EXHIBIT 1.2
[FORM OF UNDERWRITING AGREEMENT]
================================================================================
UNDERWRITING AGREEMENT
AMONG
GLAXOSMITHKLINE CAPITAL PLC
AS ISSUER
GLAXOSMITHKLINE PLC
AS GUARANTOR
AND
[-]
AS REPRESENTATIVES OF THE UNDERWRITERS
DATED AS OF -
================================================================================
TABLE OF CONTENTS
PAGE
1. Representations and Warranties......................................................................... 2
2. Purchase and Sale...................................................................................... 3
3. Delivery and Payment................................................................................... 3
4. Offering by Underwriters............................................................................... 4
5. Agreements............................................................................................. 4
6. Conditions to the Obligations of the Underwriters...................................................... 6
7. Reimbursement of Underwriters' Expenses................................................................ 10
8. Indemnification and Contribution....................................................................... 10
9. Default by an Underwriter.............................................................................. 13
10. Termination............................................................................................ 13
11. Representations and Indemnities to Survive............................................................. 14
12. Notices................................................................................................ 14
13. Successors............................................................................................. 14
14. Applicable Law......................................................................................... 14
15. Counterparts........................................................................................... 14
16. Headings............................................................................................... 14
SCHEDULES
Schedule I Terms of the Securities
Schedule II Underwriting Commitments
EXHIBITS
Exhibit A-1 Form of Opinion of U.S. Counsel to the Company and the
Guarantor
Exhibit A-2 Form of Opinion of U.K. Counsel to the Company and the
Guarantor
Exhibit B Form of Letter of Counsel to the Company and the Guarantor
i
GLAXOSMITHKLINE CAPITAL PLC
- % NOTES DUE -
FULLY AND UNCONDITIONALLY GUARANTEED BY
GLAXOSMITHKLINE PLC
UNDERWRITING AGREEMENT
[-]
[-]
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 "Securities"), to be
issued under an indenture dated as of [-] (the "Indenture"), among the Company,
GlaxoSmithKline plc, as guarantor (the "Guarantor"), and Citibank, N.A., as
trustee (the "Trustee"). The Securities will be fully and unconditionally
guaranteed by the Guarantor.
The Company and the Guarantor have prepared and filed with the
U.S. Securities and Exchange Commission (the "Commission") in accordance with
the provisions of the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
Registration Statement on Form F-3 (File No. 333-104121) with respect to debt
securities they may offer from time to time (as amended or supplemented to the
date hereof, the "Registration Statement"). The prospectus included in the
Registration Statement, as supplemented to reflect the terms of the Securities
and the offering thereof and as first filed with the Commission pursuant to Rule
424(b) under the Securities Act, is hereinafter referred to as the "Prospectus."
Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 6 of Form F-3 that were filed under the U.S.
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act"), on or before the
effective date of the Registration Statement or the issue date of the
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement or the
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 Prospectus, as the case may be, deemed to be
incorporated therein by reference.
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 Securities Act. The Registration Statement has been filed
with the Commission and has become effective in the form delivered to
the Representatives. 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
the effective date of the Registration Statement, the Registration
Statement complied in all material respects with the applicable
requirements of the Securities Act; on the effective date of the
Registration Statement and on the date of this Agreement, 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 effective date of the Registration Statement and
on the date of any filing pursuant to Rule 424(b) under the Securities
Act, the Prospectus did not and 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 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 Prospectus 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 Prospectus.
(c) 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 (the "Trust Indenture Act"); the
Securities have been duly authorized, and when the Securities are
delivered and paid for pursuant to this Agreement on the Closing Date
(as defined below), the Securities will have been duly executed,
authenticated, issued and delivered, will conform in all material
respects to the description thereof contained in the Prospectus and
will constitute valid and legally binding obligations of the Company
and 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.
2
(d) 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 Prospectus.
(e) 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.
(f) 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
Guarantor's 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 Guarantor's other subsidiaries is a party or by
which the Company or the Guarantor or any of the Guarantor's 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.
(g) 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 Prospectus, will be an "investment company" as defined
in the U.S. Investment Company Act of 1940, as amended.
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 Underwriter's 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
3
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. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus. Each Underwriter represents and warrants to, and
with, the Company and the Guarantor as follows:
(a) It will not offer or sell, directly or
indirectly, any of the Securities in any jurisdiction where such offer
or sale is not permitted.
(b) It has not offered or sold and, prior to the
expiration of the period of six months from the Closing Date, will not
offer or sell any of the Securities to persons in the United Kingdom,
except to those persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments, as principal
or agent, for the purposes of their businesses or otherwise in
circumstances that have not resulted and will not result in an offer to
the public in the United Kingdom for purposes of the Public Offers of
Securities Regulations 1995.
(c) It has complied and will comply with all
applicable provisions of the Financial Services and Markets Act 2000
(the "FSMA") with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom.
(d) It has only communicated or caused to be
communicated and it will only communicate or cause to be communicated
an invitation or inducement to engage in investment activity (within
the meaning of Section 21of the FSMA) received by it in connection with
the issue or sale of the Securities in circumstances in which Section
21(1) of the FSMA does not apply to the Company or the Guarantor.
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 Prospectus with the Commission pursuant to and
in accordance with Rule 424(b) under the Securities Act within the time
period prescribed.
4
(b) Amendments to Registration Statement or
Prospectus; Stop Orders. The Company and the Guarantor will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement or the 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) Material Changes. If, at any time when a
prospectus relating to the Securities is required to be delivered under
the Securities Act in connection with sales by any Underwriter or
dealer, any event occurs as a result of which the 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 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.
(d) 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 thereunder.
(e) 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, as many
copies of each preliminary prospectus supplement and the Prospectus and
any supplement thereto 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 Prospectus in connection with
sales of Securities at any time six months or more after the date of
the Prospectus, the expenses relating to such Prospectus shall be paid
by such Underwriter.
(f) 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 NASD, 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
5
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.
(g) 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.
(h) 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.
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 date hereof 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
Prospectus shall have been filed in the manner and within the time
period required by Rule 424(b). 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, 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, 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 Brown &Wood LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and
6
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 Prospectus 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 Prospectus, 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 Prospectus, 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
Prospectus 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, on the
date hereof 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 and that they have performed a review of the
unaudited consolidated interim financial information of the Company for
the [-]-month period ended [-], and as at [-], in accordance with
Statement on Auditing Standards No. 100, and stating in effect, that:
7
(i) in their opinion the audited
financial statements and financial statement
schedules, if any, included or incorporated by
reference in the Registration Statement and the
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; their limited
review, in accordance with standards established
under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the
[-]-month period ended [-] and as at [-]; 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 and
the 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 and
the Prospectus;
(2) with respect to the period
subsequent to [-], 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 [-] consolidated
balance sheet included or incorporated by
reference in the Registration Statement and
the Prospectus, or for the period from [-]
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
8
unless said explanation is not deemed
necessary by the Representatives; or
(3) the information included
or incorporated by reference in the
Registration Statement and 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 and the Prospectus, including
the information set forth under the captions "Ratios
of Earnings to Fixed Charges" in the Prospectus, the
information included or incorporated by reference in
Items 3, 4, 5 and 6 of the Guarantor's Annual Report
on Form 20-F, incorporated by reference in the
Registration Statement and the 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 date hereof, 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 Prospectus or (ii) any decrease in
the rating of any of the Guarantor's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act) 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 and the Prospectus.
(h) Listing. The Securities shall have been
listed and admitted and authorized for trading on the London Stock
Exchange, and satisfactory evidence of such actions shall have been
provided to the Representatives.
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.
9
The documents required to be delivered by this Section 6 shall
be delivered at the office of Sidley Austin Brown & Wood LLP, counsel for the
Underwriters, at 787 Seventh Avenue, New York, New York 10019, 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 any preliminary prospectus supplement or the Prospectus,
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
Representatives specifically for inclusion therein; and provided
further that with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary
prospectus or preliminary prospectus supplement, the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter (or its directors, officers, employees,
agents and controlling persons) from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities
concerned, to the extent that a prospectus relating to
10
the Securities was required to be delivered by such Underwriter under
the Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Underwriter (or its directors,
officers, employees, agents and controlling persons) results from the
fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person,
a copy of the Prospectus (exclusive of material incorporated by
reference therein) if the Company or the Guarantor had previously
furnished copies thereof to such Underwriter. 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 the last paragraph of the
cover page regarding delivery of the Securities and, under the heading
"Underwriting" or "Plan of Distribution," (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii)
the sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions and
penalty bids in any preliminary prospectus supplement and the
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any preliminary
prospectus supplement or the 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 party's choice at the indemnifying
party's 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
11
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's 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, 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 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 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
12
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).
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 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 Guarantor's
Common Stock shall have been suspended by the London Stock Exchange or trading
in the Guarantor's 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
13
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 the Prospectus.
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 and 8 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, if sent to the Representatives,
shall be mailed, delivered or telefaxed to [-] at [-], attention: [-]; or, 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 (20)
8047-6909, attention: Legal Department.
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.
14
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.
Very truly yours,
GLAXOSMITHKLINE CAPITAL PLC
By: ____________________________
Name:
Title:
GLAXOSMITHKLINE PLC
By: _____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[-]
By: [-]
By: ________________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
15
SCHEDULE I
TERMS OF THE SECURITIES
Underwriting Agreement dated -.
Registration Statement No. 333-104121.
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:
Closing Date, Time and Location: - at 10:00 a.m. at
Sidley Austin Brown & Wood LLP
787 Seventh Avenue, New York, New York 10019
Type of Offering: Non-delayed.
Date referred to in Section 5(g) 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: -.
SCHEDULE II
UNDERWRITING COMMITMENTS
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ------------
$
--------------
Total ...................................... $
==============
EXHIBIT A-1
FORM OF OPINION OF U.S. COUNSEL TO THE COMPANY AND THE GUARANTOR
[-]
[-]
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, GlaxoSmithKline Capital
plc, a public limited company incorporated in England and Wales ("GSK Capital
plc"), 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. 333-104121) of (i) guaranteed debt securities of GSK
Capital plc (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 [-]
(the "Indenture") among GSK Capital plc, the Guarantor and Citibank, N.A., as
trustee (the "Trustee"). Such registration statement, as amended when it became
effective, but excluding the documents incorporated by reference therein, is
herein called the "Registration Statement," and the related prospectus dated
[-], as supplemented by the prospectus supplement dated [-], and as first filed
with the Securities and Exchange Commission pursuant to Rule 424(b)(2) under the
Securities Act of 1933, as amended (the "Securities Act"), but excluding the
documents incorporated by reference therein, is herein called the "Prospectus."
This opinion letter is furnished pursuant to Section 6(b) of the underwriting
agreement dated [-] (the "Underwriting Agreement") among GSK Capital plc, 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:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents
incorporated by reference therein;
(c) the Prospectus and the documents incorporated by
reference therein;
(d) the Debt Securities in global form executed by GSK
Capital plc and authenticated by the Trustee;
(e) an executed copy of the Indenture; and
A-1-1
(f) the documents delivered to you by each of GSK Capital
plc and the Guarantor 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 each of GSK
Capital plc and the Guarantor and such other instruments and other certificates
of public officials, officers and representatives of each of GSK Capital plc 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 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 plc and the Guarantor in
the Underwriting Agreement).
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 plc and the Guarantor under the law of the State of New York and
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 plc and the Guarantor.
2. The Debt Securities and the Guarantees have been duly
executed and delivered by GSK Capital plc and the Guarantor, respectively, under
the law of the State of New York and are the valid, binding and enforceable
obligations of GSK Capital plc and the Guarantor, respectively, entitled to the
benefits of the Indenture.
3. The statements set forth under the heading "Description of
Debt Securities" in the 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 plc 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, and the performance by each of GSK
Capital plc and the Guarantor of its obligations in the Underwriting Agreement,
the Indenture and the Debt Securities and Guarantees, respectively, (a) do 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, 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 as to any consent, approval, authorization,
registration or qualification that may be required under state securities or
Blue Sky laws), and (b) do not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any of the agreements of
GSK Capital plc
A-1-2
or the Guarantor identified in Exhibit __ hereto or any judgment, decree or
order identified in Exhibit __ hereto.
Insofar as the foregoing opinions relate to the validity,
binding effect or enforceability of any agreement or obligation of either GSK
Capital plc or the Guarantor, (a) we have assumed that GSK Capital plc, 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 plc or the Guarantor regarding
matters of the federal law of the United States of America or the law of the
State of New York), (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 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 York's
anti-champerty statute).
We express no opinion as to the subject matter jurisdiction of
any United States federal court to adjudicate any action relating to the
Securities where jurisdiction based on diversity of citizenship under 28 U.S.C.
Section 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.
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 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.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By_________________________________
A-1-3
EXHIBIT A-2
FORM OF OPINION OF U.K. COUNSEL TO THE COMPANY AND THE GUARANTOR
[-]
[-]
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 plc"), and GlaxoSmithKline plc, a public limited company incorporated in
England and Wales (the "Guarantor" and, together with GSK Capital plc, the
"Companies") which propose to offer pursuant to a registration statement on Form
F-3 (No. 333-104121) (i) guaranteed debt securities of GSK Capital plc in
aggregate principal amount of $- (the "Debt Securities") and (ii) guarantees of
the Guarantor in respect of the Debt Securities to be issued in each case under
an indenture dated as of [-] (the "Indenture") among GSK Capital plc, the
Guarantor and Citibank, N.A., as trustee. Such registration statement, as
amended when it became effective, but excluding the documents incorporated by
reference therein, is herein called the "Registration Statement," and the
related prospectus dated [-], as supplemented by the prospectus supplement dated
[-] and as first filed with the Securities and Exchange Commission pursuant to
Rule 424(b)(2) under the Securities Act of 1933, as amended (the "Securities
Act"), but excluding the documents incorporated by reference therein, is herein
called the "Prospectus." This opinion letter is furnished to you at the
Companies' request pursuant to Section 6(b) of the underwriting agreement dated
[-], (the "Underwriting Agreement") among the Companies 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
Companies;
(b) a Certificate of the Secretary of each of GSK Capital
plc and the Guarantor (each a "Secretary's
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 to which the Secretary's Certificate relates;
and
(ii) the minutes of the meeting of the [Board of
Directors] of the Company to which the Secretary's
Certificate relates;
A-2-1
(c) the Registration Statement;
(d) the Prospectus;
(e) a form of the Debt Securities;
(f) a copy of the Indenture (including the guarantee
contained therein by the Guarantor (the "Guarantee"))
executed by the Companies; and
(g) the documents delivered to you by the Companies at
the closing pursuant to the Underwriting Agreement.
Capitalised terms in this opinion letter have the meanings
given to them in the Underwriting Agreement.
In rendering this opinion 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
certified photocopy or facsimile copies;
(b) that, where a document has been examined by us in
draft or specimen 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 duly executed, authenticated and delivered in
accordance with the terms of the Indenture;
(c) 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;
(d) the absence of any other arrangements between any of
the parties to any of the Transaction Documents which 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 and completeness of all
statements in each of the Secretaries' Certificates) 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
issue of the Debt Securities 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;
A-2-2
(g) that none of the parties to the Transaction Documents
has taken or will take any action in relation to the Debt Securities
which is or would be a contravention of the applicable provisions of
the Financial Services and Markets Act 2000 (the "FSMA") (including
Sections 19 (the general prohibition), 21 (financial promotion) and 118
(market abuse) of the FSMA) and that the Debt Securities have not been
offered in circumstances which would constitute an offer to the public
in the United Kingdom as determined in accordance with Schedule 11 of
the FSMA or the Public Offers of Securities Regulations 1995, as
applicable;
(h) that the Transaction Documents have been duly
executed by the parties thereto and constitute valid and binding
obligations of the parties thereto under the laws of the State of New
York enforceable in accordance with their terms and have the same
meaning and effect as if they were governed by English law;
(i) that the information relating to the Companies
disclosed by our searches on [-] by telephone at Companies House and by
telephone at the Central Registry at the Companies Court in London 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 which had
been delivered for registration but did not appear on the file in
London at the time of our search, that such oral disclosures did not
fail to disclose any material information or any petition for an
administration order or winding up in respect of each of the Companies
that has been presented in any event in England and Wales;
(j) that, except insofar as matters are on public record
and are discoverable by making any of the searches referred to in (i)
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;
(k) that the meeting of the [Board of Directors] of each
Company at which the resolutions authorising such Company to enter into
the Transaction Documents 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;
(l) that no law of any jurisdiction outside England and
Wales would render the execution, delivery, issue or performance of the
terms of the Transaction Documents illegal or ineffective and that,
insofar as any obligation under the Transaction Documents falls to be
performed in any jurisdiction other than England and Wales, its
performance will not be illegal or ineffective by virtue of the laws of
that jurisdiction;
(m) that any party to the Transaction Documents which 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
A-2-3
and sale of the Debt Securities;
(n) that the aggregate initial offering price of all Debt
Securities issued will not exceed the amount to be registered as set
forth in the Registration Statement or its equivalent (calculated,
where applicable, as described in the relevant Indenture) in other
currencies or any limit which 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; and
(o) that the terms and conditions applicable to the
relevant Debt Securities will not be inconsistent with the terms and
conditions of the relevant Indenture and will not be inconsistent with
the Prospectus as supplemented by any applicable prospectus supplement.
On the basis of the foregoing, and having regard to such legal
considerations as we deem relevant and subject as set out below, we are of
the opinion that:
1. each of the Companies is a public limited company
incorporated under the laws of England and Wales;
2. each of the Companies has the corporate power and
authority to enter into and perform its respective obligations under the
Underwriting Agreement and the Indenture;
3. each of the Underwriting Agreement and the Indenture
has each been duly authorised, executed and delivered by each of the Companies;
4. the Debt Securities have been duly authorised,
executed and delivered by GSK Capital plc;
5. the Underwriting Agreement, the Indenture and the
Debt Securities constitute valid, binding and enforceable obligations of GSK
Capital plc and the Indenture constitutes valid, binding and enforceable
obligations of the Guarantor;
6. except for such governmental or regulatory
authorisations or filings as may be required in connection with the listing of
the Debt Securities on the Official List of the United Kingdom Listing Authority
and their admission to trading on the London Stock Exchange, no consent,
approval, authorisation, order, license, 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;
7. neither the execution nor the delivery of the Debt
Securities or the Indenture nor the consummation of any of the transactions
contemplated therein by GSK Capital plc or the Guarantor, as the case may be,
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
8. the choice of New York law to govern the Underwriting
Agreement, the
A-2-4
Indenture and the Debt Securities is, under the laws of England, a valid choice
of law.
The foregoing opinions are subject to the following:
(a) The opinions set forth above are subject to all limitations
resulting from the laws of bankruptcy, insolvency, liquidation, administration,
reorganization, suretyship or 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, or by a person subject to the laws of
a jurisdiction outside England, 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.
(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 which cannot be derogated from by contract or which are,
irrespective of the governing law of the contract, mandatory in the relevant
forum.
(e) 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.
(f) 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.
(g) 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.
(h) 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 Brussels Convention on Jurisdiction in Civil and
Commercial Matters of 1968 or the Lugano Convention on Jurisdiction in Civil and
Commercial Matters, 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.
(i) 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.
A-2-5
(j) Any provision providing 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.
(k) Any undertaking or indemnity may be void insofar as it relates
to stamp duty payable in the United Kingdom.
(l) An English court may refuse to give effect to any provision of
an agreement which 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.
(m) Any question as to whether or not any provision of any
agreement or instrument which 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.
(n) 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 which by its terms would
survive such judgment might not be held to do so.
(o) The effectiveness of terms exculpating a party from a
liability or duty otherwise owed is limited by law.
We express no opinion as to any agreement, instrument or other
document other than as specified in this letter, or as to any liability to tax
which may arise or be incurred as a result of or in connection with the Debt
Securities or their creation, issue, offer or any other transaction other than
as mentioned in paragraphs 1 to 8 above. 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 or the Prospectus relating to the issue of the Debt
Securities, or the entry into the Underwriting Agreement or the Indenture, nor
have we been responsible for ensuring that the Registration Statement and the
Prospectus and the documents incorporated by reference therein contain all
material facts. In particular, we have not been responsible for ensuring that
the Prospectus or any other document complies with the listing requirements of
the United Kingdom Listing Authority.
The opinions set out in paragraphs 1 to 8 of this opinion
letter are limited to the laws of England as currently applied by the courts in
England and is given on the basis that it will be governed by and construed in
accordance with English law. This opinion is also given on the basis that we
undertake no responsibility to notify any addressee of this opinion of any
change in English law after the date of this opinion.
A-2-6
We are furnishing this letter to you solely for your benefit
in your capacity as Representatives of the Underwriters and to the several
Underwriters in their capacity as Underwriters in connection with the issue of
the Debt Securities. This opinion letter is not to be used, circulated, quoted
or otherwise referred to for any other purpose.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By _______________________________
A-2-7
EXHIBIT B
FORM OF LETTER OF COUNSEL TO THE COMPANY AND THE GUARANTOR
[-]
[-]
as Representatives of the several Underwriters
c/o [-]
Ladies and Gentlemen:
We have acted as special United States and special English
counsel to GlaxoSmithKline Capital Inc., a Delaware corporation, GlaxoSmithKline
Capital plc, a public limited company incorporated in England and Wales ("GSK
Capital plc"), 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. 333-104121), of (i) guaranteed debt
securities of GSK Capital plc (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
when it became effective (except Exhibit 25.2), but excluding the documents
incorporated by reference therein, is herein called the "Registration
Statement," and the related prospectus dated [-] (the "Base Prospectus"), as
supplemented by the prospectus supplement dated [-] (the "Prospectus
Supplement"), as first filed with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b)(2) under the Securities Act of 1933, as
amended (the "Securities Act"), but excluding the documents incorporated by
reference therein, is herein called the "Prospectus." This letter is furnished
to you pursuant to Section 6(b) of the underwriting agreement dated [-] (the
"Underwriting Agreement") among GSK Capital plc, 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 and the Prospectus and the documents
incorporated by reference therein 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 or the Prospectus or the documents
incorporated by reference therein (except to the extent expressly set forth in
numbered paragraph 3 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).
However, in the course of our acting as special counsel to
each of GSK Capital plc and the Guarantor in connection with its preparation of
the Registration Statement and the Prospectus, we participated in conferences
and telephone conversations with representatives of each of GSK Capital plc and
the Guarantor, representatives of the independent public accountants for each of
GSK Capital plc and the Guarantor, your representatives and
B-1
representatives of your counsel, during which conferences and conversations the
contents of the Registration Statement and the Prospectus, portions of certain
of the documents incorporated by reference therein and related matters were
discussed, and we reviewed certain corporate records and documents furnished to
us by each of GSK Capital plc 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) No information has come to our attention that
causes us to believe that 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 Base Prospectus and the Prospectus Supplement
(in each case except as aforesaid), as of the date of the Base
Prospectus and the Prospectus Supplement, respectively, were not
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 other than Regulation S-T
under the Securities Act. 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 Prospectus that are not filed or
described as required.
(b) No information has come to our attention that
causes us to believe that the documents incorporated by reference in
the Registration Statement and the Prospectus (except the financial
statements and schedules and other financial and statistical data
included therein, as to which we express no view), as of the respective
dates of their filing with the Commission, were not 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
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 Prospectus, including the documents
incorporated by reference therein (except the financial statements and
schedules and other financial and statistical data included therein, as
to which we express no view), as of the date of the Prospectus
Supplement, 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
B-2
Act and, to the best of our knowledge, no stop order with respect thereto has
been issued, and no proceeding for that purpose has been instituted or
threatened, by the Commission.
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 used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By ___________________________________
B-3