Exhibit 5.1
AstraZeneca PLC
1 Francis Crick Avenue
Cambridge Biomedical Campus
Cambridge
CB2 0AA
United Kingdom | London Freshfields Bruckhaus Deringerllp 65 Fleet Street
London EC4Y 1HS T +44 20 7936 4000 (Switchboard) +44 20 7832 7022 (Direct) F +44 20 7108 7022 LDE No 23 E duncan.kellaway@freshfields.com www.freshfields.com Doc ID LON42782743 Our Ref DEGK |
22 November 2016
Dear Sir/Madam
AstraZeneca PLC
Registration Statement on Form F-3
Introduction
1. In connection with the automatic shelf registration statement on Form F-3 (theRegistration Statement) of AstraZeneca PLC, a public limited company incorporated under the laws of England and Wales (theCompany), under the United States Securities Act of 1933 (theSecurities Act), we have been requested to render our opinion on certain matters in connection with the Registration Statement. The Registration Statement relates to the registration under the Securities Act of the issuance and sale of the Company’s debt securities (theDebt Securities), consisting of notes, debentures and/or other evidences of indebtedness denominated in United States dollars or any other currency.
2. We are acting as English legal advisers to you, the Company, for the purposes of giving this opinion. In so acting, we have examined the following documents:
| (a) | the Registration Statement; |
| (b) | a copy of the current Articles of Association of the Company as at 22 November 2016 (theConstitutional Documents); |
| (c) | a copy of the Company’s Certificate of Incorporation dated 17 June 1992, issued by the Registrar of Companies of England and Wales, together with copies of the Company’s Certificates of Incorporation on change of name dated 13 July 1992, 25 |
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September 1992, 16 February 1993 and 5 April 1999, respectively;
| (d) | the indenture dated 1 April 2004 (theIndenture) entered into between the Company and the Trustee thereunder under which the Debt Securities are to be issued; |
| (e) | searches carried out on 22 November 2016 for the Company (carried out by us or by Legalinx Limited trading as LegalinX-7Side on our behalf) of the public documents of the Company kept at Companies House in Cardiff (theCompany Search); |
| (f) | means our search (carried out by us or by LegalinX-7Side on our behalf) of the Central Registry of Winding up Petitions carried out on 22 November 2016 (theWinding-up Enquiry); |
| (g) | a certificate issued to us by the Company Secretary of the Company dated 22 November 2016 (theSecretary’s Certificate); and |
| (h) | an extract from the minutes of a meeting of the board of directors of the Company held on 23 July 2003 authorising the execution and delivery of and performance of obligations under, the Indenture, and (ii) on 8-9 November 2016 authorising the filing of the Registration Statement and the execution and delivery of and performance of obligations under, when issued, the Debt Securities, |
and relied upon the statements as to factual matters contained in or made pursuant to each of the above mentioned documents.
3. This opinion is confined to matters of English law (including case law) as at the date of this opinion and is governed by and should be construed in accordance with English law. Statements relating to United Kingdom taxation are based on the laws of England (including case law) as currently applied by the English courts and on generally published practice of H.M. Revenue and Customs applying as at the date of this opinion. By giving this opinion, we do not assume any obligation to notify you of future changes in law or HMRC practice which may affect the opinions expressed in this opinion or otherwise to update this opinion in any respect. Accordingly, we express no opinion herein with regard to any system of law other than the laws of England as currently applied by the English courts. In particular, we express no opinion on European Union law as it affects any jurisdiction other than England. We also express no opinion as to whether or not a foreign court (applying its own conflict rules) will act in accordance with the parties’ agreement as to jurisdiction and/or choice of law.
4. To the extent that the laws of the United States or, the laws of the State of New York may be relevant, we have made no independent investigation of such laws and our opinion is subject to the effect of such laws, including the matters contained in the opinion of Davis Polk & Wardwell London LLP, referred to in the Registration Statement. We express no views in this opinion on the validity of the matters set out in such opinion.
Assumptions
5. In considering the above documents and in rendering this opinion we have with your consent and without any further enquiry assumed:
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| (a) | Authenticity: the genuineness of all signatures, stamps and seals on, and the authenticity, accuracy and completeness of, all documents submitted to us whether as originals or copies; |
| (b) | Copies: the conformity to originals of all documents supplied to us as photocopies, portable document format (PDF) copies, facsimile copies or e-mail conformed copies; |
| (c) | Drafts: that, where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen; |
| (d) | Secretary’s Certificate: that each of the statements contained in the Secretary’s Certificate is true and correct as at the date hereof; |
| (e) | Board Meetings: that the meetings of the board of directors of the Company were duly convened and held on 23 July 2003 and 8-9 November 2016, as evidenced by the extracts from the minutes referred to above; at the meetings a quorum of directors was present and acting throughout; the resolutions referred to therein were properly passed at such meetings, that all provisions contained in the Companies Act 2006 and the Articles of Association of the Company relating to the disclosure of directors’ interests and the power of interested directors to vote were duly observed, and that such resolutions in such minutes were duly passed and have not been amended, modified or revoked and are in full force and effect; each of the directors of the Company having any interest in any of the matters discussed at such meetings duly disclosed his interest therein and was entitled to count in the quorum of such meetings and to vote on the resolutions proposed thereat; and such minutes are a true and correct record of the proceedings described therein and the resolutions set out in such minutes remain in full force and effect without modification; |
| (f) | Corporate Power:that each of the parties to the Indenture (other than the Company) has the necessary capacity and corporate power to execute, deliver and perform the Indenture, and that the Indenture has been duly authorised and executed and delivered by each of the parties thereto in accordance with all applicable laws (other than in the case of the Company, the laws of England) in the form filed as an exhibit to the Registration Statement; |
| (g) | Corporate Authorisation:that the Debt Securities of a particular issuance will, upon issue, be duly authorised, executed, issued, authenticated and delivered by the Company and will be offered and sold in accordance with the provisions of the Indenture and as described in the Registration Statement and there will be no provision in any supplement relating to the Debt Securities or any other document which would affect the content of this opinion; |
| (h) | Validity under all laws: that the Indenture and, when issued, the Debt Securities constitute legal, valid and binding obligations of each of the parties thereto enforceable under all applicable laws including the laws of the United States and the laws of the State of New York by which they are expressed to be governed (other than in the case of the Company, the laws of England); that satisfactory evidence of the laws of the United States and the State of New York, which is required to be pleaded and proved as a fact in any proceedings before the English Courts, could be so pleaded and proved; |
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and that insofar as the laws and regulations of any other jurisdiction may be relevant to (i) the obligations or rights of any of the parties under the Indenture, or (ii) any of the transactions contemplated by the Indenture, such laws and regulations do not prohibit, and are not inconsistent with, the entering into and performance of any such obligations, rights or transactions;
| (i) | Filings under all laws: that all consents, licences, approvals, notices, filings, recordations, publications and registrations which are necessary under any applicable laws (other than, in the case of the Company, the laws of England) in order to permit the execution, delivery or performance of the Indenture or to perfect, protect or preserve any of the interests created by the Indenture, have been made or obtained, or will be made or obtained within the period permitted or required by such laws or regulations; |
| (j) | No Amendments: that the Indenture has not been amended, terminated, rescinded or varied, that there has been no breach of any of its provisions by any of the parties thereto which would affect the opinions expressed in this opinion, and that the Indenture is not affected in any way by any relevant provisions of any other document or agreement or any course of dealings between the parties thereto; |
| (k) | Unknown Facts: that there are no facts or circumstances (and no documents, agreements, instruments or correspondence) which are not apparent from the face of the Indenture or which have not been disclosed to us that may affect the validity or enforceability of the Indenture or any obligation therein or otherwise affect the opinions expressed in this opinion; |
| (l) | Arm’s Length Terms: that the Indenture has been entered into for bona fide commercial reasons and on arm’s length terms by each of the parties thereto; |
| (m) | Directors’ Duties: that the directors of the Company in authorising the filing of the Registration Statement and the execution and delivery of and performance of obligations under, the Indenture and, when issued, the Debt Securities have exercised their powers in accordance with their duties under all applicable laws and the Constitutional Documents of the Company in force at the applicable time; |
| (n) | FSMA:that the sale of the Debt Securities or the consummation by the Company of the transactions contemplated by the Indenture (as relevant) will not constitute an “offer to the public” within the meaning of Part VI of the Financial Services and Markets Act 2000 (theFSMA); |
| (o) | FSMA:that the Indenture is not an agreement the making or performance of which constitutes, or is part of, a regulated activity within the meaning stated in the FSMA carried on by any party to it, and which either: |
| (i) | is entered into by that party in the course of carrying on or purporting to carry on the regulated activity in question in contravention of section 19 of the FSMA; or |
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| (ii) | where the party is a person authorised for the purposes of the FSMA, is entered into by that party in the course of carrying on the regulated activity in question and in consequence of something said or done by another person (thethird party) in the course of a regulated activity carried on by the third party in contravention of section 19 of the FSMA, |
and that the Indenture is not entered into by any person as a customer in consequence of a communication in relation to which there has been a contravention of Section 21 of the FSMA;
| (p) | FSMA: that the Registration Statement (including such document in draft and preliminary form) and any other invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) in connection with the issue or sale of the Securities has only been and will only be communicated or caused to be communicated in circumstances in which section 21(1) of the FSMA does not apply to the Company. These circumstances are set out in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (theOrder) and include circumstances where any such communication is made only to or may reasonably be regarded as directed only at persons who are “investment professionals” within the meaning of Article 19(5) of the Order or are persons falling within Article 49(2)(a) to (d) of the Order; |
| (q) | Company Search:that the information revealed by the Company Search: (i) was accurate in all respects and has not since the time of such search been altered; and (ii) was complete, and included all relevant information which had been properly submitted to the Registrar of Companies; |
| (r) | Winding up Enquiry: that the information revealed by our Winding-up Enquiry was accurate in all respects and has not since the time of such enquiry been altered; |
| (s) | Representations: that the terms of the Indenture have been and will be observed and performed by the parties thereto; |
| (t) | Anti-terrorism, money laundering, antitrust and criminal cartel: that the parties to the Indenture and all parties representing them have complied (and will continue to comply) with all applicable anti-terrorism, anti-corruption, anti-money laundering, civil or criminal anti-trust, cartel, competition, public procurement, state aid, sanctions and human rights laws and regulations, and that performance and enforcement of the Indenture is, and will continue to be, consistent with all such laws and regulations; and |
| (u) | Bad Faith, Fraud, Duress: the absence of bad faith, breach of duty, breach of trust, fraud, coercion, duress or undue influence on the part of any of the parties to the Indenture and their respective directors, employees, agents or advisers (excepting ourselves). |
Opinion
6. On the basis of and subject to the foregoing and the matters set out in paragraphs 6 and 7 below and any matters not disclosed to us, and having regard to such considerations of English law in force, and generally published practice of H.M. Revenue and Customs applying, as at the date of this letter as we consider relevant, we are of the opinion that:
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| (a) | Corporate Existence: the Company has been duly incorporated in Great Britain and registered in England and Wales as a public limited company; |
| (b) | Corporate Authorisation: the Company Search and Winding-up Enquiry revealed no application, petition, order or resolution for the administration or winding-up of the Company and revealed no notice of, or intention to appoint, a receiver or administrator; |
| (c) | Corporate Power: the Company has the requisite corporate power and capacity to enter into and perform its obligations under the Indenture and to issue and deliver the Debt Securities; |
| (d) | No Violation: the execution and delivery of the Indenture and the performance of the Company’s obligations thereunder (in accordance with the terms of the Indenture) have been duly authorised by all necessary corporate action on the part of the Company and do not and will not of themselves result in any violation by the Company of any term of its Constitutional Documents or of any law or regulation having the force of law in England and applicable to the Company as to performance; |
| (e) | Enforceability of Obligations under the Indenture: the obligations of the Company under the Indenture are, and the obligations to be assumed by the Company under the Debt Securities, when executed and delivered, will be, enforceable by each of the parties in the English courts if they were to take jurisdiction, subject to the assumptions and qualifications set out herein. However, no opinion is given as to whether they will do so or whether they would subsequently stay such proceedings; and |
| (f) | Tax: the statements in the Registration Statement contained under the caption “Certain UK and US Federal Tax Considerations—United Kingdom Taxation” on pages 28 to 30, with respect to matters of English law are true and correct in all material respects, subject to the qualifications contained in those statements. |
Qualifications
7. Our opinion is subject to the following qualifications:
| (a) | Company Search:the Company Search is not capable of revealing conclusively whether or not: |
| (i) | a winding-up order has been made or a resolution passed for the winding-up of a company; or |
| (ii) | an administration order has been made; or |
| (iii) | a receiver, administrative receiver, administrator or liquidator has been appointed; or |
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| (iv) | a court order has been made under the Cross-Border Insolvency Regulations 2006, |
since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the public microfiche of the relevant company immediately.
In addition, the Company Search is not capable of revealing, prior to the making of the relevant order or the appointment of an administrator otherwise taking effect, whether or not a winding-up petition or an application for an administration order has been presented or notice of intention to appoint an administrator under paragraphs 14 or 22 of Schedule B1 to the Insolvency Act 1986 has been filed with the court;
| (b) | Winding up Enquiry: the Winding-up Enquiry relates only to the presentation of: (i) a petition for the making of a winding-up order or the making of a winding-up order by the court, (ii) an application to the High Court of Justice in London for the making of an administration order and the making by such court of an administration order, and (iii) a notice of intention to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention or notice of appointment has been presented or winding-up or administration order granted, because; |
| (i) | details of a winding-up petition or application for an administration order may not have been entered on the records of the Central Registry of Winding-up Petitions immediately; |
| (ii) | in the case of an application for the making of an administration order and such order and the presentation of a notice of intention to appoint or notice of appointment, if such application is made to, order made by or notice filed with, a court other than the High Court of Justice in London, no record of such application, order or notice will be kept by the Central Registry of Winding-up Petitions; |
| (iii) | a winding-up order or administration order may be made before the relevant petition or application has been entered on the records of the Central Registry, and the making of such order may not have been entered on the records immediately; |
| (iv) | details of a notice of intention to appoint an administrator or a notice of appointment of an administrator under paragraphs 14 and 22 of Schedule B1 of the Insolvency Act 1986 may not be entered on the records immediately (or, in the case of a notice of intention to appoint, at all); and |
| (v) | with regard to winding-up petitions, the Central Registry of Winding-up Petitions may not have records of winding-up petitions issued prior to 1994; |
| (c) | Choice of Foreign Law:the chosen laws are the laws of the United States and the laws of the State of New York. |
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| (i) | the Documents could be modified by the English courts to the extent provided by and in the circumstances set out in Regulation (EC) No 593/2008 on the law applicable to contractual obligations (the Rome I Regulation). In addition, we express no opinion as to the choice of law to govern contractual obligations falling outside the scope of the Rome I Regulation; and |
| (ii) | certain trusts could be modified by the English courts to the extent provided by and in the circumstances set out in the Hague Convention on the Law Applicable to Trusts and their Recognition, as enacted by the Recognition of Trusts Act 1987; |
| (d) | Foreign Courts:no opinion is given as to whether or not the chosen court will take jurisdiction, or whether the English courts would grant a stay of any proceedings commenced in England, or whether the English courts would grant any ancillary relief in relation to proceedings commenced in a foreign court; |
| (e) | Choice of Foreign Jurisdiction: this opinion, and the term “enforceable” as used above, is not to be taken to imply that any obligation would necessarily be capable of enforcement in all circumstances in accordance with its terms. In particular: |
| (i) | an English court will not necessarily grant any remedy the availability of which is subject to equitable considerations or which is otherwise in the discretion of the court. In particular, orders for specific performance and injunctions are, in general, discretionary remedies under English law and specific performance is not available where damages are considered by the court to be an adequate alternative remedy; |
| (ii) | claims may become barred under the Limitation Act 1980 or the Foreign Limitation Periods Act 1984 or may be or become subject to the defence of set off or to counterclaim; |
| (iii) | where obligations are to be performed in a jurisdiction outside England, they may not be enforceable in England to the extent that performance would be illegal under the laws, or contrary to the exchange control regulations, of the other jurisdiction; |
| (iv) | the enforcement of obligations may be limited by the provisions of English law applicable to agreements held to have been frustrated by events happening after their execution; |
| (f) | Financial Limitations:no opinion is given as to the compliance or otherwise with: (i) the financial limitations on borrowings or covenants by the Company contained in the Constitutional Documents of the Company; and (ii) the limitations on the maximum aggregate principal amount of the Debt Securities which may be issued by the Company as contemplated by the Registration Statement; and |
| (g) | Insolvency: this opinion is subject to all applicable laws relating to insolvency, bankruptcy, administration, reorganisation, liquidation or analogous circumstances and other similar laws of general application relating to or affecting generally the enforcement of creditor’s rights and remedies from time to time. |
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Observations
8. Factual Statements: It should be understood that we have not been responsible for investigating or verifying the accuracy of the facts, including the statements of foreign law, or the reasonableness of any statement or opinion or intention contained in or relevant to any document referred to herein, or that no material facts have been omitted therefrom. This opinion is also given on the basis that we undertake no responsibility to notify you of any change in English law after the date of this opinion.
9. We hereby consent to the use of our name in the Registration Statement and to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required by the Securities Act or by the rules and regulations promulgated thereunder.
10. Benefit of Opinion:This opinion is addressed to you solely for your own benefit for the purposes of the Registration Statement to be filed under the Securities Act and, except with our prior written consent, is not to be transmitted or disclosed to or used or relied upon by any other person or used or relied upon by you for any other purpose. Your reliance on the matters addressed in this opinion letter is on the basis that any associated recourse is against the firm’s assets only and not against the personal assets of any individual partner. The firm’s assets for this purpose consist of all assets of the firm’s business, including any right of indemnity of the firm or its partners under the firm’s professional indemnity insurance policies, but excluding any right to seek contribution or indemnity from or against any partner of the firm or person working for the firm or similar right. The restrictions in the previous sentences apply to any claim, whether in contract, tort (including negligence) for breach of statutory duty, or otherwise, but they do not apply in the case of our wilful misconduct or fraud or where and to the extent prohibited by applicable law and regulation (including without limitation, the rules of professional responsibility governing the practice of law).
11. Having requested production of this opinion and in order to rely on its contents, you agree to be bound by its terms.
Yours faithfully
/s/ Freshfields Bruckhaus Deringer LLP
