordance with the laws of
the State of New York.
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TAX
CONSIDERATIONS
The applicable prospectus supplement will describe certain U.K.
tax considerations in connection with the acquisition, ownership
and disposal of debt securities for investors who are not
resident or (in the case of individuals) ordinarily resident in
the United Kingdom for U.K. tax purposes at any material time
(including Eligible U.S. Investors) and who meet certain
other requirements. Such considerations will include whether the
payment by us of principal (and premium, if any) and interest
will be subject to U.K. withholding tax. For this purpose,
Eligible U.S. Investors are investors who
qualify for benefits under the income tax convention between the
United States and the United Kingdom (the Treaty),
who are residents of the United States for the purposes of the
Treaty, and who are not resident or (in the case of individuals)
ordinarily resident in the United Kingdom for U.K. tax purposes
at any material time.
The applicable prospectus supplement also may describe certain
U.S. federal income tax considerations relevant to a
particular series of debt securities.
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PLAN OF
DISTRIBUTION
We may sell our securities through agents, underwriters, dealers
or directly to purchasers.
Our agents may solicit offers to purchase our securities.
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We will name any agent involved in offering or selling our
securities, and any commissions that we will pay to the agent,
in our prospectus supplement.
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Unless we indicate otherwise in our prospectus supplement, our
agents will act on a best efforts basis for the period of their
appointment.
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Our agents may be deemed to be underwriters under the Securities
Act of any of our securities that they offer or sell.
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We may use an underwriter or underwriters in the offer or sale
of our securities.
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If we use an underwriter or underwriters, we will execute an
underwriting agreement with the underwriter or underwriters at
the time that we reach an agreement for the sale of our
securities.
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We will include the names of the specific managing underwriter
or underwriters, as well as any other underwriters, and the
terms of the transactions, including the compensation the
underwriters and dealers will receive, in our prospectus
supplement.
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The underwriters will use our prospectus supplement to sell our
securities.
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If we use an underwriter or underwriters, the underwriter or
underwriters will acquire our securities for their own account
and may resell our securities in one or more transactions,
including negotiated transactions. These sales will be made at a
fixed price or at varying prices determined at the time of the
sale.
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We may use a dealer to sell our securities.
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If we use a dealer, we, as principal, will sell our securities
to the dealer.
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The dealer will then sell our securities to the public at
varying prices that the dealer will determine at the time it
sells our securities.
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We will include the name of the dealer and the terms of our
transactions with the dealer in our prospectus supplement.
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We may solicit directly offers to purchase our securities, and
we may directly sell our securities to institutional or other
investors. We will describe the terms of our direct sales in our
prospectus supplement.
We may indemnify agents, underwriters and dealers against
certain liabilities, including liabilities under the Securities
Act. Our agents, underwriters and dealers, or their affiliates,
may be customers of, engage in transactions with or perform
services for, us or our subsidiaries and affiliates in the
ordinary course of business.
We may authorize our agents and underwriters to solicit offers
by certain institutions to purchase our securities at the public
offering price under delayed delivery contracts.
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If we use delayed delivery contracts, we will disclose that we
are using them in the prospectus supplement and will tell you
when we will demand payment and delivery of the securities under
the delayed delivery contracts.
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These delayed delivery contracts will be subject only to the
conditions that we set forth in the prospectus supplement.
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We will indicate in our prospectus supplements the commission
that underwriters and agents soliciting purchases of our
securities under delayed delivery contracts will be entitled to
receive.
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VALIDITY
OF SECURITIES
Cleary Gottlieb Steen & Hamilton LLP, our
U.S. and English counsel, will pass upon the validity of
the debt securities and guarantees as to matters of
U.S. and English law. Certain matters of U.S. law and
English law will be passed upon by Sidley Austin LLP for any
agents or underwriters. Cleary Gottlieb Steen &
Hamilton LLP and Sidley Austin LLP regularly provide legal
services to us and our subsidiaries and affiliates.
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in managements report on internal
control over financial reporting) incorporated in this
prospectus by reference to the Annual Report on
Form 20-F
for the year ended December 31, 2007 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
23
LIMITATIONS
ON ENFORCEMENT OF U.S. LAWS
We are a global pharmaceutical and healthcare products company
domiciled in the United Kingdom. Many of our directors and
executive officers (as well as certain directors, managers and
executive officers of the finance subsidiaries), and certain
experts named in this prospectus, reside outside the United
States, and all or a substantial portion of our assets and the
assets of such persons are located outside the United States. As
a result, it may be difficult for you to serve legal process on
us or our directors and executive officers (as well as certain
directors, managers and executive officers of the finance
subsidiaries) or have any of them appear in a U.S. court.
There is some doubt as to the enforceability in the United
Kingdom, in original actions or in actions for enforcement of
judgments of U.S. courts, of civil liabilities based solely
on the federal securities laws of the United States. In
addition, awards for punitive damages in actions brought in the
United States or elsewhere may be unenforceable in the United
Kingdom.
Under the U.K. Companies Act 2006, a safe harbor limits the
liability of GlaxoSmithKlines directors in respect of
statements in and omissions from the Report of the Directors
contained in GlaxoSmithKlines annual report on
Form 20-F;
under English law, the directors would be liable to
GlaxoSmithKline (but not to any third party) if the Report of
the Directors contains errors as a result of recklessness or
knowing misstatement or dishonest concealment of a material
fact, but would not otherwise be liable.
SELLING
RESTRICTIONS
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
Relevant Member State), each underwriter has
represented and agreed, and each further underwriter will be
required to represent and agree, that, with effect from and
including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the Relevant
Implementation Date) it has not made and will not make an
offer of securities which are the subject of the offering
contemplated by this prospectus as completed by the prospectus
supplement in relation thereto to the public in that Relevant
Member State except that it may, with effect from and including
the Relevant Implementation Date, make an offer of debt
securities to the public in that Relevant Member State:
(a) if the prospectus supplement in relation to the debt
securities specify that an offer of those debt securities may be
made other than pursuant to Article 3(2) of the Prospectus
Directive in that Relevant Member State, or a Non-exempt Offer,
following the date of publication of a prospectus in relation to
such debt securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, provided that
any such prospectus has subsequently been completed by the
prospectus supplement contemplating such Non-exempt Offer, in
accordance with the Prospectus Directive in the period beginning
and ending on the dates specified in such prospectus or
prospectus supplement, as applicable;
(b) at any time to legal entities that are authorized or
regulated to operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is solely to
invest in securities;
(c) at any time to any legal entity that has two or more of
(i) an average of at least 250 employees during the
last financial year; (ii) a total balance sheet of more
than 43,000,000 and (iii) an annual net turnover of
more than 50,000,000, as shown in its last annual or
consolidated accounts;
(d) at any time to fewer than 100 natural or legal persons
(other than qualified investors as defined in the Prospectus
Directive) subject to obtaining the prior consent of the
relevant underwriter or underwriters nominated by us for any
such offer; or
(e) at any time in any other circumstances falling within
Article 3(2) of the Prospectus Directive,
provided that no such offer of securities referred to in
(b) to (e) above shall require us or any underwriter
to publish a prospectus pursuant to Article 3 of the
Prospectus Directive or supplement a prospectus pursuant to
Article 16 of the Prospectus Directive.
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For the purposes of this provision, the expression an
offer to the public in relation to any securities in
any Relevant Member State means the communication in any form
and by any means of sufficient information on the terms of the
offer and the securities to be offered so as to enable an
investor to decide to purchase or subscribe the securities, as
the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and
the expression Prospectus Directive means Directive
2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
Each underwriter has represented and agreed, and each further
underwriter will be required to represent and agree, that, in
connection with the distribution of the debt securities:
(a) in relation to any debt securities that have a maturity
of less than one year, (i) it is a person whose ordinary
activities involve it in acquiring, holding, managing or
disposing of investments (as principal or agent) for the
purposes of its business and (ii) it has not offered or
sold and will not offer or sell any debt securities other than
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
as agent) for the purposes of their businesses or who it is
reasonable to expect will acquire, hold, manage or dispose of
investments (as principal or agent) for the purposes of their
businesses where the issue of the debt securities would
otherwise constitute a contravention of Section 19 of the
Financial Services and Markets Act 2000 (FSMA), by the
guarantor or any of the finance subsidiaries;
(b) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of any debt securities
in circumstances in which Section 21(1) of the FSMA does
not apply to the guarantor or any of the finance
subsidiaries; and
(c) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to any debt securities in, from or otherwise involving
the United Kingdom.
25
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 8.
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Indemnification
of Directors and Officers
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GlaxoSmithKline
and GlaxoSmithKline Capital plc
Article 154 of GlaxoSmithKlines Articles and
Memorandum of Association currently provides that
GlaxoSmithKline shall indemnify directors and officers to the
extent permitted by law.
Article 12 of GlaxoSmithKline Capital plcs Articles
of Association currently provides that GlaxoSmithKline Capital
plc shall indemnify directors and officers to the extent
permitted by law.
GlaxoSmithKline and GlaxoSmithKline Capital plc have agreed with
their directors and officers to indemnify them, to the extent
permitted by law and subject to certain limitations, against all
costs reasonably incurred by any such director or officer in an
action or proceeding to which the director or officer was made a
party by reason of the director or officer being an officer
and/or
director of (a) the company or (b) if at the
companys request, an organization of which it is a
shareholder or creditor.
GlaxoSmithKline maintains insurance relating to certain
liabilities of GlaxoSmithKline plc and its subsidiaries,
including GlaxoSmithKline Capital Inc. and GlaxoSmithKline
Capital plc, that its directors and officers may incur in such
capacity.
Sections 232 to 236 of the U.K. Companies Act 2006 (as
amended) provide as follows:
232.
Provisions protecting directors from liability
(1) Any provision that purports to exempt a director of a
company (to any extent) from any liability that would otherwise
attach to him in connection with any negligence, default, breach
of duty or breach of trust in relation to the company is void.
(2) Any provision by which a company directly or indirectly
provides an indemnity (to any extent) for a director of the
company, or of an associated company, against any liability
attaching to him in connection with any negligence, default,
breach of duty or breach of trust in relation to the company of
which he is a director is void, except as permitted
by
(a) section 233 (provision of insurance),
(b) section 234 (qualifying third-party indemnity
provision), or
(c) section 235 (qualifying pension scheme indemnity
provision).
(3) This section applies to any provision, whether
contained in a companys articles or in any contract with
the company or otherwise.
(4) Nothing in this section prevents a companys
articles from making such provision as has previously been
lawful for dealing with conflicts of interest.
233. Provision of insurance
Section 232(2) (voidness of provisions for indemnifying
directors) does not prevent a company from purchasing and
maintaining for a director of the company, or of an associated
company, insurance against any such liability as is mentioned in
that subsection.
234. Qualifying third-party indemnity provision
(1) Section 232(2) (voidness of provisions for
indemnifying directors) does not apply to qualifying third-party
indemnity provision.
(2) Third-party indemnity provision means provision for
indemnity against liability incurred by the director to a person
other than the company or an associated company.
II-1
Such provision is qualifying third-party indemnity provision if
the following requirements are met.
(3) The provision must not provide any indemnity
against
(a) any liability of the director to pay
(i) a fine imposed in criminal proceedings, or
(ii) a sum payable to a regulatory authority by way of a
penalty in respect of non-compliance with any requirement of a
regulatory nature (however arising); or
(b) any liability incurred by the director
(i) in defending criminal proceedings in which he is
convicted, or
(ii) in defending civil proceedings brought by the company,
or an associated company, in which judgment is given against
him, or
(iii) in connection with an application for relief (see
subsection (6)) in which the court refuses to grant him relief.
(4) The references in subsection (3)(b) to a conviction,
judgment or refusal of relief are the final decision in the
proceedings.
(a) a conviction, judgment or refusal of relief becomes
final
(i) if not appealed against, at the end of the period for
bringing an appeal, or
(ii) if appealed against, at the time when the appeal (or
any further appeal) is disposed of; and
(b) an appeal is disposed of
(i) if it is determined and the period for bringing any
further appeal has ended, or
(ii) if it is abandoned or otherwise ceases to have effect.
(6) The references in subsection (3)(b)(iii) to an
application for relief is to an application for relief under
section 144(3) or (4) of the Companies Act 1985 or
Article 154(3) or (4) of the Companies (Northern
Ireland) Order 1986 (acquisition of shares by innocent nominee),
or section 727 of the Companies Act 1985 or
Article 675 of the Companies (Northern Ireland) Order 1986
(general power to grant relief in case of honest and reasonable
conduct).
235. Qualifying pension scheme indemnity provision
(1) Section 232(2) (voidness of provisions for
indemnifying directors) does not apply to a qualifying pension
scheme indemnity provision.
(2) Pension scheme indemnity provision means provision
indemnifying a director of a company that is a trustee of an
occupational pension scheme against liability incurred in
connection with the companys activities as trustee of the
scheme.
Such provision is qualifying pension scheme indemnity provision
if the following requirements are met.
(3) The provision must not provide any indemnity
against
(a) any liability of the director to pay
(i) a fine imposed in criminal proceedings, or
(ii) a sum payable to a regulatory authority by way of a
penalty in respect of non-compliance with any requirement of a
regulatory nature (however arising); or
(b) any liability incurred by the director in defending
criminal proceedings in which he is convicted.
II-2
(4) The reference in subsection (3)(b) to a conviction is
to the final decision in the proceedings.
(5) For this purpose
(a) a conviction becomes final
(i) if not appealed against, at the end of the period for
bringing an appeal, or
(ii) if appealed against, at the time when the appeal (or
any further appeal) is disposed of; and
(b) an appeal is disposed of
(i) if it is determined and the period for bringing any
further appeal has ended, or
(ii) if it is abandoned or otherwise ceases to have effect.
(6) In this section occupational pension scheme
means an occupational pension scheme as defined in
section 150(5) of the Finance Act 2004 (c 12) that is
established under a trust.
236. Qualifying indemnity provision to be disclosed in
directors report
(1) This section requires disclosure in directors
report of
(a) qualifying third-party indemnity provision, and
(b) qualifying pension scheme indemnity provision.
Such provision is referred to in this section as
qualifying indemnity provision.
(2) If when a directors report is approved any
qualifying indemnity provision (whether made by the company or
otherwise) is in force for the benefit of one or more directors
of the company, the report must state that such provision is in
force.
(3) If at any time during the financial year to which a
directors report relates any such provision was in force
for the benefit of one or more persons who were then directors
of the company, the report must state that such provision was in
force.
(4) If when a directors report is approved qualifying
indemnity provision made by the company is in force for the
benefit of one or more directors of an associated company, the
report must state that such provision is in force.
(5) If at any time during the financial year to which a
directors report relates any such provision was in force
for the benefit of one or more persons who were then directors
of an associated company, the report must state that such
provision was in force.
Section 727 of the U.K. Companies Act 1985 provides as
follows:
727. Power of court to grant relief in certain
cases:
(1) If in any proceedings for negligence, default, breach
of duty or breach of trust against an officer of a company or a
person employed by a company as auditor (whether he is or is not
an officer of the company) it appears to the court hearing the
case that that officer or person is or may be liable in respect
of the negligence, default, breach of duty or breach of trust,
but that he has acted honestly and reasonably, and that having
regard to all the circumstances of the case (including those
connected with his appointment) he ought fairly to be excused
for the negligence, default, breach of duty or breach of trust,
that court may relieve him, either wholly or partly, from his
liability on such terms as it thinks fit.
(2) If any such officer or person as above-mentioned has
reason to apprehend that any claim will or might be made against
him in respect of any negligence, default, breach of duty or
breach of trust, he may apply to the court for relief; and the
court on the application has the same power to relieve him as
under this section it would have had if it had been a court
before which proceedings against that person for negligence,
default, breach of duty or breach of trust, had been brought.
II-3
(3) Where a case to which subsection (1) applies is
being tried by a judge with a jury, the judge, after hearing the
evidence may, if he is satisfied that the defendant or defender
ought in pursuance of that subsection to be relieved either in
whole or in part from the liability sought to be enforced
against him, withdraw the case in whole or in part from the jury
and forthwith direct judgment to be entered for the defendant or
defender on such terms as to costs or otherwise as the judge may
think proper.
GlaxoSmithKline
Capital Inc.
Section 7 of Article 7 of GlaxoSmithKline Capital
Inc.s By-Laws currently provides that GlaxoSmithKline
Capital Inc. shall indemnify directors and officers to the
extent permitted by law.
Under the bylaws of GlaxoSmithKline Capital Inc., the directors
and officers of GlaxoSmithKline Capital Inc. are indemnified, to
the extent permitted by law and subject to certain limitations,
against all costs reasonably incurred by any such director or
officer in an action or proceeding to which he or she was made a
party by reason of being an officer
and/or
director of (a) GlaxoSmithKline Capital Inc. or (b) if
at GlaxoSmithKline Capital Inc.s request, an organization
of which it is a shareholder or creditor.
Section 145 of the Delaware General Corporation Law
provides that a corporation may indemnify directors and
officers, as well as other employees and individuals, against
expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with any threatened, pending or
completed actions, suits or proceedings in which such person was
or is made a party by reason of such person being or having been
a director or officer of such corporation. The statute provides
that it is not exclusive of other rights to which those seeking
indemnification may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise.
II-4
|
|
|
|
|
Exhibit No.
|
|
Description of
Document
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement between GlaxoSmithKline plc and
the Representatives of the Underwriters.
|
|
1
|
.2
|
|
Form of Underwriting Agreement among GlaxoSmithKline Capital
Inc., as issuer, GlaxoSmithKline plc, as guarantor, and the
Representatives of the Underwriters.
|
|
1
|
.3
|
|
Form of Underwriting Agreement among GlaxoSmithKline Capital
plc, as issuer, GlaxoSmithKline plc, as guarantor, and the
Representatives of the Underwriters.
|
|
4
|
.1
|
|
Indenture, dated as of March 4, 2008, between
GlaxoSmithKline plc, as issuer, and Law Debenture
Trust Company of New York, as trustee.
|
|
4
|
.2
|
|
Indenture, dated as of April 6, 2004, among GlaxoSmithKline
Capital Inc., GlaxoSmithKline plc, as guarantor, and Law
Debenture Trust Company of New York (as successor to
Citibank, N.A., pursuant to an Instrument of Resignation,
Appointment and Acceptance dated December 27, 2007 between
GlaxoSmithKline Capital Inc., as issuer, GlaxoSmithKline plc, as
guarantor, Law Debenture Trust Company of New York and
Citibank N.A.) (incorporated by reference to Exhibit 4.3 of
the Registrants Report of Foreign Issuer on
Form 6-K
(File Nos.
333-104121-02
and
333-104121),
filed with the Securities and Exchange Commission on
April 7, 2004).
|
|
4
|
.3
|
|
Indenture, dated as of April 6, 2004, among GlaxoSmithKline
Capital plc, as issuer, GlaxoSmithKline plc, as guarantor, and
Law Debenture Trust Company of New York (as successor to
Citibank, N.A., pursuant to an Instrument of Resignation,
Appointment and Acceptance dated January 7, 2008 between
GlaxoSmithKline Capital plc, as issuer, GlaxoSmithKline plc, as
guarantor, Law Debenture Trust Company of New York and
Citibank N.A.) (incorporated by reference to Exhibit 4.4 of
the Registrants Report of Foreign Issuer on
Form 6-K
(File Nos.
333-104121-01
and
333-104121),
filed with the Securities and Exchange Commission on
April 7, 2004).
|
|
4
|
.4
|
|
Form of Debt Security of GlaxoSmithKline plc.
|
|
4
|
.5
|
|
Form of Guaranteed Debt Security of GlaxoSmithKline Capital Inc.
(incorporated by reference to Exhibit 4.3 of the
Registrants Amendment No. 1 to the Registrants
Registration Statement on
Form F-3
(File Nos.
333-104121-02
and
333-104121),
filed with the Securities and Exchange Commission on
September 2, 2003).
|
|
4
|
.6
|
|
Form of Guaranteed Debt Security of GlaxoSmithKline Capital plc
(incorporated by reference to Exhibit 4.4 of the
Registrants Amendment No. 1 to the Registrants
Registration Statement on
Form F-3
(File Nos.
333-104121-01
and
333-104121),
filed with the Securities and Exchange Commission on
September 2, 2003).
|
|
5
|
.1
|
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP,
special U.S. counsel to GlaxoSmithKline plc, GlaxoSmithKline
Capital Inc. and GlaxoSmithKline Capital plc.
|
|
5
|
.2
|
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP,
special English counsel to GlaxoSmithKline plc, GlaxoSmithKline
Capital Inc. and GlaxoSmithKline Capital plc.
|
|
12
|
|
|
Computation of Earnings to Fixed Charges.
|
|
23
|
.1
|
|
Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.1).
|
|
23
|
.2
|
|
Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.2).
|
|
23
|
.3
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
24
|
|
|
Powers of Attorney (included on the signature pages of this
registration statement).
|
|
25
|
.1
|
|
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Law Debenture Trust Company of New
York, as trustee, under the GlaxoSmithKline plc Indenture.
|
|
25
|
.2
|
|
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Law Debenture Trust Company of New
York, as trustee, under the GlaxoSmithKline Capital Inc.
Indenture.
|
|
25
|
.3
|
|
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Law Debenture Trust Company of New
York, as trustee, under the GlaxoSmithKline Capital plc
Indenture.
|
II-5
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided
,
however
, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the SEC by GlaxoSmithKline pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) In the case of GlaxoSmithKline, to file a
post-effective amendment to this registration statement to
include any financial statements required by Item 8.A. of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not
be furnished,
provided
, that GlaxoSmithKline includes in
the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (a)(4)
and other information necessary to ensure that all other
information in the prospectus is at least as current as the date
of those financial statements. Notwithstanding the foregoing, a
post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the
Securities Act or Item 8.A. of
Form 20-F
if such financial statements and information are contained in
periodic reports filed with or furnished to the SEC by
GlaxoSmithKline pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this
registration statement.
(5) That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrants pursuant to
Rule 424(b)(3) shall be deemed to be part of this registration
statement as of the date the filed prospectus was deemed part of
and included in this registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be
part of and included in this registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the
II-6
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of this registration statement
relating to the securities in this registration statement to
which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of this
registration statement or made in a document incorporated or
deemed incorporated by reference into this registration
statement or prospectus that is part of this registration
statement will, as to a purchaser with a time of contract of
sale prior to such effective date, supersede or modify any
statement that was made in this registration statement or
prospectus that was part of this registration statement or made
in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of the
Registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned
Registrants undertake that in a primary offering of securities
of the undersigned Registrants pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrants will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrants relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrants or used
or referred to by the undersigned Registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrants or their securities provided by or
on behalf of the undersigned Registrants; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrants to the purchaser.
(b) The undersigned Registrants hereby undertake that, for
purposes of determining any liability under the Securities Act,
each filing of GlaxoSmithKlines annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrants pursuant to the
foregoing provisions, or otherwise, the Registrants have been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrants of expenses incurred or paid by a director,
officer or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants
will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by them is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form F-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
London, England, on the 4th day of March, 2008.
GLAXOSMITHKLINE PLC
|
|
|
|
By:
|
/s/ Dr. Jean-Pierre
Garnier
|
Name: Dr. Jean-Pierre Garnier
|
|
|
|
Title:
|
Chief Executive Officer and
|
Executive Director
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose
signature appears below hereby constitutes and appoints Simon M.
Bicknell, Donald F. Parman, Victoria A. Whyte and Carol G. Ashe,
jointly and severally, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, and supplements
to this Registration Statement on
Form F-3
(and any and all additional registration statements, including
registration statements filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended), and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as they or he or she might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Sir
Christopher Gent
Sir
Christopher Gent
|
|
Non-Executive Chairman of the Board of Directors
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Dr. Jean-Pierre
Garnier
Dr. Jean-Pierre
Garnier
|
|
Chief Executive Officer (principal executive officer) and
Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Julian
Heslop
Julian
Heslop
|
|
Chief Financial Officer (principal financial and accounting
officer) and Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Andrew
Witty
Andrew
Witty
|
|
Chief Executive Officer Designate and Executive Director
|
|
March 4, 2008
|
II-8
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Professor
Sir Roy Anderson
Professor
Sir Roy Anderson
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Dr. Stephanie
Burns
Dr. Stephanie
Burns
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Lawrence
Culp
Lawrence
Culp
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Sir
Crispin Davis
Sir
Crispin Davis
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Sir
Deryk Maughan
Sir
Deryk Maughan
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Dr. Daniel
Podolsky
Dr. Daniel
Podolsky
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Sir
Ian Prosser
Sir
Ian Prosser
|
|
Senior Independent Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Dr. Ronaldo
Schmitz
Dr. Ronaldo
Schmitz
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Dr. Moncef
Slaoui
Dr. Moncef
Slaoui
|
|
Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Tom
de Swaan
Tom
de Swaan
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Christopher
Viehbacher
Christopher
Viehbacher
|
|
Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Sir
Robert Wilson
Sir
Robert Wilson
|
|
Non-Executive Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Donald
F. Parman
Donald
F. Parman
|
|
Vice President, Legal Operations, Corporate
Functions U.S. and Authorized Representative in the
United States
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Carol
G. Ashe
Carol
G. Ashe
|
|
Vice President, Legal Operations, Corporate
Functions U.S. and Authorized Representative in the
United States
|
|
March 4, 2008
|
II-9
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form F-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
London, England, on the 4th day of March, 2008.
GLAXOSMITHKLINE CAPITAL INC.
Name: Julian Heslop
|
|
|
|
Title:
|
President and Director
|
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose
signature appears below hereby constitutes and appoints Simon M.
Bicknell, Donald F. Parman, Victoria A. Whyte and Carol G. Ashe,
jointly and severally, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, and supplements
to this Registration Statement on
Form F-3
(and any and all additional registration statements, including
registration statements filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended), and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as they or he or she might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Julian
Heslop
Julian
Heslop
|
|
Director and President (principal executive
officer, principal financial officer and
principal accounting officer)
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Rupert
M. Bondy
Rupert
M. Bondy
|
|
Director
|
|
March 4, 2008
|
II-10
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form F-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
London, England, on the 4th day of March, 2008.
GLAXOSMITHKLINE CAPITAL PLC
Name: Julian Heslop for and on
behalf of Glaxo
Group
Limited
Title: Corporate
Director
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose
signature appears below hereby constitutes and appoints Simon M.
Bicknell, Donald F. Parman, Victoria A. Whyte and Carol G. Ashe,
jointly and severally, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, and supplements
to this Registration Statement on
Form F-3
(and any and all additional registration statements, including
registration statements filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended), and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as they or he or she might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Victoria
A. Whyte
Victoria
A. Whyte for and on behalf of Edinburgh Pharmaceutical
Industries Limited
|
|
Corporate Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Julian
Heslop
Julian
Heslop for and on behalf of Glaxo Group Limited
|
|
Corporate Director
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Donald
F. Parman
Donald
F. Parman
|
|
Vice President, Legal Operations, Corporate
Functions U.S. and Authorized Representative in the
United States
|
|
March 4, 2008
|
|
|
|
|
|
/s/ Carol
G. Ashe
Carol
G. Ashe
|
|
Vice President, Legal Operations, Corporate
Functions U.S. and Authorized Representative in the
United States
|
|
March 4, 2008
|
II-11
INDEX TO
EXHIBITS
|
|
|
|
|
Exhibit No.
|
|
Description of
Document
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement between GlaxoSmithKline plc and
the Representatives of the Underwriters.
|
|
1
|
.2
|
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Form of Underwriting Agreement among GlaxoSmithKline Capital
Inc., as issuer, GlaxoSmithKline plc, as guarantor, and the
Representatives of the Underwriters.
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1
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.3
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Form of Underwriting Agreement among GlaxoSmithKline Capital
plc, as issuer, GlaxoSmithKline plc, as guarantor, and the
Representatives of the Underwriters.
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4
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.1
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Indenture, dated as of March 4, 2008, between
GlaxoSmithKline plc, as issuer, and Law Debenture
Trust Company of New York, as trustee.
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4
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.2
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Indenture, dated as of April 6, 2004, among GlaxoSmithKline
Capital Inc., as issuer, GlaxoSmithKline plc, as guarantor, and
Law Debenture Trust Company of New York (as successor to
Citibank, N.A., pursuant to an Instrument of Resignation,
Appointment and Acceptance dated December 27, 2007 between
GlaxoSmithKline Capital Inc., as issuer, GlaxoSmithKline plc, as
guarantor, Law Debenture Trust Company of New York and
Citibank N.A.) (incorporated by reference to Exhibit 4.3 of
the Registrants Report of Foreign Issuer on
Form 6-K
(File Nos.
333-104121-02
and
333-104121),
filed with the Securities and Exchange Commission on
April 7, 2004).
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4
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.3
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Indenture, dated as of April 6, 2004, among GlaxoSmithKline
Capital plc, as issuer, GlaxoSmithKline plc, as guarantor, and
Law Debenture Trust Company of New York (as successor to
Citibank, N.A., pursuant to an Instrument of Resignation,
Appointment and Acceptance dated January 7, 2008 between
GlaxoSmithKline Capital plc, as issuer, GlaxoSmithKline plc, as
guarantor, Law Debenture Trust Company of New York and
Citibank N.A.) (incorporated by reference to Exhibit 4.4 of
the Registrants Report of Foreign Issuer on
Form 6-K
(File Nos.
333-104121-01
and
333-104121),
filed with the Securities and Exchange Commission on
April 7, 2004).
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4
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.4
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Form of Debt Security of GlaxoSmithKline plc.
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4
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.5
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Form of Guaranteed Debt Security of GlaxoSmithKline Capital Inc.
(incorporated by reference to Exhibit 4.3 of the
Registrants Amendment No. 1 to the Registrants
Registration Statement on
Form F-3
(File Nos.
333-104121-02
and
333-104121),
filed with the Securities and Exchange Commission on
September 2, 2003).
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4
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.6
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Form of Guaranteed Debt Security of GlaxoSmithKline Capital plc
(incorporated by reference to Exhibit 4.4 of the
Registrants Amendment No. 1 to the Registrants
Registration Statement on
Form F-3
(File Nos.
333-104121-01
and
333-104121),
filed with the Securities and Exchange Commission on
September 2, 2003).
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5
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.1
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Opinion of Cleary Gottlieb Steen & Hamilton LLP,
special U.S. counsel to GlaxoSmithKline plc, GlaxoSmithKline
Capital Inc. and GlaxoSmithKline Capital plc.
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5
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.2
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Opinion of Cleary Gottlieb Steen & Hamilton LLP,
special English counsel to GlaxoSmithKline plc, GlaxoSmithKline
Capital Inc. and GlaxoSmithKline Capital plc.
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12
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Computation of Earnings to Fixed Charges.
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23
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.1
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Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.1).
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23
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.2
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Consent of Cleary Gottlieb Steen & Hamilton LLP
(included in Exhibit 5.2).
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23
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.3
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Consent of PricewaterhouseCoopers LLP.
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24
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Powers of Attorney (included on the signature pages of this
registration statement).
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25
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.1
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Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Law Debenture Trust Company of New
York, as trustee, under the GlaxoSmithKline plc Indenture.
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25
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.2
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Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Law Debenture Trust Company of New
York, as trustee, under the GlaxoSmithKline Capital Inc.
Indenture.
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25
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.3
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Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Law Debenture Trust Company of New
York, as trustee, under the GlaxoSmithKline Capital plc
Indenture.
|
EXHIBIT 1.1
UNDERWRITING AGREEMENT
between
GLAXOSMITHKLINE PLC
as Issuer
and
[
]
as Representatives of the Underwriters
Dated as of [
]
TABLE OF CONTENTS
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Page
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1.
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Representations and Warranties
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1
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2.
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Purchase and Sale
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5
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3.
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Delivery and Payment
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5
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4.
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[Reserved]
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5
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5.
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Agreements
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5
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6.
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Conditions to the Obligations of the Underwriters
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8
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7.
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Reimbursement of Underwriters' Expenses
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11
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8.
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Indemnification and Contribution
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11
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9.
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Default by an Underwriter
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14
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10.
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Termination
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14
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11.
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Representations and Indemnities to Survive
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15
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12.
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Notices
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15
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13.
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Successors
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15
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14.
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Applicable Law
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15
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15.
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Counterparts
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15
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16.
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Headings
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15
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17.
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No Fiduciary Duty
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15
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18.
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Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
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16
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19.
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Definitions
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17
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SCHEDULES
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Schedule I
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Terms of the Securities
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Schedule II
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Underwriting Commitments
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Schedule III
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Schedule of Free Writing Prospectuses Included in the Disclosure Package
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Schedule IV
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Form of Pricing Term Sheet
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EXHIBITS
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Exhibit A-1
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Form of Opinion of U.S. Counsel to the Company
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Exhibit A-2
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Form of Opinion of U.K. Counsel to the Company
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Exhibit B
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Form of Letter of Counsel to the Company
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GlaxoSmithKline plc
[
] Notes Due [
]
Underwriting Agreement
[ ], 20[ ]
[ ]
as Representatives of the
several Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
GlaxoSmithKline plc, a public limited company incorporated in England and Wales (the
Company
), proposes to sell to the several underwriters named in Schedule II hereto (the
Underwriters
), for whom you (the
Representatives
) are acting as
representatives, the principal amount of its securities identified in Schedule I hereto (the
Securities
), to be issued under an indenture dated as of March 4, 2008 (the
Indenture
), between the Company, and Law Debenture Trust Company of New York, as trustee
(the
Trustee
).
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 6 of Form F-3 that were filed under the U.S.
Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities
and Exchange Commission (the
Commission
) thereunder (collectively, 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 19 hereof.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees
with, each Underwriter as follows:
(a)
Registration Statement Effective
. The Company meets the requirements for
use of Form F-3 under the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
Securities Act
) and
has filed with the Commission an automatic shelf registration statement, as defined in Rule
405 (No. 333-[___]) on Form F-3, including a related Base Prospectus, for registration under
the Securities Act of the offering and sale from time to time of certain debt
1
securities, including the Securities. 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 Securities, each of which will have previously been furnished to you. The
Company will file with the Commission a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Securities Act, 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). No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened by the Commission.
(b)
Registration Statement Not Misleading
. On each Effective Date, the
Registration Statement complied in all material respects with the applicable requirements of
the Securities Act; on each Effective Date and at the Execution Time, the Registration
Statement did 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; and on the date of any filing pursuant to Rule 424(b) under the
Securities Act and on the Closing Date (as defined below), 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 representation or warranty as to (i) the
Statement of Eligibility and Qualification of the Trustee under the Trust Indenture Act
(Form T-1), which is included in the Registration Statement, 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), it being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c)
Disclosure Package
. At the Execution Time, (i) the Disclosure Package and
(ii) each electronic road show, if any, when taken together as a whole with the Disclosure
Package, do 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
2
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, it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d)
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 Securities 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) and (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 Securities in reliance on the exemption in Rule 163, 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 Securities 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).
(e)
Not an 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 Securities 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
to consider whether the Company would be considered an Ineligible Issuer.
(f)
Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus
(including the final term sheet prepared and filed pursuant to Section 5(c) hereof) 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
foregoing sentence does not apply to statements in or omissions from any 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, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(g)
Authorization of Indenture and Securities
. The Indenture has been duly
authorized, executed and delivered by the Company and has been duly qualified under the U.S.
Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the
Trust Indenture Act
); the Securities have been duly
authorized by the Company, and when the Securities are delivered and paid for pursuant to
this Agreement on the Closing Date, the Securities will have been duly
3
executed, authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency and similar laws affecting creditors rights generally and to general
principles of equity; and, when the Securities have been duly executed, authenticated,
issued and delivered, the Securities will conform in all material respects to the
description thereof contained in the Disclosure Package and the Final Prospectus.
(h)
Organization of the Company
. The Company is organized and validly existing
as a public limited company under the laws of England and Wales, with power and authority to
own its properties and conduct its business as described in the Disclosure Package and the
Final Prospectus.
(i)
No Consents
. No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the consummation by the
Company of the transactions contemplated by this Agreement in connection with the issuance
and sale of the Securities by the Company, except such as have been obtained or made under
the Securities Act, the Exchange Act and the Trust Indenture Act and such as may be required under state securities laws or the securities laws of any
jurisdiction outside the United States in which the Securities are offered and sold.
(j)
No Breach or Default
. The execution, delivery and performance by the
Company of the Indenture, this Agreement and the issuance and sale of the Securities and
compliance with the terms and provisions thereof by the Company will not result in a breach
or violation of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body or any court
having jurisdiction over the Company or any of the Companys subsidiaries or any of its
properties, or any material agreement or instrument to which the Company or any of the
Companys subsidiaries is a party or by which the Company or the Companys subsidiaries is
bound or to which any of their respective properties is subject, or the charter or by-laws
of the Company.
(k)
Investment Company Act
. The Company is not, nor, after giving effect to
the offering and sale of the Securities and the application of the proceeds therefrom as
described in the Disclosure Package and the Final Prospectus, will it be an investment
company as defined in the U.S. Investment Company Act of 1940, as amended.
(l)
Regulatory Matters
. Neither the Company nor any of the Companys
subsidiaries nor, to the knowledge of the Company, any director, officer, agent or employee
of the Company, the Company or any of the Companys 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.
4
(m)
Disclosure Controls
. The Company and its subsidiaries maintain disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act);
such disclosure controls and procedures are effective.
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 Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriters name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or on such other date and at such other
time as the Company and the Representatives may agree (such date and time of delivery and payment
for the Securities being herein called the
Closing Date
). For purposes of this
Agreement,
Business Day
shall mean any day other than a Saturday, Sunday or legal holiday
or day on which banking institutions or trust companies are authorized or obligated by law to close
in New York City or London.
Delivery of the Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. [Reserved]
5.
Agreements
. The Company agrees with the several Underwriters as follows:
(a)
File Prospectus
. The Company will file the Final Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) under the Securities Act within
the time period prescribed.
(b)
Amendments to Registration Statement or Prospectus; Stop Orders
. The
Company will advise the Representatives promptly of any proposal to amend the Registration
Statement or file any supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Base Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement. The Company will
promptly advise the Representatives of the filing of any such amendment or supplement and of
the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or
5
threatening of any proceeding for that purpose. The Company will use its reasonable
best efforts to prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(c)
Final Term Sheet
. The Company will prepare a final term sheet, containing
solely a description of final terms of the Securities and the offering thereof, in the form
approved by you and attached as Schedule IV hereto and to file such term sheet pursuant to
Rule 433(d) within the time required by such Rule.
(d)
Amendment of Disclosure Package
. If, at any time prior to the filing of
the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances
under which they were made or the circumstances then prevailing not misleading, the Company
will (i) notify promptly the Representatives so that any use of the Disclosure Package may
cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package
to correct such statement or omission; and (iii) supply any amendment or supplement to you
in such quantities as you may reasonably request.
(e)
Material Changes
. If, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result
of which the Final Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Final Prospectus to
comply with the Securities Act or the Exchange Act, the Company will promptly notify the
Representatives of such event and prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or effect such compliance.
(f)
Delivery of Earnings Statement
. As soon as practicable, the Company will
make generally available to its security holders an earnings statement or statements of the
Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158.
(g)
Delivery of Registration Statement and Prospectus
. The Company will
furnish to the Representatives copies of the Registration Statement and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Securities Act (including
in circumstances where such requirement may be satisfied pursuant to Rule 172), as many
copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement to any of the foregoing as the Representatives may reasonably
request. The Company will pay the expenses of preparation, printing or other production of
all documents relating to the offering;
provided
that, if any Underwriter is
required to deliver a Final Prospectus in connection with sales of Securities at any time
six months or more after the date of the Final
6
Prospectus, the expenses relating to such Final Prospectus shall be paid by such
Underwriter.
(h)
Qualification of Securities
. The Company will arrange, if necessary, for
the qualification of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any fee of the Financial
Industry Regulatory Authority, Inc. in connection with its review of the offering;
provided
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified, to take any action that would subject
it to service of process in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction where it is not now so subject or to subject itself to
taxation as doing business in any such jurisdiction.
(i)
No Other Offering Materials
. The Company agrees that, unless it has or
shall have obtained the prior written consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Company that, unless it has or shall have
obtained, as the case may be, the prior written consent of the Company, it has not made and
will not make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a free writing prospectus (as
defined in Rule 405) required to be filed by the Company with the Commission or retained by
the Company under Rule 433, other than a free writing prospectus containing the information
contained in the final term sheet prepared and filed pursuant to Section 5(c) hereof;
provided
that the prior written consent of the parties hereto shall be deemed to
have been given in respect of the Free Writing Prospectuses included in Schedule III hereto
and any electronic road show. Any such free writing prospectus consented to by the
Representatives and the Company is hereinafter referred to as a Permitted Free Writing
Prospectus. The Company agrees that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(j)
Lock-up
. The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, directly or
indirectly, including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, any U.S. dollar-denominated debt securities
issued or guaranteed by the Company (other than the Securities) or publicly announce an
intention to effect any such transaction, until the Business Day set forth on Schedule I
hereto.
(k)
Stabilization
. The Company will not take, directly or indirectly, any
action that is designed to or that constitutes or that might reasonably be expected to cause
or result, under the Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Securities.
7
(l)
[Listing
. The Company will use reasonable best efforts to have the
Securities listed and admitted to trading on the [ ] Stock Exchange or another
recognised exchange (as defined in Section 1005 of the Income Tax Act 2007), and
satisfactory evidence of such actions shall have been provided to the Representatives.]
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and as of the
Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a)
Prospectus Filed; No Stop Order
. The Final Prospectus, and any supplement
thereto, shall have been filed in the manner and within the time period required by Rule
424(b); the final term sheet contemplated by Section 5(c) hereof, and any other material
required to be filed by the Company pursuant to Rule 433(d), shall have been filed with the
Commission within the applicable time periods prescribed for such filings by Rule 433; and
no stop order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened.
(b)
Opinions of Counsel to the Company
. On the Closing Date, the
Representatives, on behalf of the Underwriters, shall have received an opinion or opinions
of Cleary Gottlieb Steen & Hamilton LLP, counsel to the Company, dated such date,
substantially to the effect set forth in Exhibits A-1 and A-2 hereto.
(c)
Letter of Counsel to the Company
. On the Closing Date, the
Representatives, on behalf of the Underwriters, shall have received a letter of Cleary
Gottlieb Steen & Hamilton LLP, counsel to the Company, dated such date, substantially in the
form set forth in Exhibit B hereto.
(d)
Opinion of Counsel to the Underwriters
. The Representatives, on behalf of
the Underwriters, shall have received from Sidley Austin
llp
, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, on behalf of the Underwriters, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure Package and the Final
Prospectus (together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to pass upon such
matters.
(e)
Certificate of the Company
. The Company shall have furnished to the
Representatives, on behalf of the Underwriters, a certificate of the Company, signed by the
Chief Executive Officer and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Disclosure Package, the Final
8
Prospectus and any supplements or amendments thereto, as well as each electronic road
show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the Company, threatened; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the Disclosure Package and the Final Prospectus (in
each case, exclusive of any supplement thereto after the date hereof), there has
been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (in each case, exclusive of any supplement thereto after the date
hereof) or as described in such certificate.
(f)
Accountants Comfort Letters
. The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, on behalf of the
Underwriters, at the Execution Time and on the Closing Date, letters (which may refer to
letters previously delivered to one or more of the Representatives), dated respectively as
of the date hereof and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the meaning of the
Securities Act and the Exchange Act stating in effect, that:
(i) in their opinion the audited financial statements and financial statement
schedules, if any, included or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act;
(ii) on the basis of a reading of the latest unaudited financial statements
made available by the Company and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with generally accepted auditing
standards), which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of the meetings
of the stockholders, directors and audit committee of the Company; and inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters of the Company and its
9
subsidiaries as to transactions and events subsequent to
[ ], nothing came to their attention, after due inquiry,
that caused them to believe that:
(1) any unaudited financial statements included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 20[ ], there
were any changes (
provided
that the requested information was
available in response to such inquiry), at a specified date not more than
five days prior to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company or decreases in
the equity shareholders funds of the Company as compared with the amounts
shown on the December 31, 20[ ] consolidated balance sheet included or
incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus, or for the period from December 31,
20[ ] to such specified date there were any decreases, as compared with the
corresponding period in the preceding year or the corresponding period in
the preceding quarter in turnover or trading profit or profit on ordinary
activities before taxation or in earnings (profit attributable to
shareholders) or per share amounts of earnings of the Company and its
subsidiaries, except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the information included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus
in response to Form 20-F, Item 3.A. (Selected Financial Data) and Regulation
S-K, Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of Form 20-F and Regulation S-K,
respectively; and
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus, including the information set forth under the captions
Ratios of Earnings to Fixed Charges in the Preliminary Prospectus and the Final
10
Prospectus, the information included or incorporated by reference in Items 3,
4, 5 and 6 of the Companys Annual Report on Form 20-F, incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Final Prospectus,
agrees with the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
(g)
No Material Adverse Change
. Subsequent to the Execution Time, there shall
not have been (i) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (in each case, exclusive of any supplement thereto after
the date hereof) or (ii) any decrease in the rating of any of the Companys debt securities
by any nationally recognized statistical rating organization (as defined for purposes of
Rule 436(g)) or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of the possible
change, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of a majority in interest of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement, the Disclosure Package and the
Final Prospectus (in each case, exclusive of any supplement thereto after the date hereof).
The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters under this Agreement.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Sidley Austin
llp
, counsel for the Underwriters, at 787 Seventh Avenue, New York, New York
10019 or 25 Basinghall Street, London EC2V 5HA, United Kingdom, on the Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters by the Company
. The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees and agents
of each Underwriter and each person who controls any Underwriter within the meaning of
either the Securities Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of
11
them may become subject under the Securities Act, the Exchange Act or other U.S.
federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or in the Base
Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement
relating to the Securities, the Final Prospectus, or any Issuer Free Writing Prospectus or
the information contained in the final term sheet required to be prepared and filed pursuant
to Section 5(c) hereof, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage, liability or
action;
provided
,
however
, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability that the
Company may otherwise have.
(b)
Indemnification of the Company by the Underwriters
. Each Underwriter
severally and not jointly agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Securities Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability that any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in [ ] constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c)
Actions Against Parties; Notification
. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than
12
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying partys choice
at the indemnifying partys expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below);
provided
,
however
, that such
counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying partys election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ a single separate counsel, and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel, if the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest. An indemnifying party shall
not, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit
or proceeding. The indemnifying party shall not be liable for any settlement of any such
action, suit or proceeding effected without its written consent.
(d)
Contribution
. In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same) (collectively
Losses
) to which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and by the Underwriters on the other from the offering of the Securities;
provided
,
however
, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute 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
of the Underwriters on the other in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the
13
omission or alleged omission to state a material fact relates to information provided
by the Company on the one hand or the Underwriters on the other, the relative intent of the
parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation that does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in the Companys Common Stock
shall have been suspended by the London Stock Exchange or trading in the Companys American
Depositary Shares shall have been suspended by the Commission or the
14
New York Stock Exchange or trading in securities generally on the New York Stock Exchange or
the London Stock Exchange shall have been suspended or limited or minimum prices shall have been
established on either of such exchanges, (ii) a banking moratorium shall have been declared either
by U.S. federal or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to make it, in the
reasonable judgment of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus
(in each case, exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and shall survive delivery of and payment for the Securities. The provisions of Sections
7, 8, 14 and 18 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder shall be in writing and effective only on
receipt, and, (i) if sent to the Representatives, shall be mailed, delivered or telefaxed
to[ ], attention: [ ]; or, (ii) if sent to the Company, shall be
mailed, delivered or telefaxed to 980 Great West Road, Brentford, Middlesex, TW8 9GS,
England, facsimile: 44 (0) 208 047 6909, attention: The Company Secretary.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
15.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
17.
No Fiduciary Duty
. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which any of them may be
acting, on the other hand, (b) the Underwriters are acting as principal and not as an agent or
fiduciary of the Company and (c) the Companys engagement of the Underwriters in connection with
the offering and the process leading up to the offering is as
15
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 in connection with the offering of the Securities, or
owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
18.
Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
.
(a) The Company irrevocably consents and agrees that any legal action, suit or
proceeding against it with respect to any matter arising out of or based upon this Agreement
may be brought in the courts of the State of New York located in The City of New York or the
courts of the United States of America located in The City of New York and hereby
irrevocably consents and submits to the non-exclusive jurisdiction of each such court
in
personam
, generally and unconditionally with respect to any such action,
suit or proceeding.
(b) The Company hereby irrevocably designates, appoints, and empowers [ ], with
offices currently at [ ], New York, New York [ ], as its designee, appointee and agent
to receive, accept and acknowledge for and on its behalf, service of any and all legal
process, summons, notices and documents that may be served in any action, suit or proceeding
brought against the Company in any such United States or State court with respect to any
matter arising out of or based upon this Agreement and that may be made on such designee,
appointee and agent in accordance with legal procedures prescribed for such courts. The
Company further hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any such action, suit or proceeding against it by
serving a copy thereof upon the relevant agent for service of process referred to in this
Section 18 (whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service). The Company agrees
that the failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service or any
judgment rendered in any such action or proceeding based thereon. Nothing herein shall in
any way be deemed to limit the ability of the Underwriters to serve such legal process,
summons, notices and documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Company or bring actions, suits or proceedings against the Company in
such other jurisdictions, and in such manner, as may be permitted by applicable law. The
Company hereby irrevocably and unconditionally waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or based upon this Agreement brought
in the United States federal courts located in The City of New York or the courts of the
State of New York located in The City of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has been brought in an inconvenient
forum.
16
19.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Base Prospectus
shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
Disclosure Package
shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and
filed pursuant to Section 5(c) hereof, if any, and (v) any other Free Writing Prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
Effective Date
shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
Execution Time
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Final Prospectus
shall mean the prospectus supplement relating to the Securities
that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Free Writing Prospectus
shall mean a free writing prospectus, as defined in Rule
405.
Issuer Free Writing Prospectus
shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus
shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final
Prospectus, together with the Base Prospectus.
Registration Statement
shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed
part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and,
in the event any post-effective amendment thereto becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended.
Rule 158
,
Rule 163
,
Rule 164
,
Rule 172
,
Rule
405
,
Rule 415
,
Rule 424
,
Rule 430B
,
Rule 433
,
Rule 436
,
Rule 456
and
Rule 457
refer to such rules under the
Securities Act.
17
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
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VERY TRULY YOURS,
GLAXOSMITHKLINE PLC
|
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By:
|
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Name:
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Title:
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The foregoing Agreement is hereby confirmed and accepted
as of the date specified in Schedule I hereto.
[ ]
For themselves and the other several Underwriters, if any,
named in Schedule II to the foregoing Agreement.
SCHEDULE I
Terms of the Securities
Underwriting Agreement dated [ ]
Registration Statement No. 333-[ ]
Representatives: [ ]
Title, Purchase Price and Description of Securities:
Title: [ ]
Principal amount: $[ ]
Purchase price (include accrued interest or amortization, if any): $[ ]
Sinking fund provisions: [ ]
Redemption provisions: [ ]
Other provisions: As described in the applicable prospectus supplement referred to in this Agreement.
Closing Date, Time and Location: [ ] at [ ] a.m./p.m., simultaneously, at Sidley
Austin
llp
, 787 Seventh
Avenue, New York,
New York 10019 and 25 Basinghall Street,
London EC2V 5HA, United Kingdom
Type of Offering: Non-delayed.
Date referred to in Section 5(j) after which the Company may offer or sell debt securities issued
or guaranteed by the Company without the consent of the Representatives: [ ].
I-1
SCHEDULE II
Underwriting Commitments
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Principal Amount
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of Securities to be
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Underwriters
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Purchased
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[Names of Underwriters]
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Total
|
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$
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II-1
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
[list all FWPs included in the Disclosure Package]
III-1
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333 -
l
, 200
l
FORM OF PRICING TERM SHEET
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Notes due
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Issuer:
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GlaxoSmithKline plc
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Size:
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$
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Trade Date:
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, 20
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Maturity Date:
|
|
l
,
|
|
|
|
Coupon:
|
|
l
%
|
|
|
|
Interest Payment Dates:
|
|
l
, commencing
l
,
|
|
|
|
Price to Public:
|
|
l
%
|
|
|
|
Benchmark Treasury:
|
|
l
|
|
|
|
Benchmark Treasury Yield:
|
|
l
%
|
|
|
|
Spread to Benchmark Treasury:
|
|
+
l
bp
|
|
|
|
Yield:
|
|
l
%
|
|
|
|
Make-Whole Call:
|
|
l
|
|
|
|
CUSIP:
|
|
l
|
|
|
|
Expected Settlement Date:
|
|
l
,
|
|
|
|
Day Count Fraction:
|
|
l
|
|
|
|
Business Day:
|
|
New York and London
|
|
|
|
Denominations:
|
|
l
|
|
|
|
Anticipated Ratings:
|
|
[
l
by Moodys Investors Service, Inc.]
|
|
|
[
l
by Standard & Poors Ratings Services]
|
|
|
|
Joint Book-Running Managers:
|
|
l
|
|
|
|
Co-Managers:
|
|
l
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling [
] toll free at [
] or
[
].
IV-1
EXHIBIT A-1
[Form of Opinion of U.S. Counsel to the Company ]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special United States counsel to GlaxoSmithKline plc, a public limited
company incorporated in England and Wales (the Company), in connection with the offering from
time to time, together or separately and in one or more series, pursuant to a registration
statement on Form F-3 (No. 333-[ ]) of (i) debt securities of the Company (the
Securities) to be issued under an indenture dated as of March 4, 2008 (the Indenture) between
the Company and Law Debenture Trust Company of New York, as trustee (the Trustee). Such
registration statement, as amended as of its most recent effective date ([ ], 20[ ]),
insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the
Securities Act of 1933, as amended (the Securities Act)), but excluding the documents
incorporated by reference therein, is herein called the Registration Statement; the related
prospectus dated [ ], 20[ ], as first filed with the Securities and
Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the Securities Act, but
excluding the documents incorporated by reference therein, is herein called the Base Prospectus;
the preliminary prospectus supplement dated [ ], 20[ ], as filed with the Commission
pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by
reference therein, is herein called the Preliminary Prospectus Supplement; and the related
prospectus supplement dated [ ], 20[ ], as filed with the Commission pursuant
to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the Final Prospectus Supplement. The Base Prospectus and the
Preliminary Prospectus Supplement together are herein called the Pricing Prospectus, and the Base
Prospectus and the Final Prospectus Supplement together are herein called the Final Prospectus.
This opinion letter is furnished pursuant to Section 6(b) of the underwriting agreement dated
[ ], 20[ ] (the Underwriting Agreement) between the Company and the several
underwriters named in Schedule II thereto (the Underwriters).
In arriving at the opinions expressed below, we have reviewed the following documents:
|
(a)
|
|
an executed copy of the Underwriting Agreement;
|
|
|
(b)
|
|
the Registration Statement and the documents incorporated by
reference therein;
|
A-1-1
|
(c)
|
|
the Pricing Prospectus, the documents incorporated by reference
therein [and the documents listed in Schedule I hereto];
|
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(d)
|
|
the Final Prospectus and the documents incorporated by
reference therein;
|
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(e)
|
|
[a facsimile copy of] the Securities in global form as executed
by the Company and authenticated by the Trustee;
|
|
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(f)
|
|
an executed copy of the Indenture, including the certificated
form of Securities; and
|
|
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(g)
|
|
the documents delivered to you by the Company at the closing
pursuant to the Underwriting Agreement.
|
In addition, we have reviewed the originals or copies certified or otherwise identified to our
satisfaction of all such corporate records of the Company and such other instruments and other
certificates of public officials, officers and representatives of the Company and such other
persons, and we have made such investigations of law, as we have deemed appropriate as a basis for
the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents
submitted to us as originals and the conformity to the originals of all documents submitted to us
as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual
matters of each document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Underwriting Agreement) and (ii) that any
Securities in certificated form issued in exchange for the Securities in global form will conform
to the form thereof that we have reviewed and will be duly authenticated in accordance with the
terms of the Indenture.
Based on the foregoing, and subject to the further assumptions and qualifications set forth
below, it is our opinion that:
1. The Indenture has been duly executed and delivered by the Company under the law of the
State of New York and has been qualified under the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act), and is a valid, binding and enforceable agreement of the Company.
2. (a) The Securities in global form have been duly executed and delivered by the Company
under the law of the State of New York and are, and (b) the Securities in certificated form when
exchanged for interests in the Securities in global form in accordance with the terms thereof and
of the Indenture will be, the valid, binding and enforceable obligations of the Company and
entitled to the benefits of the Indenture.
3. The statements under the heading Description of the Notes in the Pricing Prospectus,
considered together with the documents listed in Schedule I hereto, and in the Final Prospectus,
together in each case with the statements under the heading Description of Debt Securities in the
Base Prospectus, insofar as such statements purport to summarize certain provisions of the
Securities and the Indenture, provide a fair summary of such provisions.
A-1-2
4. The Underwriting Agreement has been duly executed and delivered by the Company under the
law of the State of New York.
5. The issuance and sale of the Securities to the Underwriters pursuant to the Underwriting
Agreement do not, and the performance by the Company of its obligations in the Underwriting
Agreement, the Indenture and the Securities, respectively, will not, require any consent, approval,
authorization, registration or qualification of or with any governmental authority of the United
States or the State of New York that in our experience normally would be applicable to general
business entities with respect to such issuance, sale or performance, except such as have been
obtained or effected under the Securities Act, the Securities Exchange Act of 1934, as amended, and
the Trust Indenture Act (but we express no opinion relating to any state securities or Blue Sky
laws).
6. No registration of the Company under the Investment Company Act of 1940, as amended, is
required for the offer and sale of the Securities by the Company in the manner contemplated by the
Underwriting Agreement and the Final Prospectus.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of
any agreement or obligation of the Company, (a) we have assumed that the Company and each other
party to such agreement or obligation has satisfied those legal requirements that are applicable to
it to the extent necessary to make such agreement or obligation enforceable against it (except that
no such assumption is made as to the Company regarding matters of the federal law of the United
States of America or the law of the State of New York that in our experience normally would be
applicable to general business entities with respect to such agreement or obligation), (b) such
opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors
rights generally and to general principles of equity and (c) such opinions are subject to the
effect of judicial application of foreign laws or foreign governmental actions affecting creditors
rights.
The waiver of defenses contained in Section 6.01 of the Indenture may be ineffective to the
extent that any such defense involves a matter of public policy in New York (such as reflected in
New Yorks anti-champerty statute). With respect to Section 18 of the Underwriting Agreement, we
express no opinion as to the subject matter jurisdiction of any United States federal court to
adjudicate any action relating to the Underwriting Agreement where jurisdiction is based on
diversity of citizenship under 28 U.S.C. § 1332 does not exist.
The foregoing opinions are limited to the federal law of the United States of America and the
law of the State of New York.
A-1-3
We are furnishing this opinion letter to you, as Representatives of the Underwriters, solely
for the benefit of the Underwriters in their capacity as such in connection with the offering of
the Securities. This opinion letter is not to be relied on by or furnished to any other person or
used, circulated, quoted or otherwise referred to for any other purpose, except that this opinion
letter may be relied upon by the Trustee in its capacity as such. We assume no obligation to
advise you or any other person, or to make any investigations, as to any legal developments or
factual matters arising subsequent to the date hereof that might affect the opinions expressed
herein.
|
|
|
|
|
|
Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
A-1-4
EXHIBIT A-2
[Form of Opinion of U.K. Counsel to the Company]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special English counsel to GlaxoSmithKline plc, a public limited company
incorporated in England and Wales (the Company), which proposes to offer pursuant to a
registration statement on Form F-3 (No. 333-[ ]) debt securities of the Company consisting
of [ ] Notes due [ ] (the Securities) to be issued under an indenture dated
as of March 4, 2008 (the Indenture) between the Company and Law Debenture Trust Company of New
York, as trustee (the Trustee). Such registration statement, as amended as of its most recent
effective date ([ ], 20[ ]), insofar as it relates to the Securities (as determined for
purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the Securities Act)),
but excluding the documents incorporated by reference therein, is herein called the Registration
Statement; the related prospectus dated [ ], 20[ ], as first filed with the
Securities and Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the
Securities Act, but excluding the documents incorporated by reference therein, is herein called the
Base Prospectus; the preliminary prospectus supplement dated [ ], 20[ ], as
filed with the Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the
documents incorporated by reference therein, is herein called the Preliminary Prospectus
Supplement; and the related prospectus supplement dated [ ], 20[ ], as first filed
with the Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the
documents incorporated by reference therein, is herein called the Final Prospectus Supplement.
The Base Prospectus and the Preliminary Prospectus Supplement together are herein called the
Pricing Prospectus, and the Base Prospectus and the Final Prospectus Supplement together are
herein called the Final Prospectus. This opinion letter is furnished to you pursuant to
Section 6(b) of the underwriting agreement dated [ ], 20[ ] (the Underwriting
Agreement) between the Company and the several underwriters named in Schedule II thereto (the
Underwriters).
In arriving at the opinions expressed below, we have reviewed the following documents:
|
(a)
|
|
a copy of the Underwriting Agreement executed by the Company;
|
A-2-1
|
(b)
|
|
a Certificate of the Secretary of the Company dated
[ ] (the Secretarys Certificate) having annexed thereto and
certified as true, complete and up-to-date copies, the following documents:
|
|
(i)
|
|
the Memorandum and Articles of Association of
the Company; and
|
|
|
(ii)
|
|
the minutes of the meeting of the Board of
Directors and Corporate Administration & Transactions Committee of the
Company;
|
|
(c)
|
|
the Registration Statement;
|
|
|
(d)
|
|
the Pricing Prospectus;
|
|
|
(e)
|
|
the Final Term Sheet filed with the Commission pursuant to Rule
433 on [ ], 20[ ];
|
|
|
(f)
|
|
the Final Prospectus;
|
|
|
(g)
|
|
[a facsimile copy of] the Securities in global form as executed
by the Company and authenticated by the Trustee; and
|
|
|
(h)
|
|
a copy of the Indenture.
|
Unless defined herein, capitalised terms have the meanings attributed to them in the
Underwriting Agreement.
In rendering the opinions expressed below we have assumed and not verified:
|
(a)
|
|
the genuineness of all signatures, stamps and seals, the
authenticity and completeness of all documents supplied to us and the
conformity to the originals of all documents supplied to us as photocopies or
facsimile copies;
|
|
|
(b)
|
|
that, where a document has been examined by us in draft,
specimen or certificated form, it has been or will be executed in the form of
that draft or specimen and, in the case of the Securities, that they have been
or will be authenticated in accordance with the terms of the Indenture;
|
|
|
(c)
|
|
that each of the Underwriting Agreement, the Indenture and the
Securities (together, the Transaction Documents) has been or will be duly
authorised, executed and delivered by or on behalf of each of the parties to
the Transaction Documents (other than the Company) and each such party (other
than the Company) has the power, capacity and authority to execute and deliver
and to perform its obligations contained in each of the Transaction Documents
to which it is a party;
|
A-2-2
|
(d)
|
|
the absence of any other arrangements between any of the
parties to any of the Transaction Documents that modify or supersede any of the
terms of any of the Transaction Documents;
|
|
|
(e)
|
|
the accuracy as to factual matters of each document we have
reviewed (including, without limitation, the accuracy of the representations
and warranties of each of the parties to the Transaction Documents and the
accuracy of all statements in the Secretarys Certificate) and the compliance
by each of the parties thereto with each of their respective obligations under
the Transaction Documents;
|
|
|
(f)
|
|
that none of the execution of the Indenture, the Underwriting
Agreement, the issue of the Securities, the performance of the respective
obligations of each of the parties thereto and the application of the proceeds
of the issue of the Securities constitutes financial assistance prohibited by
Section 151 of the Companies Act 1985;
|
|
|
(g)
|
|
that the Transaction Documents have been duly executed by the
parties thereto and constitute valid and binding obligations of the parties
thereto under all applicable laws (including the laws of the State of New York
by which the Transaction Documents are expressed to be governed) enforceable in
accordance with their terms and have the same meaning and effect as if they
were governed by English law;
|
|
|
(h)
|
|
that the information relating to the Company disclosed by our
on-line searches on [ ], 20[ ], at Companies House
and by telephone at the Central Registry of Winding up Petitions at the
Companies Court in London on [ ], 20[ ], in relation
to the Company was then complete, up to date and accurate and has not since
then been materially altered and that such searches did not fail to disclose
any material information that had been delivered for registration at the time
of our search but did not appear online or on the file in London (as
applicable) at the time of our search, and that the information relating to the
Company disclosed by our on-line searches and by telephone did not fail to
include any material information or disclose any petition for an administration
order or winding up in respect of the Company that has been presented in
England and Wales;
|
|
|
(i)
|
|
that, except insofar as matters are on public record and are
discoverable by making any of the searches referred to in (h) above, the
Company has not passed any voluntary winding-up resolution and that no petition
has been presented to, or order made by, any competent authority for the
winding-up, dissolution or administration of the Company and that no receiver,
interim liquidator, administrative receiver, trustee, administrator or similar
officer has been appointed in relation to the Company or any of its assets or
revenues;
|
A-2-3
|
(j)
|
|
that the meetings of the Board of Directors and the Corporate Administration & Transactions
Committee of the Company at which the resolutions authorising the Company to
enter into the Transaction Documents were passed, were duly convened and held
and such resolutions are a true record of the proceedings at such meetings and
are in full force and effect and have not been amended, revoked or superseded;
|
|
|
(k)
|
|
that there are no provisions of the laws of any jurisdiction
outside England and Wales that would have any implication for the opinions we
express, and insofar as the laws of any jurisdiction other than England and
Wales may be relevant to this opinion letter, such laws have been and will be
complied with;
|
|
|
(l)
|
|
that any party to the Transaction Documents that is subject to
the supervision of any regulatory authority in the United Kingdom has complied
and will comply with the requirements of such regulatory authority in
connection with the offering and sale of the Securities;
|
|
|
(m)
|
|
that the aggregate initial offering price of all Securities
issued will not exceed any limit (calculated, where applicable, as described in
the relevant Indenture) in other currencies that may now or in the future be
imposed by the terms of the Memorandum or Articles of Association or any
corporate resolution of the Company;
|
|
|
(n)
|
|
that the terms and conditions applicable to the relevant
Securities will not be inconsistent with the terms and conditions of the
relevant Indenture and will not be inconsistent with the Final Prospectus;
|
|
|
(o)
|
|
that where a document is required to be delivered, each party
to it has delivered the same without it being subject to any escrow or other
similar arrangement;
|
|
|
(p)
|
|
that each of the parties has fully complied with its
obligations under all applicable money laundering legislation;
|
|
|
(q)
|
|
that any provision of the Transaction Documents that is
expressed to be governed by the laws of any jurisdiction other than England and
Wales is valid, binding and enforceable under the laws of such other
jurisdiction; and
|
|
|
(r)
|
|
that each of the parties to the Transaction Documents has
complied with all applicable provisions of Directive 2003/71/EC of the European
Parliament (the Prospectus Directive) as it applies and as implemented in the
United Kingdom, the Financial Services and Markets Act 2000 (FSMA) and any
applicable secondary legislation made under it with respect to anything done by
any of them in relation to the Securities in, from or otherwise involving the
United Kingdom (including Sections 19
|
A-2-4
|
|
|
(carrying on a regulated activity), 21 (financial promotion), 85 (public
offers) and 118 (market abuse) of FSMA).
|
Based on the foregoing, and subject to the further qualifications and limitations set forth
below, it is our opinion that:
|
(a)
|
|
the Company is a public limited company incorporated under the
laws of England and Wales and resident in the United Kingdom for UK tax
purposes;
|
|
|
(b)
|
|
the Company has the corporate power to enter into
and perform its obligations under the Underwriting Agreement and the Indenture;
|
|
|
(c)
|
|
each of the Underwriting Agreement and the Indenture has each
been duly authorised, executed and delivered by the Company;
|
|
|
(d)
|
|
no consent, approval, authorisation, order, licence,
registration and qualification or filing of or with any court or governmental
agency or body in the United Kingdom is required for the issue and initial sale
of the Securities to the Underwriters;
|
|
|
(e)
|
|
neither the execution nor the delivery of the
Indenture nor the performance of the Company thereunder will conflict with or violate or result in a breach of or constitute a
default under any term or provision of its Memorandum or Articles of
Association; and
|
|
|
(f)
|
|
the choice of New York law to govern the Underwriting Agreement
and the Indenture is, under the laws of England, a valid choice of law.
|
The foregoing opinions are, without limitation, subject to the following:
|
(a)
|
|
The opinions set forth above are subject to all limitations
resulting from the laws of bankruptcy, insolvency, liquidation, administration,
fraudulent transfer, reorganisation, moratorium, suretyship or any similar laws
of general application affecting creditors rights.
|
|
|
(b)
|
|
Enforcement may be limited by general principles of equity.
For example, equitable remedies may not be available where damages are
considered to be an adequate remedy.
|
|
|
(c)
|
|
Where any obligations of any person are to be performed or
observed in jurisdictions outside England and Wales, or by a person subject to
the laws of a jurisdiction outside England and Wales, such obligations may not
be enforceable under English law to the extent that performance or observance
thereof would be illegal or contrary to public policy under the laws of any
such jurisdiction.
|
A-2-5
|
(d)
|
|
The choice of the laws of the State of New York as the
governing law of the Transaction Documents may be limited by the Contracts
(Applicable Law) Act 1990 in certain circumstances, including, for example, in
respect of laws that cannot be derogated from by contract or that are,
irrespective of the governing law of the contract, mandatory in the relevant
forum.
|
|
|
(e)
|
|
Except in those cases where jurisdiction is determined in
accordance with the provisions of the Council Regulation (EC) 44/2001 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, the provisions of the Brussels Convention on jurisdiction
in civil and commercial matters of 1968 or the provisions of the Lugano
Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters of 1988, an English court has power to stay an action where
it is shown that it can, without injustice to the plaintiff, be tried in a more
convenient forum. However, such power may not be exercisable in all
circumstances. For example, an English court may not be able to stay
proceedings where the defendant is domiciled in England and the alternative
jurisdiction is outside the European Union.
|
|
|
(f)
|
|
Any provision providing that any calculation, certification,
determination, notification, minute or opinion will be conclusive and binding
will not be effective if such calculation, certification, determination,
notification, minute or opinion is fraudulent or made on an unreasonable or
arbitrary basis or in the event of manifest error despite any provision to the
contrary and it will not necessarily prevent judicial enquiry into the merits
of any claim by any party thereto.
|
|
|
(g)
|
|
Where any person is vested with a discretion, or may determine
any matter in its opinion, English law may require that such discretion is
exercised reasonably or that such opinion is based on reasonable grounds.
|
|
|
(h)
|
|
Any provision for the payment of liquidated damages,
compensation, additional interest or similar amounts might be held to be
unenforceable on the ground that it is a penalty.
|
|
|
(i)
|
|
Any undertaking or indemnity may be void insofar as it relates
to stamp duty payable in the United Kingdom.
|
|
|
(j)
|
|
An English court may refuse to give effect to any provision of
an agreement that amounts to an indemnity in respect of the costs of
enforcement or of unsuccessful litigation brought before an English court or
where the court has itself made an order for costs.
|
|
|
(k)
|
|
Any question as to whether or not any provision of any
agreement or instrument that is illegal, invalid, not binding, unenforceable or
void may be severed from the other provisions thereof in order to save those
other provisions would be determined by an English court in its discretion.
|
A-2-6
|
(l)
|
|
There is some possibility that an English court would hold that
a judgment on a particular agreement or instrument, whether given in an English
court or elsewhere, would supersede such agreement or instrument to all intents
and purposes, so that any obligation thereunder that by its terms would survive
such judgment might not be held to do so.
|
|
|
(m)
|
|
Enforcement of rights may be or become limited by prescription
or by the lapse of time or may be or become subject to defences of set-off or
counterclaim.
|
|
|
(n)
|
|
The effectiveness of terms exculpating a party from a liability
or duty otherwise owed is limited by law.
|
|
|
(o)
|
|
An English court is able, where the amount of a claim is
denominated in a currency other than sterling, to give judgment in that other
currency, as a matter of current procedural practice and at its own discretion.
|
|
|
(p)
|
|
There is some possibility that an English court having
jurisdiction in relation to insolvency law would apply the provisions of
Section 426 of the Insolvency Act 1986 (Co-operation between courts exercising
jurisdiction in relation to insolvency) in assisting the courts having the
corresponding jurisdiction in any other part of the United Kingdom or any
relevant country or territory (as such terms are defined in that section) (in
this regard we refer you to Hughes v. Hannover
Ruckversicherungs-Aktiengesellschaft [1997] 1 BCLC 497) and, as a result, may,
rather than apply insolvency law as it would otherwise apply in England, apply
the insolvency law that is applicable in such other part of the United Kingdom
or relevant country or territory in relation to comparable matters.
|
|
|
(q)
|
|
An English court may refuse to give effect to a claim pursuant
to an indemnity or contribution provision in a Transaction Document insofar as
the subject matter of such claim relates to penalties imposed under Section 91
(breach of listing rules) or Section 123 (market abuse) of FSMA or any relevant
provision of FSMA imposing penalties or of the rules made under it.
|
|
|
(r)
|
|
The searches with Companies House referred to above are not
conclusively capable of revealing whether or not (i) a winding up order has
been made in respect of a company or a resolution passed for the winding up of
a company, or (ii) an administration order has been made in respect of a
company, or (iii) a receiver, administrative receiver, administrator or
liquidator has been appointed in respect of a company, since notice of these
matters might not be filed with Companies House immediately and, when filed,
might not be entered on the files of Companies House relating to insolvency
details with respect to the relevant company immediately. In addition, such
searches are not capable of revealing, prior to the making of the relevant
order, whether or not a
|
A-2-7
|
|
|
winding up petition or a petition for an administration order has been
presented.
|
|
|
(s)
|
|
The enquiry at the Central Registry of Winding up Petitions
referred to above relates only to a compulsory winding up and is not capable of
revealing conclusively whether or not a winding up petition in respect of a
compulsory winding up has been presented since details of the petition may not
have been entered on the records of the Central Registry of Winding up
Petitions immediately or, in the case of a petition presented to a County
Court, may not have been notified to the Central Registry and entered on such
records at all, and the response to an enquiry only relates to the period of
six months prior to the date when the enquiry was made. We have not made
enquiries of any County Court as to whether a petition for the appointment of
an administrator has been presented to, or an administration order has been
made by, such County Court against the Company.
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We express no opinion as to any agreement, instrument or other document other than as
specified in this opinion letter, or as to any liability to tax that may arise or be incurred as a
result of or in connection with the Transaction Documents, including, without limitation, the
creation, issue or offer of the Securities or any other transaction. We have not been responsible
for the investigation or verification of statements of fact (including statements as to foreign
law) or the reasonableness of any statements of opinion contained in the Registration Statement,
the Pricing Prospectus, the Final Term Sheet or the Final Prospectus relating to the issue of the
Securities, or the entry into the Underwriting Agreement or the Indenture, nor have we been
responsible for ensuring that the Registration Statement, the Pricing Prospectus, the Final Term
Sheet and the Final Prospectus and the documents incorporated by reference therein contain all
material facts.
The opinions set out above are limited to the laws of England and Wales as currently applied
by the courts in England and Wales and are given on the basis that this opinion letter will be
governed by and construed in accordance with English law. This opinion letter is given on the
basis of English law in force as at the date of this opinion.
We are furnishing this opinion letter to you as Representatives of the Underwriters solely for
your benefit in your capacity as such and to the several Underwriters solely for their benefit in
their capacity as Underwriters in connection with the issue of the Securities. This opinion letter
is not to be relied on by or furnished to any other person or used, circulated, quoted or otherwise
referred to for any other purpose. We assume no obligation to advise you or any other person, or
to make any investigations, as to any legal developments or factual matters arising subsequent to
the date hereof that might affect the opinions expressed herein.
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Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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A-2-8
EXHIBIT B
[Form of Letter of Counsel to the Company ]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special United States counsel to GlaxoSmithKline plc, a public limited
company incorporated in England and Wales (the Company), in connection with the offering from
time to time, together or separately and in one or more series, pursuant to a registration
statement on Form F-3 (No. 333-[ ]) of debt securities of the Company (the Securities).
Such registration statement, as amended as of its most recent effective date ([ ],
20[ ]), insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2)
under the Securities Act of 1933, as amended (the Securities Act)), but excluding the documents
incorporated by reference therein and Exhibit 25, is herein called the Registration Statement;
the related prospectus dated [ ], 20[ ], as first filed with the Securities
and Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the Securities Act,
but excluding the documents incorporated by reference therein, is herein called the Base
Prospectus; the preliminary prospectus supplement dated [ ], 20[ ], as filed
with the Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the
documents incorporated by reference therein, is herein called the Preliminary Prospectus
Supplement; and the related prospectus supplement dated [ ], 20[ ], as filed with
the Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the Final Prospectus Supplement. The Base
Prospectus and the Preliminary Prospectus Supplement together are herein called the Pricing
Prospectus, and the Base Prospectus and the Final Prospectus Supplement together are herein called
the Final Prospectus. This letter is furnished to you pursuant to Section 6(c) of the
underwriting agreement dated [ ], 20[ ] (the Underwriting Agreement) between the Company and
the several underwriters named in Schedule II thereto (the Underwriters).
Because the primary purpose of our professional engagement was not to establish or confirm
factual matters or financial, accounting or statistical information, and because many
determinations involved in the preparation of the Registration Statement, the Pricing Prospectus,
the Final Prospectus, the documents incorporated by reference in each of them and the documents
listed in Schedule I hereto are of a wholly or partially non-legal character or relate to legal
matters outside the scope of our opinion letter to you of even date herewith, we are not passing
upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Pricing Prospectus, the Final
B-1
Prospectus, the documents incorporated by reference in each of them or the documents listed in
Schedule I hereto (except to the extent expressly set forth in numbered paragraph 5 of our opinion
letter to you of even date herewith) and we make no representation that we have independently
verified the accuracy, completeness or fairness of such statements (except as aforesaid). We also
are not passing upon and do not assume any responsibility for ascertaining whether or when any of
the Pricing Prospectus, the Final Prospectus, the documents incorporated by reference in each of
them or the documents listed in Schedule I hereto was conveyed to any person for purposes of
Rule 159 under the Securities Act.
However, in the course of our acting as special United States counsel to the Company in
connection with its preparation of the Registration Statement, the Pricing Prospectus, the Final
Prospectus and the documents listed in Schedule I hereto, we participated in conferences and
telephone conversations with representatives of the Company, representatives of the independent
public accountants for the Company, your representatives and representatives of your counsel,
during which conferences and conversations the contents of the Registration Statement, the Pricing
Prospectus, the Final Prospectus, portions of certain of the documents incorporated by reference in
each of them and the documents listed in Schedule I hereto and related matters were discussed, and
we reviewed certain corporate records and documents furnished to us by the Company.
Based on our participation in such conferences and conversations and our review of such
records and documents as described above, our understanding of the U.S. federal securities laws and
the experience we have gained in our practice thereunder, we advise you that:
(a) The Registration Statement (except the financial statements and schedules and other
financial and statistical data included therein, as to which we express no view), at the
time it became effective, and the Final Prospectus (except as aforesaid), as of the date
thereof, appeared on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder. In addition, we do not know of any contracts or other
documents of a character required to be filed as exhibits to the Registration Statement or
required to be described in the Registration Statement or the Final Prospectus that are not
filed or described as required.
(b) The documents incorporated by reference in the Registration Statement and the Final
Prospectus (except the financial statements and schedules and other financial and
statistical data and managements report on the effectiveness of internal control over
financial reporting included therein, as to which we express no view), as of the respective
dates of their filing with the Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder.
(c) No information has come to our attention that causes us to believe that the
Registration Statement, including the documents incorporated by reference therein (except
the financial statements and schedules and other financial and statistical data and
managements report on the effectiveness of internal control over financial reporting
included therein, as to which we express no view), at the time it became effective,
B-2
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.
(d) No information has come to our attention that causes us to believe that the Pricing
Prospectus, including the documents incorporated by reference therein considered together
with the documents listed in Schedule I hereto (except in each case the financial statements
and schedules and other financial and statistical data and managements report on the
effectiveness of internal control over financial reporting included in the Pricing
Prospectus, as to which we express no view), at the time of execution of the Underwriting
Agreement, contained an untrue statement of a material fact or omitted 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.
(e) No information has come to our attention that causes us to believe that the Final
Prospectus, including the documents incorporated by reference therein (except the financial
statements and schedules and other financial and statistical data and managements report on
the effectiveness of internal control over financial reporting included therein, as to which
we express no view), as of the date thereof or hereof, contained or contains an untrue
statement of a material fact or omitted or omits 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.
We confirm to you that (based solely upon a telephonic confirmation from a representative of
the Commission) the Registration Statement is effective under the Securities Act and no stop order
with respect thereto has been issued, and, to the best of our knowledge, no proceeding for that
purpose has been instituted or threatened, by the Commission.
B-3
We are furnishing this letter to you, as Representatives of the Underwriters, solely for the
benefit of the Underwriters in their capacity as such in connection with the offering of the
Securities. This letter is not to be relied on by or furnished to any other person or used,
circulated, quoted or otherwise referred to for any other purpose. We assume no obligation to
advise you, or to make any investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the views expressed herein.
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Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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B-4
EXHIBIT 1.2
UNDERWRITING AGREEMENT
among
GLAXOSMITHKLINE CAPITAL INC.
as Issuer
GLAXOSMITHKLINE PLC
as Guarantor
and
[ ]
as Representatives of the Underwriters
Dated as of
[
]
TABLE OF CONTENTS
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Page
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1.
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Representations and Warranties
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2
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2.
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Purchase and Sale
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5
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3.
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Delivery and Payment
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5
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4.
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[Reserved]
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6
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5.
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Agreements
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6
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6.
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Conditions to the Obligations of the Underwriters
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8
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7.
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Reimbursement of Underwriters Expenses
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12
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8.
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Indemnification and Contribution
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12
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9.
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Default by an Underwriter
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15
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10.
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Termination
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15
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11.
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Representations and Indemnities to Survive
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15
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12.
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Notices
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16
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13.
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Successors
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16
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14.
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Applicable Law
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16
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15.
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Counterparts
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16
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16.
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Headings
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16
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17.
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No Fiduciary Duty
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16
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18.
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Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
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16
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19.
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Definitions
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17
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SCHEDULES
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Schedule I
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Terms of the Securities
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Schedule II
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Underwriting Commitments
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Schedule III
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Schedule of Free Writing Prospectuses Included in the Disclosure Package
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Schedule IV
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Form of Pricing Term Sheet
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EXHIBITS
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Exhibit A-1
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Form of Opinion of U.S. Counsel to the Company and the Guarantor
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Exhibit A-2
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Form of Opinion of U.K. Counsel to the Company and the Guarantor
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Exhibit B
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Form of Letter of Counsel to the Company and the Guarantor
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i
[
] Notes Due [
]
Fully and Unconditionally Guaranteed by
GlaxoSmithKline plc
Underwriting Agreement
[ ], 20[ ]
[ ]
as Representatives of the
several Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
GlaxoSmithKline Capital Inc., a corporation organized under the laws of the State of Delaware
(the
Company
), proposes to sell to the several underwriters named in Schedule II hereto
(the
Underwriters
), for whom you (the
Representatives
) are acting as
representatives, the principal amount of its securities identified in Schedule I hereto (the
Debt Securities
), to be issued under an indenture dated as of April 6, 2004 (the
Indenture
), among the Company, GlaxoSmithKline plc, as guarantor (the
Guarantor
), and Law Debenture Trust Company of New York (as successor to Citibank, N.A.,
pursuant to an Instrument of Resignation, Appointment and Acceptance dated December 27, 2007 among
the Company, the Guarantor, Law Debenture Trust Company of New York and Citibank, N.A.), as trustee
(the
Trustee
). The Securities will be fully and unconditionally guaranteed by the
Guarantor as to payment of principal and interest (the
Guarantees
and, together with the
Debt Securities, the
Securities
).
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 6 of Form F-3 that were filed under the U.S.
Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities
and Exchange Commission (the
Commission
) thereunder (collectively, 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 19 hereof.
1.
Representations and Warranties
. The Company and the Guarantor jointly and
severally represent and warrant to, and agree with, each Underwriter as follows:
(a)
Registration Statement Effective
. The Company and the Guarantor meet the
requirements for use of Form F-3 under the U.S. Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
Securities
Act
) and have filed with the Commission an automatic shelf registration statement, as
defined in Rule 405 (No. 333-[___]) on Form F-3, including a related Base Prospectus, for
registration under the Securities Act of the offering and sale from time to time of certain
debt securities, including the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became effective upon filing. The
Company and the Guarantor 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 Securities, each of which will have previously been furnished to
you. The Company and the Guarantor will file with the Commission a final prospectus
supplement relating to the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the Securities Act, 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 and the Guarantor have 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). No stop order
suspending the effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Company or the Guarantor,
threatened by the Commission.
(b)
Registration Statement Not Misleading
. On each Effective Date, the
Registration Statement complied in all material respects with the applicable requirements of
the Securities Act; on each Effective Date and at the Execution Time, the Registration
Statement did 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; and on the date of any filing pursuant to Rule 424(b) under the
Securities Act and on the Closing Date (as defined below), 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 and the Guarantor make no representation or warranty as to
(i) the Statement of Eligibility and Qualification of the Trustee under the Trust Indenture
Act (Form T-1), which is included in the Registration Statement, 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 or the Guarantor 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), it being understood and agreed that the only such
2
information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(c)
Disclosure Package
. At the Execution Time, (i) the Disclosure Package and
(ii) each electronic road show, if any, when taken together as a whole with the Disclosure
Package, do 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 or the Guarantor by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d)
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 Securities 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) and (iii) at the time the Company, the Guarantor or any
person acting on their behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the exemption in Rule 163, each of
the Company and the Guarantor was or is (as the case may be) a well-known seasoned issuer
as defined in Rule 405. The Company and the Guarantor agree to pay the fees required by the
Commission relating to the Securities 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).
(e)
Not an Ineligible Issuer
. (i) At the earliest time after the filing of the
Registration Statement that the Company, the Guarantor or another offering participant made
a
bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of
the Execution Time (with such date being used as the determination date for purposes of this
clause (ii)), neither the Company nor the Guarantor was and is 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 to consider whether the Company or the Guarantor would
be considered an Ineligible Issuer.
(f)
Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus
(including the final term sheet prepared and filed pursuant to Section 5(c) hereof) 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
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company or
the Guarantor by any Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in Section 8 hereof.
3
(g)
Authorization of Indenture and Securities
. The Indenture has been duly
authorized, executed and delivered by the Company and the Guarantor and has been duly
qualified under the U.S. Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
Trust Indenture Act
);
the Debt Securities have been duly authorized by the Company, and when the Debt Securities
are delivered and paid for pursuant to this Agreement on the Closing Date, the Debt
Securities will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency and similar laws affecting creditors
rights generally and to general principles of equity; the Guarantees have been duly
authorized by the Guarantor and, upon due issuance, authentication and delivery of the
Securities and due endorsement of the Guarantees, the Guarantees will have been duly
executed, issued and delivered and will constitute valid and legally binding obligations of
the Guarantor, enforceable in accordance with their terms, subject to bankruptcy, insolvency
and similar laws affecting creditors rights generally and to general principles of equity;
and, when the Debt Securities have been duly executed, authenticated, issued and delivered
and when the Guarantees have been duly endorsed, the Securities will conform in all material
respects to the description thereof contained in the Disclosure Package and the Final
Prospectus.
(h)
Organization of the Company and the Guarantor
. The Company is organized
and validly existing as a corporation under the laws of the State of Delaware, with power
and authority to own its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus. The Guarantor is organized and validly existing as a
public limited company under the laws of England and Wales, with power and authority to own
its properties and conduct its business as described in the Disclosure Package and the Final
Prospectus.
(i)
No Consents
. No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the consummation by the
Company or the Guarantor of the transactions contemplated by this Agreement in connection
with the issuance and sale of the Securities by the Company, except such as have been
obtained or made under the Securities Act, the Exchange Act, the Trust Indenture Act and
Section 765 of the Income and Corporation Taxes Act 1988 and such as may be required under
state securities laws or the securities laws of any jurisdiction outside the United States
in which the Securities are offered and sold.
(j)
No Breach or Default
. The execution, delivery and performance by the
Company and the Guarantor of the Indenture, this Agreement and the issuance and sale of the
Securities and compliance with the terms and provisions thereof by the Company and the
Guarantor will not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company, the Guarantor or any of
the Guarantors other subsidiaries or any of their respective properties, or any material
agreement or instrument to which the Company or the Guarantor or any of the Guarantors
other subsidiaries is a party or by which the Company or the Guarantor or any of the
Guarantors other subsidiaries is bound or to
4
which any of their respective properties is subject, or the charter or by-laws of the
Company or the Guarantor.
(k)
Investment Company Act
. Neither the Company nor the Guarantor is or, after
giving effect to the offering and sale of the Securities and the application of the proceeds
therefrom as described in the Disclosure Package and the Final Prospectus, will be an
investment company as defined in the U.S. Investment Company Act of 1940, as amended.
(l)
Regulatory Matters
. Neither the Company, the Guarantor nor any of the
Guarantors subsidiaries nor, to the knowledge of the Company or the Guarantor, any
director, officer, agent or employee of the Company, the Guarantor or any of the Guarantors
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 and the
Guarantor 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.
(m)
Disclosure Controls
. The Guarantor and its subsidiaries maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act); such disclosure controls and procedures are effective.
Any certificate signed by any officer of the Company or the Guarantor and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company or the Guarantor, as the case may be,
as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriters name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or on such other date and at such other
time as the Company and the Representatives may agree (such date and time of delivery and payment
for the Securities being herein called the
Closing Date
). For purposes of this
Agreement,
Business Day
shall mean any day other than a Saturday, Sunday or legal holiday
or day on which banking institutions or trust companies are authorized or obligated by law to close
in New York City or London.
Delivery of the Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the
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Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. [Reserved]
5.
Agreements
. The Company and the Guarantor agree with the several Underwriters as
follows:
(a)
File Prospectus
. The Company and the Guarantor will file the Final
Prospectus with the Commission pursuant to and in accordance with Rule 424(b) under the
Securities Act within the time period prescribed.
(b)
Amendments to Registration Statement or Prospectus; Stop Orders
. The
Company and the Guarantor will advise the Representatives promptly of any proposal to amend
the Registration Statement or file any supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Base Prospectus and will afford the Representatives a
reasonable opportunity to comment on any such proposed amendment or supplement. The Company
and the Guarantor will promptly advise the Representatives of the filing of any such
amendment or supplement and of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threatening of any
proceeding for that purpose. The Company and the Guarantor will use their reasonable best
efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c)
Final Term Sheet
. The Company and the Guarantor will prepare a final term
sheet, containing solely a description of final terms of the Securities and the offering
thereof, in the form approved by you and attached as Schedule IV hereto and to file such
term sheet pursuant to Rule 433(d) within the time required by such Rule.
(d)
Amendment of Disclosure Package
. If, at any time prior to the filing of
the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances
under which they were made or the circumstances then prevailing not misleading, the Company
and the Guarantor will (i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply any amendment
or supplement to you in such quantities as you may reasonably request.
(e)
Material Changes
. If, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result
of which the Final Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or if it shall
be necessary to amend the Registration Statement or supplement
6
the Final Prospectus to comply with the Securities Act or the Exchange Act, the Company
and the Guarantor will promptly notify the Representatives of such event and prepare and
file with the Commission an amendment or supplement that will correct such statement or
omission or effect such compliance.
(f)
Delivery of Earnings Statement
. As soon as practicable, the Guarantor will
make generally available to its security holders an earnings statement or statements of the
Guarantor and its subsidiaries that will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158.
(g)
Delivery of Registration Statement and Prospectus
. The Company and the
Guarantor will furnish to the Representatives copies of the Registration Statement and, so
long as delivery of a prospectus by an Underwriter or dealer may be required by the
Securities Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each
Issuer Free Writing Prospectus and any supplement to any of the foregoing as the
Representatives may reasonably request. The Company and the Guarantor will pay the expenses
of preparation, printing or other production of all documents relating to the offering;
provided
that, if any Underwriter is required to deliver a Final Prospectus in
connection with sales of Securities at any time six months or more after the date of the
Final Prospectus, the expenses relating to such Final Prospectus shall be paid by such
Underwriter.
(h)
Qualification of Securities
. The Company and the Guarantor will arrange,
if necessary, for the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and will pay any fee of
the Financial Industry Regulatory Authority, Inc. in connection with its review of the
offering;
provided
that in no event shall the Company or the Guarantor be obligated
to qualify to do business in any jurisdiction where it is not now so qualified, to take any
action that would subject it to service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction where it is not now so subject
or to subject itself to taxation as doing business in any such jurisdiction.
(i)
No Other Offering Materials
. Each of the Company and the Guarantor agrees
that, unless it has or shall have obtained the prior written consent of the Representatives,
and each Underwriter, severally and not jointly, agrees with the Company and the Guarantor
that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company and the Guarantor, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a free writing prospectus (as defined in Rule 405) required to be filed by the
Company or the Guarantor with the Commission or retained by the Company or the Guarantor
under Rule 433, other than a free writing prospectus containing the information contained in
the final term sheet prepared and filed pursuant to Section 5(c) hereof;
provided
that the prior written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic
road show. Any such free writing
7
prospectus consented to by the Representatives, the Company and the Guarantor is
hereinafter referred to as a Permitted Free Writing Prospectus. Each of the Company and
the Guarantor agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(j)
Lock-up
. Neither the Company nor the Guarantor will, without the prior
written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, directly or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, any U.S. dollar-denominated debt
securities issued or guaranteed by the Company or the Guarantor (other than the Securities)
or publicly announce an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto.
(k)
Stabilization
. Neither the Company nor the Guarantor will take, directly
or indirectly, any action that is designed to or that constitutes or that might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company or the Guarantor to facilitate the
sale or resale of the Securities.
(l) [
Listing
. The Company and the Guarantor will use reasonable best efforts
to have the Securities listed and admitted to trading on the [ ] Stock Exchange or
another recognised exchange (as defined in Section 1005 of the Income Tax Act 2007), and
satisfactory evidence of such actions shall have been provided to the Representatives.]
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantor contained herein as of the Execution Time
and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made
in any certificates pursuant to the provisions hereof, to the performance by the Company and the
Guarantor of their obligations hereunder and to the following additional conditions:
(a)
Prospectus Filed; No Stop Order
. The Final Prospectus, and any supplement
thereto, shall have been filed in the manner and within the time period required by
Rule 424(b); the final term sheet contemplated by Section 5(c) hereof, and any other
material required to be filed by the Company and the Guarantor pursuant to Rule 433(d),
shall have been filed with the Commission within the applicable time periods prescribed for
such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, the Guarantor or any Underwriter,
threatened.
8
(b)
Opinions of Counsel to the Company and the Guarantor
. On the Closing Date,
the Representatives, on behalf of the Underwriters, shall have received an opinion or
opinions of Cleary Gottlieb Steen & Hamilton LLP, counsel to the Company and the Guarantor,
dated such date, substantially to the effect set forth in Exhibits A-1 and A-2 hereto.
(c)
Letter of Counsel to the Company and the Guarantor
. On the Closing Date,
the Representatives, on behalf of the Underwriters, shall have received a letter of Cleary
Gottlieb Steen & Hamilton LLP, counsel to the Company and the Guarantor, dated such date,
substantially in the form set forth in Exhibit B hereto.
(d)
Opinion of Counsel to the Underwriters
. The Representatives, on behalf of
the Underwriters, shall have received from Sidley Austin
llp
, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, on behalf of the Underwriters, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure Package and the Final
Prospectus (together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(e)
Certificate of the Company and the Guarantor
. The Company and the
Guarantor shall have furnished to the Representatives, on behalf of the Underwriters, a
certificate of the Company and the Guarantor, signed by the Secretary of the Company and the
Chief Executive Officer and the principal financial or accounting officer of the Guarantor,
dated the Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Disclosure Package, the Final Prospectus and any
supplements or amendments thereto, as well as each electronic road show used in connection
with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantor in this
Agreement are true and correct on and as of the Closing Date with the same effect as if made
on the Closing Date and each of the Company and the Guarantor has complied with all the
agreements and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the knowledge of the
Company or the Guarantor, threatened; and
(iii) since the date of the most recent financial statements included or incorporated
by reference in the Disclosure Package and the Final Prospectus (in each case, exclusive of
any supplement thereto after the date hereof), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or properties of the
Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
9
contemplated in the Disclosure Package and the Final Prospectus (in each case,
exclusive of any supplement thereto after the date hereof) or as described in such
certificate.
(f)
Accountants Comfort Letters
. The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, on behalf of the
Underwriters, at the Execution Time and on the Closing Date, letters (which may refer to
letters previously delivered to one or more of the Representatives), dated respectively as
of the date hereof and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the meaning of the
Securities Act and the Exchange Act stating in effect, that:
(i) in their opinion the audited financial statements and financial statement
schedules, if any, included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of the Securities Act and
the Exchange Act;
(ii) on the basis of a reading of the latest unaudited financial statements made
available by the Guarantor and its subsidiaries; carrying out certain specified procedures
(but not an examination in accordance with generally accepted auditing standards), which
would not necessarily reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the stockholders, directors and
audit committee of the Guarantor; and inquiries of certain officials of the Guarantor who
have responsibility for financial and accounting matters of the Guarantor and its
subsidiaries as to transactions and events subsequent to [ ], nothing came to
their attention, after due inquiry, that caused them to believe that:
(1) any unaudited financial statements included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 20[ ], there
were any changes (
provided
that the requested information was
available in response to such inquiry), at a specified date not more than
five days prior to the date of the letter, in the long-term debt of the
Guarantor and its subsidiaries or capital stock of the Guarantor or
decreases in the equity shareholders funds of the Guarantor as compared
with the amounts shown on the December 31, 20[ ] consolidated balance sheet
included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, or for the period from
December 31, 20[ ] to such specified date there were any decreases, as
compared with the corresponding period
10
in the preceding year or the corresponding period in the preceding
quarter in turnover or trading profit or profit on ordinary activities
before taxation or in earnings (profit attributable to shareholders) or per
share amounts of earnings of the Guarantor and its subsidiaries, except in
all instances for changes or decreases set forth in such letter, in which
case the letter shall be accompanied by an explanation by the Guarantor as
to the significance thereof unless said explanation is not deemed necessary
by the Representatives; or
(3) the information included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus
in response to Form 20-F, Item 3.A. (Selected Financial Data) and Regulation
S-K, Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of Form 20-F and Regulation S-K,
respectively; and
(iii) they have performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived from the general
accounting records of the Guarantor and its subsidiaries) set forth in the Registration
Statement, the Preliminary Prospectus and the Final Prospectus, including the information
set forth under the captions Ratios of Earnings to Fixed Charges in the Preliminary
Prospectus and the Final Prospectus, the information included or incorporated by reference
in Items 3, 4, 5 and 6 of the Guarantors Annual Report on Form 20-F, incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus, agrees with the accounting records of the Guarantor and its subsidiaries,
excluding any questions of legal interpretation.
(g)
No Material Adverse Change
. Subsequent to the Execution Time, there shall
not have been (i) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (in each case, exclusive of any supplement thereto after
the date hereof) or (ii) any decrease in the rating of any of the Guarantors debt
securities by any nationally recognized statistical rating organization (as defined for
purposes of Rule 436(g)) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not indicate the direction
of the possible change, the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the judgment of a majority in interest of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement, the Disclosure Package and the
Final Prospectus (in each case, exclusive of any supplement thereto after the date hereof).
11
The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters under this Agreement.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Sidley Austin
llp
, counsel for the Underwriters, at 787 Seventh Avenue, New York, New York
10019 or 25 Basinghall Street, London EC2V 5HA, United Kingdom, on the Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability or failure on the
part of the Company or the Guarantor to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company and the Guarantor
will reimburse the Underwriters severally through the Representatives on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters by the Company and the Guarantor
. The
Company and the Guarantor jointly and severally agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities Act, the Exchange Act
or other U.S. federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment thereof, or
in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to the Securities, the Final Prospectus, or any Issuer Free Writing
Prospectus or the information contained in the final term sheet required to be prepared and
filed pursuant to Section 5(c) hereof, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage, liability
or action;
provided
,
however
, that neither the Company nor the Guarantor
will be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by or on behalf of any Underwriter
through the
12
Representatives specifically for inclusion therein. This indemnity agreement will be
in addition to any liability that the Company or the Guarantor may otherwise have.
(b)
Indemnification of the Company and the Guarantor by the Underwriters
. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless each of the
Company and the Guarantor, each of their respective directors, each of their respective
officers who signs the Registration Statement, and each person who controls the Company or
the Guarantor within the meaning of either the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company and the Guarantor to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company or the Guarantor by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have. The Company and the Guarantor acknowledge that the
statements set forth in [ ] constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus.
(c)
Actions Against Parties; Notification
. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying partys choice at the indemnifying partys expense to
represent the indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the indemnified party or parties except as set forth
below);
provided
,
however
, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying partys election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall
have the right to employ a single separate counsel, and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel, if the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding. The
indemnifying party shall not be
13
liable for any settlement of any such action, suit or proceeding effected without its
written consent.
(d)
Contribution
. In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company, the Guarantor and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending the same)
(collectively
Losses
) to which the Company, the Guarantor and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor on the one hand and by the Underwriters
on the other from the offering of the Securities;
provided
,
however
, that in
no case shall any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Guarantor and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company or the Guarantor on the one hand and of the
Underwriters on the other in connection with the statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. Benefits received by
the Company and the Guarantor shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company and the Guarantor on the one
hand or the Underwriters on the other, the relative intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Company, the Guarantor and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company or the Guarantor within the
meaning of either the Securities Act or the Exchange Act, each officer of the Company or the
Guarantor who shall have signed the Registration Statement and each director of the Company
or the Guarantor shall have the same rights to contribution as the Company or the Guarantor,
as the case may be, subject in each case to the applicable terms and conditions of this
paragraph (d).
14
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if arrangements satisfactory to the Representatives, the
Company and the Guarantor for the purchase of such Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability to any nondefaulting
Underwriter, the Company or the Guarantor. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Guarantor and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company and the Guarantor prior to
delivery of and payment for the Securities, if at any time prior to such time (i) trading in the
Guarantors Common Stock shall have been suspended by the London Stock Exchange or trading in the
Guarantors American Depositary Shares shall have been suspended by the Commission or the New York
Stock Exchange or trading in securities generally on the New York Stock Exchange or the London
Stock Exchange shall have been suspended or limited or minimum prices shall have been established
on either of such exchanges, (ii) a banking moratorium shall have been declared either by U.S.
federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it, in the reasonable
judgment of the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus
(in each case, exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company and the Guarantor or
their respective officers and of the Underwriters set forth in or made pursuant to this Agreement
shall remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Company or the Guarantor or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and shall survive delivery of and payment for
the Securities. The provisions of Sections 7, 8, 14 and 18 hereof shall survive the termination or
cancellation of this Agreement.
15
12.
Notices
. All communications hereunder shall be in writing and effective only on
receipt, and, (i) if sent to the Representatives, shall be mailed, delivered or telefaxed to
[ ], attention: [ ]; or, (ii) if sent to the Company or the Guarantor, shall be
mailed, delivered or telefaxed to 980 Great West Road, Brentford, Middlesex, TW8 9GS, England,
facsimile: 44 (0) 208 047 6909, attention: The Company Secretary.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
15.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
17.
No Fiduciary Duty
. The Company and the Guarantor hereby acknowledge that (a) the
purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial
transaction between the Company and the Guarantor, on the one hand, and the Underwriters and any
affiliate through which any of them may be acting, on the other hand, (b) the Underwriters are
acting as principal and not as an agent or fiduciary of the Company or the Guarantor and (c) the
Companys and the Guarantors engagements of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, each of the Company and the Guarantor 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 or the Guarantor on related or other matters).
Each of the Company and the Guarantor agrees that it will not claim that the Underwriters have
rendered advisory services of any nature or respect in connection with the offering of the
Securities, or owe an agency, fiduciary or similar duty to the Company or the Guarantor, in
connection with such transaction or the process leading thereto.
18.
Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
.
(a) The Guarantor irrevocably consents and agrees that any legal action, suit or
proceeding against it with respect to any matter arising out of or based upon this Agreement
may be brought in the courts of the State of New York located in The City of New York or the
courts of the United States of America located in The City of New York and hereby
irrevocably consents and submits to the non-exclusive jurisdiction of each
16
such court
in
personam
, generally and unconditionally with respect to
any such action, suit or proceeding.
(b) The Guarantor hereby irrevocably designates, appoints, and empowers [ ], with
offices currently at [ ], New York, New York [ ], as its designee, appointee and agent
to receive, accept and acknowledge for and on its behalf, service of any and all legal
process, summons, notices and documents that may be served in any action, suit or proceeding
brought against the Guarantor in any such United States or State court with respect to any
matter arising out of or based upon this Agreement and that may be made on such designee,
appointee and agent in accordance with legal procedures prescribed for such courts. The
Guarantor further hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any such action, suit or proceeding against it by
serving a copy thereof upon the relevant agent for service of process referred to in this
Section 18 (whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service). The Guarantor agrees
that the failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service or any
judgment rendered in any such action or proceeding based thereon. Nothing herein shall in
any way be deemed to limit the ability of the Underwriters to serve such legal process,
summons, notices and documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Guarantor or bring actions, suits or proceedings against the Guarantor
in such other jurisdictions, and in such manner, as may be permitted by applicable law. The
Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or based upon this Agreement brought
in the United States federal courts located in The City of New York or the courts of the
State of New York located in The City of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has been brought in an inconvenient
forum.
19.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Base Prospectus
shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
Disclosure Package
shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and
filed pursuant to Section 5(c) hereof, if any, and (v) any other Free Writing Prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
Effective Date
shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
17
Execution Time
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Final Prospectus
shall mean the prospectus supplement relating to the Securities
that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Free Writing Prospectus
shall mean a free writing prospectus, as defined in Rule
405.
Issuer Free Writing Prospectus
shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus
shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final
Prospectus, together with the Base Prospectus.
Registration Statement
shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed
part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and,
in the event any post-effective amendment thereto becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended.
Rule 158
,
Rule 163
,
Rule 164
,
Rule 172
,
Rule
405
,
Rule 415
,
Rule 424
,
Rule 430B
,
Rule 433
,
Rule 436
,
Rule 456
and
Rule 457
refer to such rules under the
Securities Act.
18
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Guarantor and the several Underwriters.
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VERY TRULY YOURS,
GLAXOSMITHKLINE CAPITAL INC.
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By:
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Name:
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Title:
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GLAXOSMITHKLINE PLC
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By:
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Name:
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Title:
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The foregoing Agreement is hereby confirmed and accepted
as of the date specified in Schedule I hereto.
[ ]
For themselves and the other several Underwriters, if any,
named in Schedule II to the foregoing Agreement.
SCHEDULE I
Terms of the Debt Securities
Underwriting Agreement dated [ ]
Registration Statement No. 333-[ ]
Representatives: [ ]
Title, Purchase Price and Description of Securities:
Title: [ ]
Principal amount: $[ ]
Purchase price (include accrued interest or amortization, if any): $[ ]
Sinking fund provisions: [ ]
Redemption provisions: [ ]
Other provisions: As described in the applicable prospectus
supplement referred to in this Agreement.
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Closing Date, Time and Location:
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[ ] at [ ] a.m./p.m., simultaneously, at Sidley
Austin
llp
, 787 Seventh Avenue, New York, New York 10019 and 25 Basinghall Street,
London EC2V 5HA, United Kingdom
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Type of Offering: Non-delayed.
Date referred to in Section 5(j) after which the Company and the Guarantor may offer or sell debt
securities issued or guaranteed by the Company or the Guarantor without the consent of the
Representatives: [ ].
I-1
SCHEDULE II
Underwriting Commitments
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Principal Amount
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of Securities to be
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Underwriters
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Purchased
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[Names of Underwriters]
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Total
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$
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II-1
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
[list all FWPs included in the Disclosure Package]
III-1
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333 -
l
, 2008
FORM OF PRICING TERM SHEET
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A.
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l
Notes due _____
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Issuer:
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GlaxoSmithKline Capital Inc.
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Guarantor:
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GlaxoSmithKline plc
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Size:
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$
l
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Trade Date:
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l
, 20
l
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Maturity Date:
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l
, __________
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Coupon:
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l
%
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Interest Payment Dates:
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l
, commencing
l
,
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Price to Public:
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l
%
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Benchmark Treasury:
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l
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Benchmark Treasury Yield:
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l
%
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Spread to Benchmark Treasury:
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+
l
bp
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Yield:
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l
%
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Make-Whole Call:
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l
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CUSIP:
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l
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Expected Settlement Date:
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l
,
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Day Count Fraction:
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l
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Business Day:
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New York and London
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Denominations:
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l
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Anticipated Ratings:
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[
l
by Moodys Investors Service, Inc.]
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[
l
by Standard & Poors Ratings Services]
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Joint Book-Running Managers:
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l
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Co-Managers:
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l
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer and the guarantor have filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer and the guarantor have
filed with the SEC for more complete information about the issuer, the guarantor and this offering.
IV-1
You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling [ ] toll free at [ ] or
[
].
IV-2
EXHIBIT A-1
[Form of Opinion of U.S. Counsel to the Company and the Guarantor]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special United States counsel to GlaxoSmithKline Capital Inc., a Delaware
corporation (GSK Capital Inc.), and GlaxoSmithKline plc, a public limited company incorporated in
England and Wales (the Guarantor), in connection with the offering from time to time, together or
separately and in one or more series, pursuant to a registration statement on Form F-3
(No. 333-[ ]) of (i) guaranteed debt securities of GSK Capital Inc. (the Debt
Securities) and (ii) guarantees of the Guarantor in respect of the Debt Securities (the
Guarantees and, together with the Debt Securities, the Securities) to be issued under an
indenture dated as of April 6, 2004 (the Indenture) among GSK Capital Inc., the Guarantor and Law
Debenture Trust Company of New York (as successor to Citibank, N.A., pursuant to an Instrument of
Resignation, Appointment and Acceptance dated December 27, 2007 among the Company, the Guarantor,
Law Debenture Trust Company of New York and Citibank, N.A.), as trustee (the Trustee). Such
registration statement, as amended as of its most recent effective date ([ ], 20[ ]),
insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the
Securities Act of 1933, as amended (the Securities Act)), but excluding the documents
incorporated by reference therein, is herein called the Registration Statement; the related
prospectus dated [ ], 20[ ], as first filed with the Securities and
Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the Securities Act, but
excluding the documents incorporated by reference therein, is herein called the Base Prospectus;
the preliminary prospectus supplement dated [ ], 20[ ], as filed with the Commission
pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by
reference therein, is herein called the Preliminary Prospectus Supplement; and the related
prospectus supplement dated [ ], 20[ ], as filed with the Commission pursuant
to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the Final Prospectus Supplement. The Base Prospectus and the
Preliminary Prospectus Supplement together are herein called the Pricing Prospectus, and the Base
Prospectus and the Final Prospectus Supplement together are herein called the Final Prospectus.
This opinion letter is furnished pursuant to Section 6(b) of the underwriting
A-1-1
agreement dated [ ], 20[ ] (the Underwriting Agreement) among GSK
Capital Inc., the Guarantor and the several underwriters named in Schedule II thereto (the
Underwriters).
In arriving at the opinions expressed below, we have reviewed the following documents:
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(a)
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an executed copy of the Underwriting Agreement;
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(b)
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the Registration Statement and the documents incorporated by reference therein;
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(c)
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the Pricing Prospectus, the documents incorporated by reference therein [and
the documents listed in Schedule I hereto];
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(d)
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the Final Prospectus and the documents incorporated by reference therein;
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(e)
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[a facsimile copy of] the Debt Securities in global form as executed by GSK
Capital Inc. and authenticated by the Trustee;
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(f)
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an executed copy of the Indenture, including the certificated form of Debt
Securities; and
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(g)
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the documents delivered to you by each of GSK Capital Inc. and the Guarantor at
the closing pursuant to the Underwriting Agreement, including copies of GSK Capital
Inc.s Certificate of Incorporation and By-Laws certified by the Secretary of State of
the State of Delaware and the corporate secretary of GSK Capital Inc., respectively.
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In addition, we have reviewed the originals or copies certified or otherwise identified to our
satisfaction of all such corporate records of each of GSK Capital Inc. and the Guarantor and such
other instruments and other certificates of public officials, officers and representatives of each
of GSK Capital Inc. and the Guarantor and such other persons, and we have made such investigations
of law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents
submitted to us as originals and the conformity to the originals of all documents submitted to us
as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual
matters of each document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of each of GSK Capital Inc. and the Guarantor in the Underwriting
Agreement) and (ii) that any Debt Securities in certificated form issued in exchange for the Debt
Securities in global form will conform to the form thereof that we have reviewed and will be duly
authenticated in accordance with the terms of the Indenture.
Based on the foregoing, and subject to the further assumptions and qualifications set forth
below, it is our opinion that:
A-1-2
1. GSK Capital Inc. is validly existing as a corporation in good standing under the laws of
the State of Delaware.
2. GSK Capital Inc. has corporate power to own its properties and conduct its business as
described in the Pricing Prospectus and the Final Prospectus, and GSK Capital Inc. has corporate
power to issue the Debt Securities, to enter into the Underwriting Agreement and the Indenture and
to perform its obligations thereunder.
3. (a)(i) The execution and delivery of the Indenture have been duly authorized by all
necessary corporate action of GSK Capital Inc., and the Indenture has been duly executed and
delivered by GSK Capital Inc., and (ii) the Indenture has been duly executed and delivered by the
Guarantor under the law of the State of New York, and (b) the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the Trust Indenture Act), and is a valid, binding
and enforceable agreement of each of GSK Capital Inc. and the Guarantor.
4. (a) The execution and delivery of the Debt Securities have been duly authorized by all
necessary corporate action of GSK Capital Inc., and (i) the Debt Securities in global form have
been duly executed and delivered by GSK Capital Inc. and are, and (ii) the Debt Securities in
certificated form when exchanged for interests in the Debt Securities in global form in accordance
with the terms thereof and of the Indenture will be, the valid, binding and enforceable obligations
of GSK Capital Inc. and entitled to the benefits of the Indenture, and (b) the Guarantees have been
duly executed and delivered by the Guarantor under the law of the State of New York and are the
valid, binding and enforceable obligations of the Guarantor, entitled to the benefits of the
Indenture.
5. The statements under the heading Description of the Notes in the Pricing Prospectus,
considered together with the documents listed in Schedule I hereto, and in the Final Prospectus,
together in each case with the statements under the heading Description of Debt Securities in the
Base Prospectus, insofar as such statements purport to summarize certain provisions of the
Securities and the Indenture, provide a fair summary of such provisions.
6. The execution and delivery of the Underwriting Agreement have been duly authorized by all
necessary corporate action of GSK Capital Inc., and the Underwriting Agreement has been duly
executed and delivered by GSK Capital Inc.
7. The Underwriting Agreement has been duly executed and delivered by the Guarantor under the
law of the State of New York.
8. The issuance and sale of the Securities to the Underwriters pursuant to the Underwriting
Agreement do not, and the performance by each of GSK Capital Inc. and the Guarantor of its
obligations in the Underwriting Agreement, the Indenture and the Debt Securities and Guarantees,
respectively, will not, (a) require any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United States or the State of New York
that in our experience normally would be applicable to general business entities with respect to
such issuance, sale or performance, except such as have been obtained or effected under the
Securities Act, the Securities Exchange Act of 1934, as amended, and the Trust Indenture Act
(but we express no opinion relating to any state securities or Blue
A-1-3
Sky laws), or (b) result in a violation of the Certificate of Incorporation or the By-Laws of
GSK Capital Inc.
9. No registration of either GSK Capital Inc. or the Guarantor under the Investment Company
Act of 1940, as amended, is required for the offer and sale of the Securities by GSK Capital Inc.
and the Guarantor in the manner contemplated by the Underwriting Agreement and the Final
Prospectus.
Insofar as the foregoing opinions relate to the valid existence and good standing of GSK
Capital Inc., they are based solely on a certificate of good standing received from the Secretary
of State of the State of Delaware and on a telephonic confirmation from such Secretary of State.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any
agreement or obligation of either GSK Capital Inc. or the Guarantor, (a) we have assumed that GSK
Capital Inc., the Guarantor and each other party to such agreement or obligation has satisfied
those legal requirements that are applicable to it to the extent necessary to make such agreement
or obligation enforceable against it (except that no such assumption is made as to either GSK
Capital Inc. or the Guarantor regarding matters of the federal law of the United States of America
or the law of the State of New York or, solely with respect to GSK Capital Inc., the General
Corporation Law of the State of Delaware, that in our experience normally would be applicable to
general business entities with respect to such agreement or obligation), (b) such opinions are
subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally
and to general principles of equity and (c) such opinions are subject to the effect of judicial
application of foreign laws or foreign governmental actions affecting creditors rights.
The waiver of defenses contained in Section 6.01 of the Indenture and in the Guarantees may be
ineffective to the extent that any such defense involves a matter of public policy in New York
(such as reflected in New Yorks anti-champerty statute). With respect to Section 18 of the
Underwriting Agreement, we express no opinion as to the subject matter jurisdiction of any United
States federal court to adjudicate any action relating to the Underwriting Agreement where
jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.
The foregoing opinions are limited to the federal law of the United States of America, the law
of the State of New York and the General Corporation Law of the State of Delaware.
A-1-4
We are furnishing this opinion letter to you, as Representatives of the Underwriters, solely
for the benefit of the Underwriters in their capacity as such in connection with the offering of
the Securities. This opinion letter is not to be relied on by or furnished to any other person or
used, circulated, quoted or otherwise referred to for any other purpose, except that this opinion
letter may be relied upon by the Trustee in its capacity as such. We assume no obligation to
advise you or any other person, or to make any investigations, as to any legal developments or
factual matters arising subsequent to the date hereof that might affect the opinions expressed
herein.
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Very truly yours,
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CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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A-1-5
EXHIBIT A-2
[Form of Opinion of U.K. Counsel to the Company and the Guarantor]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special English counsel to GlaxoSmithKline Capital Inc., a Delaware
corporation (GSK Capital Inc.), and GlaxoSmithKline plc, a public limited company incorporated in
England and Wales (the Guarantor), which propose to offer pursuant to a registration statement on
Form F-3 (No. 333-[ ]) (i) guaranteed debt securities of GSK Capital Inc. consisting of
[ ] Notes due [ ] (the Debt Securities) and (ii) guarantees of the Guarantor
in respect of the Debt Securities (the Guarantees and, together with the Debt Securities, the
Securities) to be issued in each case under an indenture dated as of April 6, 2004 (the
Indenture) among GSK Capital Inc., the Guarantor and Law Debenture Trust Company of New York (as
successor to Citibank, N.A., pursuant to an Instrument of Resignation, Appointment and Acceptance
dated December 27, 2007 among GSK Capital Inc., the Guarantor, Law Debenture Trust Company of New
York and Citibank, N.A.), as trustee (the Trustee). Such registration statement, as amended as
of its most recent effective date ([ ], 20[ ]), insofar as it relates to the Securities
(as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the
Securities Act)), but excluding the documents incorporated by reference therein, is herein called
the Registration Statement; the related prospectus dated [ ], 20[ ], as
first filed with the Securities and Exchange Commission (the Commission) pursuant to Rule
424(b)[(2)] under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the Base Prospectus; the preliminary prospectus supplement dated
[ ], 20[ ], as filed with the Commission pursuant to Rule 424(b)[(2)] under the
Securities Act, but excluding the documents incorporated by reference therein, is herein called the
Preliminary Prospectus Supplement; and the related prospectus supplement dated [ ],
20[ ], as first filed with the Commission pursuant to Rule 424(b)[(2)] under the Securities Act,
but excluding the documents incorporated by reference therein, is herein called the Final
Prospectus Supplement. The Base Prospectus and the Preliminary Prospectus Supplement together are
herein called the Pricing Prospectus, and the Base Prospectus and the Final Prospectus Supplement
together are herein called the Final Prospectus. This opinion letter is furnished to you
pursuant to Section 6(b) of the underwriting agreement dated [ ], 20[ ] (the
Underwriting Agreement) among GSK
A-2-1
Capital Inc., the Guarantor and the several underwriters named in Schedule II thereto (the
Underwriters).
In arriving at the opinions expressed below, we have reviewed the following documents:
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(a)
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a copy of the Underwriting Agreement executed by the Guarantor;
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(b)
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a Certificate of the Secretary of the Guarantor dated
[ ] (the Secretarys Certificate) having annexed
thereto and certified as true, complete and up-to-date copies, the following
documents:
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(i)
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the Memorandum and Articles of Association of
the Guarantor; and
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(ii)
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the minutes of the meeting of the Corporate
Administration & Transactions Committee of the Guarantor;
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(c)
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the Registration Statement;
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(d)
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the Pricing Prospectus;
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(e)
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the Final Term Sheet filed with the Commission pursuant to Rule
433 on [ ], 20[ ];
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(f)
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the Final Prospectus;
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(g)
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[a facsimile copy of] the Debt Securities in global form as
executed by GSK Capital Inc. and authenticated by the Trustee; and
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(h)
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a copy of the Indenture (including the Guarantee contained
therein by the Guarantor).
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Unless defined herein, capitalised terms have the meanings attributed to them in the
Underwriting Agreement.
In rendering the opinions expressed below we have assumed and not verified:
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(a)
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the genuineness of all signatures, stamps and seals, the authenticity and
completeness of all documents supplied to us and the conformity to the originals of all
documents supplied to us as photocopies or facsimile copies;
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(b)
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that, where a document has been examined by us in draft, specimen or
certificated form, it has been or will be executed in the form of that draft or
specimen and, in the case of Debt Securities, that they have been or will be
authenticated in accordance with the terms of the Indenture;
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(c)
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that each of the Underwriting Agreement, the Indenture and the Debt Securities
(together, the Transaction Documents) has been or will be duly authorised,
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A-2-2
executed and delivered by or on behalf of each of the parties to the Transaction
Documents (other than the Guarantor) and each such party (other than the Guarantor)
has the power, capacity and authority to execute and deliver and to perform its
obligations contained in each of the Transaction Documents to which it is a party;
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(d)
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the absence of any other arrangements between any of the parties to any of the
Transaction Documents that modify or supersede any of the terms of any of the
Transaction Documents;
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(e)
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the accuracy as to factual matters of each document we have reviewed
(including, without limitation, the accuracy of the representations and warranties of
each of the parties to the Transaction Documents and the accuracy of all statements in
the Secretarys Certificate) and the compliance by each of the parties thereto with
each of their respective obligations under the Transaction Documents;
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(f)
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that none of the execution of the Indenture, the Underwriting Agreement, the
issue of the Securities, the performance of the respective obligations of each of the
parties thereto and the application of the proceeds of the issue of the Debt Securities
constitutes financial assistance prohibited by Section 151 of the Companies Act 1985;
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(g)
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that the Transaction Documents have been duly executed by the parties thereto
and constitute valid and binding obligations of the parties thereto under all
applicable laws (including the laws of the State of New York by which the Transaction
Documents are expressed to be governed) enforceable in accordance with their terms and
have the same meaning and effect as if they were governed by English law;
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(h)
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that the information relating to the Guarantor disclosed by our on-line
searches on [ ], 20[ ], at Companies House and by telephone
at the Central Registry of Winding up Petitions at the Companies Court in London on
[ ], 20[ ], in relation to the Guarantor was then complete,
up to date and accurate and has not since then been materially altered and that such
searches did not fail to disclose any material information that had been delivered for
registration at the time of our search but did not appear online or on the file in
London (as applicable) at the time of our search, and that the information relating to
the Guarantor disclosed by our on-line searches and by telephone did not fail to
include any material information or disclose any petition for an administration order
or winding up in respect of the Guarantor that has been presented in England and Wales;
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(i)
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that, except insofar as matters are on public record and are discoverable by
making any of the searches referred to in (h) above, the Guarantor has not passed any
voluntary winding-up resolution and that no petition has been presented to, or order
made by, any competent authority for the winding-up, dissolution or administration of
the Guarantor and that no receiver, interim liquidator,
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A-2-3
administrative receiver, trustee, administrator or similar officer has been
appointed in relation to the Guarantor or any of its assets or revenues;
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(j)
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that the meeting of the Corporate Administration & Transactions Committee of
the Guarantor at which the resolutions authorising the Guarantor to enter into the
Underwriting Agreement, the Indenture as Guarantor and the Guarantees were passed, was
duly convened and held and such resolutions are a true record of the proceedings at
such meetings and are in full force and effect and have not been amended, revoked or
superseded;
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(k)
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that there are no provisions of the laws of any jurisdiction outside England
and Wales that would have any implication for the opinions we express, and insofar as
the laws of any jurisdiction other than England and Wales may be relevant to this
opinion letter, such laws have been and will be complied with;
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(l)
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that any party to the Transaction Documents that is subject to the supervision
of any regulatory authority in the United Kingdom has complied and will comply with the
requirements of such regulatory authority in connection with the offering and sale of
the Securities;
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(m)
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that the aggregate initial offering price of all Securities issued will not
exceed any limit (calculated, where applicable, as described in the relevant Indenture)
in other currencies that may now or in the future be imposed by the terms of the
Memorandum or Articles of Association or any corporate resolution of the Guarantor;
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(n)
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that the terms and conditions applicable to the relevant Securities will not be
inconsistent with the terms and conditions of the relevant Indenture and will not be
inconsistent with the Final Prospectus;
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(o)
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that where a document is required to be delivered, each party to it has
delivered the same without it being subject to any escrow or other similar arrangement;
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(p)
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that each of the parties has fully complied with its obligations under all
applicable money laundering legislation;
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(q)
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that any provision of the Transaction Documents that is expressed to be
governed by the laws of any jurisdiction other than England and Wales is valid, binding
and enforceable under the laws of such other jurisdiction;
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(r)
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that each of the parties to the Transaction Documents has complied with all
applicable provisions of Directive 2003/71/EC of the European Parliament (the
Prospectus Directive) as it applies and as implemented in the United Kingdom, the
Financial Services and Markets Act 2000 (FSMA) and any applicable secondary
legislation made under it with respect to anything done by any of them in relation to
the Securities in, from or otherwise involving the United Kingdom (including Sections
19 (carrying on a regulated activity), 21 (financial promotion), 85 (public offers) and
118 (market abuse) of FSMA);
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A-2-4
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(s)
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that GSK Capital Inc. (i) is not resident in the United Kingdom for UK tax
purposes; and (ii) is controlled by the Guarantor (within the meaning of Section 840
of the Income and Corporation Taxes Act 1988 (the Act));
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(t)
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having regard to the opinion stated in paragraph (a)
below and Section 249 of Finance Act 1994, that the Guarantor is
not regarded for the purposes of any double tax treaty with the
United Kingdom as resident in a territory outside the United Kingdom;
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(u)
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that none of the Debt Securities will be issued to (i) the Guarantor; (ii) any
member of any group of companies that includes the Guarantor for the purposes of
Chapter IV of Part X of the Act; (iii) any persons who are connected with the
Guarantor (within the meaning of Section 839 of the Act); or (iv) any nominee or
trustee for any persons who are connected with the Guarantor (within the meaning of
Section 839 of the Act);
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(v)
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that the issue of the Debt Securities will be for full consideration paid to
GSK Capital Inc.; and
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(w)
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that at the time of the issue of the Debt Securities, no arrangements will
exist as a consequence of which the Guarantor or a person connected with the
Guarantor (within the meaning of Section 839 of the Act), or a nominee or trustee for
the Guarantor or such a person, will be or may become entitled to the Debt Securities
or to any of them or to any interest in any of them.
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Based on the foregoing, and subject to the further qualifications and limitations set forth
below, it is our opinion that:
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(a)
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the Guarantor is a public limited company incorporated under the laws of
England and Wales;
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(b)
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the Guarantor has the corporate power and authority to enter into and perform
its obligations under the Underwriting Agreement and the Indenture;
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(c)
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each of the Underwriting Agreement and the Indenture has each been duly
authorised, executed and delivered by the Guarantor;
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(d)
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no consent, approval, authorisation, order, licence, registration and
qualification or filing of or with any court or governmental agency or body in the
United Kingdom is required for the issue and initial sale of the Debt Securities to the
Underwriters (save the consent of HM Treasury under Section 765 of the Act in
connection with the creation and issue of the Debt Securities, which, on the basis of
assumptions (s) to (w) above, the Treasury has given under the Treasury General
Consents 1988; we consider that the existence of the Guarantee does
not of itself constitute arrangements of the kind
described in assumption (w) above);
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(e)
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neither the execution nor the delivery of the Indenture by the Guarantor nor
its performance of the Guarantees thereunder, will conflict with or violate or result
in a breach of or constitute a default under any term or provision of its Memorandum or
Articles of Association; and
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A-2-5
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(f)
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the choice of New York law to govern the Underwriting Agreement and the
Indenture is, under the laws of England, a valid choice of law.
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The foregoing opinions are, without limitation, subject to the following:
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(a)
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The opinions set forth above are subject to all limitations resulting from the
laws of bankruptcy, insolvency, liquidation, administration, fraudulent transfer,
reorganisation, moratorium, suretyship or any similar laws of general application
affecting creditors rights.
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(b)
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Enforcement may be limited by general principles of equity. For example,
equitable remedies may not be available where damages are considered to be an adequate
remedy.
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(c)
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Where any obligations of any person are to be performed or observed in
jurisdictions outside England and Wales, or by a person subject to the laws of a
jurisdiction outside England and Wales, such obligations may not be enforceable under
English law to the extent that performance or observance thereof would be illegal or
contrary to public policy under the laws of any such jurisdiction.
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(d)
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The choice of the laws of the State of New York as the governing law of the
Transaction Documents may be limited by the Contracts (Applicable Law) Act 1990 in
certain circumstances, including, for example, in respect of laws that cannot be
derogated from by contract or that are, irrespective of the governing law of the
contract, mandatory in the relevant forum.
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(e)
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Except in those cases where jurisdiction is determined in accordance with the
provisions of the Council Regulation (EC) 44/2001 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters, the provisions of the
Brussels Convention on jurisdiction in civil and commercial matters of 1968 or the
provisions of the Lugano Convention on jurisdiction and the enforcement of judgments in
civil and commercial matters of 1988, an English court has power to stay an action
where it is shown that it can, without injustice to the plaintiff, be tried in a more
convenient forum. However, such power may not be exercisable in all circumstances.
For example, an English court may not be able to stay proceedings where the defendant
is domiciled in England and the alternative jurisdiction is outside the European Union.
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(f)
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Any provision providing that any calculation, certification, determination,
notification, minute or opinion will be conclusive and binding will not be effective if
such calculation, certification, determination, notification, minute or opinion is
fraudulent or made on an unreasonable or arbitrary basis or in the event of manifest
error despite any provision to the contrary and it will not necessarily prevent
judicial enquiry into the merits of any claim by any party thereto.
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(g)
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Where any person is vested with a discretion, or may determine any matter in
its opinion, English law may require that such discretion is exercised reasonably or
that such opinion is based on reasonable grounds.
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A-2-6
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(h)
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Any provision for the payment of liquidated damages, compensation, additional
interest or similar amounts might be held to be unenforceable on the ground that it is
a penalty.
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(i)
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Any undertaking or indemnity may be void insofar as it relates to stamp duty
payable in the United Kingdom.
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(j)
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An English court may refuse to give effect to any provision of an agreement
that amounts to an indemnity in respect of the costs of enforcement or of unsuccessful
litigation brought before an English court or where the court has itself made an order
for costs.
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(k)
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Any question as to whether or not any provision of any agreement or instrument
that is illegal, invalid, not binding, unenforceable or void may be severed from the
other provisions thereof in order to save those other provisions would be determined by
an English court in its discretion.
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(l)
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There is some possibility that an English court would hold that a judgment on a
particular agreement or instrument, whether given in an English court or elsewhere,
would supersede such agreement or instrument to all intents and purposes, so that any
obligation thereunder that by its terms would survive such judgment might not be held
to do so.
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(m)
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Enforcement of rights may be or become limited by prescription or by the lapse
of time or may be or become subject to defences of set-off or counterclaim.
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(n)
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The effectiveness of terms exculpating a party from a liability or duty
otherwise owed is limited by law.
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(o)
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An English court is able, where the amount of a claim is denominated in a
currency other than sterling, to give judgment in that other currency, as a matter of
current procedural practice and at its own discretion.
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(p)
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There is some possibility that an English court having jurisdiction in relation
to insolvency law would apply the provisions of Section 426 of the Insolvency Act 1986
(Co-operation between courts exercising jurisdiction in relation to insolvency) in
assisting the courts having the corresponding jurisdiction in any other part of the
United Kingdom or any relevant country or territory (as such terms are defined in that
section) (in this regard we refer you to Hughes v. Hannover
Ruckversicherungs-Aktiengesellschaft [1997] 1 BCLC 497) and, as a result, may, rather
than apply insolvency law as it would otherwise apply in England, apply the insolvency
law that is applicable in such other part of the United Kingdom or relevant country or
territory in relation to comparable matters.
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(q)
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An English court may refuse to give effect to a claim pursuant to an indemnity
or contribution provision in a Transaction Document insofar as the subject matter of
such claim relates to penalties imposed under Section 91 (breach of listing rules)
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A-2-7
or Section 123 (market abuse) of FSMA or any relevant provision of FSMA imposing
penalties or of the rules made under it.
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(r)
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The searches with Companies House referred to above are not conclusively
capable of revealing whether or not (i) a winding up order has been made in respect of
a company or a resolution passed for the winding up of a company, or (ii) an
administration order has been made in respect of a company, or (iii) a receiver,
administrative receiver, administrator or liquidator has been appointed in respect of a
company, since notice of these matters might not be filed with Companies House
immediately and, when filed, might not be entered on the files of Companies House
relating to insolvency details with respect to the relevant company immediately. In
addition, such searches are not capable of revealing, prior to the making of the
relevant order, whether or not a winding up petition or a petition for an
administration order has been presented.
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(s)
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The enquiry at the Central Registry of Winding up Petitions referred to above
relates only to a compulsory winding up and is not capable of revealing conclusively
whether or not a winding up petition in respect of a compulsory winding up has been
presented since details of the petition may not have been entered on the records of the
Central Registry of Winding up Petitions immediately or, in the case of a petition
presented to a County Court, may not have been notified to the Central Registry and
entered on such records at all, and the response to an enquiry only relates to the
period of six months prior to the date when the enquiry was made. We have not made
enquiries of any County Court as to whether a petition for the appointment of an
administrator has been presented to, or an administration order has been made by, such
County Court against the Guarantor.
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We express no opinion as to any agreement, instrument or other document other than as
specified in this opinion letter, or as to any liability to tax that may arise or be incurred as a
result of or in connection with the Transaction Documents, including, without limitation, the
creation, issue or offer of the Securities or any other transaction. We have not been responsible
for the investigation or verification of statements of fact (including statements as to foreign
law) or the reasonableness of any statements of opinion contained in the Registration Statement,
the Pricing Prospectus, the Final Term Sheet or the Final Prospectus relating to the issue of the
Securities, or the entry into the Underwriting Agreement or the Indenture, nor have we been
responsible for ensuring that the Registration Statement, the Pricing Prospectus, the Final Term
Sheet and the Final Prospectus and the documents incorporated by reference therein contain all
material facts.
The opinions set out above are limited to the laws of England and Wales as currently applied
by the courts in England and Wales and are given on the basis that this opinion letter will be
governed by and construed in accordance with English law. This opinion letter is given on the
basis of English law in force as at the date of this opinion.
We are furnishing this opinion letter to you as Representatives of the Underwriters solely for your
benefit in your capacity as such and to the several Underwriters solely for their benefit in
A-2-8
their capacity as Underwriters in connection with the issue of the Debt Securities. This opinion
letter is not to be relied on by or furnished to any other person or used, circulated, quoted or
otherwise referred to for any other purpose. We assume no obligation to advise you or any other
person, or to make any investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the opinions expressed herein.
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Very truly yours,
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CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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A-2-9
EXHIBIT B
[Form of Letter of Counsel to the Company and the Guarantor]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special United States counsel to GlaxoSmithKline Capital Inc., a Delaware
corporation (GSK Capital Inc.), and GlaxoSmithKline plc, a public limited company incorporated in
England and Wales (the Guarantor), in connection with the offering from time to time, together or
separately and in one or more series, pursuant to a registration statement on Form F-3
(No. 333-[ ]) of (i) guaranteed debt securities of GSK Capital Inc. (the Debt
Securities) and (ii) guarantees of the Guarantor in respect of the Debt Securities (the
Guarantees and, together with the Debt Securities, the Securities). Such registration
statement, as amended as of its most recent effective date ([ ], 20[ ]), insofar as it
relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the Securities Act
of 1933, as amended (the Securities Act)), but excluding the documents incorporated by reference
therein and Exhibit 25, is herein called the Registration Statement; the related prospectus dated
[ ], 20[ ], as first filed with the Securities and Exchange Commission (the
Commission) pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the Base Prospectus; the preliminary
prospectus supplement dated [ ], 20[ ], as filed with the Commission pursuant
to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the Preliminary Prospectus Supplement; and the related prospectus
supplement dated [ ], 20[ ], as filed with the Commission pursuant to Rule
424(b)[(2)] under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the Final Prospectus Supplement. The Base Prospectus and the
Preliminary Prospectus Supplement together are herein called the Pricing Prospectus, and the
Base Prospectus and the Final Prospectus Supplement together are herein called the Final
Prospectus. This letter is furnished to you pursuant to Section 6(c) of the underwriting
agreement dated [ ], 20[ ] (the Underwriting Agreement) among GSK Capital Inc., the Guarantor
and the several underwriters named in Schedule II thereto (the Underwriters).
Because the primary purpose of our professional engagement was not to establish or confirm
factual matters or financial, accounting or statistical information, and because many
determinations involved in the preparation of the Registration Statement, the Pricing Prospectus,
B-1
the Final Prospectus, the documents incorporated by reference in each of them and the
documents listed in Schedule I hereto are of a wholly or partially non-legal character or relate to
legal matters outside the scope of our opinion letter to you of even date herewith, we are not
passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Pricing Prospectus, the Final Prospectus,
the documents incorporated by reference in each of them or the documents listed in Schedule I
hereto (except to the extent expressly set forth in numbered paragraph 5 of our opinion letter to
you of even date herewith) and we make no representation that we have independently verified the
accuracy, completeness or fairness of such statements (except as aforesaid). We also are not
passing upon and do not assume any responsibility for ascertaining whether or when any of the
Pricing Prospectus, the Final Prospectus, the documents incorporated by reference in each of them
or the documents listed in Schedule I hereto was conveyed to any person for purposes of Rule 159
under the Securities Act.
However, in the course of our acting as special United States counsel to each of GSK Capital
Inc. and the Guarantor in connection with its preparation of the Registration Statement, the
Pricing Prospectus, the Final Prospectus and the documents listed in Schedule I hereto, we
participated in conferences and telephone conversations with representatives of each of GSK Capital
Inc. and the Guarantor, representatives of the independent public accountants for each of GSK
Capital Inc. and the Guarantor, your representatives and representatives of your counsel, during
which conferences and conversations the contents of the Registration Statement, the Pricing
Prospectus, the Final Prospectus, portions of certain of the documents incorporated by reference in
each of them and the documents listed in Schedule I hereto and related matters were discussed, and
we reviewed certain corporate records and documents furnished to us by each of GSK Capital Inc. and
the Guarantor.
Based on our participation in such conferences and conversations and our review of such
records and documents as described above, our understanding of the U.S. federal securities laws and
the experience we have gained in our practice thereunder, we advise you that:
(a) The Registration Statement (except the financial statements and schedules and
other financial and statistical data included therein, as to which we express no view), at
the time it became effective, and the Final Prospectus (except as aforesaid), as of the date
thereof, appeared on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder. In addition, we do not know of any contracts or other
documents of a character required to be filed as exhibits to the Registration Statement or
required to be described in the Registration Statement or the Final Prospectus that are not
filed or described as required.
(b) The documents incorporated by reference in the Registration Statement and the
Final Prospectus (except the financial statements and schedules and other financial and
statistical data and managements report on the effectiveness of internal control over
financial reporting included therein, as to which we express no view), as of the respective
dates of their filing with the Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder.
B-2
(c) No information has come to our attention that causes us to believe that the
Registration Statement, including the documents incorporated by reference therein (except
the financial statements and schedules and other financial and statistical data and
managements report on the effectiveness of internal control over financial reporting
included therein, as to which we express no view), at the time it became effective,
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.
(d) No information has come to our attention that causes us to believe that the
Pricing Prospectus, including the documents incorporated by reference therein considered
together with the documents listed in Schedule I hereto (except in each case the financial
statements and schedules and other financial and statistical data and managements report on
the effectiveness of internal control over financial reporting included in the Pricing
Prospectus, as to which we express no view), at the time of execution of the Underwriting
Agreement, contained an untrue statement of a material fact or omitted 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.
(e) No information has come to our attention that causes us to believe that the Final
Prospectus, including the documents incorporated by reference therein (except the financial
statements and schedules and other financial and statistical data and managements report on
the effectiveness of internal control over financial reporting included therein, as to which
we express no view), as of the date thereof or hereof, contained or contains an untrue
statement of a material fact or omitted or omits 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.
We confirm to you that (based solely upon a telephonic confirmation from a representative of
the Commission) the Registration Statement is effective under the Securities Act and no stop order
with respect thereto has been issued, and, to the best of our knowledge, no proceeding for that
purpose has been instituted or threatened, by the Commission.
B-3
We are furnishing this letter to you, as Representatives of the Underwriters, solely for the
benefit of the Underwriters in their capacity as such in connection with the offering of the
Securities. This letter is not to be relied on by or furnished to any other person or used,
circulated, quoted or otherwise referred to for any other purpose. We assume no obligation to
advise you, or to make any investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the views expressed herein.
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Very truly yours,
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CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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B-4
EXHIBIT 1.3
UNDERWRITING AGREEMENT
among
GLAXOSMITHKLINE CAPITAL PLC
as Issuer
GLAXOSMITHKLINE PLC
as Guarantor
and
[
]
as Representatives of the Underwriters
Dated as of [
]
TABLE OF CONTENTS
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Page
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1.
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Representations and Warranties
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2
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2.
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Purchase and Sale
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5
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3.
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Delivery and Payment
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5
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4.
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[Reserved]
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6
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5.
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Agreements
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6
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6.
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Conditions to the Obligations of the Underwriters
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8
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7.
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Reimbursement of Underwriters Expenses
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12
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8.
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Indemnification and Contribution
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12
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9.
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Default by an Underwriter
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15
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10.
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Termination
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15
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11.
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Representations and Indemnities to Survive
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16
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12.
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Notices
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16
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13.
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Successors
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16
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14.
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Applicable Law
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16
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15.
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Counterparts
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16
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16.
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Headings
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16
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17.
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No Fiduciary Duty
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16
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18.
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Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
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17
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19.
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Definitions
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18
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SCHEDULES
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Schedule I
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Terms of the Securities
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Schedule II
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Underwriting Commitments
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Schedule III
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Schedule of Free Writing Prospectuses Included in the Disclosure Package
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Schedule IV
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Form of Pricing Term Sheet
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EXHIBITS
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Exhibit A-1
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Form of Opinion of U.S. Counsel to the Company and the Guarantor
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Exhibit A-2
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Form of Opinion of U.K. Counsel to the Company and the Guarantor
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Exhibit B
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Form of Letter of Counsel to the Company and the Guarantor
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GlaxoSmithKline Capital plc
[
] Notes Due [
]
Fully and Unconditionally Guaranteed by
GlaxoSmithKline plc
Underwriting Agreement
[ ], 20[ ]
[ ]
as
Representatives of the
several
Underwriters named
in
Schedule II hereto
Ladies and Gentlemen:
GlaxoSmithKline Capital plc, a public limited company incorporated in England and Wales (the
Company
), proposes to sell to the several underwriters named in Schedule II hereto (the
Underwriters
), for whom you (the
Representatives
) are acting as
representatives, the principal amount of its securities identified in Schedule I hereto (the
Debt Securities
), to be issued under an indenture dated as of April 6, 2004 (the
Indenture
), among the Company, GlaxoSmithKline plc, as guarantor (the
Guarantor
), and Law Debenture Trust Company of New York (as successor to Citibank, N.A.,
pursuant to an Instrument of Resignation, Appointment and Acceptance dated December 27, 2007 among
the Company, the Guarantor, Law Debenture Trust Company of New York and Citibank, N.A.), as trustee
(the
Trustee
). The Securities will be fully and unconditionally guaranteed by the
Guarantor as to payment of principal and interest (the
Guarantees
and, together with the
Debt Securities, the
Securities
).
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 6 of Form F-3 that were filed under the U.S.
Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities
and Exchange Commission (the
Commission
) thereunder (collectively, 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 19 hereof.
1
1.
Representations and Warranties
. The Company and the Guarantor jointly and
severally represent and warrant to, and agree with, each Underwriter as follows:
(a)
Registration Statement Effective
. The Company and the Guarantor meet the
requirements for use of Form F-3 under the U.S. Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
Securities
Act
) and have filed with the Commission an automatic shelf registration statement, as
defined in Rule 405 (No. 333-[___]) on Form F-3, including a related Base Prospectus, for
registration under the Securities Act of the offering and sale from time to time of certain
debt securities, including the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became effective upon filing. The
Company and the Guarantor 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 Securities, each of which will have previously been furnished to
you. The Company and the Guarantor will file with the Commission a final prospectus
supplement relating to the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the Securities Act, 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 and the Guarantor have 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). No stop order
suspending the effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Company or the Guarantor,
threatened by the Commission.
(b)
Registration Statement Not Misleading
. On each Effective Date, the
Registration Statement complied in all material respects with the applicable requirements of
the Securities Act; on each Effective Date and at the Execution Time, the Registration
Statement did 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; and on the date of any filing pursuant to Rule 424(b) under the
Securities Act and on the Closing Date (as defined below), 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 and the Guarantor make no representation or warranty as to
(i) the Statement of Eligibility and Qualification of the Trustee under the Trust Indenture
Act (Form T-1), which is included in the Registration Statement, 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 or the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the Final
2
Prospectus (or any supplement thereto), it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(c)
Disclosure Package
. At the Execution Time, (i) the Disclosure Package and
(ii) each electronic road show, if any, when taken together as a whole with the Disclosure
Package, do 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 or the Guarantor by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d)
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 Securities 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) and (iii) at the time the Company, the Guarantor or any
person acting on their behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the exemption in Rule 163, each of
the Company and the Guarantor was or is (as the case may be) a well-known seasoned issuer
as defined in Rule 405. The Company and the Guarantor agree to pay the fees required by the
Commission relating to the Securities 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).
(e)
Not an Ineligible Issuer
. (i) At the earliest time after the filing of the
Registration Statement that the Company, the Guarantor or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of
the Execution Time (with such date being used as the determination date for purposes of this
clause (ii)), neither the Company nor the Guarantor was and is 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 to consider whether the Company or the Guarantor would
be considered an Ineligible Issuer.
(f)
Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus
(including the final term sheet prepared and filed pursuant to Section 5(c) hereof) 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
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company or
the Guarantor by any Underwriter through the
3
Representatives specifically for use therein, it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(g)
Authorization of Indenture and Securities
. The Indenture has been duly
authorized, executed and delivered by the Company and the Guarantor and has been duly
qualified under the U.S. Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
Trust Indenture Act
);
the Debt Securities have been duly authorized by the Company, and when the Debt Securities
are delivered and paid for pursuant to this Agreement on the Closing Date, the Debt
Securities will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency and similar laws affecting creditors
rights generally and to general principles of equity; the Guarantees have been duly
authorized by the Guarantor and, upon due issuance, authentication and delivery of the
Securities and due endorsement of the Guarantees, the Guarantees will have been duly
executed, issued and delivered and will constitute valid and legally binding obligations of
the Guarantor, enforceable in accordance with their terms, subject to bankruptcy, insolvency
and similar laws affecting creditors rights generally and to general principles of equity;
and, when the Debt Securities have been duly executed, authenticated, issued and delivered
and when the Guarantees have been duly endorsed, the Securities will conform in all material
respects to the description thereof contained in the Disclosure Package and the Final
Prospectus.
(h)
Organization of the Company and the Guarantor
. Each of the Company and the
Guarantor is organized and validly existing as a public limited company under the laws of
England and Wales, with power and authority to own its properties and conduct its business
as described in the Disclosure Package and the Final Prospectus.
(i)
No Consents
. No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the consummation by the
Company or the Guarantor of the transactions contemplated by this Agreement in connection
with the issuance and sale of the Securities by the Company, except such as have been
obtained or made under the Securities Act, the Exchange Act and the Trust Indenture Act and such as may be required under
state securities laws or the securities laws of any jurisdiction outside the United States
in which the Securities are offered and sold.
(j)
No Breach or Default
. The execution, delivery and performance by the
Company and the Guarantor of the Indenture, this Agreement and the issuance and sale of the
Securities and compliance with the terms and provisions thereof by the Company and the
Guarantor will not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company, the Guarantor or any of
the Guarantors other subsidiaries or any of their respective
4
properties, or any material agreement or instrument to which the Company or the
Guarantor or any of the Guarantors other subsidiaries is a party or by which the Company or
the Guarantor or any of the Guarantors other subsidiaries is bound or to which any of their
respective properties is subject, or the charter or by-laws of the Company or the Guarantor.
(k)
Investment Company Act
. Neither the Company nor the Guarantor is or, after
giving effect to the offering and sale of the Securities and the application of the proceeds
therefrom as described in the Disclosure Package and the Final Prospectus, will be an
investment company as defined in the U.S. Investment Company Act of 1940, as amended.
(l)
Regulatory Matters
. Neither the Company, the Guarantor nor any of the
Guarantors subsidiaries nor, to the knowledge of the Company or the Guarantor, any
director, officer, agent or employee of the Company, the Guarantor or any of the Guarantors
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 and the
Guarantor 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.
(m)
Disclosure Controls
. The Guarantor and its subsidiaries maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act); such disclosure controls and procedures are effective.
Any certificate signed by any officer of the Company or the Guarantor and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company or the Guarantor, as the case may be,
as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriters name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or on such other date and at such other
time as the Company and the Representatives may agree (such date and time of delivery and payment
for the Securities being herein called the
Closing Date
). For purposes of this
Agreement,
Business Day
shall mean any day other than a Saturday, Sunday or legal holiday
or day on which banking institutions or trust companies are authorized or obligated by law to close
in New York City or London.
5
Delivery of the Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. [Reserved]
5.
Agreements
. The Company and the Guarantor agree with the several Underwriters as
follows:
(a)
File Prospectus
. The Company and the Guarantor will file the Final
Prospectus with the Commission pursuant to and in accordance with Rule 424(b) under the
Securities Act within the time period prescribed.
(b)
Amendments to Registration Statement or Prospectus; Stop Orders
. The
Company and the Guarantor will advise the Representatives promptly of any proposal to amend
the Registration Statement or file any supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Base Prospectus and will afford the Representatives a
reasonable opportunity to comment on any such proposed amendment or supplement. The Company
and the Guarantor will promptly advise the Representatives of the filing of any such
amendment or supplement and of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threatening of any
proceeding for that purpose. The Company and the Guarantor will use their reasonable best
efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c)
Final Term Sheet
. The Company and the Guarantor will prepare a final term
sheet, containing solely a description of final terms of the Securities and the offering
thereof, in the form approved by you and attached as Schedule IV hereto and to file such
term sheet pursuant to Rule 433(d) within the time required by such Rule.
(d)
Amendment of Disclosure Package
. If, at any time prior to the filing of
the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances
under which they were made or the circumstances then prevailing not misleading, the Company
and the Guarantor will (i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply any amendment
or supplement to you in such quantities as you may reasonably request.
(e)
Material Changes
. If, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act (including in circumstances
6
where such requirement may be satisfied pursuant to Rule 172), any event occurs as a
result of which the Final Prospectus as then supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or if
it shall be necessary to amend the Registration Statement or supplement the Final Prospectus
to comply with the Securities Act or the Exchange Act, the Company and the Guarantor will
promptly notify the Representatives of such event and prepare and file with the Commission
an amendment or supplement that will correct such statement or omission or effect such
compliance.
(f)
Delivery of Earnings Statement
. As soon as practicable, the Guarantor will
make generally available to its security holders an earnings statement or statements of the
Guarantor and its subsidiaries that will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158.
(g)
Delivery of Registration Statement and Prospectus
. The Company and the
Guarantor will furnish to the Representatives copies of the Registration Statement and, so
long as delivery of a prospectus by an Underwriter or dealer may be required by the
Securities Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each
Issuer Free Writing Prospectus and any supplement to any of the foregoing as the
Representatives may reasonably request. The Company and the Guarantor will pay the expenses
of preparation, printing or other production of all documents relating to the offering;
provided
that, if any Underwriter is required to deliver a Final Prospectus in
connection with sales of Securities at any time six months or more after the date of the
Final Prospectus, the expenses relating to such Final Prospectus shall be paid by such
Underwriter.
(h)
Qualification of Securities
. The Company and the Guarantor will arrange,
if necessary, for the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and will pay any fee of
the Financial Industry Regulatory Authority, Inc. in connection with its review of the
offering;
provided
that in no event shall the Company or the Guarantor be obligated
to qualify to do business in any jurisdiction where it is not now so qualified, to take any
action that would subject it to service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction where it is not now so subject
or to subject itself to taxation as doing business in any such jurisdiction.
(i)
No Other Offering Materials
. Each of the Company and the Guarantor agrees
that, unless it has or shall have obtained the prior written consent of the Representatives,
and each Underwriter, severally and not jointly, agrees with the Company and the Guarantor
that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company and the Guarantor, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing
7
Prospectus or that would otherwise constitute a free writing prospectus (as defined
in Rule 405) required to be filed by the Company or the Guarantor with the Commission or
retained by the Company or the Guarantor under Rule 433, other than a free writing
prospectus containing the information contained in the final term sheet prepared and filed
pursuant to Section 5(c) hereof;
provided
that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto and any electronic road show. Any such free
writing prospectus consented to by the Representatives, the Company and the Guarantor is
hereinafter referred to as a Permitted Free Writing Prospectus. Each of the Company and
the Guarantor agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(j)
Lock-up
. Neither the Company nor the Guarantor will, without the prior
written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, directly or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, any U.S. dollar-denominated debt
securities issued or guaranteed by the Company or the Guarantor (other than the Securities)
or publicly announce an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto.
(k)
Stabilization
. Neither the Company nor the Guarantor will take, directly
or indirectly, any action that is designed to or that constitutes or that might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company or the Guarantor to facilitate the
sale or resale of the Securities.
(l)
[Listing
. The Company and the Guarantor will use reasonable best efforts
to have the Securities listed and admitted to trading on the [ ] Stock Exchange or
another recognised exchange (as defined in Section 1005 of the Income Tax Act 2007), and
satisfactory evidence of such actions shall have been provided to the Representatives.]
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantor contained herein as of the Execution Time
and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made
in any certificates pursuant to the provisions hereof, to the performance by the Company and the
Guarantor of their obligations hereunder and to the following additional conditions:
(a)
Prospectus Filed; No Stop Order
. The Final Prospectus, and any supplement
thereto, shall have been filed in the manner and within the time period required by Rule
424(b); the final term sheet contemplated by Section 5(c) hereof, and
8
any other material required to be filed by the Company and the Guarantor pursuant to
Rule 433(d), shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company, the Guarantor or any Underwriter,
threatened.
(b)
Opinions of Counsel to the Company and the Guarantor
. On the Closing Date,
the Representatives, on behalf of the Underwriters, shall have received an opinion or
opinions of Cleary Gottlieb Steen & Hamilton LLP, counsel to the Company and the Guarantor,
dated such date, substantially to the effect set forth in Exhibits A-1 and A-2 hereto.
(c)
Letter of Counsel to the Company and the Guarantor
. On the Closing Date,
the Representatives, on behalf of the Underwriters, shall have received a letter of Cleary
Gottlieb Steen & Hamilton LLP, counsel to the Company and the Guarantor, dated such date,
substantially in the form set forth in Exhibit B hereto.
(d)
Opinion of Counsel to the Underwriters
. The Representatives, on behalf of
the Underwriters, shall have received from Sidley Austin
llp
, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, on behalf of the Underwriters, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure Package and the Final
Prospectus (together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(e)
Certificate of the Company and the Guarantor
. The Company and the
Guarantor shall have furnished to the Representatives, on behalf of the Underwriters, a
certificate of the Company and the Guarantor, signed by the Secretary of the Company and the
Chief Executive Officer and the principal financial or accounting officer of the Guarantor,
dated the Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Disclosure Package, the Final Prospectus and any
supplements or amendments thereto, as well as each electronic road show used in connection
with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantor in this
Agreement are true and correct on and as of the Closing Date with the same effect as
if made on the Closing Date and each of the Company and the Guarantor has complied
with all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the Company or the Guarantor, threatened; and
9
(iii) since the date of the most recent financial statements included or
incorporated by reference in the Disclosure Package and the Final Prospectus (in
each case, exclusive of any supplement thereto after the date hereof), there has
been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Guarantor and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (in each case, exclusive of any supplement thereto after the date
hereof) or as described in such certificate.
(f)
Accountants Comfort Letters
. The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, on behalf of the
Underwriters, at the Execution Time and on the Closing Date, letters (which may refer to
letters previously delivered to one or more of the Representatives), dated respectively as
of the date hereof and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the meaning of the
Securities Act and the Exchange Act stating in effect, that:
(i) in their opinion the audited financial statements and financial statement
schedules, if any, included or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act;
(ii) on the basis of a reading of the latest unaudited financial statements
made available by the Guarantor and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with generally accepted auditing
standards), which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of the meetings
of the stockholders, directors and audit committee of the Guarantor; and inquiries
of certain officials of the Guarantor who have responsibility for financial and
accounting matters of the Guarantor and its subsidiaries as to transactions and
events subsequent to [ ], nothing came to their attention,
after due inquiry, that caused them to believe that:
(1) any unaudited financial statements included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 20[ ], there
were any changes (
provided
that the requested information was
available in response to such inquiry), at a specified date not more than
10
five days prior to the date of the letter, in the long-term debt of the
Guarantor and its subsidiaries or capital stock of the Guarantor or
decreases in the equity shareholders funds of the Guarantor as compared
with the amounts shown on the December 31, 20[ ] consolidated balance sheet
included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, or for the period from
December 31, 20[ ] to such specified date there were any decreases, as
compared with the corresponding period in the preceding year or the
corresponding period in the preceding quarter in turnover or trading profit
or profit on ordinary activities before taxation or in earnings (profit
attributable to shareholders) or per share amounts of earnings of the
Guarantor and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Guarantor as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives; or
(3) the information included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus
in response to Form 20-F, Item 3.A. (Selected Financial Data) and Regulation
S-K, Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of Form 20-F and Regulation S-K,
respectively; and
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Guarantor and its
subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus, including the information set forth under the captions
Ratios of Earnings to Fixed Charges in the Preliminary Prospectus and the Final
Prospectus, the information included or incorporated by reference in Items 3, 4, 5
and 6 of the Guarantors Annual Report on Form 20-F, incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Final Prospectus,
agrees with the accounting records of the Guarantor and its subsidiaries, excluding
any questions of legal interpretation.
(g)
No Material Adverse Change
. Subsequent to the Execution Time, there shall
not have been (i) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (in each case, exclusive of any supplement thereto after
the date hereof) or (ii) any decrease in the rating of any of the Guarantors debt
securities by any nationally recognized statistical rating organization
11
(as defined for purposes of Rule 436(g)) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change, the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of a majority in interest of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the Registration
Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any
supplement thereto after the date hereof).
The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters under this Agreement.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Sidley Austin
llp
, counsel for the Underwriters, at 787 Seventh Avenue, New York, New York
10019 or 25 Basinghall Street, London EC2V 5HA, United Kingdom, on the Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability or failure on the
part of the Company or the Guarantor to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company and the Guarantor
will reimburse the Underwriters severally through the Representatives on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters by the Company and
the Guarantor
. The
Company and the Guarantor jointly and severally agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities Act, the Exchange Act
or other U.S. federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment thereof, or
in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to the Securities, the Final Prospectus, or any Issuer Free Writing
Prospectus or the information contained in the final term sheet required to be prepared and
filed pursuant to Section 5(c) hereof, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with
12
investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that neither the Company nor the Guarantor will be liable
in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information
furnished to the Company or the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement will be in
addition to any liability that the Company or the Guarantor may otherwise have.
(b)
Indemnification of the Company and the Guarantor by the Underwriters
. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless each of the
Company and the Guarantor, each of their respective directors, each of their respective
officers who signs the Registration Statement, and each person who controls the Company or
the Guarantor within the meaning of either the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company and the Guarantor to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company or the Guarantor by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have. The Company and the Guarantor acknowledge that the
statements set forth in [ ] constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus.
(c)
Actions Against Parties; Notification
. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying partys choice at the indemnifying partys expense to
represent the indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the indemnified party or parties except as set forth
below);
provided
,
however
, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying partys election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall
have the right to employ a single separate counsel, and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel, if the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest. An
13
indemnifying party shall not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding. The indemnifying party shall not be liable for
any settlement of any such action, suit or proceeding effected without its written consent.
(d)
Contribution
. In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company, the Guarantor and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending the same)
(collectively
Losses
) to which the Company, the Guarantor and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor on the one hand and by the Underwriters
on the other from the offering of the Securities;
provided
,
however
, that in
no case shall any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Guarantor and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company or the Guarantor on the one hand and of the
Underwriters on the other in connection with the statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. Benefits received by
the Company and the Guarantor shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company and the Guarantor on the one
hand or the Underwriters on the other, the relative intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Company, the Guarantor and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the
14
meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company or the Guarantor within the
meaning of either the Securities Act or the Exchange Act, each officer of the Company or
the Guarantor who shall have signed the Registration Statement and each director of the
Company or the Guarantor shall have the same rights to contribution as the Company or the
Guarantor, as the case may be, subject in each case to the applicable terms and conditions
of this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if arrangements satisfactory to the Representatives, the
Company and the Guarantor for the purchase of such Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability to any nondefaulting
Underwriter, the Company or the Guarantor. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Guarantor and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company and the Guarantor prior to
delivery of and payment for the Securities, if at any time prior to such time (i) trading in the
Guarantors Common Stock shall have been suspended by the London Stock Exchange or trading in the
Guarantors American Depositary Shares shall have been suspended by the Commission or the New York
Stock Exchange or trading in securities generally on the New York Stock Exchange or the London
Stock Exchange shall have been suspended or limited or minimum prices shall have been established
on either of such exchanges, (ii) a banking moratorium shall have been declared either by U.S.
federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it, in the reasonable
judgment of the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by any
15
Preliminary Prospectus or the Final Prospectus
(in each case, exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company and the Guarantor or
their respective officers and of the Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or the Guarantor or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and shall survive
delivery of and payment for the Securities. The provisions of Sections 7, 8, 14 and 18 hereof
shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder shall be in writing and effective only on
receipt, and, (i) if sent to the Representatives, shall be mailed, delivered or telefaxed to[
], attention: [ ]; or, (ii) if sent to the Company or the Guarantor,
shall be mailed, delivered or telefaxed to 980 Great West Road, Brentford, Middlesex, TW8 9GS,
England, facsimile: 44 (0) 208 047 6909, attention: The Company Secretary.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
15.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
17.
No Fiduciary Duty
. The Company and the Guarantor hereby acknowledge that (a) the
purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial
transaction between the Company and the Guarantor, on the one hand, and the Underwriters and any
affiliate through which any of them may be acting, on the other hand, (b) the Underwriters are
acting as principal and not as an agent or fiduciary of the Company or the Guarantor and (c) the
Companys and the Guarantors engagements of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, each of the Company and the Guarantor 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 or the Guarantor on related or other matters).
Each of the Company and the Guarantor agrees that it will not claim that the Underwriters have
rendered advisory services of any nature
16
or respect in connection with the offering of the
Securities, or owe an agency, fiduciary or similar duty to the Company or the Guarantor, in
connection with such transaction or the process leading thereto.
18.
Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
.
(a) Each of the Company and the Guarantor irrevocably consents and agrees that any
legal action, suit or proceeding against it with respect to any matter arising out of
or based upon this Agreement may be brought in the courts of the State of New York
located in The City of New York or the courts of the United States of America located in The
City of New York and hereby irrevocably consents and submits to the non-exclusive
jurisdiction of each such court
in
personam
, generally and unconditionally
with respect to any such action, suit or proceeding.
(b) Each of the Company and the Guarantor hereby irrevocably designates, appoints, and
empowers [ ], with offices currently at [ ], New York, New York [ ], as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, service of any
and all legal process, summons, notices and documents that may be served in any action, suit
or proceeding brought against the Company or the Guarantor in any such United States or
State court with respect to any matter arising out of or based upon this Agreement and that
may be made on such designee, appointee and agent in accordance with legal procedures
prescribed for such courts. Each of the Company and the Guarantor further hereby
irrevocably consents and agrees to the service of any and all legal process, summons,
notices and documents in any such action, suit or proceeding against it by serving a copy
thereof upon the relevant agent for service of process referred to in this Section 18
(whether or not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service). Each of the Company and the
Guarantor agrees that the failure of any such designee, appointee and agent to give any
notice of such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any such action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the Underwriters to serve such
legal process, summons, notices and documents in any other manner permitted by applicable
law or to obtain jurisdiction over the Company or the Guarantor or bring actions, suits or
proceedings against the Company or the Guarantor in such other jurisdictions, and in such
manner, as may be permitted by applicable law. Each of the Company and the Guarantor hereby
irrevocably and unconditionally waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings arising out of or based upon this Agreement brought in the
United States federal courts located in The City of New York or the courts of the State of
New York located in The City of New York and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
17
19.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Base Prospectus
shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
Disclosure Package
shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and
filed pursuant to Section 5(c) hereof, if any, and (v) any other Free Writing Prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
Effective Date
shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
Execution Time
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Final Prospectus
shall mean the prospectus supplement relating to the Securities
that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Free Writing Prospectus
shall mean a free writing prospectus, as defined in Rule
405.
Issuer Free Writing Prospectus
shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus
shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final
Prospectus, together with the Base Prospectus.
Registration Statement
shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed
part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and,
in the event any post-effective amendment thereto becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended.
Rule 158
,
Rule 163
,
Rule 164
,
Rule 172
,
Rule
405
,
Rule 415
,
Rule 424
,
Rule 430B
,
Rule 433
,
Rule 436
,
Rule 456
and
Rule 457
refer to such rules under the
Securities Act.
18
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Guarantor and the several Underwriters.
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VERY TRULY YOURS,
GLAXOSMITHKLINE CAPITAL PLC
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By:
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Name:
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Title:
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GLAXOSMITHKLINE PLC
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By:
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Name:
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Title:
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The foregoing Agreement is hereby confirmed and accepted
as of the date specified in Schedule I hereto.
[ ]
For themselves and the other several Underwriters, if any,
named in Schedule II to the foregoing Agreement.
SCHEDULE I
Terms of the Debt Securities
Underwriting Agreement dated [ ]
Registration Statement No. 333-[ ]
Representatives: [ ]
Title, Purchase Price and Description of Securities:
Title: [ ]
Principal amount: $[ ]
Purchase price (include accrued interest or amortization, if any): $[ ]
Sinking fund provisions: [ ]
Redemption provisions: [ ]
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Other provisions:
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As described in the applicable prospectus supplement referred to in this Agreement.
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Closing Date, Time and Location:
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[ ] at [ ] a.m./p.m., simultaneously, at Sidley
Austin
llp
, 787 Seventh Avenue, New York, New York 10019 and 25 Basinghall Street,
London EC2V 5HA, United Kingdom
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Type of Offering: Non-delayed.
Date referred to in Section 5(j) after which the Company and the Guarantor may offer or sell debt
securities issued or guaranteed by the Company or the Guarantor without the consent of the
Representatives: [ ].
I-1
SCHEDULE II
Underwriting Commitments
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Principal Amount
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of Securities to be
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Underwriters
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Purchased
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[Names of Underwriters]
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Total
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$
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II-1
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
[list all FWPs included in the Disclosure Package]
III-1
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333 -
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, 200
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FORM OF PRICING TERM SHEET
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Notes due
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Issuer:
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GlaxoSmithKline Capital plc
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Guarantor:
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GlaxoSmithKline plc
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Size:
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$
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Trade Date:
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, 20
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Maturity Date:
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,
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Coupon:
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%
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Interest Payment Dates:
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, commencing
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,
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Price to Public:
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%
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Benchmark Treasury:
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Benchmark Treasury Yield:
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%
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Spread to Benchmark Treasury:
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+
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bp
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Yield:
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%
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Make-Whole Call:
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CUSIP:
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Expected Settlement Date:
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,
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Day Count Fraction:
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Business Day:
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New York and London
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Denominations:
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Anticipated Ratings:
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[
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by Moodys Investors Service, Inc.]
[
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by Standard & Poors Ratings Services]
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Joint Book-Running Managers:
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Co-Managers:
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer and the guarantor have filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer and the guarantor have
filed with the SEC for more complete information about the issuer, the guarantor and this offering.
IV-1
You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling [ ] toll free at [ ] or
[
].
IV-2
EXHIBIT A-1
[Form of Opinion of U.S. Counsel to the Company and the Guarantor]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special United States counsel to GlaxoSmithKline Capital plc, a public
limited company incorporated in England and Wales (GSK Capital), and GlaxoSmithKline plc, a
public limited company incorporated in England and Wales (the Guarantor), in connection with the
offering from time to time, together or separately and in one or more series, pursuant to a
registration statement on Form F-3 (No. 333-[ ]) of (i) guaranteed debt securities of
GSK Capital (the Debt Securities) and (ii) guarantees of the Guarantor in respect of the Debt
Securities (the Guarantees and, together with the Debt Securities, the Securities) to be issued
under an indenture dated as of April 6, 2004 (the Indenture) among GSK Capital, the Guarantor and
Law Debenture Trust Company of New York (as successor to Citibank, N.A., pursuant to an Instrument
of Resignation, Appointment and Acceptance dated December 27, 2007 among the Company, the
Guarantor, Law Debenture Trust Company of New York and Citibank, N.A.), as trustee (the Trustee).
Such registration statement, as amended as of its most recent effective date ([ ], 20[ ]),
insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the
Securities Act of 1933, as amended (the Securities Act)), but excluding the documents
incorporated by reference therein, is herein called the Registration Statement; the related
prospectus dated [ ], 20[ ], as first filed with the Securities and
Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the Securities Act, but
excluding the documents incorporated by reference therein, is herein called the Base Prospectus;
the preliminary prospectus supplement dated [ ], 20[ ], as filed with the Commission
pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by
reference therein, is herein called the Preliminary Prospectus Supplement; and the related
prospectus supplement dated [ ], 20[ ], as filed with the Commission pursuant
to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the Final Prospectus Supplement. The Base Prospectus and the
Preliminary Prospectus Supplement together are herein called the Pricing Prospectus, and the Base
Prospectus and the Final Prospectus Supplement together are herein called the Final Prospectus.
This opinion letter is furnished pursuant to Section 6(b) of the underwriting agreement dated
[ ], 20[ ] (the Underwriting Agreement) among GSK Capital, the Guarantor
and the several underwriters named in Schedule II thereto (the Underwriters).
A-1-1
In arriving at the opinions expressed below, we have reviewed the following documents:
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(a)
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an executed copy of the Underwriting Agreement;
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(b)
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the Registration Statement and the documents incorporated by
reference therein;
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(c)
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the Pricing Prospectus, the documents incorporated by reference
therein [and the documents listed in Schedule I hereto];
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(d)
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the Final Prospectus and the documents incorporated by
reference therein;
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(e)
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[a facsimile copy of] the Debt Securities in global form as
executed by GSK Capital and authenticated by the Trustee;
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(f)
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an executed copy of the Indenture, including the certificated
form of Debt Securities; and
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(g)
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the documents delivered to you by each of GSK Capital and the
Guarantor at the closing pursuant to the Underwriting Agreement.
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In addition, we have reviewed the originals or copies certified or otherwise identified to our
satisfaction of all such corporate records of each of GSK Capital and the Guarantor and such other
instruments and other certificates of public officials, officers and representatives of each of GSK
Capital and the Guarantor and such other persons, and we have made such investigations of law, as
we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents
submitted to us as originals and the conformity to the originals of all documents submitted to us
as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual
matters of each document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of each of GSK Capital and the Guarantor in the Underwriting
Agreement) and (ii) that any Debt Securities in certificated form issued in exchange for the Debt
Securities in global form will conform to the form thereof that we have reviewed and will be duly
authenticated in accordance with the terms of the Indenture.
Based on the foregoing, and subject to the further assumptions and qualifications set forth
below, it is our opinion that:
1. The Indenture has been duly executed and delivered by each of GSK Capital and the Guarantor
under the law of the State of New York and has been qualified under the Trust Indenture Act of
1939, as amended (the Trust Indenture Act), and is a valid, binding and enforceable agreement of
each of GSK Capital and the Guarantor.
2. (a) (i) The Debt Securities in global form have been duly executed and delivered by GSK
Capital under the law of the State of New York and are, and (ii) the Debt Securities in
certificated form when exchanged for interests in the Debt Securities in global form
A-1-2
in accordance with the terms thereof and of the Indenture will be, the valid, binding and
enforceable obligations of GSK Capital and entitled to the benefits of the Indenture, and (b) the
Guarantees have been duly executed and delivered by the Guarantor under the law of the State of New
York and are the valid, binding and enforceable obligations of the Guarantor, entitled to the
benefits of the Indenture.
3. The statements under the heading Description of the Notes in the Pricing Prospectus,
considered together with the documents listed in Schedule I hereto, and in the Final Prospectus,
together in each case with the statements under the heading Description of Debt Securities in the
Base Prospectus, insofar as such statements purport to summarize certain provisions of the
Securities and the Indenture, provide a fair summary of such provisions.
4. The Underwriting Agreement has been duly executed and delivered by each of GSK Capital and
the Guarantor under the law of the State of New York.
5. The issuance and sale of the Securities to the Underwriters pursuant to the Underwriting
Agreement do not, and the performance by each of GSK Capital and the Guarantor of its obligations
in the Underwriting Agreement, the Indenture and the Debt Securities and Guarantees, respectively,
will not, require any consent, approval, authorization, registration or qualification of or with
any governmental authority of the United States or the State of New York that in our experience
normally would be applicable to general business entities with respect to such issuance, sale or
performance, except such as have been obtained or effected under the Securities Act, the Securities
Exchange Act of 1934, as amended, and the Trust Indenture Act (but we express no opinion relating
to any state securities or Blue Sky laws).
6. No registration of either GSK Capital or the Guarantor under the Investment Company Act of
1940, as amended, is required for the offer and sale of the Securities by GSK Capital and the
Guarantor in the manner contemplated by the Underwriting Agreement and the Final Prospectus.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of
any agreement or obligation of either GSK Capital or the Guarantor, (a) we have assumed that GSK
Capital, the Guarantor and each other party to such agreement or obligation has satisfied those
legal requirements that are applicable to it to the extent necessary to make such agreement or
obligation enforceable against it (except that no such assumption is made as to either GSK Capital
or the Guarantor regarding matters of the federal law of the United States of America or the law of
the State of New York that in our experience normally would be applicable to general business
entities with respect to such agreement or obligation), (b) such opinions are subject to applicable
bankruptcy, insolvency and similar laws affecting creditors rights generally and to general
principles of equity and (c) such opinions are subject to the effect of judicial application of
foreign laws or foreign governmental actions affecting creditors rights.
The waiver of defenses contained in Section 6.01 of the Indenture and in the Guarantees may be
ineffective to the extent that any such defense involves a matter of public policy in New York
(such as reflected in New Yorks anti-champerty statute). With respect to Section 18 of the
Underwriting Agreement, we express no opinion as to the subject matter
A-1-3
jurisdiction of any United States federal court to adjudicate any action relating to the
Underwriting Agreement where jurisdiction is based on diversity of citizenship under 28 U.S.C. §
1332 does not exist.
The foregoing opinions are limited to the federal law of the United States of America and the
law of the State of New York.
A-1-4
We are furnishing this opinion letter to you, as Representatives of the Underwriters, solely
for the benefit of the Underwriters in their capacity as such in connection with the offering of
the Securities. This opinion letter is not to be relied on by or furnished to any other person or
used, circulated, quoted or otherwise referred to for any other purpose, except that this opinion
letter may be relied upon by the Trustee in its capacity as such. We assume no obligation to
advise you or any other person, or to make any investigations, as to any legal developments or
factual matters arising subsequent to the date hereof that might affect the opinions expressed
herein.
Very truly yours,
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CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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A-1-5
EXHIBIT A-2
[Form of Opinion of U.K. Counsel to the Company and the Guarantor]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special English counsel to GlaxoSmithKline Capital plc, a public limited
company incorporated in England and Wales (GSK Capital), and GlaxoSmithKline plc, a public
limited company incorporated in England and Wales (the Guarantor and, together with GSK Capital,
the Companies), which propose to offer pursuant to a registration statement on Form F-3
(No. 333-[ ]) (i) guaranteed debt securities of GSK Capital consisting of [ ] Notes
due [ ] (the Debt Securities) and (ii) guarantees of the Guarantor in respect of
the Debt Securities (the Guarantees and, together with the Debt Securities, the Securities) to
be issued in each case under an indenture dated as of April 6, 2004 (the Indenture) among GSK
Capital, the Guarantor and Law Debenture Trust Company of New York (as successor to Citibank, N.A.,
pursuant to an Instrument of Resignation, Appointment and Acceptance dated December 27, 2007 among
GSK Capital, the Guarantor, Law Debenture Trust Company of New York and Citibank, N.A.), as trustee
(the Trustee). Such registration statement, as amended as of its most recent effective date
([ ], 20[ ]), insofar as it relates to the Securities (as determined for purposes of
Rule 430B(f)(2) under the Securities Act of 1933, as amended (the Securities Act)), but excluding
the documents incorporated by reference therein, is herein called the Registration Statement; the
related prospectus dated [ ], 20[ ], as first filed with the Securities and
Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the Securities Act, but
excluding the documents incorporated by reference therein, is herein called the Base Prospectus;
the preliminary prospectus supplement dated [ ], 20[ ], as filed with the
Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the Preliminary Prospectus Supplement; and
the related prospectus supplement dated [ ], 20[ ], as first filed with the Commission
pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents incorporated by
reference therein, is herein called the Final Prospectus Supplement. The Base Prospectus and the
Preliminary Prospectus Supplement together are herein called the Pricing Prospectus, and the Base
Prospectus and the Final Prospectus Supplement together are herein called the Final Prospectus.
This opinion letter is furnished to you pursuant to Section 6(b) of the underwriting agreement
dated [ ], 20[ ] (the Underwriting Agreement) among GSK Capital, the Guarantor
and the several underwriters named in Schedule II thereto (the Underwriters).
A-2-1
In arriving at the opinions expressed below, we have reviewed the following documents:
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(a)
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a copy of the Underwriting Agreement executed by the Companies;
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(b)
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a Certificate of the Secretary of each of GSK Capital and the
Guarantor dated [ ] (each, a Secretarys Certificate) having annexed
thereto and certified as true, complete and up-to-date copies, the following
documents:
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(i)
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the Memorandum and Articles of Association of
the Company to which the Secretarys Certificate relates; and
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(ii)
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the minutes of the meeting of the Board of
Directors or Corporate Administration & Transactions Committee of the
Company to which the Secretarys Certificate relates;
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(d)
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the Registration Statement;
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(e)
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the Pricing Prospectus;
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(f)
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the Final Term Sheet filed with the Commission pursuant to Rule
433 on [ ], 20[ ];
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(g)
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the Final Prospectus;
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(h)
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[a facsimile copy of] the Debt Securities in global form as
executed by GSK Capital and authenticated by the Trustee; and
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(i)
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a copy of the Indenture (including the Guarantee contained
therein by the Guarantor).
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Unless defined herein, capitalised terms have the meanings attributed to them in the
Underwriting Agreement.
In rendering the opinions expressed below we have assumed and not verified:
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(a)
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the genuineness of all signatures, stamps and seals, the
authenticity and completeness of all documents supplied to us and the
conformity to the originals of all documents supplied to us as photocopies or
facsimile copies;
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(b)
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that, where a document has been examined by us in draft,
specimen or certificated form, it has been or will be executed in the form of
that draft or specimen and, in the case of Debt Securities, that they have been
or will be authenticated in accordance with the terms of the Indenture;
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A-2-2
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(c)
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that each of the Underwriting Agreement, the Indenture and the
Debt Securities (together, the Transaction Documents) has been or will be
duly authorised, executed and delivered by or on behalf of each of the parties
to the Transaction Documents (other than each of the Companies) and each such
party (other than each of the Companies) has the power, capacity and authority
to execute and deliver and to perform its obligations contained in each of the
Transaction Documents to which it is a party;
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(d)
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the absence of any other arrangements between any of the
parties to any of the Transaction Documents that modify or supersede any of the
terms of any of the Transaction Documents;
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(e)
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the accuracy as to factual matters of each document we have
reviewed (including, without limitation, the accuracy of the representations
and warranties of each of the parties to the Transaction Documents and the
accuracy of all statements in each of the Secretarys Certificates) and the
compliance by each of the parties thereto with each of their respective
obligations under the Transaction Documents;
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(f)
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that none of the execution of the Indenture, the Underwriting
Agreement, the issue of the Securities, the performance of the respective
obligations of each of the parties thereto and the application of the proceeds
of the issue of the Debt Securities constitutes financial assistance prohibited
by Section 151 of the Companies Act 1985;
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(g)
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that the Transaction Documents have been duly executed by the
parties thereto and constitute valid and binding obligations of the parties
thereto under all applicable laws (including the laws of the State of New York
by which the Transaction Documents are expressed to be governed) enforceable in
accordance with their terms and have the same meaning and effect as if they
were governed by English law;
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(h)
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that the information relating to the Companies disclosed by our
on-line searches on [ ], 20[ ], at Companies House
and by telephone at the Central Registry of Winding up Petitions at the
Companies Court in London on [ ], 20[ ], in relation
to each of the Companies was then complete, up to date and accurate and has not
since then been materially altered and that such searches did not fail to
disclose any material information that had been delivered for registration at
the time of our search but did not appear online or on the file in London (as
applicable) at the time of our search, and that the information relating to the
Guarantor disclosed by our on-line searches and by telephone did not fail to
include any material information or disclose any petition for an administration
order or winding up in respect of each of the Companies that has been presented
in England and Wales;
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A-2-3
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(i)
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that, except insofar as matters are on public record and are
discoverable by making any of the searches referred to in (h) above, each of
the Companies has not passed any voluntary winding-up resolution and that no
petition has been presented to, or order made by, any competent authority for
the winding-up, dissolution or administration of such Company and that no
receiver, interim liquidator, administrative receiver, trustee, administrator
or similar officer has been appointed in relation to such Company or any of its
assets or revenues;
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(j)
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that the meetings of the Board of Directors of each
respective Company and the Corporate
Administration & Transactions Committee of the Guarantor at
which the resolutions authorising such Company to enter into the Transaction
Documents were passed, were duly convened and held and such resolutions are a
true record of the proceedings at such meetings and are in full force and
effect and have not been amended, revoked or superseded;
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(k)
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that there are no provisions of the laws of any jurisdiction
outside England and Wales that would have any implication for the opinions we
express, and insofar as the laws of any jurisdiction other than England and
Wales may be relevant to this opinion letter, such laws have been and will be
complied with;
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(l)
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that any party to the Transaction Documents that is subject to
the supervision of any regulatory authority in the United Kingdom has complied
and will comply with the requirements of such regulatory authority in
connection with the offering and sale of the Securities;
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(m)
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that the aggregate initial offering price of all Securities
issued will not exceed any limit (calculated, where applicable, as described in
the relevant Indenture) in other currencies that may now or in the future be
imposed by the terms of the Memorandum or Articles of Association or any
corporate resolution of the relevant Company;
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(n)
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that the terms and conditions applicable to the relevant
Securities will not be inconsistent with the terms and conditions of the
relevant Indenture and will not be inconsistent with the Final Prospectus;
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(o)
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that where a document is required to be delivered, each party
to it has delivered the same without it being subject to any escrow or other
similar arrangement;
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(p)
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that each of the parties has fully complied with its
obligations under all applicable money laundering legislation;
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(q)
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that any provision of the Transaction Documents that is
expressed to be governed by the laws of any jurisdiction other than England and
Wales is valid, binding and enforceable under the laws of such other
jurisdiction; and
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A-2-4
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(r)
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that each of the parties to the Transaction Documents has
complied with all applicable provisions of Directive 2003/71/EC of the European
Parliament (the Prospectus Directive) as it applies and as implemented in the
United Kingdom, the Financial Services and Markets Act 2000 (FSMA) and any
applicable secondary legislation made under it with respect to anything done by
any of them in relation to the Securities in, from or otherwise involving the
United Kingdom (including Sections 19 (carrying on a regulated activity), 21
(financial promotion), 85 (public offers) and 118 (market abuse) of
FSMA).
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Based on the foregoing, and subject to the further qualifications and limitations set forth
below, it is our opinion that:
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(a)
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each of the Companies is a public limited company incorporated
under the laws of England and Wales and resident in the United Kingdom for UK
tax purposes;
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(b)
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each of the Companies has the corporate power to
enter into and perform its respective obligations under the Underwriting
Agreement and the Indenture;
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(c)
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each of the Underwriting Agreement and the Indenture has each
been duly authorised, executed and delivered by each of the Companies;
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A-2-5
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(d)
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no consent, approval, authorisation, order, licence,
registration and qualification or filing of or with any court or governmental
agency or body in the United Kingdom is required for the issue and initial sale
of the Debt Securities to the Underwriters;
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(e)
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neither the execution nor the delivery of the Indenture nor
the performance of GSK Capital or the Guarantor thereunder will conflict with or
violate or result in a breach of or constitute a default under any term or
provision of its Memorandum or Articles of Association; and
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(f)
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the choice of New York law to govern the Underwriting Agreement
and the Indenture is, under the laws of England, a valid choice of law.
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The foregoing opinions are, without limitation, subject to the following:
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(a)
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The opinions set forth above are subject to all limitations
resulting from the laws of bankruptcy, insolvency, liquidation, administration,
fraudulent transfer, reorganisation, moratorium, suretyship or any similar laws
of general application affecting creditors rights.
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(b)
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Enforcement may be limited by general principles of equity.
For example, equitable remedies may not be available where damages are
considered to be an adequate remedy.
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(c)
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Where any obligations of any person are to be performed or
observed in jurisdictions outside England and Wales, or by a person subject to
the laws of a jurisdiction outside England and Wales, such obligations may not
be enforceable under English law to the extent that performance or observance
thereof would be illegal or contrary to public policy under the laws of any
such jurisdiction.
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(d)
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The choice of the laws of the State of New York as the
governing law of the Transaction Documents may be limited by the Contracts
(Applicable Law) Act 1990 in certain circumstances, including, for example, in
respect of laws that cannot be derogated from by contract or that are,
irrespective of the governing law of the contract, mandatory in the relevant
forum.
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(e)
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Except in those cases where jurisdiction is determined in
accordance with the provisions of the Council Regulation (EC) 44/2001 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, the provisions of the Brussels Convention on jurisdiction
in civil and commercial matters of 1968 or the provisions of the Lugano
Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters of 1988, an English court has power to stay an action
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A-2-6
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where it is shown that it can, without injustice to the plaintiff, be tried
in a more convenient forum. However, such power may not be exercisable in
all circumstances. For example, an English court may not be able to stay
proceedings where the defendant is domiciled in England and the alternative
jurisdiction is outside the European Union.
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(f)
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Any provision providing that any calculation, certification,
determination, notification, minute or opinion will be conclusive and binding
will not be effective if such calculation, certification, determination,
notification, minute or opinion is fraudulent or made on an unreasonable or
arbitrary basis or in the event of manifest error despite any provision to the
contrary and it will not necessarily prevent judicial enquiry into the merits
of any claim by any party thereto.
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(g)
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Where any person is vested with a discretion, or may determine
any matter in its opinion, English law may require that such discretion is
exercised reasonably or that such opinion is based on reasonable grounds.
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(h)
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Any provision for the payment of liquidated damages,
compensation, additional interest or similar amounts might be held to be
unenforceable on the ground that it is a penalty.
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(i)
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Any undertaking or indemnity may be void insofar as it relates
to stamp duty payable in the United Kingdom.
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(j)
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An English court may refuse to give effect to any provision of
an agreement that amounts to an indemnity in respect of the costs of
enforcement or of unsuccessful litigation brought before an English court or
where the court has itself made an order for costs.
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(k)
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Any question as to whether or not any provision of any
agreement or instrument that is illegal, invalid, not binding, unenforceable or
void may be severed from the other provisions thereof in order to save those
other provisions would be determined by an English court in its discretion.
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(l)
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There is some possibility that an English court would hold that
a judgment on a particular agreement or instrument, whether given in an English
court or elsewhere, would supersede such agreement or instrument to all intents
and purposes, so that any obligation thereunder that by its terms would survive
such judgment might not be held to do so.
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(m)
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Enforcement of rights may be or become limited by prescription
or by the lapse of time or may be or become subject to defences of set-off or
counterclaim.
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(n)
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The effectiveness of terms exculpating a party from a liability
or duty otherwise owed is limited by law.
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A-2-7
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(o)
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An English court is able, where the amount of a claim is
denominated in a currency other than sterling, to give judgment in that other
currency, as a matter of current procedural practice and at its own discretion.
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(p)
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There is some possibility that an English court having
jurisdiction in relation to insolvency law would apply the provisions of
Section 426 of the Insolvency Act 1986 (Co-operation between courts exercising
jurisdiction in relation to insolvency) in assisting the courts having the
corresponding jurisdiction in any other part of the United Kingdom or any
relevant country or territory (as such terms are defined in that section) (in
this regard we refer you to Hughes v. Hannover
Ruckversicherungs-Aktiengesellschaft [1997] 1 BCLC 497) and, as a result, may,
rather than apply insolvency law as it would otherwise apply in England, apply
the insolvency law that is applicable in such other part of the United Kingdom
or relevant country or territory in relation to comparable matters.
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(q)
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An English court may refuse to give effect to a claim pursuant
to an indemnity or contribution provision in a Transaction Document insofar as
the subject matter of such claim relates to penalties imposed under Section 91
(breach of listing rules) or Section 123 (market abuse) of FSMA or any relevant
provision of FSMA imposing penalties or of the rules made under it.
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(r)
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The searches with Companies House referred to above are not
conclusively capable of revealing whether or not (i) a winding up order has
been made in respect of a company or a resolution passed for the winding up of
a company, or (ii) an administration order has been made in respect of a
company, or (iii) a receiver, administrative receiver, administrator or
liquidator has been appointed in respect of a company, since notice of these
matters might not be filed with Companies House immediately and, when filed,
might not be entered on the files of Companies House relating to insolvency
details with respect to the relevant company immediately. In addition, such
searches are not capable of revealing, prior to the making of the relevant
order, whether or not a winding up petition or a petition for an administration
order has been presented.
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(s)
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The enquiry at the Central Registry of Winding up Petitions
referred to above relates only to a compulsory winding up and is not capable of
revealing conclusively whether or not a winding up petition in respect of a
compulsory winding up has been presented since details of the petition may not
have been entered on the records of the Central Registry of Winding up
Petitions immediately or, in the case of a petition presented to a County
Court, may not have been notified to the Central Registry and entered on such
records at all, and the response to an enquiry only relates to the period of
six months prior to the date when the enquiry was made. We have not made
enquiries of any County Court as to whether a petition
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A-2-8
for the appointment of an administrator has been presented to, or an
administration order has been made by, such County Court against the
Companies.
We express no opinion as to any agreement, instrument or other document other than as
specified in this opinion letter, or as to any liability to tax that may arise or be incurred as a
result of or in connection with the Transaction Documents, including, without limitation, the
creation, issue or offer of the Securities or any other transaction. We have not been responsible
for the investigation or verification of statements of fact (including statements as to foreign
law) or the reasonableness of any statements of opinion contained in the Registration Statement,
the Pricing Prospectus, the Final Term Sheet or the Final Prospectus relating to the issue of the
Securities, or the entry into the Underwriting Agreement or the Indenture, nor have we been
responsible for ensuring that the Registration Statement, the Pricing Prospectus, the Final Term
Sheet and the Final Prospectus and the documents incorporated by reference therein contain all
material facts.
The opinions set out above are limited to the laws of England and Wales as currently applied
by the courts in England and Wales and are given on the basis that this opinion letter will be
governed by and construed in accordance with English law. This opinion letter is given on the
basis of English law in force as at the date of this opinion.
A-2-9
We are furnishing this opinion letter to you as Representatives of the Underwriters solely for
your benefit in your capacity as such and to the several Underwriters solely for their benefit in
their capacity as Underwriters in connection with the issue of the Debt Securities. This opinion
letter is not to be relied on by or furnished to any other person or used, circulated, quoted or
otherwise referred to for any other purpose. We assume no obligation to advise you or any other
person, or to make any investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the opinions expressed herein.
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Very truly yours,
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CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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A-2-10
EXHIBIT B
[Form of Letter of Counsel to the Company and the Guarantor]
[ ], 20[ ]
[ ]
as Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We have acted as special United States counsel to GlaxoSmithKline Capital plc, a public
limited company incorporated in England and Wales (GSK Capital), and GlaxoSmithKline plc, a
public limited company incorporated in England and Wales (the Guarantor), in connection with the
offering from time to time, together or separately and in one or more series, pursuant to a
registration statement on Form F-3 (No. 333-[ ]) of (i) guaranteed debt securities of GSK
Capital (the Debt Securities) and (ii) guarantees of the Guarantor in respect of the Debt
Securities (the Guarantees and, together with the Debt Securities, the Securities). Such
registration statement, as amended as of its most recent effective date ([ ], 20[ ]),
insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the
Securities Act of 1933, as amended (the Securities Act)), but excluding the documents
incorporated by reference therein and Exhibit 25, is herein called the Registration Statement;
the related prospectus dated [ ], 20[ ], as first filed with the Securities
and Exchange Commission (the Commission) pursuant to Rule 424(b)[(2)] under the Securities Act,
but excluding the documents incorporated by reference therein, is herein called the Base
Prospectus; the preliminary prospectus supplement dated [ ], 20[ ], as filed
with the Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the
documents incorporated by reference therein, is herein called the Preliminary Prospectus
Supplement; and the related prospectus supplement dated [ ], 20[ ], as filed with
the Commission pursuant to Rule 424(b)[(2)] under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the Final Prospectus Supplement. The Base
Prospectus and the Preliminary Prospectus Supplement together are herein called the Pricing
Prospectus, and the Base Prospectus and the Final Prospectus Supplement together are herein called
the Final Prospectus. This letter is furnished to you pursuant to Section 6(c) of the
underwriting agreement dated [ ], 20[ ] (the Underwriting Agreement) among GSK Capital, the
Guarantor and the several underwriters named in Schedule II thereto (the Underwriters).
Because the primary purpose of our professional engagement was not to establish or confirm
factual matters or financial, accounting or statistical information, and because many
determinations involved in the preparation of the Registration Statement, the Pricing Prospectus,
the Final Prospectus, the documents incorporated by reference in each of them and the documents
listed in Schedule I hereto are of a wholly or partially non-legal character or relate to
B-1
legal matters outside the scope of our opinion letter to you of even date herewith, we are not
passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Pricing Prospectus, the Final Prospectus,
the documents incorporated by reference in each of them or the documents listed in Schedule I
hereto (except to the extent expressly set forth in numbered paragraph 5 of our opinion letter to
you of even date herewith) and we make no representation that we have independently verified the
accuracy, completeness or fairness of such statements (except as aforesaid). We also are not
passing upon and do not assume any responsibility for ascertaining whether or when any of the
Pricing Prospectus, the Final Prospectus, the documents incorporated by reference in each of them
or the documents listed in Schedule I hereto was conveyed to any person for purposes of Rule 159
under the Securities Act.
However, in the course of our acting as special United States counsel to each of GSK Capital
and the Guarantor in connection with its preparation of the Registration Statement, the Pricing
Prospectus, the Final Prospectus and the documents listed in Schedule I hereto, we participated in
conferences and telephone conversations with representatives of each of GSK Capital and the
Guarantor, representatives of the independent public accountants for each of GSK Capital and the
Guarantor, your representatives and representatives of your counsel, during which conferences and
conversations the contents of the Registration Statement, the Pricing Prospectus, the Final
Prospectus, portions of certain of the documents incorporated by reference in each of them and the
documents listed in Schedule I hereto and related matters were discussed, and we reviewed certain
corporate records and documents furnished to us by each of GSK Capital and the Guarantor.
Based on our participation in such conferences and conversations and our review of such
records and documents as described above, our understanding of the U.S. federal securities laws and
the experience we have gained in our practice thereunder, we advise you that:
(a) The Registration Statement (except the financial statements and schedules and other
financial and statistical data included therein, as to which we express no view), at the
time it became effective, and the Final Prospectus (except as aforesaid), as of the date
thereof, appeared on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder. In addition, we do not know of any contracts or other
documents of a character required to be filed as exhibits to the Registration Statement or
required to be described in the Registration Statement or the Final Prospectus that are not
filed or described as required.
(b) The documents incorporated by reference in the Registration Statement and the Final
Prospectus (except the financial statements and schedules and other financial and
statistical data and managements report on the effectiveness of internal control over
financial reporting included therein, as to which we express no view), as of the respective
dates of their filing with the Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder.
B-2
(c) No information has come to our attention that causes us to believe that the
Registration Statement, including the documents incorporated by reference therein (except
the financial statements and schedules and other financial and statistical data and
managements report on the effectiveness of internal control over financial reporting
included therein, as to which we express no view), at the time it became effective,
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.
(d) No information has come to our attention that causes us to believe that the Pricing
Prospectus, including the documents incorporated by reference therein considered together
with the documents listed in Schedule I hereto (except in each case the financial statements
and schedules and other financial and statistical data and managements report on the
effectiveness of internal control over financial reporting included in the Pricing
Prospectus, as to which we express no view), at the time of execution of the Underwriting
Agreement, contained an untrue statement of a material fact or omitted 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.
(e) No information has come to our attention that causes us to believe that the Final
Prospectus, including the documents incorporated by reference therein (except the financial
statements and schedules and other financial and statistical data and managements report on
the effectiveness of internal control over financial reporting included therein, as to which
we express no view), as of the date thereof or hereof, contained or contains an untrue
statement of a material fact or omitted or omits 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.
We confirm to you that (based solely upon a telephonic confirmation from a representative of
the Commission) the Registration Statement is effective under the Securities Act and no stop order
with respect thereto has been issued, and, to the best of our knowledge, no proceeding for that
purpose has been instituted or threatened, by the Commission.
B-3
We are furnishing this letter to you, as Representatives of the Underwriters, solely for the
benefit of the Underwriters in their capacity as such in connection with the offering of the
Securities. This letter is not to be relied on by or furnished to any other person or used,
circulated, quoted or otherwise referred to for any other purpose. We assume no obligation to
advise you, or to make any investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the views expressed herein.
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Very truly yours,
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CLEARY GOTTLIEB STEEN & HAMILTON LLP
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By:
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B-4
EXHIBIT 4.1
INDENTURE
among
GLAXOSMITHKLINE PLC
as Issuer
and
LAW DEBENTURE TRUST COMPANY OF NEW YORK
as Trustee
Dated as of March 4, 2008
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01. Definitions
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1
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Section 1.02. Incorporation by Reference of Trust Indenture Act
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5
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Section 1.03. Rules of Construction
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5
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ARTICLE TWO
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THE SECURITIES
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Section 2.01. Form of Securities
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5
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Section 2.02. Execution, Authentication, Delivery and Dating
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5
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Section 2.03. Amount Unlimited; Issuable in Series
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7
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Section 2.04. Denominations
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9
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Section 2.05. Registrar and Paying Agent; Agents Generally
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9
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Section 2.06. Paying Agent to Hold Money in Trust
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10
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Section 2.07. Transfer and Exchange
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11
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Section 2.08. Replacement Securities
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13
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Section 2.09. Outstanding Securities
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13
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Section 2.10. Temporary Securities
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14
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Section 2.11. Cancellation
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14
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Section 2.12. Persons Deemed Owners
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14
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Section 2.13. Payment of Interest; Defaulted Interest
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15
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Section 2.14. Computation of Interest
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15
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Section 2.15. Series May Include Tranches
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15
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Section 2.16. CUSIP and CINS Numbers
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16
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ARTICLE THREE
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REDEMPTION
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Section 3.01. Applicability of Article
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16
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i
TABLE OF CONTENTS
(continued)
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Page
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Section 3.02. Notice of Redemption; Partial Redemptions
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17
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Section 3.03. Payment of Securities Called for Redemption
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18
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Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for
Redemption
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19
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Section 3.05. Mandatory and Optional Sinking Funds
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19
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ARTICLE FOUR
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COVENANTS
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Section 4.01. Payment of Securities
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21
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Section 4.02. Maintenance of Office or Agency
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22
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Section 4.03. Certificate to Trustee
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22
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Section 4.04. Limitation on Liens
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22
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Section 4.05. Payment of Additional Amounts
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23
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Section 4.06. Waiver of Certain Covenants
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25
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Section 4.07. Calculation of Original Issue Discount
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25
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Section 4.08. Reports by the Company
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25
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ARTICLE FIVE
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CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
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Section 5.01. When the Company May Merge, Etc
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26
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Section 5.02. Successor Company Substituted
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26
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Section 5.03. Substitution of Obligor
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27
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Section 5.04. Successor Obligor Substituted
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27
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ARTICLE SIX
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[RESERVED]
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ARTICLE SEVEN
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DEFAULT AND REMEDIES
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Section 7.01. Events of Default
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27
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ii
TABLE OF CONTENTS
(continued)
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Page
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Section 7.02. Acceleration
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28
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Section 7.03. Other Remedies
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30
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Section 7.04. Waiver of Past Defaults
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30
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Section 7.05. Control by Majority
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31
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Section 7.06. Limitation on Suits
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31
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Section 7.07. Rights of Holder to Receive Payment
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31
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Section 7.08. Collection Suit by Trustee
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32
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Section 7.09. Trustee May File Proofs of Claim
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32
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Section 7.10. Application of Proceeds
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32
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Section 7.11. Restoration of Rights and Remedies
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33
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Section 7.12. Undertaking for Costs
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33
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Section 7.13. Rights and Remedies Cumulative
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35
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Section 7.14. Delay or Omission Not Waiver
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34
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ARTICLE EIGHT
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TRUSTEE
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Section 8.01. General
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34
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Section 8.02. Certain Rights of Trustee
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34
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Section 8.03. Individual Rights of Trustee
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36
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Section 8.04. Trustees Disclaimer
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36
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Section 8.05. Notice of Default
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36
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Section 8.06. Reports by Trustee to Holders
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37
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Section 8.07. Compensation and Indemnity
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37
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Section 8.08. Replacement of Trustee
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38
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iii
TABLE OF CONTENTS
(continued)
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Page
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Section 8.09. Successor Trustee by Merger, Etc
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39
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Section 8.10. Eligibility
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39
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Section 8.11. Money Held in Trust
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39
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Section 8.12. Conflicting Interests
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39
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Section 8.13. Communication by Holders with Other Holders
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39
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ARTICLE NINE
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DISCHARGE OF INDENTURE; DEFEASANCE
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Section 9.01. Discharge; Defeasance within One Year of Payment
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39
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Section 9.02. Defeasance
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40
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Section 9.03. Covenant Defeasance
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41
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Section 9.04. Application of Trust Money
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42
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Section 9.05. Repayment to Company
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42
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ARTICLE TEN
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AMENDMENTS, SUPPLEMENTS AND WAIVERS
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Section 10.01. Without Consent of Holders
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43
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Section 10.02. With Consent of Holders
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44
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Section 10.03. Revocation and Effect of Consent
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45
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Section 10.04. Notation on or Exchange of Securities
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45
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Section 10.05. Trustee to Sign Amendments, Etc
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46
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Section 10.06. Conformity with Trust Indenture Act
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46
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ARTICLE ELEVEN
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MISCELLANEOUS
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Section 11.01. Trust Indenture Act of 1939
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46
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Section 11.02. Notices
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46
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Section 11.03. Certificate and Opinion as to Conditions Precedent
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47
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iv
TABLE OF CONTENTS
(continued)
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Page
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Section 11.04. Statements Required in Certificate or Opinion
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48
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Section 11.05. Evidence of Ownership
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48
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Section 11.06. Rules by Trustee, Paying Agent or Registrar
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48
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Section 11.07. Payment Date other than a Business Day
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48
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Section 11.08. Governing Law; Waiver of Jury Trial
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48
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Section 11.09. No Adverse Interpretation of Other Agreements
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49
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Section 11.10. Successors
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49
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Section 11.11. Duplicate Originals
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49
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Section 11.12. Separability
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49
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Section 11.13. Table of Contents, Headings, Etc.
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49
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Section 11.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability
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49
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Section 11.15. Judgment Currency
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49
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v
CROSS
REFERENCE TABLE
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Trust Indenture Act Section
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Indenture Section
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310
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(a)(1)
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8.10
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(a)(2)
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8.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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8.10
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(b)
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8.03, 8.12
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(c)
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Not Applicable
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311
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(a)
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8.03
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(b)
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8.03
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(c)
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Not Applicable
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312
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(a)
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2.05
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(b)
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8.13
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(c)
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8.13
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313
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(a)
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8.06
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(b)(1)
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Not Applicable
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(b)(2)
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8.06
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(c)
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8.06
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(d)
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8.06
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314
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(a)(1)
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4.08
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(a)(2)
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4.08
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(a)(3)
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4.08
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(a)(4)
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4.03
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(b)
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Not Applicable
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(c)(1)
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11.03
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(c)(2)
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11.03
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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11.04
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315
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(a)(1)
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8.01
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(a)(2)
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8.02
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(b)
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8.05
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(c)
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8.01
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(d)
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8.01
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(e)
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7.12
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316
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(a)(1)(A)
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7.05
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(a)(1)(B)
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7.04
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(a)(2)
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Not Applicable
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(a)(last sentence)
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2.09
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(b)
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7.07
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(c)
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Not Applicable
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317
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(a)(1)
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7.08
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(a)(2)
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7.09
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(b)
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2.06
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318
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(a)
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1.02
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Note:
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This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the
Indenture.
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Section 318(c) of the Trust Indenture Act provides that the provisions of Sections 310 to and
including 317 of the Trust Indenture Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
vi
INDENTURE dated as of March 4, 2008, between GlaxoSmithKline plc, a public limited company
incorporated under the laws of England and Wales (the
Company
), and Law Debenture Trust
Company of New York, a trust company duly organized and existing under the laws of the State of New
York, as trustee (the
Trustee
).
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debt securities (the
Securities
), which
are to be issued in one or more series up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities or of any and all series thereof as
follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions
.
Additional Amounts
has the meaning specified in Section 4.05.
Agent
means any Registrar, Paying Agent, transfer agent or Authenticating Agent.
Authenticating Agent
has the meaning specified in Section 2.02.
Board Resolution
means one or more resolutions of the board of directors of the
Company or any authorized committee of the Company, certified by the secretary or an assistant or
deputy secretary of the Company to have been duly adopted and to be in full force and effect on the
date of certification, and delivered to the Trustee.
Business Day
means, with respect to any Security, unless otherwise specified, any
day that is not a Saturday, a Sunday or a day on which banking institutions are authorized or
required by law, regulation or executive order to be closed, in the City of New York or the city
(or in any of the cities, if more than one) in which amounts are payable, as specified in the form
of such Security.
Commission
means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
Company
means the party named as such in the first paragraph of this Indenture until
a successor replaces it pursuant to Article Five of this Indenture and thereafter means the
successor.
Corporate Trust Office
means the principal office of the Trustee in the Borough of
Manhattan, The City of New York, New York at which at any particular time its corporate trust
business shall be administered, which office as of the date hereof is located at 400 Madison
Avenue, 4th Floor, New York, New York 10017, Attention: Corporate Trust Manager.
Default
means any event that is, or after notice or passage of time or both would
be, an Event of Default.
Depositary
means, with respect to the Securities of any series issuable or issued in
the form of one or more Global Securities, the Person designated as Depositary by the Company
pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter Depositary shall mean or include each
Person who is then a Depositary hereunder, and if at any time there is more than one such Person,
Depositary as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Global Securities of that series.
Dollar
and
$
mean a U.S. Dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be the legal tender for the payment
of public and private debts.
Event of Default
has the meaning specified in Section 7.01.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder by the Commission.
Global Security
means a Security evidencing all or a part of a series of Securities,
issued to the Depositary for such series in accordance with Section 2.02, and bearing the legend
prescribed in Section 2.02.
Holder
means the registered holder of any Security.
Indenture
means this Indenture as originally executed or as it may be amended or
supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.
Officer
means, with respect to the Company, any director or officer thereof,
including the Company secretary.
2
Officers Certificate
means a certificate executed by any Officer of the Company
complying with Section 11.04 and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act and include (except as otherwise expressly provided in this
Indenture) the statements provided in Section 11.04.
Opinion of Counsel
means a written opinion signed by legal counsel, who may be an
employee of or counsel to the Company, satisfactory to the Trustee and complying with Section
11.04. Each such opinion shall comply with Section 314 of the Trust Indenture Act and include the
statements provided in Section 11.04, if and to the extent required thereby.
Original Issue Discount Security
means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 7.02.
Paying Agent
has the meaning specified in Section 2.05.
Periodic Offering
means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.
Person
means an individual, a corporation, a partnership, a limited liability
company, an association, a trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
Principal
of a Security means the principal amount of, and, unless the context
indicates otherwise, includes any premium payable on, such Security.
Record Date
has the meaning specified in Section 2.13.
Registrar
has the meaning specified in Section 2.05.
Relevant Indebtedness
means any indebtedness of the Company and any Subsidiary that:
(i) is in the form of or represented by bonds, notes, loan stock, depositary receipts
or other securities issued (otherwise than to constitute or represent advances made by banks
or other lending institutions);
(ii) is denominated in, or confers any right of payment by reference to, any currency
other than the currency of the country in which the issuer of the indebtedness has its
principal place of business, or is denominated in or by reference to the currency of such
country but more than 20% of which is placed or offered for subscription or sale by or on
behalf of, or by agreement with, the issuer outside such country; and
3
(iii) at its date of issue is, or is intended by the issuer to become, quoted, listed,
traded or dealt in on any stock exchange, over-the-counter market or other securities
market.
Responsible Officer
, when used with respect to the Trustee, means any senior vice
president, vice president, assistant vice president, assistant secretary, assistant treasurer,
trust officer, assistant trust officer or any other officer of the Trustee to whom such matter is
referred because of his or her knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
Securities
means any of the securities, as defined in the first paragraph of the
recitals hereof, that are authenticated and delivered under this Indenture and, unless the context
indicates otherwise, shall include any coupon appertaining thereto.
Security Register
has the meaning specified in Section 2.05.
Subsidiary
means an entity a majority of the interests or a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition, voting stock means
stock having voting power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.
Trustee
means the party named as such in the first paragraph of this Indenture until
a successor replaces it in accordance with the provisions of Article Eight and thereafter means
such successor.
Trust Indenture Act
means the Trust Indenture Act of 1939, as it may be amended from
time to time.
U.S. Government Obligations
means securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and credit is pledged or
(ii) obligations of an agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depositary receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a depositary receipt;
provided
that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S. Government Obligation or
the specific payment of interest on or principal of the U.S. Government Obligation evidenced by
such depositary receipt.
Yield to Maturity
means, as the context may require, the yield to maturity (i) on a
series of Securities or (ii) if the Securities of a series are issuable from time to time, on a
Security of such series, calculated at the time of issuance of such series in the case of clause
(i) or at the time of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or on such Security, and
4
calculated in accordance with the constant interest method or such other accepted financial
practice as is specified in the terms of such Security.
Section 1.02.
Incorporation by Reference of Trust Indenture Act
. Whenever this
Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by
reference in and made a part of this Indenture. All terms used in this Indenture that are defined
by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another statute or
defined by a rule of the Commission and not otherwise defined herein have the meanings assigned to
them therein. If any provision of this Indenture limits, qualifies or conflicts with another
provision hereof that is required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section 1.03.
Rules of Construction
. Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned to it in accordance with
International Financial Reporting Standards as issued by the International Accounting Standards
Board or such other generally accepted accounting principles under which the Company may in the
future prepare its financial statements;
(b) words in the singular include the plural, and words in the plural include the singular;
(c)
herein
,
hereof
and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision;
(d) all references to Sections or Articles refer to Sections or Articles of this Indenture
unless otherwise indicated.
ARTICLE TWO
THE SECURITIES
Section 2.01.
Form of Securities
. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as shall be established
by or pursuant to one or more Board Resolutions of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the Officers executing such Securities as evidenced
by their execution of the Securities.
Section 2.02.
Execution, Authentication, Delivery and Dating
. The Securities shall be
executed by an Officer of the Company by facsimile or manual signature. If an Officer whose
signature is on a Security no longer holds that office at the time the Security is authenticated,
the Security shall nevertheless be valid.
The Trustee may appoint an authenticating agent acceptable to the Company (the
Authenticating Agent
) to authenticate Securities. The Authenticating Agent may
authenticate
5
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating Agent.
A Security shall not be valid until the Trustee or Authenticating Agent manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a written request for the authentication and delivery of such
Securities and the applicable documents referred to below in this Section 2.02, and the Trustee
shall thereupon authenticate and deliver such Securities. In authenticating such Securities, the
Trustee shall be entitled to receive and shall be fully protected in relying upon:
(a) any Board Resolution of the Company and/or executed supplemental indenture referred to in
Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities of that series
were established;
(b) an Officers Certificate of the Company certifying as to the form or forms and terms of
the Securities of that series and stating that the form or forms and terms of such Securities have
been, or will be when established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture; and
(c) an Opinion of Counsel to the Company substantially to the effect that the Securities of
that series have been duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws
affecting creditors rights generally, general principles of equity, and such other matters as
shall be specified therein.
Notwithstanding the provisions of the preceding paragraph, if not all Securities of any series
are to be issued at one time, it shall not be necessary to deliver an Officers Certificate or an
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs at the time of
issuance of each Security of such series, but such certificate and opinion, with appropriate
modifications to cover such future issuances, shall be delivered at or before the time of issuance
of the first Security of such series.
Each Security shall be dated the date of its authentication.
If the Company shall establish pursuant to Section 2.03 that the Securities of a series or a
portion thereof are to be issued in the form of one or more Global Securities, then the Company
shall execute, and the Trustee shall authenticate and deliver, one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series issued in such form and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its
6
custodian or pursuant to such Depositarys instructions, and (iv) shall bear a legend
substantially to the following effect:
Unless and until it is exchanged in whole or in part for Securities
in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor
Depositary.
Section 2.03.
Amount Unlimited; Issuable in Series
. The aggregate principal amount of
Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution of the Company or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series, any or all of the following, as applicable:
(a) the title of the Securities of the series, which shall distinguish the Securities of that
series from the Securities of all other series;
(b) the aggregate principal amount of the Securities of the series to be authenticated and
delivered under this Indenture and any limitation on the ability of the Company to increase such
aggregate principal amount after the initial issuance of the Securities of that series (except for
Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, or upon redemption of, other Securities of that series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the series shall be payable;
(d) the percentage of the aggregate principal amount of the Securities of the series at which
the Securities shall be issued and whether the Securities will be Original Issue Discount
Securities and any special tax considerations relating thereto;
(e) (i) the rate or rates (which may be fixed or variable) per annum at which the Securities
of the series shall bear interest, if any, (ii) the date or dates from which such interest shall
accrue, on which such interest shall be payable and on which a record shall be taken for the
determination of Holders to whom interest is payable, and/or (iii) the method by which such rate or
rates or date or dates shall be determined;
(f) if other than as provided in Section 4.02, the place or places where (i) the Principal of,
interest on and any Additional Amounts in respect of Securities of the series shall be payable,
(ii) any Securities of the series may be surrendered for transfer or exchange, and
(iii) notices or demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
7
(g) the right, if any, of the Company to redeem Securities of the series, in whole or in part,
at its option and the period or periods within which, the price or prices at which and any terms
and conditions upon which Securities of that series may be so redeemed, pursuant to any sinking
fund or otherwise;
(h) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period or periods within which and any
of the terms and conditions upon which Securities of that series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Securities of the series shall be issuable;
(j) if other than the entire principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of acceleration of the maturity
thereof;
(k) if other than Dollars, the currency or currencies in which payment of the Principal of or
interest on or any Additional Amounts in respect of Securities of the series shall be payable or in
which Securities of that series shall be denominated, and any other terms and conditions relating
thereto;
(l) if other than the currency in which the Securities of the series are denominated, the
currency in which payment of the Principal of or interest on the Securities of the series shall be
payable or if the amount of payments of Principal of and/or interest on the Securities of that
series may be determined with reference to an index based on a currency other than that in which
the Securities of the series are denominated, the manner in which such amounts shall be determined;
(m) if payment of the Principal of and interest on the Securities of the series shall be
payable in currency or currencies other than Dollars, the manner in which any such currency shall
be valued against other currencies in which any other Securities shall be payable;
(n) whether and under what circumstances the Company will pay Additional Amounts on the
Securities of the series in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem such Securities rather than
pay such Additional Amounts;
(o) if the Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of that series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;
(p) any trustees, depositaries, Authenticating Agents, Paying Agents, transfer agents or the
Registrar or any other Agents with respect to the Securities of the series;
8
(q) provisions, if any, for the defeasance of the Securities of the series (including
provisions permitting defeasance of less than all Securities of the series), which provisions may
be in addition to, in substitution for or in modification of (or any combination of the foregoing)
the provisions of Article Nine;
(r) if the Securities of the series are issuable in whole or in part as one or more Global
Securities, the identity of the Depositary for such Global Security or Securities;
(s) any deletions from, modifications of or additions to the Events of Default or covenants
with respect to the Securities of the series; and
(t) any other terms of the Securities of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except as to date and
denomination, except in the case of any Periodic Offering and except as may otherwise be provided
by or pursuant to the Board Resolution referred to above or as set forth in any indenture
supplemental hereto. All Securities of any one series need not be issued at the same time and may
be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution or in any such indenture supplemental hereto, and any forms and
terms of Securities to be issued from time to time may be completed and established from time to
time prior to the issuance thereof by procedures described in such Board Resolution or supplemental
indenture.
Section 2.04.
Denominations
. The Securities of each series shall be issuable in
denominations established as contemplated by Section 2.03. With respect to Securities of any
series denominated in Dollars, in the absence of any such provisions with respect to Securities of
such series, Securities of such series, other than Securities issued in global form (which may be
of any denomination), shall be issuable in denominations of $1,000 and any integral multiple
thereof.
The Securities of each series shall be numbered, lettered or otherwise distinguished in such
manner as the Officer of the Company executing the same may determine, as evidenced by his or her
execution thereof.
Section 2.05.
Registrar and Paying Agent; Agents Generally
. The Company shall
maintain an office or agency where Securities may be presented for registration, registration of
transfer or exchange (the
Registrar
) and the Company shall maintain an office or agency
where Securities may be presented for payment (the
Paying Agent
), which in each case
shall be in the Borough of Manhattan, The City of New York. The Company shall cause the Registrar
to keep a register of the Securities and of their registration, transfer and exchange and the name
and address of each of the Holders (the
Security Register
). The Company may have one or
more additional Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this Indenture and the
Trust Indenture Act that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name
9
or address of an Agent. If
the Company fails to maintain a Registrar or if the Company fails to maintain a Paying Agent, the
Trustee shall act as Registrar and Paying Agent. The Company may remove any Agent appointed by it
upon written notice to such Agent and the Trustee;
provided
that no such removal shall
become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and such successor Agent
and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as
such Agent until the appointment of a successor Agent in accordance with clause (i) of this
proviso. The Company or any of its affiliates may act as Paying Agent or Registrar;
provided
that neither the Company nor any such affiliate shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this Indenture under Article
Nine.
The Company initially appoints the Trustee as Registrar and Authenticating Agent, and the
Company initially appoints the Trustee as Paying Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee 10 days prior to each interest payment
date and at such other times as the Trustee may reasonably request the names and addresses of the
Holders as they appear in the Security Register.
Section 2.06.
Paying Agent to Hold Money in Trust
. Not later than 10:00 a.m., New
York City time, on each due date of any Principal or interest on any Securities, the Company shall
deposit with the Paying Agent money in immediately available funds sufficient to pay such Principal
or interest. The Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the Holders of such
Securities or the Trustee all money held by the Paying Agent for the payment of Principal of and
interest on such Securities and shall promptly notify the Trustee in writing of any default in
making any such payment. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during
the continuance of any payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any of its affiliates acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold in a separate trust
fund for the benefit of the Holders thereof a sum of money sufficient to pay such Principal or
interest so becoming due until such sum of money shall be paid to such Holders or otherwise
disposed of as provided in this Indenture, and will promptly notify the Trustee in writing of its
action or failure to act as required by this Section.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.
10
Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not
taken by the Depositary.
Section 2.07.
Transfer and Exchange
. Upon surrender for registration of transfer of
any Security of any series at any agency of the Company maintained for such purpose in accordance
with Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder thereof, Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a Security or Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon surrender of such
Securities to be exchanged at the agency of the Company maintained for such purpose in accordance
with Section 2.05. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the
exchange is entitled to receive.
All Securities presented for registration of transfer, exchange, redemption or payment shall
be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by the Holder or his or her attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Global Security representing all
or a portion of the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Global Securities of any series notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Securities or if at any
time the Depositary for such Global Securities shall no longer be eligible under applicable law to
act as Depositary, the Company shall appoint a successor Depositary eligible under applicable law
with respect to such Global Securities. If:
(i) a successor Depositary eligible under applicable law for such Global Securities is
not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility;
(ii) an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of Securities
represented by such Global Securities advise the Depositary to cease acting as depositary
for such Global Securities; or
11
(iii) the Company, in its sole discretion, determines at any time that any Securities
of any series issued or issuable in the form of one or more Global Securities shall no
longer be represented by such Global Securities;
then the Company will execute, and the Trustee, upon receipt of the Companys order for the
authentication and delivery of definitive Securities of such series and tenor, will authenticate
and make available for delivery Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of such Global
Securities in exchange for such Global Securities.
Any time the Securities of any series are not in the form of Global Securities pursuant to the
preceding paragraph, the Company agrees to supply the Trustee with a reasonable supply of
certificated Securities, without the legend required by Section 2.02, and the Trustee agrees to
hold such Securities in safekeeping until authenticated and delivered pursuant to the terms of this
Indenture.
If established by the Company pursuant to Section 2.03 with respect to any Global Security,
the Depositary for such Global Security may surrender such Global Security in exchange in whole or
in part for Securities of the same series and tenor in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Securities of the same series and
tenor, of any authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Persons beneficial interest in the
Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and delivered pursuant to clause (i)
above.
Securities issued in exchange for a Global Security pursuant to this Section 2.07 shall be
registered in such names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee in writing. The Trustee or such
agent shall deliver such Securities to or as directed in writing by the Persons in whose names such
Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
The Registrar shall not be required (i) to issue, register the transfer of or exchange
Securities of any series if such Securities may be among those selected for redemption during a
period beginning 15 days before the selection of Securities to be redeemed and ending on the day of
mailing of the relevant notice of redemption, (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of any Security to be
12
redeemed in part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer
of or exchange any Security that has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
Section 2.08.
Replacement Securities
. If a defaced or mutilated Security of any
series is surrendered to the Trustee or if a Holder claims that its Security of any series has been
lost, destroyed or wrongfully taken and presents to the Trustee, the Company and any Agent evidence
to their satisfaction of the loss, destruction or wrongful taking of such Security, the Company
shall issue and the Trustee shall authenticate a replacement Security of such series and tenor and
principal amount bearing a number not contemporaneously outstanding. An indemnity bond must be
furnished that is sufficient in the judgment of the Trustee and the Company to protect the Trustee,
the Company and any Agent from any loss that any of them may suffer if a Security is replaced. The
Company may charge such Holder for its expenses and the expenses of the Trustee (including without
limitation attorneys fees and expenses) in replacing a Security. In case any such mutilated,
defaced, lost, destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the Company and shall be entitled to
the benefits of this Indenture equally and proportionately with any and all other Securities of
such series duly authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this Section are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities.
Section 2.09.
Outstanding Securities
. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those Securities it has canceled,
those Securities delivered to it for cancellation, those paid pursuant to Section 2.08 and those
Securities described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a Holder in due course.
If the Paying Agent (other than the Company or any of its affiliates) holds on the maturity
date or any redemption date or date for repurchase of the Securities money sufficient to pay
Securities payable or to be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one of its affiliates holds
such Security,
provided
,
however
, that, in determining whether the Holders of the
requisite principal amount of the outstanding Securities shall have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or
any of its affiliates shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities as to which a Responsible
13
Officer of the Trustee has received written notice to be so owned shall be so disregarded. Any
Securities so owned which are pledged by the Company or any of its affiliates as security for loans
or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to
be outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is
free to exercise in its discretion the right to vote such Securities, uncontrolled by the Company
or any such affiliate.
Section 2.10.
Temporary Securities
. Until definitive Securities of any series are
ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities
of such series. Temporary Securities of any series shall be substantially in the form of
definitive Securities of such series, but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers of the Company executing the temporary
Securities, as evidenced by their execution of such temporary Securities. If temporary Securities
of any series are issued, the Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of definitive Securities of any series,
the temporary Securities of such series shall be exchangeable for definitive Securities of such
series and tenor upon surrender of such temporary Securities at the office or agency of the Company
designated for such purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 2.11.
Cancellation
. The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder, which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment or cancellation and shall deliver such canceled
Securities to the Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation, except as expressly permitted by this
Indenture.
Section 2.12.
Persons Deemed Owners
. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of Principal of and (subject to Section 2.13) interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
14
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by any Depositary, as a Holder,
with respect to such Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of such Global Security.
Section 2.13.
Payment of Interest; Defaulted Interest
. (a) The Securities of each
series shall bear interest, if any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.03. The Person in whose name any Security of any series
is registered at the close of business on any Record Date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to receive the interest, if
any, payable on such interest payment date notwithstanding any transfer or exchange of such
Security subsequent to the Record Date and prior to such interest payment date, except if and to
the extent the Company shall default in the payment of the interest due on such interest payment
date for such series, in which case the provisions of Section 2.13(b) shall apply. The term
Record Date
as used with respect to any interest payment date (except a date for payment
of defaulted interest) for the Securities of any series shall mean the date specified as such in
the terms of the Securities of such series established as contemplated by Section 2.03, or, if no
such date is so established, the 15
th
day next preceding such interest payment date,
whether or not such Record Date is a Business Day.
(a) If the Company defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted interest (as may be
specified in the terms thereof, established pursuant to Section 2.03) to the Persons who are
Holders on a subsequent special record date, which shall mean the 15
th
day next
preceding the date fixed by the Company for the payment of defaulted interest, whether or not such
day is a Business Day. At least 15 days before such special record date, the Company shall mail to
each Holder and to the Trustee a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
Section 2.14.
Computation of Interest
. Except as otherwise specified pursuant to
Section 2.03 for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 2.15.
Series May Include Tranches
. A series of Securities may include one or
more tranches of Securities, including Securities issued in a Periodic Offering. The Securities of
different tranches may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to Sections 2.02 (other
than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 7.01
through 7.14, 9.01 through 9.05 and 10.02, if any series of Securities includes more than one
tranche, all provisions of such Sections applicable to any series of Securities shall be deemed
equally applicable to each tranche of any series of Securities in the same manner as though
originally designated a series unless
15
otherwise provided with respect to such series or tranche
pursuant to Section 2.03. In particular, and without limiting the scope of the next preceding
sentence, any of the provisions of such Sections which provide for or permit action to be taken
with respect to a series of Securities shall also be deemed to provide for and permit such action
to be taken instead only with respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no comparable action is taken with
respect to Securities in the remaining tranches of that series.
Section 2.16.
CUSIP and CINS Numbers
. The Company in issuing the Securities may use
CUSIP and CINS numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS
numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and
no representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange. The Company will promptly
notify the Trustee in writing of any change in the CUSIP or CINS numbers.
ARTICLE THREE
REDEMPTION
Section 3.01.
Applicability of Article
. Securities of any series that are redeemable
before their maturity shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.03 for Securities of any series) in accordance with this
Article Three. The provisions of this Article Three shall be applicable to the Securities of any
series, in whole but not in part, if, with respect to such series:
(a) the Company determines that, as a result of any change in or amendment to the laws or any
regulations or rulings promulgated thereunder of the United Kingdom (or of any political
subdivision or taxing authority thereof) or the United States (or of any political subdivision or
taxing authority thereof), or any change in the application or official interpretation of such
laws, regulations or rulings, or any change in the application or official interpretation of, or
any execution of or amendment to, any treaty or treaties affecting taxation to which any such
jurisdiction is a party, which change, execution or amendment becomes effective on or after the
issue date or such other date specified in the Securities of such series,
(i) the Company would be required to pay Additional Amounts (as defined in Section 4.05) with
respect to such series of Securities on the next succeeding interest payment date and the payment
of such Additional Amounts cannot be avoided by the use of reasonable measures available to the
Company, or
(ii) withholding tax has been or would be required to be withheld with respect to interest
income received or receivable by the Company directly from any affiliate and such
withholding tax obligation cannot be avoided by the use of reasonable measures available to
the Company (or any affiliate); or
(b) the Company determines, based upon an opinion of independent counsel of recognized
standing that, as a result of any action taken by any legislative body of, taxing authority of, or
any action brought in a court of competent jurisdiction in, the United Kingdom
16
(or any political
subdivision or taxing authority thereof) or the United States (or any political subdivision or
taxing authority thereof) (whether or not such action was taken or brought with respect to the
Company), which action is taken or brought on or after the issue date or such other date specified
in the Securities of such series, there is a substantial probability that the circumstances
described in Subsection (a) above would exist;
provided
,
however
, that no such
notice of redemption may be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to pay such Additional Amounts. The Company will also pay to each
Holder, or make available for payment to each such Holder, on the redemption date any Additional
Amounts resulting from the payment of such redemption price.
Section 3.02.
Notice of Redemption; Partial Redemptions
. Prior to the delivery of any
notice of redemption, the Company will deliver to the Trustee an Officers Certificate stating that
the Company is entitled to effect a redemption and setting forth a statement of facts showing that
the conditions precedent of the right so to redeem have occurred. Any notice of redemption will be
irrevocable once the Company delivers it to the Trustee.
Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or
in part at the option of the Company shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such series at their last addresses as they shall
appear upon the Security Register of the Company. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives
the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part, shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall state:
(a) the principal amount of each Security of such series held by such Holder to be redeemed;
(b) the CUSIP or CINS numbers, as the case may be, of the Securities to be redeemed;
(c) the date fixed for redemption;
(d) the redemption price;
(e) the place or places of payment;
(f) that payment will be made upon presentation and surrender of such Securities;
(g) that such redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case;
(h) that interest accrued to the date fixed for redemption will be paid as specified in such
notice; and
17
(i) that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue.
In case any Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Security, a new Security or Securities
of such series and tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at the option of the
Company shall be given by the Company or, at the Companys written request delivered at least 15
days before the date such notice is to be given (unless a shorter period shall be acceptable to the
Trustee), by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m., New York City time, on the redemption date specified in the notice of
redemption given as provided in this Section 3.02, the Company will deposit with the Trustee or
with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for redemption. If all of the
outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at
least 45 days prior to the redemption date an Officers Certificate stating that all such
Securities are to be redeemed.
If less than all the outstanding Securities of a series are to be redeemed, the Company will
deliver to the Trustee at least 45 days prior to the redemption date an Officers Certificate
stating the aggregate principal amount of such Securities to be redeemed. If less than all the
Securities of a series are to be redeemed, the Trustee shall select, pro rata, by lot or in such
manner as it and the Company shall deem appropriate and fair, Securities of such series to be
redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Company in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial redemption, the principal
amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
Section 3.03.
Payment of Securities Called for Redemption
. If notice of redemption
has been given as above provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed for redemption,
and on and after such date (unless the Company shall default in the payment of such Securities at
the redemption price, together with interest accrued to such date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue and, except as provided in
Sections 8.11 and 9.04, such Securities shall cease from and after the date fixed for redemption to
be entitled to any benefit under this Indenture, and the Holders thereof shall have no right in
18
respect of such Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment specified in the notice
of redemption, such Securities shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the redemption date;
provided
that payment of interest becoming due on or prior to the redemption date shall be payable to the
Holders of such Securities registered as such on the relevant Record Date subject to the terms and
provisions of Sections 2.05 and 2.13 hereof. If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the Principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in
the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security of any series redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to or on the order of
the Holder thereof, at the expense of the Company, a new Security or Securities of such series and
tenor of authorized denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04.
Exclusion of Certain Securities from Eligibility for Selection for
Redemption
. Securities shall be excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in a written statement signed by an Officer
of the Company and delivered to the Trustee at least 60 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially, and not pledged or
hypothecated, by either the Company or an entity specifically identified in such written statement
as directly or indirectly controlling or controlled by or under direct or indirect common control
with the Company.
Section 3.05.
Mandatory and Optional Sinking Funds
. The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any series is herein referred to as a
mandatory sinking fund payment
, and any payment in excess of such minimum amount provided
for by the terms of the Securities of any series is herein referred to as an
optional sinking
fund payment
. The date on which a sinking fund payment is to be made is herein referred to as
the
sinking fund payment date
.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive
credit for optional sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed
by the Company through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption price specified in such
Securities.
19
On or before the 60
th
day next preceding each sinking fund payment date for any
series, or such shorter period as shall be acceptable to the Trustee, the Company will deliver to
the Trustee an Officers Certificate (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none of the specified
Securities of such series has theretofore been so credited, (c) stating that no Defaults in the
payment of interest or Events of Default with respect to such series have occurred (which have not
been waived or cured) and are continuing and (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Company intends to pay on or
before the next succeeding sinking fund payment date. Any Securities of such series to be credited
and required to be delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid that have not theretofore been delivered to the Trustee shall be delivered
for cancellation pursuant to Section 2.11 to the Trustee with such Officers Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers Certificate shall be
irrevocable and, upon its receipt by the Trustee, the Company shall become unconditionally
obligated to make all the cash payments or delivery of Securities therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company, on or before any
such 60
th
day, to deliver such Officers Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided in this Section 3.05.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking fund redemption
price thereof together with accrued interest thereon to the date fixed for redemption. If such
amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The
Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section 3.05 if they are identified by
registration and certificate number in an Officers Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and beneficially, and not
pledged or hypothecated, by either (a) the Company or (b) an entity specifically identified in such Officers Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company. The Trustee, in the name and at the expense of the Company (or the Company, if it shall
so request the Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in part at the option of
20
the Company. The amount of any sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not held for the payment
or redemption of particular Securities of such series shall be applied, together with other moneys,
if necessary, sufficient for the purpose, to the payment of the Principal of, and interest on, the
Securities of such series at maturity.
On or before 10:00 a.m., New York City time, on each sinking fund payment date, the Company
shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued
to the date fixed for redemption on Securities to be redeemed on the next following sinking fund
payment date. The Trustee shall not redeem or cause to be redeemed any Securities of a series with
sinking fund moneys or mail any notice of redemption of Securities of such series by operation of
the sinking fund during the continuance of a Default in payment of interest on such Securities or
of any Event of Default except that, where the mailing of notice of redemption of any Securities
shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided
that it shall have received from the Company a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such series at the time when any such
Default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to have been collected
under Article Seven and held for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 7.04 or the Default cured on or before the
60
th
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in accordance with this
Section 3.05 to the redemption of such Securities.
ARTICLE FOUR
COVENANTS
Section 4.01.
Payment of Securities
. The Company shall pay the Principal of and
interest on and any Additional Amounts payable in respect of the Securities on the dates and in the
manner provided in the Securities and this Indenture. The interest on Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall be payable only to
the Holders thereof and at the option of the Company may be paid by mailing checks for such
interest payable to or upon the written order of such Holders at their last addresses as they
appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any series to the
contrary, if the Company and a Holder of any Security so agree or if expressly provided pursuant to
Section 2.03, payments of interest on, and any portion of the Principal of, such
Holders Security (other than interest payable at maturity or on any redemption or repayment
date or the final payment of Principal on such Security) shall be made by the Paying Agent, upon
receipt from the Company of immediately available funds by 11:00 a.m., New York City time (or such
other time as may be agreed to between the Company and the Paying Agent), directly to the Holder of
such Security (by Federal funds wire transfer or otherwise) if the Holder has delivered written
instructions to the Trustee 15 days prior to such payment date requesting that
21
such payment will be
so made and designating the bank account to which such payments shall be so made and in the case of
payments of Principal surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the Holder
pursuant to this Section 4.01 unless a new instruction is delivered 15 days prior to a payment
date. The Company will indemnify and hold each of the Trustee and any Paying Agent harmless
against any loss, liability or expense (including attorneys fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection with any such agreement
or from making any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on overdue installments of
interest, to the extent lawful, at the rate per annum specified in the Securities.
Section 4.02.
Maintenance of Office or Agency
. The Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee, located in the
Borough of Manhattan, The City of New York, as such office or agency of the Company. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in
Section 11.02.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of any series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations;
provided
that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 4.03.
Certificate to Trustee
. The Company will furnish to the Trustee
annually, within 120 days after the end of each fiscal year, a brief certificate (which need not
contain the statements required by Section 11.04) from its principal executive, financial or
accounting officer as to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without regard to any period
of grace or requirement of notice provided under this Indenture) and, in the event of any default
specifying such default and the nature and status thereof of which such person may have knowledge.
Section 4.04.
Limitation on Liens
. The Company shall not, and shall not permit any
Subsidiary to, incur or assume any mortgage, charge, security interest, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien or other security agreement (collectively,
Liens
) on or with respect to any property, assets or revenues of the Company or any
Subsidiary owned on or acquired after the date of this Indenture to secure any Relevant
22
Indebtedness without making, or causing any such Subsidiary to make, effective provision for
securing the Securities equally and ratably with or prior to such Relevant Indebtedness as to such
property, assets or revenues for as long as such Relevant Indebtedness is so secured.
Such restrictions on Liens shall not apply to:
(i) Liens arising by operation of law;
(ii) Liens on property, assets or revenues of any Person, which Liens are existing at
the time such Person becomes a Subsidiary;
(iii) Liens on property, assets or revenues of any Person existing at the time such
Person is merged with or into or amalgamated or consolidated with the Company or any
Subsidiary, or at the time of a sale, lease or other disposition of the properties of a
corporation as an entirety or substantially as an entirety to the Company or any Subsidiary.
Section 4.05.
Payment of Additional Amounts
. All payments of Principal and interest
in respect of the Securities shall be free and clear of and without withholding or deduction for or
on account of any present or future tax, duty, levy, impost, assessment or other governmental
charge of any nature whatsoever imposed or levied by or on behalf of (i) the government of the
United Kingdom or of any territory of the United Kingdom or by any authority or agency therein or
thereof having the power to tax or (ii) the government of the United States or of any state or
territory of the United States or by any authority or agency therein or thereof having the power to
tax (collectively,
Taxes
), except to the extent such Taxes are required to be withheld or
deducted by law or by the interpretation or administration thereof. If the Company is so required
to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the
Securities, the Company shall pay such additional amounts (
Additional Amounts
) as may be
necessary such that the net amount received by each Holder (including such Additional Amounts)
after such withholding or deduction shall not be less than the amount such Holder would have
received if the Taxes had not been withheld or deducted;
provided
that no Additional
Amounts will be payable with respect to Taxes:
(a) that would not have been imposed but for the existence of any present or former connection
between such Holder or beneficial owner of the Securities (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial
owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) and the
United Kingdom or the United States or any political subdivision or territory or possession thereof
or therein or area subject to its jurisdiction, including, without limitation, such Holder or
beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen or resident thereof or treated as a
resident thereof or domiciled thereof or a national thereof or being or having been present or
engaged in trade or business therein or having or having had a permanent establishment therein;
(b) that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar
taxes, duties, assessments or other governmental charges;
23
(c) that are payable other than by withholding from payments of Principal of or interest on
the Securities;
(d) that would not have been imposed but for the failure of the applicable recipient of such
payment to comply with any certification, identification, information, documentation or other
reporting requirement to the extent (x) such compliance is required by applicable law or
administrative practice or an applicable treaty as a precondition to exemption from, or reduction
in, the rate of deduction or withholding of such Taxes, and (y) at least 30 days before the first
payment date with respect to which such Additional Amounts shall be payable, the Company shall have
notified such recipient in writing that such recipient shall be required to comply with such
requirement;
(e) that would not have been imposed but for the presentation of a Security (where
presentation is required) for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof was duly provided for,
whichever occurred later;
(f) that are imposed on a payment to an individual and are required to be made pursuant to
European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the
ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, or any law
implementing or complying with, or introduced in order to conform to, such Directive;
(g) that would not have been imposed if presentation for payment of the relevant Securities
had been made to a Paying Agent other than the Paying Agent to which the presentation was made; or
(h) any combination of Subsections (a) through (g);
nor shall Additional Amounts be paid with respect to any payment of the Principal of or interest on
any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is
other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner would not have been
entitled to such Additional Amounts had it been the Holder of the Security.
The Company shall maintain, in respect of Securities of each series outstanding, at least one
Paying Agent located outside the United Kingdom. In the event that a Paying Agent with respect to
Securities of a particular series is maintained in any member state of the European Union, the
Company shall maintain a Paying Agent in at least one member state (other than the United Kingdom)
that will not be obliged to withhold or deduct taxes pursuant to any law implementing European
Council Directive 2003/48/EC or any other law implementing the conclusions of the ECOFIN Council
meeting of November 26-27, 2000 on the taxation of savings income, provided there is at least one member state that does not require a paying
agent to withhold or deduct pursuant to such Directive.
The obligation of the Company to pay Additional Amounts if and when due will survive the
termination of this Indenture and the payment of all amounts in respect of the Securities.
24
Section 4.06.
Waiver of Certain Covenants
. The Company may omit in any particular
instance with respect to any series of Securities to comply with any term, provision or condition
set forth in Section 4.02 or Section 4.04 if before or after the time for such compliance the
Holders of at least a majority in principal amount of all outstanding Securities of such series
either waive such compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 4.07.
Calculation of Original Issue Discount
. The Company shall provide to
the Trustee on a timely basis such information as the Trustee reasonably requests to enable the
Trustee to prepare and file any form required to be submitted by the Company with the U.S. Internal
Revenue Service and the Holders of the Securities relating to original issue discount, including,
without limitation, Form 1099-OID and Form 8281 or any successor forms, and the Trustee shall file
such forms in a timely manner with the appropriate persons following receipt thereof from the
Company.
Section 4.08.
Reports by the Company
. The Company shall:
(a) file with the Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of such Sections, then it will file with
the Trustee, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(c) transmit or cause to be transmitted by mail to the Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (a) and (b) of this Section 4.08 as may be required by rules and regulations prescribed
from time to time by the Commission.
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ARTICLE FIVE
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01.
When the Company May Merge, Etc.
The Company shall not consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to (as an entirety or substantially as an entirety in
one transaction or a series of related transactions), any Person or permit any Person to merge with
or into the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, all of the obligations of the Company on all of the
Securities and under this Indenture;
(b) the continuing Person is organized and validly existing under the laws of the United
States or the United Kingdom or is organized and validly existing under the laws of a jurisdiction
that is a member country of the Organisation for Economic Cooperation and Development (or any
successor thereto) and, if such continuing Person is not organized and validly existing under the
laws of the United States or the United Kingdom, such continuing Person shall agree in such
supplemental indenture to be bound by a covenant comparable to that described in Section 4.05 with
respect to taxes imposed in the continuing Persons jurisdiction of organization, and such
continuing Person shall benefit from a redemption option comparable to that described in Article
Three in the event of changes in taxes in such jurisdiction after the date of such consolidation,
merger or sale, in each case in form and substance satisfactory to the Trustee;
(c) the Company shall have delivered to the Trustee an Officers Certificate, and, if the
Company shall not be the continuing Person, an Opinion of Counsel, in each case stating that such
consolidation, merger or transfer and such supplemental indenture complies with this provision and
that all conditions precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and binding obligation of
the Company or such successor enforceable against such Person in accordance with its terms, subject
to customary exceptions; and
(d) the Company shall have delivered to the Trustee an Officers Certificate to the effect
that immediately after giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing.
Section 5.02.
Successor Company Substituted
. Upon any consolidation or merger, or any
sale, lease, conveyance or other disposition of all or substantially all of the property and assets
of the Company in accordance with Section 5.01 of this Indenture, the
successor Person formed by such consolidation or into which the Company is merged or to which
such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein.
26
Section 5.03.
Substitution of Obligor
. The Company may at any time, without the
consent of any Holders, arrange for and cause the substitution of one of its subsidiaries (the
Substituted Obligor
) in place of itself as the principal obligor in respect of any series
of Securities, subject to the conditions that:
(a) the Substituted Obligor executes a supplemental indenture, in form and substance
satisfactory to the Trustee, in which it agrees to be bound by the terms of this Indenture, with
any consequential amendments that the Trustee may deem appropriate, as fully as if the Substituted
Obligor had been named in this Indenture and on the Securities of such series in place of the
Company;
(b) the Substituted Obligor is organized and validly existing under the laws of the United
States or the United Kingdom or is organized and validly existing under the laws of a jurisdiction
that is a member country of the Organisation for Economic Cooperation and Development (or any
successor thereto) and, if such Substituted Obligor is not organized and validly existing under the
laws of the United States or the United Kingdom, such Substituted Obligor shall agree in such
supplemental indenture to be bound by a covenant comparable to that described in Section 4.05 with
respect to taxes imposed in the Substituted Obligors jurisdiction of organization, and such
Substituted Obligor shall benefit from a redemption option comparable to that described in Article
Three in the event of changes in taxes in such jurisdiction after the date of such consolidation,
merger or sale, in each case in form and substance satisfactory to the Trustee; and
(c) the obligations of the Substituted Obligor under the Indenture and the Securities of such
series are guaranteed unconditionally by the Company.
Section 5.04.
Successor Obligor Substituted
. Upon any substitution of obligor
pursuant to Section 5.03, the Substituted Obligor shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such
Substituted Obligor had been named as the Company herein. Any such substitution shall operate to
release the Company (including any successor Company pursuant to Section 5.02) from any and all
obligations under this Indenture except as provided in Section 5.03(c) above.
ARTICLE SIX
[RESERVED]
ARTICLE SEVEN
DEFAULT AND REMEDIES
Section 7.01.
Events of Default
. An
Event of Default
shall mean any one of
the following events with respect to the Securities of any series:
(a) default in the payment of all or any part of the Principal of any Security of such series
when the same becomes due and payable at maturity, upon acceleration, redemption or mandatory
repurchase, including as a sinking fund installment, or otherwise, and, in the case of
administrative or technical difficulties in making such payment, such default continues for more
than two Business Days;
27
(b) default in the payment of any interest on or any Additional Amounts payable in respect of
any Security of such series when the same becomes due and payable, and such default continues for a
period of 30 days;
(c) default or breach of any other covenant or agreement of the Company in this Indenture with
respect to any Security of such series (other than a covenant or agreement a default in whose
performance or whose breach is specifically dealt with elsewhere in this Section 7.01), and such
default or breach continues for a period of 60 days after there has been given to the Company by
the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate principal
amount of the Securities of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a Notice of Default hereunder;
(d) default under any bond, debenture, note or other evidence of indebtedness for money
borrowed of the Company (not including any indebtedness for which recourse is limited to property
purchased) having in any particular case an aggregate outstanding principal amount in excess of
$25,000,000 (or its equivalent in any other currency), whether such indebtedness now exists or
shall hereafter be created, which default shall have resulted in such indebtedness becoming or
being accelerated and declared due and payable prior to the date on which it would otherwise have
become due and payable, without such acceleration having been rescinded or annulled or such
indebtedness having been discharged;
(e) the entry by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law, or (ii) a decree or order adjudging the Company
bankrupt or insolvent, or suspending payments, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any
applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or substantially all of the property of the Company, or
ordering the winding up or liquidation of the affairs of the Company, and the continuance of any
such decree or order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days;
(f) commencement by the Company of a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the Companys consent to the entry
of an order for relief in an involuntary case under any such law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or for all or substantially all of the property and assets of the
Company, or any general assignment by the Company for the benefit of creditors; or
(g) any other Event of Default established pursuant to Section 2.03 with respect to the
Securities of such series occurs.
Section 7.02.
Acceleration
. (a) If an Event of Default described in Section 7.01(a)
or (b) with respect to the Securities of any series then outstanding occurs and is continuing,
then, and in each and every such case, except for any series of Securities the Principal of which
shall have already become due and payable, either the Trustee or the Holders
28
of not less than 25%
in aggregate Principal of the Securities of any such affected series then outstanding hereunder
(each such series treated as a separate class) by notice in writing to the Company (and to the
Trustee if given by Holders) may declare the entire Principal (or, if the Securities of any such
series are Original Issue Discount Securities, such portion of the Principal as may be specified in
the terms of such series established pursuant to Section 2.03) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in Section 7.01(c) or (g) with respect to the Securities
of one or more but not all series then outstanding occurs and is continuing, then, and in each and
every such case, except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
Principal (or, if the Securities of any such series are Original Issue Discount Securities, the
amount thereof that may be accelerated under this Section) of the Securities of all such affected
series then outstanding hereunder (treated as a single class) by notice in writing to the Company
(and to the Trustee if given by Holders) may declare the entire Principal (or, if the Securities of
any such series are Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms of such series established pursuant to Section 2.03) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due and payable.
(c) If an Event of Default described in Section 7.01(d), or in Section 7.01 (c) or (g) with
respect to the Securities of all series then outstanding, occurs and is continuing, then, and in
each and every such case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
Principal (or, if the Securities of any outstanding series are Original Issue Discount Securities,
the amount thereof that may be accelerated under this Section) of all Securities of any series then
outstanding hereunder (treated as a single class) by notice in writing to the Company (and to the
Trustee if given by Holders) may declare the entire Principal (or, if the Securities of any such
series are Original Issue Discount Securities, such portion of the Principal as may be specified in
the terms of such series established pursuant to Section 2.03) of all Securities of any series then
outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(d) If an Event of Default described in Section 7.01(e) or (f) occurs and is continuing, then
the Principal (or, if any Securities are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms thereof established pursuant to
Section 2.03) of all the Securities then outstanding and interest accrued thereon, if any,
shall be and become immediately due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that if, at any time after the
Principal (or, if the Securities are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms thereof established pursuant to Section 2.03) of the
29
Securities of any series (or of all the Securities, as the case may be) shall have been so declared
due and payable, and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
each such series (or of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be) that shall have
become due otherwise than by acceleration (with interest upon such Principal and, to the extent
that payment of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of each such series to the date of such
payment or deposit) and such amount as shall be sufficient to cover all amounts owing to the
Trustee under Section 8.07, and if any and all Events of Default under this Indenture, other than
the non-payment of the Principal of Securities that shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the then outstanding Securities of all
such series that have been accelerated (voting as a single class), by written notice to the Company
and to the Trustee, may waive all defaults with respect to all such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the Principal of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the Principal thereof as shall be due and payable
as a result of such acceleration, and payment of such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount
Securities.
Section 7.03.
Other Remedies
. If a payment default or an Event of Default with
respect to the Securities of any series occurs and is continuing, the Trustee may pursue, in its
own name or as trustee of an express trust, any available remedy by proceeding at law or in equity
to collect the payment of Principal of and interest on the Securities of such series or to enforce
the performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding.
Section 7.04.
Waiver of Past Defaults
. Subject to Sections 7.02, 7.07 and 10.02, the
Holders of at least a majority in principal amount (or, if the Securities are Original Issue
Discount Securities, the amount thereof that may be accelerated under Section 7.02) of the
outstanding Securities of all series affected (voting as a single class), by notice to the Trustee,
may waive an existing Default or Event of Default with respect to the Securities of such series and
its consequences, except a Default in the payment of Principal of or interest on any Security as
specified in Section 7.01(a) or (b) or in respect of a covenant or provision of this Indenture
30
that
cannot be modified or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default with
respect to the Securities of such series arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
Section 7.05.
Control by Majority
. Subject to Sections 8.01 and 8.02(e), the Holders
of at least a majority in aggregate principal amount (or, if any Securities are Original Issue
Discount Securities, the amount thereof that may be accelerated under Section 7.02) of the
outstanding Securities of all series affected (voting as a single class) may direct the time,
method and place of conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of such series by this
Indenture;
provided
, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction; and
provided
further
, that the Trustee may take any other
action it deems proper that is not inconsistent with any directions received from Holders of
Securities pursuant to this Section 7.05.
Section 7.06.
Limitation on Suits
. No Holder of any Security of any series may
institute any proceeding, judicial or otherwise, with respect to this Indenture or the Securities
of such series, or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder has previously given to the Trustee written notice of a continuing Event of
Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of outstanding Securities of all
such series affected shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to
the Trustee against any costs, liabilities or expenses to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(e) during such 60-day period, the Holders of a majority in aggregate principal amount of the
outstanding Securities of all such affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.
Section 7.07.
Rights of Holder to Receive Payment
. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive payment of Principal
of, interest on or Additional Amounts payable in respect of such Holders Security on or after the
31
respective due dates expressed on such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 7.08.
Collection Suit by Trustee
. If an Event of Default with respect to the
Securities of any series in payment of Principal or interest specified in Section 7.01(a) or (b)
occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount (or such portion thereof as specified in the
terms established pursuant to Section 2.03 of Original Issue Discount Securities) of Principal of,
and accrued interest remaining unpaid on, together with interest on overdue Principal of, and, to
the extent that payment of such interest is lawful, interest on overdue installments of interest
on, the Securities of such series, in each case at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, and such further amount as shall
be sufficient to cover all amounts owing the Trustee under Section 8.07.
Section 7.09.
Trustee May File Proofs of Claim
. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for amounts due the Trustee under Section 8.07) and the Holders
allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), the creditors of the Company or the property of the Company and shall be entitled and
empowered to collect and receive any moneys, securities or other property payable or deliverable
upon conversion or exchange of the Securities or upon any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it under Section 8.07. Nothing herein
contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder under the Securities, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 7.10.
Application of Proceeds
. Any moneys collected by the Trustee pursuant
to this Article Seven in respect of the Securities of any series shall be applied in the following
order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on
account of Principal, interest or Additional Amounts, if any, upon presentation
of the several Securities in respect of which moneys have been collected and noting thereon
the payment, or issuing Securities of such series and tenor in reduced principal amounts in
exchange for the presented Securities of such series and tenor if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07 applicable to
the Securities of such series in respect of which moneys have been collected;
SECOND: In case the Principal of the Securities of such series in respect of which
moneys have been collected shall not have become and be then due and payable, to
32
the payment
of interest on and Additional Amounts, if any, in respect of the Securities of such series
in default in the order of the maturity of the installments of such interest and Additional
Amounts, if any, with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest and Additional Amounts, if any, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such series for
Principal, interest and Additional Amounts, if any, with interest upon the overdue
Principal, and (to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the Securities of
such series; and in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the payment of such Principal
and interest or Yield to Maturity, without preference or priority of Principal over interest
or Yield to Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of such Principal
and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or any other Person
lawfully entitled thereto.
Section 7.11.
Restoration of Rights and Remedies
. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former positions hereunder and
thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 7.12.
Undertaking for Costs
. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, in either case in respect to the Securities of any series, a court
may require any party litigant in such suit (other than the Trustee) to file an undertaking to pay
the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys
fees and expenses, against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 7.12 does not apply to a suit by a Holder pursuant to Section 7.07 or a suit by Holders of
more than 10% in principal amount of the outstanding Securities of such series.
Section 7.13.
Rights and Remedies Cumulative
. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities
in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee or
33
to the
Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 7.14.
Delay or Omission Not Waiver
. No delay or omission of the Trustee or of
any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Seven or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
ARTICLE EIGHT
TRUSTEE
Section 8.01.
General
. The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act and as set forth herein. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Article Eight. The Trustee, prior to the occurrence of an Event of Default
of which a Responsible Officer of the Trustee has actual knowledge and after the curing of all
Events of Default that may have occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee. If an Event of Default to the actual knowledge of a
Responsible Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
Section 8.02.
Certain Rights of Trustee
. Subject to Sections 315(a) through (d) of
the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any Officers Certificate, Opinion of Counsel, resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be genuine and to have
been signed or presented by the proper person or persons. The Trustee need not investigate any
fact or matter stated in the document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled, following reasonable
notice, to make reasonable examination of the books, records and premises
34
of the Company,
personally or by agent or attorney at the sole cost of the Company, and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(b) before the Trustee acts or refrains from acting, it may require an Officers Certificate
and/or an Opinion of Counsel, which shall conform to Section 11.04. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such certificate or
opinion. Subject to Section 8.01, whenever in the administration of the trusts of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or established prior to
taking or omitting to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an Officers
Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture upon the faith
thereof;
(c) the Trustee may act through its attorneys, agents, custodians and nominees not regularly
in its employ and shall not be responsible for the misconduct or negligence of any agent, attorney,
custodian and nominee appointed with due care;
provided
that the Trustee shall be required
to terminate any such agent, attorney, custodian or nominee if it has actual knowledge of any
failure by such Person to perform its delegated duties;
(d) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers Certificate (unless other evidence in respect thereof be
herein specifically prescribed), and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such request, order or
direction;
(f) the Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within its rights or powers or for any action it takes or
omits to take in accordance with the direction of the Holders in accordance with Section 7.05
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(g) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance
thereon;
(h) prior
to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, Officers Certificate, Opinion of Counsel,
35
Board
Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then outstanding;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder; and
(j) the Trustee may request that the Company deliver an Officers Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any person
authorized to sign an Officers Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 8.03.
Individual Rights of Trustee
. The Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not the Trustee. Any Agent may do the same
with like rights. However, the Trustee is subject to Sections 310(b) and 311 of the Trust
Indenture Act.
Section 8.04.
Trustees Disclaimer
. The recitals contained herein and in the
Securities (except the Trustees certificate of authentication) shall be taken as statements of the
Company and not of the Trustee, and the Trustee assumes no responsibility for the correctness of
the same. Neither the Trustee nor any of its agents makes any representation as to the validity or
adequacy of this Indenture or the Securities, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate Securities and perform its
obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate. Neither the Trustee nor any of its agents shall be
accountable for the Companys use or application of the proceeds from the Securities or for moneys
paid over to the Company pursuant to the Indenture.
Section 8.05.
Notice of Default
. If any Default with respect to the Securities of any
series occurs and is continuing and if such Default is known to a Responsible Officer of the
Trustee, the Trustee shall give to each Holder of Securities of such series notice of such Default
within 90 days after it occurs in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, unless such Default shall have been cured or waived before the mailing or
publication of such notice;
provided
,
however
, that, except in the case of a
Default in the payment of the Principal of, interest on or any Additional Amounts with respect
to any Security of such Series, or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be fully protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders; and
provided
further
that in the case of any
default or breach of the character specified in Section 7.01(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least 60 days after the occurrence
thereof.
36
Section 8.06.
Reports by Trustee to Holders
.
(a) Within 60 days after each May 1, beginning with the first May 1 after the first issuance
of Securities pursuant to this Indenture, the Trustee shall mail to each Holder as and to the
extent provided in Trust Indenture Act Section 313(c) a brief report dated as of such May 1, if
required by Trust Indenture Act Section 313(a).
(b) The Trustee shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, a brief report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of execution of this
Indenture) for the reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, if such advances remaining unpaid at any time
aggregate 10% or more of the principal amount of the Securities of such series outstanding at such
time, such report to be transmitted within 90 days after such time.
A copy of each such report made pursuant to this Section shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company will promptly notify
the Trustee when any Securities are listed on any exchange or delisted therefrom.
Section 8.07.
Compensation and Indemnity
. The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing from time to time for its services. The
compensation of the Trustee shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee (including the
reasonable expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The Company shall indemnify the Trustee for, and hold it harmless against, any loss,
liability, claim, damage or expense, including taxes (other than income taxes), incurred by it
without negligence or bad faith on its part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the issuance of the Securities or a series
thereof or the trusts hereunder and the performance of its duties under this Indenture and the
Securities, including the costs and expenses of defending itself against or investigating any claim
asserted by any Person or liability in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Securities or in connection with enforcing the
provisions of this Section 8.07.
The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or termination of this
Indenture under bankruptcy, insolvency or similar law or the
37
earlier resignation or removal of the
Trustee. Such additional indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such
senior claim. If the Trustee renders services and incurs expenses following an Event of Default
under Section 7.01(e) or (f) hereof, the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses of administration
under any bankruptcy, insolvency or similar law.
Section 8.08.
Replacement of Trustee
. A resignation or removal of the Trustee as
Trustee with respect to the Securities of any series and appointment of a successor Trustee as
Trustee with respect to the Securities of any series shall become effective only upon the successor
Trustees acceptance of appointment as provided in this Section 8.08.
The Trustee may resign as Trustee with respect to the Securities of any series at any time by
so notifying the Company in writing. The Holders of a majority in principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee
as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible
under Section 8.10 of this Indenture; (ii) the Trustee is adjudged bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities of any series for
any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of
the outstanding Securities of such series may appoint a successor Trustee in respect of such
Securities to replace the successor Trustee appointed by the Company. If the successor Trustee
with respect to the Securities of any series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 8.08 within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee (at the Companys expense), the Company or the Holders
of a majority in principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided for in Section 8.07 and subject
to the payment of any and all amounts then due and owing to the retiring Trustee, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the Securities of such
series to the successor Trustee, (ii) the resignation or removal of the retiring Trustee in respect
of the Securities of such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities of such series under
this Indenture. A successor Trustee shall mail notice of its succession to each Holder of
Securities of such series.
38
Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the preceding paragraph.
The Company shall give notice of any resignation and any removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee in respect of the
Securities of such series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office. Notwithstanding
replacement of the Trustee with respect to the Securities of any series pursuant to this
Section 8.08, the Companys obligations under Section 8.07 shall continue for the benefit of the
retiring Trustee.
Section 8.09.
Successor Trustee by Merger, Etc.
If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business to,
another corporation or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be the successor Trustee
with the same effect as if the successor Trustee had been named as the Trustee herein;
provided
that such successor Trustee shall be otherwise qualified and eligible under this
Article Eight.
Section 8.10.
Eligibility
. This Indenture shall always have a Trustee who satisfies
the requirements of Trust Indenture Act Section 310(a). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition.
Section 8.11.
Money Held in Trust
. The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the extent required by
law and except for money held in trust under Article Nine of this Indenture.
Section 8.12.
Conflicting Interests
. If the Trustee has or shall acquire a
conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 8.13.
Communication by Holders with Other Holders
. Holders may communicate
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their
rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone
else shall have the protection of Section 312(c) of the Trust Indenture Act with respect to such
communications.
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01.
Discharge; Defeasance within One Year of Payment
. Except as otherwise
provided in this Section 9.01, the Company may terminate its obligations under the Securities of
any series and this Indenture with respect to Securities of such series if:
39
(a) all Securities of such series previously authenticated and delivered (other than
destroyed, lost or wrongfully taken Securities of such series that have been replaced or paid or
Securities of such series that are paid pursuant to Section 4.01 or Securities of such series for
whose payment money or securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 9.05) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one year or all of them are to be called
for redemption within one year under arrangements satisfactory to the Trustee for giving the notice
of redemption, (ii) the Company irrevocably deposits in trust with the Trustee, as trust funds
solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of any reinvestment, to pay
the Principal of and interest on the Securities of such series to maturity or redemption, as the
case may be, and to pay all other sums payable by it hereunder, and (iii) the Company delivers to
the Trustee an Officers Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied with.
With respect to Subsection (a), only the Companys obligations under Section 8.07 in respect
of the Securities of such series shall survive. With respect to Subsection (b), only the
obligations of the Company in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as
applicable, in respect of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the obligations of the Company in
Sections 8.07, 9.04 and 9.05, as applicable, in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee, upon written request, shall acknowledge
in writing the discharge of the obligations of the Company under the Securities of such series and
this Indenture with respect to the Securities of such series except for those surviving obligations
specified above.
Section 9.02.
Defeasance
. Except as provided below, the Company will be deemed to
have paid, and the Company will be discharged from any and all obligations in respect of, the
Securities of any series and the provisions of this Indenture will no longer be in
effect with respect to the Securities of such series (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same);
provided
that the
following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for
the benefit of the Holders of the Securities of such series, for payment of the Principal of,
interest on and any Additional Amounts payable in respect of the Securities of such series, money
or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of,
40
interest on and any Additional Amounts payable in respect of the outstanding Securities of such
series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a Default under,
this Indenture or any other material agreement or instrument to which the Company is a party or by
which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the
Trustee received from the U.S. Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such discharge under this Section 9.02 and will be subject to U.S. federal
income tax on the same amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same
effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 9.02 of the Securities of such series have been complied
with.
The obligations of the Company in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05,
as applicable, with respect to the Securities of such series thereof shall survive until such
Securities are no longer outstanding. Thereafter, only the obligations of the Company in
Sections 8.07 and 9.05, as applicable, shall survive.
The defeasance of obligations in respect of Securities of any series by the Company under this
Section 9.02 shall be effective notwithstanding any prior covenant defeasance in respect of
Securities of such series by the Company under Section 9.03.
Section 9.03.
Covenant Defeasance
. The Company may omit to comply with the covenants
in Sections 4.03, 4.04, 4.05, 5.01 and 5.03 and any other covenant relating to such series provided
for in a Board Resolution or supplemental indenture pursuant to
Section 2.03 that may by its terms be defeased pursuant to this Section 9.03, and such
omission shall be deemed not to be an Event of Default under Section 7.01(c) or (g), with respect
to the outstanding Securities of a series if:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for
the benefit of the Holders of the Securities of such series, for payment of the Principal of,
interest on and any Additional Amounts payable in respect of the Securities of such series, money
or U.S. Government Obligations or a combination thereof in an amount sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, to pay and discharge the
Principal of, interest on and any Additional Amounts payable in respect of the outstanding
41
Securities of such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a Default under,
this Indenture or any other material agreement or instrument to which the Company is a party or by
which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the
Trustee received from the U.S. Internal Revenue Service to the effect that such Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to U.S. federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such deposit and defeasance had
not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x)
above; and
(e) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the
covenant defeasance contemplated by this Section 9.03 of the Securities of such series have been
complied with.
Section 9.04.
Application of Trust Money
. Subject to Section 9.05, the Trustee or
Paying Agent shall hold in trust money or U.S. Government Obligations deposited with it pursuant to
Section 9.01, 9.02 or 9.03, as the case may be, in respect of the Securities of any series and
shall apply the deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the payment of Principal of,
interest on and any Additional Amounts payable in respect of the Securities of such series; but
such money need not be segregated from other funds except to the extent required by law. The
Company agrees to pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section 9.01, 9.02 or 9.03
or the Principal or interest received in respect thereof other
than any such tax, fee or other charge that by law is for the account of the Holders of
outstanding Securities.
Section 9.05.
Repayment to Company
. Subject to Sections 8.07, 9.01, 9.02 and 9.03,
the Trustee and the Paying Agent shall promptly pay to the Company, upon request set forth in an
Officers Certificate, any money originally paid by a party making such request held by them at any
time and not required to make payments hereunder and thereupon shall be relieved from all liability
with respect to such money. The Trustee and the Paying Agent shall pay to the Company, upon
written request, any money originally paid by a party making such request held by them and required
to make payments hereunder that
(a) remains unclaimed for two years; or
(b) in the opinion of a nationally recognized firm of independent public accountants,
expressed in a written certification thereof delivered to the Trustee and Paying
42
Agent, are in
excess of the amount that would then be required to be deposited to effect defeasance or covenant
defeasance, as the case may be, in accordance with this Article Nine.
After payment to the Company, Holders entitled to such money must look to the Company for payment
as general creditors unless an applicable law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01.
Without Consent of Holders
. The Company and the Trustee may amend or
supplement this Indenture or the Securities of any series without notice to or the consent of any
Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided
that
such amendments or supplements shall not materially and adversely affect the interests of the
Holders;
(b) to comply with Sections 5.01 and 5.03;
(c) to comply with any requirements of the Commission in connection with the qualification of
this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment hereunder with respect to the
Securities of any or all series by a successor Trustee;
(e) to establish the form or forms or terms of Securities of any series or of the coupons
appertaining to such Securities as permitted by Section 2.03;
(f) to provide for uncertificated Securities and to make all appropriate changes for such
purpose;
(g) to provide for a guarantee from a third party on outstanding Securities of any series and
the Securities of any series that may be issued under this Indenture;
(h) to change or eliminate any provision of this Indenture;
provided
that any such
change or elimination shall become effective only when there are no outstanding Securities of any
series created prior to the execution of such supplemental indenture that is entitled to the
benefit of such provision;
(i) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the defeasance and discharge of any series of Securities pursuant to
Sections 9.01, 9.02 and 9.03,
provided
that any such action shall not adversely affect the
interests of the Holders of such or any other series of Securities in any material respect; or
(j) to make any change that does not materially and adversely affect the rights of any Holder.
43
Section 10.02.
With Consent of Holders
. Subject to Sections 7.04 and 7.07, without
prior notice to any Holders, the Company and the Trustee may amend this Indenture and the
Securities of any series with the written consent of the Holders of a majority in Principal (or, if
any Securities are Original Issue Discount Securities, such portion of the Principal as may then be
accelerated under Section 7.02) of the outstanding Securities of all series affected by such
amendment (all such series voting as one class), and the Holders of a majority in Principal (or, if
any Securities are Original Issue Discount Securities, such portion of the Principal as may then be
accelerated under Section 7.02) of the outstanding Securities of all series affected thereby (all
such series voting as one class) by written notice to the Trustee may waive future compliance by
the Company with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 10.02, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to Section 7.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking fund obligation or any
installment of interest on, such Holders Security, or reduce the Principal thereof, the rate of
interest thereon (including any amount in respect of original issue discount), or the Additional
Amounts payable in respect thereof or adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption or repurchase at the option
of such Holder, or reduce the amount of the Principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant to Section 7.02 or
the amount thereof provable in bankruptcy, insolvency or similar proceeding, or change any place of
payment where, or the currency in which, any Principal, interest thereon or Additional Amounts
payable in respect thereof is payable, modify any right to convert or exchange such Holders
Security for another security to the detriment of the Holder, or impair the right to institute suit
for the enforcement of any such payment on or after the due date therefor;
(b) reduce the percentage in principal amount of outstanding Securities of the relevant series
the consent of whose Holders is required for any such supplemental indenture, or for any waiver of
compliance with certain provisions of this Indenture or certain Defaults and their consequences
provided for in this Indenture,
provided
however
, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to the
Trustee and concomitant changes in this Section 10.02;
(c) waive a Default in the payment of Principal of or interest on any Security of such Holder;
or
(d) modify any of the provisions of this Section 10.02, except to increase any such percentage
or to provide that certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of Holders of Securities of such series with respect to
such covenant or provision, shall be deemed not to affect the rights under
44
this Indenture of the
Holders of Securities of any other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this Section 10.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 10.02 becomes effective, the
Company shall give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
Section 10.03.
Revocation and Effect of Consent
. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security.
Such revocation shall be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on receipt by the Trustee of
written consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date (which may be not less than
10 nor more than 60 days prior to the solicitation of consents) for the purpose of determining the
Holders of the Securities of any series affected entitled to consent to any amendment, supplement
or waiver. If a record date is fixed, then, notwithstanding the immediately preceding paragraph,
those Persons who were such Holders at such record date (or
their duly designated proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given, whether or not such
Persons continue to be such Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with respect to the Securities of
any series affected thereby, it shall bind every Holder of such Securities unless it is of the type
described in any of Subsections (a) through (d) of Section 10.02. In case of an amendment or
waiver of the type described in Subsections (a) through (d) of Section 10.02, the amendment or
waiver shall bind each such Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the consenting Holder.
Section 10.04.
Notation on or Exchange of Securities
. If an amendment, supplement or
waiver changes the terms of any Security, the Trustee may require the Holder thereof to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate notation on any Security
of such series thereafter authenticated. Alternatively, if the
45
Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate
a new Security of the same series and tenor that reflects the changed terms.
Section 10.05.
Trustee to Sign Amendments, Etc.
The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture, stating that all requisite consents have been obtained
or that no consents are required and stating that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to customary exceptions. Subject to the preceding sentence, the Trustee
shall sign such amendment, supplement or waiver if the same does not adversely affect the rights of
the Trustee. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustees own rights, duties or immunities under this
Indenture or otherwise.
Section 10.06.
Conformity with Trust Indenture Act
. Every supplemental indenture
executed pursuant to this Article Ten shall conform to the requirements of the Trust Indenture Act
as then in effect.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01.
Trust Indenture Act of 1939
. This Indenture shall incorporate and be
governed by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.
Section 11.02.
Notices
. Any notice or communication shall be sufficiently given if
written and (a) if delivered in person, when received or (b) if mailed by first
class mail, 5 days after mailing, or (c) as between the Company and the Trustee, if sent by
facsimile transmission, when transmission is confirmed, in each case addressed as follows:
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if to the Company:
GlaxoSmithKline plc
980 Great Road West
Brentford
Middlesex TW8 9GS
England
Telephone No.: +44 (0) 20 8047 5000
Facsimile No.: +44 (0) 20 8047 6905
Attention: The Company Secretary
if to the Trustee:
Law Debenture Trust Company of New York
400 Madison Avenue, 4th Floor
New York, New York 10017
United States
Telephone No.: +1 (212) 750-6474
Facsimile No.: +1 (212) 750-1361
Attention: Corporate Trust Manager
The Company or the Trustee by written notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of Securities by mailing to
such Holders at their addresses as they shall appear on the Security Register. Notice mailed shall
be sufficiently given if so mailed within the time prescribed. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section 11.02, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 11.03.
Certificate and Opinion as to Conditions Precedent
. Upon any request
or application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
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(a) an Officers Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Section 11.04.
Statements Required in Certificate or Opinion
. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
shall include:
(a) a statement that each person signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such person, such condition or
covenant has been complied with;
provided
,
however
, that, with respect to matters
of fact, an Opinion of Counsel may rely on an Officers Certificate or certificates of public
officials.
Section 11.05.
Evidence of Ownership
. The Company, the Trustee and any agent of the
Company or the Trustee may deem and treat the person in whose name any Security shall be registered
upon the Security Register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the Principal of and, subject to
the provisions of this Indenture, interest on such Security and for all other purposes; and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
Section 11.06.
Rules by Trustee, Paying Agent or Registrar
. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.
Section 11.07.
Payment Date other than a Business Day
. If any date for payment of
Principal or interest on any Security shall not be a Business Day at any place of payment, then
payment of Principal of or interest on such Security, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day at any place of
payment with the same force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
Section 11.08.
Governing Law; Waiver of Jury Trial
. The laws of the State of New York
shall govern this Indenture and the Securities. Each of the Company and the Trustee
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hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Indenture, the Securities or the
transactions contemplated hereby.
Section 11.09.
No Adverse Interpretation of Other Agreements
. This Indenture may not
be used to interpret another indenture or loan or debt agreement of the Company or any Subsidiary
of the Company. Any such indenture or agreement may not be used to interpret this Indenture.
Section 11.10.
Successors
. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 11.11.
Duplicate Originals
. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
Section 11.12.
Separability
. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.13.
Table of Contents, Headings, Etc.
. The Table of Contents and headings
of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
Section 11.14.
Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability
. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or any indenture supplemental hereto, or in any Security or any coupons
appertaining thereto, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder, officer, director or
employee, as such, of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of the Securities and
the coupons appertaining thereto.
Section 11.15.
Judgment Currency
. The Company agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the Principal of or interest on the
Securities of any series (the
Required Currency
) into a currency in which a judgment will
be rendered (the
Judgment Currency
), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a Business Day in The City of New York, then, to the
extent permitted by applicable law, the rate of exchange used shall be the rate
49
at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of New York preceding
the day on which a final unappealable judgment is entered and (b) its obligation under this
Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment (whether or not entered in accordance with
Subsection (a)), in any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
50
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first written above.
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GLAXOSMITHKLINE PLC,
as Issuer
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By:
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/s/
Victoria A. Whyte
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Name:
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Victoria A. Whyte
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Title:
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Deputy Company Secretary
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LAW DEBENTURE TRUST COMPANY OF
NEW YORK,
as Trustee
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By:
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/s/
Walter I. Johnson III
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Name:
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Walter I. Johnson III
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Title:
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Assistant Vice President
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