EXHIBIT 1.3
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UNDERWRITING AGREEMENT
AMONG
GLAXOSMITHKLINE CAPITAL INC.
AS ISSUER
GLAXOSMITHKLINE PLC
AS GUARANTOR
AND
CITIGROUP GLOBAL MARKETS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
AS REPRESENTATIVES OF THE UNDERWRITERS
DATED AS OF MARCH 30, 2004
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TABLE OF CONTENTS
PAGE
1. Representations and Warranties....................................................... 2
2. Purchase and Sale.................................................................... 3
3. Delivery and Payment................................................................. 4
4. Offering by Underwriters............................................................. 4
5. Agreements........................................................................... 5
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.......................................................................... 14
11. Representations and Indemnities to Survive........................................... 14
12. Notices.............................................................................. 14
13. Successors........................................................................... 14
14. Applicable Law....................................................................... 14
15. Counterparts......................................................................... 15
16. Headings............................................................................. 15
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
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GLAXOSMITHKLINE CAPITAL INC.
4.375% NOTES DUE 2014
5.375% NOTES DUE 2034
FULLY AND UNCONDITIONALLY GUARANTEED BY
GLAXOSMITHKLINE PLC
UNDERWRITING AGREEMENT
March 30, 2004
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
as Representatives of the
several Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
GlaxoSmithKline Capital Inc., a corporation organized under
the laws of the State of Delaware (the "Company"), proposes to sell to the
several underwriters named in Schedule II hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, the principal amount
of its securities identified in Schedule I hereto (the "Securities"), to be
issued under an indenture dated as of April 6, 2004 (the "Indenture"), among the
Company, GlaxoSmithKline plc, as guarantor (the "Guarantor"), and 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
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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
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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.
(d) Organization of the Company and the Guarantor. The Company is
organized and validly existing as a corporation under the laws
of the State of Delaware, with power and authority to own its
properties and conduct its business as described in the
Prospectus. The Guarantor is organized and validly existing as
a public limited company under the laws of England and Wales,
with power and authority to own its properties and conduct its
business as described in the 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
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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 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 21 of 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.
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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.
(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.
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(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 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.
(i) Listing. The Company and the Guarantor will use reasonable
best efforts to have the Securities listed and admitted and
authorized for trading on the London Stock Exchange or another
"recognised stock exchange" (as defined in section 841 of the
Income and Corporation Taxes Act 1988), and satisfactory
evidence of such actions shall have been provided to the
Representatives.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
and the Guarantor contained herein as of the 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.
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(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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇ ▇▇▇▇▇ &Wood LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to
the Representatives, on behalf of the Underwriters, with
respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the 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,
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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 stating in effect, that:
(i) in their opinion the audited financial statements and
financial statement schedules, if any, included or
incorporated by reference in the Registration Statement 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; 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 December 31, 2003, 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 December
31, 2003, there were any changes (provided that the requested
information was available in response to such inquiry), at a
specified date not more than five days prior to the date of
the letter, in the long-term debt of the Guarantor and its
subsidiaries or capital stock of the Guarantor or decreases in
the equity shareholders' funds of the Guarantor as compared
with the amounts shown on the December 31, 2003 consolidated
balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, or for the period
from December 31, 2003 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
8
activities before taxation or in earnings (profit attributable
to shareholders) or per share amounts of earnings of the
Guarantor and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Guarantor as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by reference
in the Registration Statement 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.
The Representatives may in their sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters under this Agreement.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, 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 the Securities
was required to be delivered by such Underwriter under the Securities
Act
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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
11
parties except as set forth below); provided, however, that
such counsel shall be 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
12
Company and the Guarantor on the one hand or the Underwriters
on the other, the relative intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The
Company, the Guarantor and the Underwriters agree that it
would not be just and equitable if contribution were
determined by pro rata allocation or any other method of
allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person
who controls the Company or the Guarantor within the meaning
of either the Securities Act or the Exchange Act, each officer
of the Company or the Guarantor who shall have signed the
Registration Statement and each director of the Company or the
Guarantor shall have the same rights to contribution as the
Company or the Guarantor, as the case may be, subject in each
case to the applicable terms and conditions of this paragraph
(d).
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
13
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
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, (i) if sent to the Representatives,
shall be mailed, delivered or telefaxed to Citigroup Global Markets Inc. at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, attention:
Syndicate Desk; ▇.▇. ▇▇▇▇▇▇ Securities Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, attention: Investment Grade Syndicate
Desk, 8th Floor, and ▇▇▇▇▇▇ Brothers Inc. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, attention: Fixed Income Syndicate, with a
copy to the General Counsel at the same address; or, (ii) if sent to the Company
or the Guarantor, shall be mailed, delivered or telefaxed to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, facsimile: ▇▇ (▇▇) ▇▇▇▇-▇▇▇▇,
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.
14
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
15
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 INC.
By: /s/ ▇-▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
--------------------------------
Name: ▇-▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Group Treasurer
GLAXOSMITHKLINE PLC
By: /s/ ▇-▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
---------------------------------
Name: ▇-▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Group Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
▇▇▇▇▇▇ Brothers Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
For themselves and the other several Underwriters, if any,
named in Schedule II to the foregoing Agreement.
SCHEDULE I
TERMS OF THE SECURITIES
Underwriting Agreement dated March 30, 2004.
Registration Statement No. 333-104121.
Representatives: Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
Title, Purchase Price and Description of Securities:
Title: 4.375% Notes due 2014 ("2014 Notes")
5.375% Notes due 2034 ("2034 Notes")
Principal amount: $1,500,000,000 of 2014 Notes
$ 500,000,000 of 2034 Notes
Purchase price (include accrued
interest or amortization, if
any): $1,481,820,000 - 2014 Notes
486,985,000 - 2034 Notes
--------------
$1,968,805,000 - Total purchase price
Sinking fund provisions: Not applicable.
Redemption provisions: As described in the applicable prospectus
supplement referred to in this Agreement.
Other provisions: As described in the applicable prospectus supplement
referred to in this Agreement.
Closing Date, Time and Location: April 6, 2004 at 10:00 a.m., simultaneously, at
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇
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: April 6, 2004.
SCHEDULE II
UNDERWRITING COMMITMENTS
Principal Amount of Principal Amount of
2014 Notes to be 2034 Notes to be
Underwriters Purchased Purchased
------------ --------- ---------
Citigroup Global Markets Inc. ............... $ 430,000,000 $ 143,334,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. ................. 430,000,000 143,333,000
▇▇▇▇▇▇ Brothers Inc. ........................ 430,000,000 143,333,000
Credit Suisse First Boston LLC .............. 75,000,000 25,000,000
Deutsche Bank Securities Inc. ............... 75,000,000 25,000,000
ABN AMRO Incorporated ....................... 15,000,000 5,000,000
HSBC Securities (USA) Inc. .................. 15,000,000 5,000,000
Mizuho International plc .................... 15,000,000 5,000,000
Royal Bank of Scotland plc .................. 15,000,000 5,000,000
-------------- --------------
Total .................................. $1,500,000,000 $ 500,000,000
============== ==============