ASTRAZENECA PLC Debt Securities FORM OF UNDERWRITING AGREEMENT
Exhibit 1.1
Debt Securities
FORM
OF UNDERWRITING AGREEMENT
[ ],[ ]
To the representatives of the several Underwriters
named from time to time in Schedule I to the applicable
Pricing Agreement
named from time to time in Schedule I to the applicable
Pricing Agreement
Ladies and Gentlemen:
From time to time AstraZeneca PLC, a company organized under the laws of England (the
“Company”), proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”)
substantially in the form of Annex I hereto, with such additions and deletions as the parties
thereto may determine, and subject to the terms and conditions stated herein, to issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement and the securities specified therein),
certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the “Designated Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and pursuant to the Indenture, dated as of April 1, 2004
(the “Indenture”), between the Company and The Bank of New York (as successor trustee to JPMorgan
Chase Bank) (the “Trustee”).
This Agreement supersedes all prior agreements and understanding (whether written or oral)
between the Company and the Underwriters, or any Underwriter, with respect to the subject matter
hereof.
1. Particular sales of Designated Securities may be made from time to time to the Underwriters
of such Securities, for whom the firm(s) designated as representative(s) of the Underwriters of
such securities in the Pricing Agreement relating thereto will act as
representatives (the “Representatives”). The term “Representatives” also refers to the firm(s)
acting as representative(s) of the Underwriters and to Underwriters who act without any firm being
designated as their representative. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities,
the initial public offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set forth the date, time and
manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall
be in the form of an executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic or electronic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) The registration statement on Form F-3 (Registration No. 333-[ ]) in respect of the
Securities has been filed with the Securities and Exchange Commission (the “Commission”);
such registration statement and any amendments thereto filed prior to the date of the
applicable Pricing Agreement, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus contained therein,
became effective on filing with the Commission in such form; the base prospectus filed as
part of such registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of the applicable Pricing Agreement, is
hereafter called the “Basic Prospectus”; any preliminary prospectus relating to the
Designated Securities (including any preliminary prospectus supplement) included in such
registration statement or filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of l933, as amended (the “Act”),
being hereinafter called a “Preliminary Prospectus”; the various parts of such registration
statement, including all exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statement, at the time such parts became
effective, but excluding Form T-1 and including any prospectus supplement relating to the
Designated Securities that is filed with the Commission and deemed by virtue of Rule 430B
under the Act to be part of such registration statement, each as amended at the time such
part of the registration statement became effective being hereinafter called the
“Registration Statement”; “Applicable Time” is the time specified as such in the applicable
Pricing Agreement; “Effective Date” shall mean each date and time that the Registration
Statement and any post-effective amendments or amendments thereto became or becomes
effective; any
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reference herein to the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 6 of Form F-3 under the Act, as of the date of such Basic Prospectus, any
Preliminary Prospectus or Prospectus, as the case may be, and any post-effective amendments
to the Registration Statement; any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Basic Prospectus, any Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and incorporated by reference in such Basic Prospectus, any
Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective
Date of the Registration Statement that is incorporated by reference in the Registration
Statement; the Basic Prospectus, as supplemented by the prospectus supplement specifically
relating to the Designated Securities filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any documents incorporated
by reference therein as of the date of such filing, is hereinafter called the “Prospectus”;
and no stop order suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the Commission and no
order preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus,
the Prospectus or the Pricing Disclosure Package (as defined below) together with any
“issuer free writing prospectus” as defined in Rule 433 under the Act relating to the
Designated Securities (an “Issuer Free Writing Prospectus”) has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission;
(b) The documents incorporated by reference in the Pricing Disclosure Package and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the applicable rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Pricing Disclosure Package
or the Prospectus or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Pricing Disclosure Package or the
Prospectus as amended or supplemented, as the case may be, relating to such Securities; and
no such documents will have been filed with the Commission following the Commission’s close
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of business on the business day immediately prior to the date of the applicable Pricing
Agreement and prior to the execution of the applicable Pricing Agreement, except as set
forth on Schedule III to the applicable Pricing Agreement;
(c) The Registration Statement and the Prospectus conform, and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects, to the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), and the rules and regulations of the Commission
thereunder; the Registration Statement and any amendment thereto do not and will not, as of
the applicable Effective Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements
therein, not misleading; and the Prospectus and any amendment or supplement thereto do not
and will not, as of its date and as of the Time of Delivery, contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were made
not misleading; provided, however, that this representation and warranty
shall not apply to (i) any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the Registration Statement or
the Prospectus as amended or supplemented relating to such Securities or (ii) that part of
the Registration Statement which shall constitute the statement of eligibility and
qualification (Form T-1) under the Trust Indenture Act;
(d) The (i) Basic Prospectus, the Preliminary Prospectus, if any, used most recently
prior to the Applicable Time, as supplemented by the final term sheet prepared and filed
pursuant to Section 5(a) hereof as of the Applicable Time and listed on Schedule IV to the
applicable Pricing Agreement together with the Issuer Free Writing Prospectus listed in
Schedule III (if any) to the applicable Pricing Agreement and any other free writing
prospectus that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Pricing Disclosure Package (collectively, the “Pricing Disclosure Package”) and
(ii) each electronic road show, if any, when taken together as a whole with the Pricing
Disclosure Package, will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule III (if any) to the applicable Pricing Agreement will not
conflict with the information contained in the Registration Statement, the Basic Prospectus,
the Preliminary Prospectus, if any, used most recently prior to the Applicable Time or the
Prospectus; provided, however, that this representation and warranty shall
not apply to (i) any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in any such Issuer Free Writing Prospectus or
the Pricing Disclosure Package or (ii) that part of the Registration Statement which shall
constitute the statement of eligibility and qualification (Form T-1) under the Trust
Indenture Act;
(e) The Company is not or will not be at the time of the Pricing Agreement, an
“ineligible issuer,” as defined in Rule 405 under the Act;
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(f) The consolidated financial statements (and the notes thereto) and schedules, if
any, of the Company incorporated by reference in or filed with and as a part of the
Registration Statement, the Pricing Disclosure Package and the Prospectus present fairly, in
all material respects, the consolidated financial position as of the respective dates and
the consolidated results of operations and cash flows for the respective periods covered
thereby of the Company in conformity with applicable generally accepted accounting
principles applied on a consistent basis throughout the periods involved;
(g) Since the latest date as of which information is given in the Pricing Disclosure
Package there has not been any material change in the consolidated shareholders’ equity or
consolidated long-term debt of the Company and its subsidiaries taken as a whole, or any
material adverse change, or any development reasonably likely to result in a prospective
material adverse change in or affecting the financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth in the Pricing Disclosure Package;
(h) To the best of the Company’s knowledge, after due inquiry, and other than as set
forth in the Pricing Disclosure Package and the Prospectus, there are no material legal or
governmental or regulatory proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject that are required to be described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus and are not so described and there are no
statutes or regulations that are required to be described in the Registration Statement, the
Pricing Disclosure Package or the Prospectus and are not so described;
(i) The Designated Securities have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and paid for by the
Underwriters, will constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indenture; the Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and delivery thereof
by the Trustee), constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to the effects of applicable bankruptcy, insolvency and
similar laws affecting the enforcement of creditors’ rights generally and equitable
principles of general applicability; the Indenture has been duly qualified under the Trust
Indenture Act; and the Designated Securities conform in all material respects to the
description thereof contained in the Pricing Disclosure Package and the Prospectus as
amended or supplemented.
(j) The issue and sale of the Designated Securities and the compliance by the Company
with the Indenture, this Agreement and the Pricing Agreement relating to the Designated
Securities and the consummation by the Company of the transactions contemplated herein and
therein will not contravene (x) any of the terms or provisions of any indenture, mortgage,
deed of trust, loan agreement or other similar agreement or instrument to which the Company
is a party or by which the Company is bound, or (y) any statute of the United Kingdom or any
political subdivision thereof, or any order, rule or regulation known to the Company of any
court or of any governmental agency or body in the United States or the United Kingdom or
any political subdivision thereof, except in
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the case of clauses (x) and (y) above for such contraventions which would not affect
the validity or binding nature of the Designated Securities or have a material adverse
effect on the financial position, shareholders’ equity or results of operations of the
Company and its consolidated subsidiaries considered as a whole;
(k) No consent, approval, authorization, order, registration or qualification of or
with any court or any governmental agency or body described in (j) above is required for the
issue and sale of the Designated Securities by the Company in the manner contemplated herein
or the consummation of the other transactions contemplated by this Agreement, the Pricing
Agreement or the Indenture except as may be required by the Securities or Blue Sky laws of
the various states in connection with the offer and sale of the Designated Securities;
(l) The Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Pricing
Disclosure Package and the Prospectus will not be, required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended;
(m) KPMG Audit Plc, which has certified certain financial statements of the Company and
its subsidiaries, and has audited the Company’s internal control over financial reporting
and management’s assessment thereof, is an independent registered public accounting firm
with respect to the Company as required by the Act and the applicable rules and regulations
of the Commission thereunder;
(n) The Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective;
(o) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
and in compliance with, in all material respects, the money laundering statutes and the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”), insofar as they apply, and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, threatened; and
(p) Except as otherwise disclosed in the Company’s Annual Report on Form 20-F for the
most recently completed fiscal year, neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture
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partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of such Designated Securities, the several
Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours’ prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account of such Underwriter
at the office of Xxxxx Xxxx & Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx, against payment by such
Underwriter or on its behalf of the purchase price therefor in same day funds, payable to the order
of the Company in the funds specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as the Representatives
and the Company may agree upon in writing, such time and date being herein called the “Time of
Delivery” for such Securities. The Securities will be delivered by the Company to the
Representatives in the form of one or more global Securities, representing all of the Securities,
which will be registered in the name of a nominee for The Depository Trust Company (“DTC”) and
deposited on behalf of the Underwriters with Cede & Co. as custodian for DTC, for credit to the
respective participant accounts of the Underwriters unless otherwise directed by you. Such global
Securities will be made available for checking at least twenty-four hours prior to the Time of
Delivery through the facilities of DTC.
5. The Company agrees with each of the Underwriters of any Designated Securities:
(a) To prepare in consultation with the Representatives the Prospectus, as amended and
supplemented in relation to the applicable Designated Securities, in a form approved by the
Representatives, which approval the Representatives agree they will not unreasonably
withhold, and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission’s close of business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement, the Pricing Disclosure Package or
Prospectus (as each may have been amended or supplemented) after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery without prior
consultation with the Representatives for such Securities; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; if requested by you prior to the Applicable Time, to
prepare a final term sheet, containing solely a description of the Designated Securities, in
a form substantially as set forth in Schedule V to the applicable Pricing Agreement and
which shall be attached to the applicable Pricing Agreement and approved by the
Representatives, and to file such term sheet pursuant to Rule 433(d) under the Act within
the time required by such Rule; to file promptly all
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other material required to be filed by the Company with the Commission pursuant to Rule
433(d) under the Act; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus
(or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of such Designated Securities, and during such same
period to advise the Representatives, promptly after the Company receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any prospectus relating to
the Securities or suspending any such qualification, to use promptly its reasonable best
efforts to obtain its withdrawal;
(b) Promptly from time to time to use its reasonable best efforts to qualify such
Securities for offering and sale under the securities laws of such jurisdictions as the
Representatives may reasonably request and to pay all expenses (including reasonable fees
and disbursements of counsel) in connection with such qualification and in connection with
the determination of the eligibility of such Securities for investment under the laws of
such jurisdictions as the Representatives may designate and to comply with such laws so as
to permit the continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Securities; provided,
however, that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process in any
jurisdiction or to take any other action which would subject it to service of process in
suits in any jurisdiction or to become subject to taxation in any jurisdiction other than
those arising out of the offering or sale of the Designated Securities in such jurisdiction;
(c) To furnish the Underwriters, without charge, with a copy of the Registration
Statement, with copies of the Prospectus as amended or supplemented, including the exhibits
and materials, if any, incorporated by reference therein, in such quantities as the
Representatives may from time to time reasonably request, and, if the delivery of a
prospectus is required (or, in lieu thereof, the notice referred to in Rule 173(a) under the
Act) at any time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Designated Securities and if at
such time any event shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus (or, in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for
any other reason it shall be necessary during such
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same period to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; provided,
however, if any Underwriter is required to deliver a prospectus in connection with
sales of any of the Designated Securities at any time nine months or more after the time of
issue of the Prospectus, upon their request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as the Representatives may request of
an amended or supplemented Prospectus complying with Section 10(a) (3) of the Act;
(d) To make generally available to the Company’s security holders and to the
Representatives as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement for such
Designated Securities and continuing to and including the earlier of (i) the termination of
trading restrictions for such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are denominated in U.S.
dollars and substantially similar to such Designated Securities, without the prior written
consent of the Representatives, which consent shall not be unreasonably withheld.
6. (a) Each Underwriter represents and agrees that it shall not use, refer to or
distribute any “free writing prospectus” (as defined in Rule 405 under the Act, a “Free
Writing Prospectus”) except:
(i) a Free Writing Prospectus that (1) is not an Issuer Free Writing
Prospectus, and (2) contains only information describing the preliminary terms of
the Securities or their offering or otherwise permitted under Rule 134 under the
Act;
(ii) a Free Writing Prospectus as shall be agreed in writing with the Company
that is not distributed, used or referenced by such Underwriter in a manner
reasonably designed to lead to its broad unrestricted dissemination (including any
electronic road show) unless the Company consents to such dissemination and such
Free Writing Prospectus is listed on Schedule VI to the applicable Pricing
Agreement; provided that an Underwriters’ internal
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communications with its own sales force shall not be covered by this clause
(ii); and
(b) Notwithstanding Section 6(a) above, the Company hereby agrees that the Underwriters
may distribute to investors one or more Free Writing Prospectus that contain only the final
terms of the Securities (including, for the avoidance of doubt, in the format of Bloomberg
communications) substantially in the form set forth in Schedule V to the applicable Pricing
Agreement and that such Free Writing Prospectus substantially in the form set forth in
Schedule V to the applicable Pricing Agreement will be filed by the Company in accordance
with Rule 433(d) under the Act and shall be considered an Issuer Free Writing Prospectus for
purposes of this Agreement.
(c) The Company agrees that, unless it has obtained or will obtain the prior written
consent of the Representatives, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be
filed by the Company with the Commission or retained by the Company under Rule 433 under the
Act, provided that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the free writing prospectus included in Schedule III to the
applicable Pricing Agreement. Any such free writing prospectus consented to by the
Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company agrees that (i) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus (including the final terms of the Securities as set forth in
Schedule V to the applicable Pricing Agreement) as an Issuer Free Writing Prospectus and
(ii) it has complied and will comply, as the case may be, with the requirements of Rules 164
and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping.
(d) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing
Prospectus would conflict with the information in the Registration Statement, the Pricing
Disclosure Package or the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives, will prepare
and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) except as provided in the proviso contained in Section 5(c)
hereof, the fees, disbursements and expenses of counsel and accountants of the Company in
connection with the registration of the Designated Securities
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under the Act and the qualification of any indenture related to the Designated Securities
under the Trust Indenture Act and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus and amendments and supplements thereto, the Pricing Disclosure Package and any Issuer
Free Writing Prospectus and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement,
the Pricing Disclosure Package, any indenture related to the Designated Securities, any Blue Sky
and legal investment memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees, disbursements and expenses of
counsel for the Underwriters in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating
the Designated Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Designated Securities; (vi)
the cost of preparing the Securities and of the delivery of the Designated Securities to the
Underwriters; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements of counsel for any Trustee in connection with any Indenture and the Securities;
and (viii) except as provided in the proviso contained in Section 5(c) hereof all reasonable other
costs and expenses incident to the performance of their obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 9 and Section 13 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the
Designated Securities by them, and any advertising expenses connected with any offers they may
make.
8. The obligations of the Underwriters of any Designated Securities under the Pricing
Agreement relating to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and other statements of
the Company in or incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct
in all material respects, the condition that the Company shall have performed all, of its
obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The final term sheet contemplated by Section 5(a) hereof in relation to the
applicable Designated Securities, and any other material required to be filed pursuant to
Rule 433 under the Act in relation to the applicable Designated Securities shall have been
filed within the applicable time period prescribed for such filings by Rule 433 under the
Act and the Prospectus as amended or supplemented in relation to the applicable Designated
Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission and no order suspending or
preventing the use of the Basic Prospectus, any Preliminary Prospectus, any documents which
are part of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no
11
proceeding for that purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the Commission shall have been
complied with to the Representatives’ reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the validity of the Indenture, the Designated
Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus as
amended or supplemented and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters (such counsel being entitled to
state that they have assumed that any document referred to in their opinion and executed by
the Company has been duly authorized, executed and delivered pursuant to English law and, as
to all matters of English law, their opinion is given in reliance upon, and is subject to
the qualifications set forth in, the opinion of counsel for the Company required by
subsection (c) of this Section 8);
(c) Counsel for the Company shall have furnished to the Representatives a written
opinion, dated the Time of Delivery for such Designated Securities, in form and substance
reasonably satisfactory to the Representatives (such counsel being entitled to state that
such counsel has made no investigation of the laws of any country other than England and
that such counsel’s opinion is confined to matters of English law and, as to all matters
governed by the laws of the United States and the State of New York, such opinion is given
in reliance upon, and is subject to the qualifications set forth in, the opinion required by
subsection (e) of this Section 8), substantially to the effect that:
(i) The Company has been duly incorporated in Great Britain under the Companies
Xxx 0000, as amended, and is registered in England and Wales as a public limited
company, with the requisite power and authority to own its properties and assets and
conduct its business as described in the Prospectus Supplement and the Registration
Statement;
(ii) The Company search revealed no order or resolution for the winding up of
the Company or any of its material subsidiaries (AstraZeneca UK Limited and
AstraZeneca Treasury Limited) and revealed no notice of appointment in respect of
the Company, AstraZeneca UK Limited or AstraZeneca Treasury Limited of a liquidator,
receiver, administrative receiver or administrator and our winding up enquiry has
confirmed that no petition for the winding up of the Company, AstraZeneca UK Limited
or AstraZeneca Treasury Limited has been presented within the period covered by such
enquiries;
(iii) This Agreement and the applicable Pricing Agreement have been duly
authorized, executed and delivered by the Company and the consent to service of
process contained in Section 17 of this Agreement is a valid and binding agreement
of the Company;
12
(iv) The issue, sale and delivery of the Designated Securities and the
compliance by the Company with all of the provisions of the Indenture, this
Agreement and the Pricing Agreement relating to the Designated Securities and the
consummation by the Company of the transactions contemplated herein and therein will
not contravene (x) the provisions of the Company’s Memorandum and Articles of
Association, or (y) any law, order, rule or regulation the Company having the force
of law in England and applicable to the Company;
(v) No consent, license, approval or authorization of any governmental or other
agency or body described in the United Kingdom is required for the issue and sale of
the Designated Securities by the Company in the manner contemplated herein or the
consummation of the other transactions contemplated by this Agreement , the Pricing
Agreement or the Indenture;
(vi) The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company; no taxes or
recording fees are required to be paid in the United Kingdom with respect to the
execution of the Indenture; and
(vii) The statements in the Basic Prospectus and the Prospectus set forth in
the last sentence under the caption “Enforceability of Certain Civil Liabilities”
and contained under the caption “Certain UK and US Federal Tax Considerations—United
Kingdom Taxation” with respect to matters of English law are true and correct in all
material respects.
In giving the opinion set forth in subparagraphs (iii), (iv), (v), and (vi) of this subsection
(c), such counsel may state that in the case of default by the Company in the performance of its
obligations under this Agreement or any other agreement referred to in such opinion, any
proceedings in an English court to pursue remedies would be subject to the following: (a) a
judgment rendered by a court outside the United Kingdom would not be enforced by the English courts
without a retrial or re-examination if such judgment was obtained by fraud or in a manner opposed
to natural justice or if the enforcement thereof were contrary to United Kingdom public policy; and
(b) in any proceedings to enforce in an English court a foreign judgment it is open to the
defendant to raise any counterclaim which he could have brought if the action had originally been
brought in England unless the subject of the counterclaim was in issue and decided in the foreign
proceedings; and in giving the opinion in subparagraph (vii) above, such counsel may assume that
the Designated Securities conform to the specimen thereof examined by such counsel.
(d) The Solicitor for the Company shall have furnished to the Representatives a written
opinion, dated the Time of Delivery for such Designated Securities, in form and substance
reasonably satisfactory to the Representatives (such Solicitor being entitled to state that
he has made no investigation of the laws of any country other than England and that his
opinion is confined to matters of English law and, as to all matters governed by the laws of
the United States and the State of New York, such opinion is given in reliance upon, and is
subject to the qualifications set forth in, the opinion required by subsection (e) of this
Section 8), substantially to the effect that:
13
(i) Other than as set forth in the Pricing Disclosure Package and the
Prospectus, to the best of such Solicitor’s knowledge, after due inquiry, there are
no material legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject that are required to be described
in the Registration Statement, the Pricing Disclosure Package or the Prospectus and
are not so described and there are no statutes or regulations that are required to
be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus and are not so described; and
(ii) The issue and sale of the Designated Securities and the compliance by the
Company with all of the provisions of the Indenture, this Agreement and the Pricing
Agreement relating to the Designated Securities and the consummation by the Company
of the transactions contemplated herein and therein will not contravene any of the
terms or provisions of any indenture, mortgage, deed of trust, loan agreement or
other similar agreement or instrument known to such Solicitor to which the Company
is a party or by which the Company is bound, except for such contraventions which
would not affect the validity or binding nature of the Designated Securities or have
a material adverse effect on the financial position, shareholders’ equity or results
of operations of the Company and its consolidated subsidiaries considered as a
whole.
(e) Xxxxx Xxxx & Xxxxxxxx, United States counsel for the Company, shall have furnished
to the Representatives their written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance reasonably satisfactory to the Representatives (such
counsel being entitled to state that they have assumed that any document referred to in
their opinion and executed by the Company has been duly authorized, executed and delivered
pursuant to English law and, as to all matters governed by the laws of England, their
opinion is given in reliance upon, and is subject to the same qualifications set forth in,
the opinion required by subsection (c) of this Section 8), substantially to the effect that:
(i) This Agreement and the Pricing Agreement relating to the Designated
Securities have been duly authorized, executed and delivered by the Company;
(ii) The Designated Securities, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement and the Pricing Agreement, will be valid
and binding obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally and equitable principles of general applicability, and will be
entitled to the benefits provided by the Indenture, provided that such counsel
expresses no opinion as to the enforceability of any waiver of rights under any
usury or stay law; the Indenture has been duly executed and delivered by the Company
and assuming that the Indenture has been duly authorized, executed and delivered by
the Trustee the
14
Indenture constitutes a valid and binding agreement of the Company, enforceable
in accordance with its terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability; provided that such counsel expresses no opinion as to the
enforceability of any waiver of rights under any usury or stay law; the Indenture
has been qualified under the Trust Indenture Act and the rules and regulations
thereunder; no taxes or recording fees are required to be paid in the United States
with respect to the issuance of the Designated Securities in the manner contemplated
herein, except such as have been paid;
(iii) The statements included in the Basic Prospectus and the Prospectus under
the captions “Description of Debt Securities” and “Description of Notes”,
respectively, insofar as they summarize provisions of the Indenture and the
Designated Securities, fairly summarize these provisions in all material respects.
(iv) The issue and sale of the Designated Securities and the compliance by the
Company with all of the provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing Agreement relating to the Designated Securities and the
consummation by the Company of the transactions herein and therein contemplated will
not contravene any provision of United States federal or New York State law that in
such counsel’s experience is normally applicable to transactions of the type
contemplated by this Agreement or the Pricing Agreement, except for such
contraventions which would not affect the validity or binding nature of the
Designated Securities or have a material adverse effect on the financial position,
shareholders’ equity or results of operations of the Company and its consolidated
subsidiaries considered as a whole;
(v) No consent, approval, authorization or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any federal
law of the United States that in such counsel’s experience is normally applicable to
companies such as the Company in relation to transactions of the type contemplated
by this Agreement, the Pricing Agreement, the Indenture or the Designated Securities
is required for the performance by the Company of its obligations under such
documents, except such as have been obtained and such as may be required under state
securities or Blue Sky laws;
(vi) The Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended;
(vii) The documents incorporated by reference in the Pricing Disclosure Package
and Prospectus (except as to the financial statements and supporting schedules
included or incorporated by reference therein or other financial data included or
incorporated by reference therein as to which such counsel need express no opinion),
when they were filed with the Commission, appeared to be
15
appropriately responsive in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations thereunder; and
(viii) (1) Such counsel is of the opinion that the Registration Statement as
amended, at the time it became effective, the Pricing Disclosure Package and the
Prospectus as amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the Designated
Securities (except as to the financial statements and supporting schedules included
or incorporated by reference therein, other financial data included or incorporated
by reference therein), and except for that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-l) of the
Trustee) appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and (2) nothing has come to such counsel’s attention that
causes them to believe that insofar as relevant to the offering of the Designated
Securities (except as to the financial statements and supporting schedules included
or incorporated by reference therein, other financial data included or incorporated
by reference therein, as to which such counsel need express no opinion, and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-l) of the Trustee), (a) the Registration
Statement (including the documents incorporated by reference therein), as of the
date of the Pricing Agreement, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (b) the Pricing Disclosure Package, as of the
Applicable Time, contained or contains any 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, or (c) the Prospectus, as of its date and as of the Time of Delivery,
contained or contains any 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 in which they were made, not misleading.
In giving the opinions set forth in subparagraphs (vii) and (viii) of this subsection (e) such
counsel may state that such opinion is based on their participation in the preparation of the
Registration Statement, the Pricing Disclosure Package and the Prospectus and a review of the
contents thereof but without independent check or verification except for the matters referred to
in subparagraph (iii) of this subsection (e). Such opinion may also state that it is confined to
matters of the laws of the United States of America and the State of New York as of the date of the
opinion. Such opinion may also state that such counsel expresses no opinion or belief as to (x)
the statements of English law or descriptions of legislation referred to in subparagraph (vii) of
paragraph (c) of this Section 8, (y) the conveyance of the Pricing Disclosure Package or the
information contained therein to investors or (z) the due incorporation of, and valid, binding and
enforceable, execution of the Indenture by the Trustee;
(f) On the date of the applicable Pricing Agreement and at the Time of Delivery for
such Designated Securities, KPMG Audit Plc, the independent accountants
16
of the Company who have certified the financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives a letter or letters, dated as of each
such date and in form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus as amended or supplemented and as
to such other matters as the Representatives may reasonably request;
(g) In the event that financial statements of MedImmune, Inc. are required by any
applicable law or regulation to be included in the Registration Statement any Preliminary
Prospectus, the Prospectus or the Pricing Disclosure Package, then on the date of the
applicable Pricing Agreement, PricewaterhouseCoopers LLP, the former independent accountants
of MedImmune, Inc. who have certified the financial statements of MedImmune, Inc. and its
consolidated subsidiaries included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives a letter or letters, dated as of each
such date and in form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus as amended or supplemented and as
to such other matters as the Representatives may reasonably request; and
(h) The Company shall have furnished or caused to be furnished to the Representatives a
certificate or certificates, dated the Time of Delivery for the Designated Securities, of
officers of the Company satisfactory to the Representatives as to the accuracy of the
representations and warranties in all material respects of the Company in this Agreement and
the Pricing Agreement at and as of the Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed prior to such Time of Delivery,
and as to the matters set forth in Sections 8(a) and 12(i) hereof.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, the Pricing Disclosure Package,
any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Act, including the information in the final term sheet filed in
accordance with Section 5(a) of this Agreement and any other prospectus relating to the Securities,
or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
17
claim, damage or liability arises out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, the
Pricing Disclosure Package, any Issuer Free Writing Prospectus and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, the Pricing Disclosure Package, or any Issuer Free Writing
Prospectus and any other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, the Pricing Disclosure Package, or any Issuer Free Writing Prospectus and any other
prospectus relating to the Securities, or any amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will, reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action (including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying party under such
subsection, promptly notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. It is understood that the indemnifying party shall not, in connection with
any action or related actions in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. The indemnifying party
shall not be liable for any settlement of any
18
action effected without its written consent but if settled with such consent, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or liability by reason of
such settlement.
(d) To the extent that the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other from the offering of the
Designated Securities to which loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each case as set forth in
the table on the cover page of the Prospectus as amended and supplemented. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect to such Securities
and not joint.
19
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and to the Underwriters’
affiliates, directors and officers; and the obligations of the Underwriters under this Section 9
shall be in addition to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director of the Company, the
duly authorized representative of the Company in the United States, and to each person, if any, who
controls the Company within the meaning of the Act or the Exchange Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Designated
Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves or another party or
other parties to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties reasonably satisfactory to
the Representatives to purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that the Representatives
have so arranged for the purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities
of a defaulting Underwriter or Underwriters by the Representatives, the Company as provided in
subsection (a) above, the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Designated Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of
the Designated Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities
of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of the Designated Securities
20
which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Securities shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements
in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company, the duly authorized
representative of the Company in the United States or any officer or director or controlling person
of the Company, and shall survive delivery of and payment for the Designated Securities.
12. Any Pricing Agreement shall be subject to termination in the absolute discretion of the
Representatives, after consultation with the Company, if, since the respective dates as of which
information is given in the Pricing Disclosure Package in the case of clause (i) below, or
subsequent to the Applicable Time and prior to the Time of Delivery of the Designated Securities,
in the case of clauses (ii) through (vii) below, (i) there shall have been a material adverse
change, or any development which in the reasonable judgment of the Company will result in a
material adverse change, in the business, properties or financial condition of the Company and its
consolidated subsidiaries considered as a whole, otherwise than as set forth or contemplated in the
Pricing Disclosure Package; (ii) there shall have occurred a downgrading in the rating accorded the
Company’s senior debt securities by Xxxxx’x Investor Services, Inc. (“Moody’s”) or Standard &
Poor’s Corporation (“S&P”) or, in the event that the Company’s senior debt securities are not rated
by either Moody’s or S&P, by another “nationally recognized statistical rating organization” as
such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act; (iii) no such
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with respect to, its rating of the Securities or of any other senior debt securities or
preferred stock of or guaranteed by the Company (other than an announcement with positive
implications of a possible upgrading); (iv) there shall have been a change or development involving
a prospective change in United States or United Kingdom taxation affecting the Designated
Securities or the imposition of exchange controls by the United States or the United Kingdom
affecting the Designated Securities, otherwise than as set forth or contemplated in the Pricing
Disclosure Package; (v) trading in securities generally on the New York Stock Exchange or the
London Stock Exchange or any other exchange where the Designated Securities are listed or intended
to be listed shall have been suspended or materially limited; (vi) a general moratorium on
commercial banking activities in the State of New York shall have been declared by either Federal
or New York State authorities or a general moratorium on commercial banking activities in the
United Kingdom shall have been declared by authorities in the United Kingdom; (vii) there shall
have occurred the outbreak or escalation of hostilities involving the United States or the United
Kingdom or the declaration by the United States or the United Kingdom of a national
21
emergency or war; or (viii) there shall have occurred any change in financial markets or other
national or international calamity or crisis of such magnitude and severity in its effect on the
financial markets, as, in any such case described in clauses (i) through (viii) above, in the
judgment of the Representatives, after consultation with the Company, to make it impracticable to
proceed with the public offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Pricing Disclosure Package and the Prospectus, as amended or
supplemented relating to such Securities.
13. If any Pricing Agreement shall be terminated by the Underwriters of the Designated
Securities pursuant to clause (i) of Section 12 hereof or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the conditions of the Pricing
Agreement, or if for any reason the Company shall be unable to perform its obligations under the
Pricing Agreement, the Company will reimburse the Underwriters of such Securities for all
out-of-pocket expenses (including the fees and disbursements of counsel) reasonably incurred by the
Underwriters in connection with the Designated Securities.
Notwithstanding the termination of any Pricing Agreement the provisions of Section 9, 10 and
11 hereof shall remain in effect.
14. In all dealings hereunder, the Representatives of the Underwriters of Designated
Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission as directed in the
applicable Pricing Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to its address set forth in the Registration Statement, Attention:
Secretary, or such other address as the Company shall notify in writing to the Representatives;
provided, however, that any notice to an Underwriter of Designated Securities
pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
15. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in Section 9 and Section 11
hereof, the officers and directors of the Company and each person who controls the Company or any
Underwriter and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Designated Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
16. The Company acknowledges and agrees that (i) the purchase and sale of any Designated
Securities pursuant to this Agreement is an arm’s-length commercial transaction
22
between the Company, on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each Underwriter is acting
solely as principal and not as an agent or fiduciary of the Company, (iii) no Underwriter has
assumed an advisory or fiduciary responsibility in favor of the Company with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the
Company has consulted its own legal and financial advisors to the extent it deemed appropriate.
The Company agrees that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
17. The Company hereby appoints CT Corporation System, 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent (the “Authorized Agent”) upon which process
may be served in any action based on this Agreement which may be instituted in any State or Federal
court in The City, County and State of New York by any Underwriter and expressly accepts the
jurisdiction of any such court in respect of such action. Such appointment shall be irrevocable so
long as any of the Designated Securities remain outstanding unless and until a successor Authorized
Agent shall be appointed and such successor shall accept such appointment. The Company will take
any and all action, including the filing of any and all documents and instruments, that may be
necessary to continue such appointment or appointments in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service to the Company
(mailed or delivered as aforesaid) shall be deemed, in every respect, effective service of process
upon the Company. Notwithstanding the foregoing, any action based on this Agreement or any Pricing
Agreement may be instituted by any Underwriter against the Company in any competent court in the
United Kingdom.
18. Time shall be of the essence of each Pricing Agreement. As used herein, the term “business
day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
19. This Agreement and each Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
20. This Agreement and each Pricing Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and the same
instrument.
23
ANNEX I
Pricing Agreement
[Name(s) of Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
As Representatives of the several
Underwriters named in Schedule I hereto,
Ladies and Gentlemen:
AstraZeneca PLC (the “Company”) proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement dated [ ], 2007 a copy of which is attached
hereto as Annex A (the “Underwriting Agreement”), to issue and sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the
“Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers to the Basic
Prospectus, Pricing Disclosure Package or the Prospectus in Section 2 of the Underwriting Agreement
shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in
relation to the Basic Prospectus (as defined therein) as amended or supplemented as of the date of
the Underwriting Agreement and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Basic Prospectus, Pricing Disclosure Package or the Prospectus, as
amended or supplemented, relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein
defined. The Representatives designated to act on behalf of the Representatives and on behalf of
each of the Underwriters of the Designated Securities pursuant to Section 14 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 14 are set forth at
the end of Schedule II hereto. Schedule III sets forth each Issuer Free Writing Prospectus that is
part of the Pricing Disclosure Package and any additional documents incorporated by reference that
were filed with the Commission subsequent to the Commission’s close of business on the business day
immediately prior to the date of the execution of this Pricing Agreement. Schedule IV sets forth
all documents that the Company and the Representatives agree are to be included in the Pricing
Disclosure Package. The final term sheets prepared in accordance with Section 5(a) of the
Underwriting Agreement are attached hereto as Schedule V.
The “Applicable Time” means [ ] p.m. New York time on the date hereof.
An amendment of the Registration Statement, or a supplement to the Basic Prospectus, as the
case may be, relating to the Designated Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to [ ], Attention:
[ ], Tel: [ ], Fax: [ ]; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to its address set forth in the Registration Statement, Attention:
Secretary, or such other address as the Company shall notify in writing to [ ]; provided,
however, that any notice to an Underwriter of Designated Securities pursuant to Section
9(c) of the Underwriting Agreement shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
A-2
If the foregoing is in accordance with your understanding, please sign and return to us [One
for the Issuer and [each of] the Representatives plus one for each counsel] counterparts hereof,
and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
| Very truly yours, ASTRAZENECA PLC |
||||
| By: | ||||
| Title: | ||||
| Name: | ||||
Accepted as of the date hereof:
On behalf of each of the Underwriters
A-3
Schedule I
| Principal | ||||
| Amount of | ||||
| Designated | ||||
| Securities | ||||
| to be | ||||
| Purchased | ||||
[Name(s) of Representative(s)] |
$ | |||
[Names of other Underwriters] |
||||
Total |
$ | |||
SCHEDULE II
Title of Designated Securities:
[___%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
[Debentures] due
Aggregate principal amount
[$]
Price to Public:
% of the principal amount of the Designated Securities,
plus accrued interest from to
[and accrued amortization, if any, from to ]
plus accrued interest from to
[and accrued amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities,
plus accrued interest from to
[and accrued amortization, if any, from to ]
plus accrued interest from to
[and accrued amortization, if any, from to ]
Expenses:
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture dated April 1, 2004, between the Company and
[The Bank of New York as successor Trustee to JPMorgan Chase Bank]
[The Bank of New York as successor Trustee to JPMorgan Chase Bank]
Maturity:
Interest Rate:
[___%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Date:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking fund, in
whole or in part at the option of the Company, in the amount of [$] or an integral
multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and if]
redeemed during the 12- month period beginning ,
| Year | Redemption Price | |||
and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.]
[on any interest payment date falling in or after , , at the election of the
Company, at a redemption price equal to the principal amount thereof, plus accrued interest
to the date of redemption].
[Other possible redemption provisions, such as mandatory redemption upon occurrence of
certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to retire
[$] principal amount of Designated Securities on in each of the years
through at 100% of their principal amount plus accrued interest] [, together
with [cumulative] [noncumulative] redemptions at the option of the Company to retire an
additional [$] principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
II-2
[If Securities are extendable debt Securities, insert —]
Extendable provisions:
Securities are repayable on , [insert day and years], at the option of the
holder, at their principal amount with accrued interest. Initial annual interest rate will
be %, and thereafter annual interest rate will be adjusted on , and ,
to a rate not less than % of the effective annual interest rate on U.S. Treasury
obligations with
-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities insert —]
Floating Rate provisions:
Initial annual interest rate will be % through [and thereafter will be adjusted
[monthly] [on each , , and
] [to an annual rate of
% above the average rate for -year [month] [securities] [certificates of deposit]
issued by and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest yield equivalent of the
weekly average per annum market discount rate for -month Treasury bills plus % of
Interest Differential (the excess, if any, of (i) then currently weekly average per annum
secondary market yield for -month certificates of deposit over (ii) then current interest
yield equivalent of the weekly average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location for Delivery of Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
II-3
[Other Terms]*
* A description of particular tax,
accounting or other unusual features (such as the addition of event risk
language) of the Securities should be set forth, or referenced to an attached
and accompanying description, if necessary to ensure agreement as to the terms
of the Securities to be purchased and sold. Such a description might
appropriately be in the form in which such features will be described in the
Prospectus Supplement for the offering.
II-4
SCHEDULE III
| (a) | Issuer Free Writing Prospectus, if any: | |
| (b) | Additional Documents Incorporated by Reference, if any: |
SCHEDULE IV
Pricing Disclosure Package:
SCHEDULE V
Final Term Sheets
SCHEDULE VI
| (a) | Free Writing Prospectus: | |
| [Electronic road show] |
