<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1997
SECURITIES ACT FILE NO. 333-1787
INVESTMENT COMPANY ACT FILE NO. 811-7565
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM N-2
(CHECK APPROPRIATE BOX OR BOXES)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PRE-EFFECTIVE AMENDMENT NO. 9
POST-EFFECTIVE AMENDMENT NO.
AND/OR
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 9
------------------------
WBK STRYPES TRUST
(Exact Name of Registrant as Specified in Charter)
C/O PUGLISI & ASSOCIATES
850 LIBRARY AVENUE
SUITE 204
NEWARK, DELAWARE 19715
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: (302) 738-6680
DONALD J. PUGLISI
850 LIBRARY AVENUE
SUITE 204
NEWARK, DELAWARE 19715
(Name and Address of Agent for Service)
------------------------
COPIES TO:
NORMAN D. SLONAKER, ESQ. THOMAS J. RICE, ESQ.
CRAIG E. CHAPMAN, ESQ. Coudert Brothers
Brown & Wood LLP 1114 Avenue of the Americas
One World Trade Center New York, New York 10036-7703
New York, New York 10048-0557
------------------------
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
------------------------
If any securities being registered on this form will be offered on a delayed
or continuous basis in reliance on Rule 415 under the Securities Act of 1933, as
amended, other than securities offered in connection with a dividend
reinvestment plan, check the following box./ /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering./ /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering./ /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box./X/
------------------------
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES BEING OFFERING PRICE AGGREGATE OFFERING
BEING REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2)
<S> <C> <C> <C>
STRYPES representing shares of beneficial
interest.................................. 4,090,000 shares $31.75 $129,857,500
<CAPTION>
TITLE OF SECURITIES AMOUNT OF
BEING REGISTERED REGISTRATION FEE
<S> <C>
STRYPES representing shares of beneficial
interest.................................. $39,351(3)
</TABLE>
(1) Includes an aggregate of 90,000 STRYPES that may be issued in connection
with the exercise of an over-allotment option.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(3) A registration fee in the amount of $254,741 has already been paid in
connection with the other 28,750,000 STRYPES covered by this registration
statement.
------------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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- --------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE SHEET*
<TABLE>
<CAPTION>
ITEM NUMBER IN FORM N-2 CAPTION IN PROSPECTUS
- ------------------------------------------------------------- -------------------------------------------------------
<C> <S> <C>
</TABLE>
PART A--INFORMATION REQUIRED IN A PROSPECTUS
<TABLE>
<C> <S> <C>
1. Outside Front Cover.................................... Front Cover Page
2. Inside Front and Outside Back Cover Page............... Front Cover Page; Inside Front Cover Page; Underwriting
3. Fee Table and Synopsis................................. Prospectus Summary; Fee Table
4. Financial Highlights................................... Not Applicable
5. Plan of Distribution................................... Front Cover Page; Prospectus Summary; Net Asset Value;
Underwriting
6. Selling Shareholders................................... Not Applicable
7. Use of Proceeds........................................ Use of Proceeds; Investment Objective and Policies
8. General Description of the Registrant.................. Front Cover Page; Prospectus Summary; The Trust;
Investment Objective and Policies; Investment
Restrictions; Risk Factors; Dividends and
Distributions; Additional Information
9. Management............................................. Trustees; Management Arrangements
10. Capital Stock, Long-Term Debt and Other Securities..... Description of STRYPES
11. Defaults and Arrears on Senior Securities.............. Not Applicable
12. Legal Proceedings...................................... Not Applicable
13. Table of Contents of the Statement of Additional
Information.......................................... Not Applicable
</TABLE>
PART B--INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION
<TABLE>
<C> <S> <C>
14. Cover Page............................................. Not Applicable
15. Table of Contents...................................... Not Applicable
16. General Information and History........................ Not Applicable
17. Investment Objective and Policies...................... Prospectus Summary; Investment Objective and Policies;
Investment Restrictions
18. Management............................................. Trustees; Management Arrangements
19. Control Persons and Principal Holders of Securities.... Management Arrangements; Underwriting; Legal Matters;
Experts
20. Investment Advisory and Other Services................. Management Arrangements
21. Brokerage Allocation and Other Practices............... Investment Objective and Policies
22. Tax Status............................................. Certain Tax Considerations
23. Financial Statements................................... Experts; Independent Auditors' Report; Statement of
Assets, Liabilities and Capital
</TABLE>
PART C--OTHER INFORMATION
Information required to be included in Part C is set forth under the
appropriate Item, so numbered, in Part C to this Registration Statement.
- ------------------------
* Pursuant to the General Instructions to Form N--2, all information required
to be set forth in Part B; Statement of Additional Information has been
included in Part A: The Prospectus.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 29, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
29,000,000 STRYPES-SM-
WBK STRYPES TRUST
(EXCHANGEABLE FOR ORDINARY SHARES OF WESTPAC BANKING CORPORATION, PAR VALUE
A$1.00 PER SHARE)
Each of the Structured Yield Product Exchangeable for Stock-SM- (the
"STRYPES") of WBK STRYPES Trust (the "Trust") offered hereby represents a
proportionate share of beneficial interest in the Trust, which entitles the
holder to receive an annual distribution of $ , and except as described
herein will be exchanged for between % and 100% of the Reference Property
(or, in certain circumstances, cash, or a combination of cash and Reference
Property, with an equal value) per STRYPES upon conclusion of the term of the
Trust on , 2000 (the "Exchange Date"). The term "Reference Property"
means initially five Ordinary Shares, par value A$1.00 per share (the "Bank
Ordinary Shares"), of Westpac Banking Corporation (the "Bank") and shall be
subject to adjustment or replacement from time to time prior to the Business Day
(as defined herein) immediately preceding the Exchange Date to reflect the
application of the adjustment, replacement and distribution provisions described
herein. At the request of a STRYPES holder, except as described herein, Bank
Ordinary Shares constituting Reference Property which such holder may be
entitled to receive on the Exchange Date or otherwise will be delivered in the
form of American Depositary Shares ("Bank ADSs") representing such shares and
evidenced by American Depositary Receipts ("Bank ADRs"). An annual distribution
of $ per STRYPES is payable quarterly on each February 15, May 15, August 15
and November 15, commencing November 15, 1997 (or, if any such date is not a
Business Day (as defined herein), the next succeeding Business Day). The STRYPES
are not subject to redemption.
The Trust is a recently created Delaware business trust established to
purchase and hold (i) a series of zero-coupon U.S. Government securities ("U.S.
Treasury Securities") maturing on a quarterly basis through the Exchange Date
and (ii) a forward purchase contract (the "Contract") relating to the Reference
Property with Australian Mutual Provident Society ARBN 008 387 371 ("AMP") and
an Australian trustee acting as trustee of an Australian trust (the "Contracting
Stockholder") pursuant to which the Contracting Stockholder initially will hold
Bank Ordinary Shares for the benefit of AMP. The Trust's investment objective is
to distribute to holders of STRYPES on a quarterly basis $ per STRYPES
and, on the Exchange Date, to cause to be delivered to holders of STRYPES a
percentage of each type of Reference Property (or, under certain circumstances,
cash, or a combination of cash and Reference Property, with an equal value) per
STRYPES equal to the Exchange Amount. The Exchange Amount is equal to: (a) if
the Reference Property Value (as defined herein) is greater than or equal to the
Threshold Appreciation Price, % of the number or amount of each type of
Reference Property, (b) if the Reference Property Value is less than the
Threshold Appreciation Price but is greater than the Initial Price, a percentage
of the number or amount of each type of Reference Property, allocated as
proportionately as practicable, so that the aggregate value thereof equals the
Initial Price and (c) if the Reference Property Value is less than or equal to
the Initial Price, 100% of the number or amount of each type of Reference
Property. As described herein under "Investment Objective and Policies--The
Contract--General," the "Threshold Appreciation Price" initially will be
$ and the "Initial Price" initially will be $ (the last reported
per share sale price of Bank Ordinary Shares on the Australian Stock Exchange
Limited ("ASX") on , 1997 multiplied by five, translated into U.S.
dollars at US$ =A$1.00, the mid-point of the bid and ask prices of
exchanging U.S. dollars for Australian dollars as reported on the Reuters page
"WRLD" at the time of pricing), provided that such amounts will be adjusted as
described herein upon any distribution to holders resulting from any Partial
Cash Distribution Event (as defined herein) of cash constituting Reference
Property. Each Bank ADS currently represents five Bank Ordinary Shares. On
, 1997, the last reported sale price per Bank ADS on the New York
Stock Exchange (the "NYSE") was $ . Holders otherwise entitled to receive
fractional units or interests of Reference Property in respect of their
aggregate holdings of STRYPES will receive cash in lieu thereof.
SEE "RISK FACTORS," BEGINNING ON PAGE 31 OF THIS PROSPECTUS, FOR CERTAIN
CONSIDERATIONS RELEVANT TO AN INVESTMENT IN THE STRYPES.
(CONTINUED ON FOLLOWING PAGE)
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PROCEEDS TO
PRICE TO PUBLIC SALES LOAD(1) TRUST(2)
<S> <C> <C> <C>
Per STRYPES.............................................. $ $ $
Total(3)................................................. $ $ $
</TABLE>
(1) AMP has agreed to indemnify the Underwriter against certain liabilities,
including liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(2) Expenses of the Offering, which are payable by the Trust, are estimated to
be approximately $580,000.
(3) The Trust has granted the Underwriter an option, exercisable for 30 days
from the date hereof, to purchase up to an additional 3,840,000 STRYPES
(subject to decrease as a result of the issuance and sale of STRYPES in
connection with the formation of the Trust) to cover over-allotments, if
any. If all such STRYPES are purchased, the total Price to Public, Sales
Load and Proceeds to Trust will be $ , $ and $ ,
respectively. See "Underwriting."
The STRYPES are offered by the Underwriter, subject to prior sale, when, as
and if issued to and accepted by it, and subject to approval of certain legal
matters by counsel for the Underwriter and certain other conditions. The
Underwriter reserves the right to withdraw, cancel or modify such offer and to
reject orders in whole or in part. It is expected that delivery of the STRYPES
will be made through the facilities of The Depository Trust Company on or about
, 1997.
- ------------------------------
- -SM-Service mark of Merrill Lynch & Co., Inc.
------------------------------
MERRILL LYNCH & CO.
---------------
The date of this Prospectus is , 1997.
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
Pursuant to the terms of the Contract, the Contracting Stockholder is
obligated to deliver to the Trust (for the benefit of the holders of the STRYPES
absolutely) on the Business Day immediately preceding the Exchange Date the
Reference Property required in order to exchange all of the STRYPES (including
any STRYPES issued pursuant to the over-allotment option granted by the Trust to
the Underwriter and the STRYPES issued in connection with the formation of the
Trust) on the Exchange Date in accordance with the Trust's investment objective.
The obligation of the Contracting Stockholder to deliver the Reference Property
under the Contract may be cash settled, at the option of AMP (the "Cash
Settlement Option"), in whole or in part, if AMP delivers to the Trust on the
Business Day immediately preceding the Exchange Date, in lieu of the portion of
the Reference Property otherwise deliverable by the Contracting Stockholder in
respect of which the Cash Settlement Option is exercised, U.S. dollars in an
amount equal to the U.S. Dollar Equivalent (as defined herein) of the value of
such Reference Property immediately prior to the Exchange Date. In the event
that AMP exercises the Cash Settlement Option, holders of the STRYPES will
receive cash, or a combination of cash and Reference Property, on the Exchange
Date.
AS DESCRIBED HEREIN, THE REFERENCE PROPERTY VALUE WILL REPRESENT A
DETERMINATION OF THE U.S. DOLLAR VALUE OF THE REFERENCE PROPERTY ON THE SECOND
BUSINESS DAY PRIOR TO ANY PARTIAL CASH DISTRIBUTION DATE (AS DEFINED HEREIN) AND
THE EXCHANGE DATE. FURTHERMORE, THE AMOUNT OF CASH PER STRYPES DISTRIBUTED AS A
RESULT OF ANY PARTIAL CASH DISTRIBUTION EVENT OR CASH DISSOLUTION EVENT (AS
DEFINED HEREIN) WILL BE THE CASH REORGANIZATION AMOUNT (AS DEFINED HEREIN)
ADJUSTED BY A PRESENT VALUE CALCULATION THAT DISCOUNTS SUCH CASH REORGANIZATION
AMOUNT TO THE DATE OF PAYMENT TO THE TRUST FROM THE EXCHANGE DATE AS DESCRIBED
HEREIN. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT THE AMOUNT RECEIVABLE BY THE
HOLDER OF A STRYPES ON THE EXCHANGE DATE OR AS A RESULT OF ANY DISSOLUTION EVENT
(AS DEFINED HEREIN) PLUS ANY CASH DISTRIBUTION TO THE HOLDER RESULTING FROM ANY
PARTIAL CASH DISTRIBUTION EVENT WILL BE EQUAL TO OR GREATER THAN THE ISSUE PRICE
OF THE STRYPES. IF THE REFERENCE PROPERTY VALUE ON THE EXCHANGE DATE IS LESS
THAN THE INITIAL PRICE (WHETHER OR NOT A PARTIAL CASH DISTRIBUTION EVENT
OCCURS), THE AMOUNT DISTRIBUTED TO THE HOLDER OF A STRYPES ON THE EXCHANGE DATE
MAY BE LESS THAN THE ISSUE PRICE OF THE STRYPES, IN WHICH CASE AN INVESTMENT IN
THE STRYPES WILL RESULT IN A LOSS. SEE "INVESTMENT OBJECTIVES AND
POLICIES--GENERAL" AND "--THE CONTRACT."
The Trust will be dissolved prior to the Exchange Date upon the occurrence
of (i) certain defaults of the Contracting Stockholder or AMP under the
Contract, (ii) the liquidation, dissolution, winding up or bankruptcy of an
issuer of a Reference Security, including the Bank as such, other than in
connection with a consolidation, merger or acquisition of such issuer with, into
or by another entity, or (iii) any consolidation, merger or acquisition of an
issuer of a Reference Security with, into or by another entity in connection
with which all the Reference Securities constituting the Reference Property
immediately prior to the consolidation, merger or acquisition are exchanged for
consideration consisting solely of cash and no other property (each, a
"Dissolution Event"). Upon the occurrence of a Dissolution Event, holders of the
STRYPES become absolutely entitled to the assets received pursuant to the
Contract, the Trust's other assets will be liquidated and the net assets of the
Trust will be distributed PRO RATA to such holders of the STRYPES as soon as
practicable.
Upon the occurrence of (a) an event described in clause (iii) of the
definition of Dissolution Event (a "Cash Dissolution Event") or (b) any
consolidation, merger or acquisition of an issuer of a Reference Security with,
into or by another entity in which some but less than all of the consideration
for the Reference Securities constituting the Reference Property immediately
prior to such consolidation, merger or acquisition is cash (a "Partial Cash
Distribution Event"), the Contracting Stockholder will pay to the Trust pursuant
to the Contract out of the cash paid to holders of such Reference Securities in
connection with such event (the amount of cash paid per unit of such Reference
Security is called the "Cash Reorganization Price") an amount of cash equal to
the product of (i) the number of STRYPES, (ii) the number of units of such
Reference Securities constituting Reference Property immediately prior to such
Cash Dissolution Event or Partial Cash Distribution Event, and (iii) the
Adjusted Present Value of the Cash Reorganization Amount. The term "Cash
Reorganization Amount" with respect to any Cash Reorganization Price means an
amount equal to (i) if the Reference Property Value is greater than or equal to
the Threshold Appreciation Price, % of the Cash Reorganization Price, (ii) if
the Reference Property Value is less than the Threshold Appreciation Price but
greater than the Initial Price, the product of the Initial Price and the
percentage of the Reference Property Value that represents the Cash
Reorganization Price, and (iii) if the Reference Property Value is less than or
equal to the Initial Price, the Cash Reorganization Price. The "Adjusted Present
Value" of any Cash Reorganization Amount is the U.S. Dollar
2
<PAGE>
Equivalent of the Cash Reorganization Amount, discounted on a semi-annual basis
(assuming a 360-day year of twelve 30-day months) at the Adjusted Treasury Rate
(as defined herein) from the Exchange Date to the date on which the Cash
Reorganization Price is paid to holders of the applicable Reference Securities
in connection with such Cash Dissolution Event or Partial Cash Distribution
Event.
The Trust will not dissolve upon the occurrence of a Partial Cash
Distribution Event. However, on the third Business Day following payment of any
Cash Reorganization Price to holders of a Reference Security in connection with
a Partial Cash Distribution Event (a "Partial Cash Distribution Date"), the
Contracting Stockholder will pay the Trust an amount equal to the product of (i)
the number of STRYPES, (ii) the number of units of such Reference Securities
constituting Reference Property immediately prior to such Partial Cash
Distribution Event and (iii) the Adjusted Present Value of the Cash
Reorganization Amount. The Bank of New York, as Paying Agent, will distribute
such amount PRO RATA to the holders of STRYPES as soon as practicable
thereafter. The Contracting Stockholder will pay any remaining Cash
Reorganization Price to AMP. Following such distributions, the Reference
Property will include, in lieu of the Reference Securities involved in such
Partial Cash Distribution Event, the securities or other non-cash property
retained by or distributed to holders of such Reference Securities as a result
of such Partial Cash Distribution Event, as well as any other cash, securities
and other property constituting Reference Property prior to such event. See
"Investment Objective and Policies--The Contract--Cash Distribution Events" and
"--Nominee Trust Agreement; Acceleration."
The Bank is not affiliated with the Trust, will not receive any of the
proceeds from the sale of the STRYPES and will have no obligations with respect
to the STRYPES.
The STRYPES have been approved for listing on the NYSE, subject to official
notice of issuance. Prior to the offering there has been no public market for
the STRYPES. Shares of closed-end investment companies have in the past
frequently traded at a discount from their net asset values and initial public
offering prices. The risks associated with this characteristic of closed-end
investment companies may be greater for investors expecting to sell shares of a
closed-end investment company soon after the completion of an initial public
offering.
The STRYPES are designed to provide investors with a current distribution
yield, while also providing the opportunity for investors to share in the
appreciation, if any, of the value of the Reference Property above the Threshold
Appreciation Price. However, the opportunity for equity appreciation afforded by
an investment in the STRYPES is less than that afforded by a direct investment
in the Reference Property. The value of the Reference Property receivable by a
holder of a STRYPES upon exchange on the Exchange Date (plus any cash received
in connection with the occurrence of a Partial Cash Distribution Event) will
exceed the issue price of such STRYPES only if the Reference Property Value
exceeds the Threshold Appreciation Price, which would represent an appreciation
of % over the Initial Price. In addition, assuming no Partial Cash
Distribution Event occurs, because each STRYPES will entitle the holder to
receive only % of the Reference Property if the Reference Property Value
exceeds the Threshold Appreciation Price on the Exchange Date, holders of the
STRYPES will be entitled to receive upon exchange on the Exchange Date only %
of any appreciation of the value of the Reference Property above the Threshold
Appreciation Price. Holders of STRYPES will realize the entire decline in value
if the Reference Property Value is less than the Initial Price. There can be no
assurance that the distribution yield on the STRYPES will be higher than the
dividend yield on the Bank Ordinary Shares or other Reference Securities over
the term of the Trust. As described herein under "Investment Objective and
Policies--The Contract--General," the "Threshold Appreciation Price" initially
will be $ and the "Initial Price" initially will be $ (the last
reported per share sale price of Bank Ordinary Shares on the Australian Stock
Exchange Limited ("ASX") on , 1997 multiplied by five, translated
into U.S. dollars at US$ =A$1.00, the mid-point of the bid and ask prices
of exchanging U.S. dollars for Australian dollars as reported on the Reuters
page "WRLD" at the time of pricing), provided that such amounts will be adjusted
as described herein upon any distribution to holders on any Partial Cash
Distribution Date of cash constituting Reference Property.
The STRYPES may not be a suitable investment for investors who are not able
to understand the unique nature of the Trust and the economic characteristics of
the Contract and the U.S. Treasury Securities held by the Trust.
The Trust has adopted a fundamental policy that the Contract may not be
disposed of during the term of the Trust and that, except under limited
circumstances, the U.S. Treasury Securities may not be disposed of prior
3
<PAGE>
to their respective maturities. As a result, the Trust will continue to hold the
Contract despite any significant decline in the value of the Reference Property
or adverse changes in the financial condition of the Bank. The Trust will not be
managed like a typical closed-end investment company. The Trust will be treated
as a grantor trust for United States Federal income tax purposes and each holder
of STRYPES will be treated as the owner of its PRO RATA portion of the Contract
and the U.S. Treasury Securities. The U.S. Treasury Securities held by the Trust
will be treated for United States Federal income tax purposes as having original
issue discount and holders of STRYPES will be required to recognize currently as
income their PRO RATA portion of such original issue discount as it accrues over
the term of the Trust. The quarterly cash distributions paid to the holders of
STRYPES, which distributions are anticipated to exceed the currently includable
original issue discount, will be treated as a tax-free return of the holders'
costs of the U.S. Treasury Securities and any previously included original issue
discount, and therefore will not be considered current income to holders upon
receipt thereof for United States Federal income tax purposes. Although under
current law holders of STRYPES should not recognize income, gain or loss with
respect to the Contract over its term, holders will recognize taxable gain or
loss upon receipt of cash, if any, upon dissolution of the Trust. The proper
United States Federal income tax treatment of the receipt by a holder of its PRO
RATA portion of cash distributed as a result of a Partial Cash Distribution
Event prior to dissolution of the Trust is uncertain and will depend upon
various factors. For a discussion of certain United States Federal and
Australian income tax considerations for holders of the STRYPES, see "Certain
Tax Considerations."
This Prospectus sets forth concisely information about the Trust that a
prospective investor ought to know before investing and should be read and
retained for future reference. Additional information about the Trust has been
filed with the Commission and is available upon written or oral request and
without charge. See "Additional Information."
------------------------
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the STRYPES, the Bank
ADSs or the Bank Ordinary Shares. Such transactions may include stabilizing and
the imposition of penalty bids. For a description of these activities, see
"Underwriting."
The STRYPES may not be sold or offered for sale in the Commonwealth of
Australia, its Territories or its possessions ("Australia"), nor may an
invitation to make an offer to buy the STRYPES be made in Australia, except
under circumstances that result in the offer or invitation for sale or purchase
being an "excluded offer" or an "excluded invitation" for the purposes of the
Australian Corporations Law.
The Underwriter (i) has not offered or sold and will not offer or sell any
STRYPES to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities Regulations
1995; (ii) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the STRYPES in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issuance of STRYPES to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisement) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
4
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY SHOULD BE READ IN CONJUNCTION WITH THE MORE DETAILED
INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS. UNLESS OTHERWISE INDICATED,
THE INFORMATION CONTAINED IN THIS PROSPECTUS ASSUMES THAT THE UNDERWRITER'S
OVER-ALLOTMENT OPTION IS NOT EXERCISED. UNLESS OTHERWISE STATED OR THE CONTEXT
OTHERWISE REQUIRES, REFERENCES HEREIN TO $, US$ OR U.S. DOLLARS ARE TO UNITED
STATES DOLLARS AND REFERENCES HEREIN TO A$ ARE TO AUSTRALIAN DOLLARS.
THE TRUST
WBK STRYPES Trust (the "Trust") is a recently created Delaware business
trust that will be registered as a non-diversified closed-end management
investment company under the Investment Company Act of 1940, as amended (the
"Investment Company Act"). The term of the Trust will expire on or shortly after
, 2000 (the "Exchange Date"), except that the Trust may be dissolved
prior to such date under certain limited circumstances. The Trust will be
treated as a grantor trust for United States Federal income tax purposes.
THE OFFERING
The Trust is offering 29,000,000 STRYPES, each representing a proportionate
share of beneficial interest in the Trust, at an initial public offering price
of $ per STRYPES (the last reported per share sale price of Bank Ordinary
Shares on the Australian Stock Exchange Limited ("ASX") on , 1997
multiplied by five, translated into U.S. dollars at US$ = A$1.00, the
mid-point of the bid and ask prices of exchanging U.S. dollars for Australian
dollars as reported on the Reuters page "WRLD" at the time of pricing this
offering (the "Offering")). The Underwriter has been granted an option,
exercisable for 30 days from the date of this Prospectus, to purchase up to an
aggregate of 3,840,000 additional STRYPES to cover over-allotments, if any. See
"Underwriting."
THE BANK
According to publicly available information, Westpac Banking Corporation
(the "Bank"), together with its subsidiaries ("Westpac"), is one of the four
major banking organizations in Australia. Westpac is engaged in a broad range of
banking and financial services, including general banking (retail, commercial
and institutional banking), finance company activities, investment management
and insurance. On September 26, 1997, the market capitalization of the Bank was
in excess of A$15 billion, which ranked it in the top ten Australian companies
listed on the ASX.
Westpac was the first bank established in Australia. It was founded in 1817
and was incorporated in 1850 as Bank of New South Wales by an Act of the New
South Wales Parliament. In 1982, the Bank acquired The Commercial Bank of
Australia Limited and changed its name to Westpac Banking Corporation. The
Bank's principal office is located at 60 Martin Place, Sydney, New South Wales,
2000, Australia and its telephone number is (61)(2)9266-3311.
The Bank ADSs are listed on the NYSE and, accordingly, the Bank is subject
to the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), applicable to foreign private issuers. Any
information included herein regarding the Bank has been derived from information
filed by the Bank with the Securities and Exchange Commission and other publicly
available information. The Bank has not participated in the preparation of this
Prospectus and no due diligence inquiry of the Bank has been made by the Trust,
the Underwriter, the Contracting Stockholder, AMP or any other party in
connection with the Offering. There can be no assurance that all events
occurring prior to the date hereof (including events that would affect the
accuracy or completeness of such publicly available information about the Bank)
that would affect the trading price of the Bank ADSs or the Bank Ordinary Shares
have been publicly disclosed. Because the Reference Property is initially Bank
Ordinary Shares, such events, if any, would also affect the trading price of the
STRYPES.
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INVESTMENT OBJECTIVE AND POLICIES
The Trust will purchase and hold a series of zero-coupon U.S. Government
securities ("U.S. Treasury Securities") maturing on a quarterly basis through
the Exchange Date and a forward purchase contract (the "Contract") relating to
the Reference Property with Australian Mutual Provident Society, an Australian
mutual insurance company ("AMP"), and an Australian trustee as trustee of an
Australian trust (the "Contracting Stockholder") pursuant to which the
Contracting Stockholder initially will hold Bank Ordinary Shares for the benefit
of AMP. The Trust's investment objective is to distribute to holders of the
STRYPES ("holders") on a quarterly basis $ per STRYPES (which amount equals
the PRO RATA portion of the fixed quarterly distributions from the proceeds of
the maturing U.S. Treasury Securities held by the Trust) and, on the Exchange
Date, to cause to be delivered to the holders of the STRYPES a percentage of
each type of Reference Property (or, under certain circumstances, cash, or a
combination of cash and Reference Property, with an equal value) per STRYPES
equal to the Exchange Amount. The Exchange Amount shall be equal to (a) if the
Reference Property Value (as defined herein) is greater than or equal to the
Threshold Appreciation Price, % of the number or amount of each type of
Reference Property, (b) if the Reference Property Value is less than the
Threshold Appreciation Price but is greater than the Initial Price, a percentage
of the number or amount of each type of Reference Property, allocated as
proportionately as practicable, so that the aggregate value thereof is equal to
the Initial Price, and (c) if the Reference Property Value is less than or equal
to the Initial Price, 100% of the number or amount of each type of Reference
Property. As described herein under "Investment Objective and Policies--The
Contract--General," the "Threshold Appreciation Price" initially will be $ and
the "Initial Price" initially will be $ (the last reported per share sale
price of Bank Ordinary Shares on the ASX on , 1997 multiplied by five,
translated into U.S. dollars at US$ = A$1.00, the mid-point of the bid and
ask prices of exchanging U.S. dollars for Australian dollars as reported on the
Reuters page "WRLD" at the time of pricing), provided that such amounts will be
adjusted as described herein upon any distribution to holders resulting from any
Partial Cash Distribution Event (as defined herein) of cash constituting
Reference Property. The term "Reference Property" means initially five Ordinary
Shares, par value A$1.00 per share (the "Bank Ordinary Shares"), of the Bank and
shall be subject to adjustment or replacement from time to time prior to the
Business Day (as defined herein) immediately preceding the Exchange Date to
reflect the adjustment, replacement and distribution provisions described
herein. At the request of a STRYPES holder, Bank Ordinary Shares constituting
Reference Property which such holder may be entitled to receive on the Exchange
Date or otherwise will be delivered in the form of American Depositary Shares
("Bank ADSs") representing such shares and evidenced by American Depositary
Receipts ("Bank ADRs"), but only if at the time of delivery Bank ADSs are listed
on the NYSE or another national or regional U.S. stock exchange or quoted on a
U.S. automated quotation system and if and to the extent such Bank Ordinary
Shares are accepted for deposit by the depositary for the Bank ADSs. On the date
hereof, Bank ADSs are listed on the NYSE and each such Bank ADS represents five
Bank Ordinary Shares. The continued listing of the Bank ADSs on a national or
regional U.S. stock exchange or the quotation of the Bank ADSs on a U.S.
automated quotation system are not matters under the control or influence of the
Trust, the Contracting Shareholder or AMP, and, therefore, no assurance is
hereby given that the Bank ADSs will continue to be listed on the NYSE or,
alternatively, listed on another national or regional U.S. stock exchange or
quoted on a U.S. automated quotation system in the future. Holders otherwise
entitled to receive fractional units of or interests in any Reference Security
(as defined herein) or other property constituting part of the Reference
Property in respect of their aggregate holdings of STRYPES will receive cash in
lieu thereof. See "Investment Objective and Policies--General" and "--Fractional
Interests."
The Contracting Stockholder, subject to receipt of the Escrow Amount (as
defined herein), is obligated to deliver to the Trust on behalf of the holders
of STRYPES on the Business Day immediately preceding the Exchange Date the
Reference Property required to exchange all of the STRYPES (including any
STRYPES issued pursuant to the over-allotment option granted by the Trust to the
Underwriter and STRYPES issued in connection with the formation of the Trust) on
the Exchange Date in accordance with
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<PAGE>
the Trust's investment objective. The obligation of the Contracting Stockholder
to deliver the Reference Property under the Contract may be cash settled, at the
option of AMP (the "Cash Settlement Option"), in whole or in part, if AMP
delivers to the Trust on the Business Day immediately preceding the Exchange
Date, in lieu of the portion of the Reference Property otherwise deliverable by
the Contracting Stockholder in respect of which the Cash Settlement Option is
exercised, U.S. dollars in an amount equal to the U.S. Dollar Equivalent (as
defined herein) of the value of such Reference Property immediately prior to the
Exchange Date. In the event that AMP exercises the Cash Settlement Option or is
otherwise obligated to deliver cash under the terms of the Contract, holders of
the STRYPES will receive cash, or a combination of cash and Reference Property,
on the Exchange Date. See "Investment Objective and Policies--The Contract."
Holders of the STRYPES will receive distributions at the rate per STRYPES of
$ per annum, or $ per quarter, payable quarterly on each February 15, May
15, August 15 and November 15 (or, if any such date is not a Business Day (as
defined herein), on the next succeeding Business Day), to holders of record as
of each February 1, May 1, August 1 and November 1, respectively. The first
distribution (in respect of the period from , 1997 until November 14,
1997) will be payable on November 17, 1997 to holders of record as of November
1, 1997, and will equal $ per STRYPES. See "Investment Objective and
Policies--Trust Assets."
On the Exchange Date, each outstanding STRYPES will be exchanged for between
% and 100% of each type of Reference Property (or, in the event AMP exercises
the Cash Settlement Option, cash, or a combination of cash and Reference
Property, with an equal value), depending on the Reference Property Value. AS
DESCRIBED HEREIN, THE REFERENCE PROPERTY VALUE WILL REPRESENT A DETERMINATION OF
THE U.S. DOLLAR VALUE OF THE REFERENCE PROPERTY ON THE SECOND BUSINESS DAY PRIOR
TO ANY PARTIAL CASH DISTRIBUTION DATE (AS DEFINED HEREIN) AND THE EXCHANGE DATE.
FURTHERMORE, THE AMOUNT OF CASH PER STRYPES DISTRIBUTED AS A RESULT OF ANY
PARTIAL CASH DISTRIBUTION EVENT OR A CASH DISSOLUTION EVENT (AS DEFINED HEREIN)
WILL BE THE CASH REORGANIZATION AMOUNT (AS DEFINED HEREIN) ADJUSTED BY A PRESENT
VALUE CALCULATION THAT DISCOUNTS SUCH CASH REORGANIZATION AMOUNT TO THE DATE OF
PAYMENT TO THE TRUST FROM THE EXCHANGE DATE AS DESCRIBED HEREIN. ACCORDINGLY,
THERE CAN BE NO ASSURANCE THAT THE AMOUNT RECEIVABLE BY THE HOLDER OF A STRYPES
ON THE EXCHANGE DATE OR AS A RESULT OF ANY DISSOLUTION EVENT PLUS ANY CASH
DISTRIBUTION TO THE HOLDER RESULTING FROM ANY PARTIAL CASH DISTRIBUTION EVENT
WILL BE EQUAL TO OR GREATER THAN THE ISSUE PRICE OF THE STRYPES. IF THE
REFERENCE PROPERTY VALUE ON THE EXCHANGE DATE IS LESS THAN THE INITIAL PRICE
(WHETHER OR NOT A PARTIAL CASH DISTRIBUTION EVENT OCCURS), THE AMOUNT
DISTRIBUTED TO THE HOLDER OF A STRYPES ON THE EXCHANGE DATE MAY BE LESS THAN THE
ISSUE PRICE OF THE STRYPES, IN WHICH CASE AN INVESTMENT IN THE STRYPES WILL
RESULT IN A LOSS. SEE "INVESTMENT OBJECTIVES AND POLICIES--GENERAL" AND "--THE
CONTRACT."
The Trust will be dissolved prior to the Exchange Date upon the occurrence
of (i) certain defaults of the Contracting Stockholder or AMP under the
Contract, (ii)the liquidation, dissolution, winding up or bankruptcy of an
issuer of a Reference Security, including the Bank as such, other than in
connection with a consolidation, merger or acquisition of such issuer with, into
or by another entity, or (iii) any consolidation, merger or acquisition of an
issuer of a Reference Security with, into or by another entity in connection
with which all the Reference Securities constituting the Reference Property
immediately prior to the consolidation, merger or acquisition are exchanged for
consideration consisting solely of cash and no other property (each, a
"Dissolution Event"). Upon the occurrence of a Dissolution Event, the holders of
the STRYPES become absolutely entitled to the assets received pursuant to the
Contract, the Trust's other assets will be liquidated and the net assets of the
Trust will be distributed PRO RATA to the holders of the STRYPES as soon as
practicable thereafter.
Upon the occurrence of (a) an event described in clause (iii) of the
definition of Dissolution Event (a "Cash Dissolution Event") or (b) any
consolidation, merger or acquisition of an issuer of a Reference Security with,
into or by another entity in which some but less than all of the consideration
for the Reference Securities constituting the Reference Property immediately
prior to such consolidation, merger or acquisition is cash (a "Partial Cash
Distribution Event"), the Contracting Stockholder will pay to the Trust pursuant
to the Contract out of the cash paid to holders of such Reference Securities in
connection
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<PAGE>
with such event (the amount of cash paid per unit of such Reference Security is
called the "Cash Reorganization Price") an amount of cash equal to the product
of (i) the number of STRYPES, (ii) the number of units of such Reference
Securities constituting Reference Property immediately prior to such Cash
Dissolution Event or Partial Cash Distribution Event and (iii) the Adjusted
Present Value of the Cash Reorganization Amount. The term "Cash Reorganization
Amount" with respect to any Cash Reorganization Price means an amount equal to
(i) if the Reference Property Value is greater than or equal to the Threshold
Appreciation Price, % of the Cash Reorganization Price, (ii) if the Reference
Property Value is less than the Threshold Appreciation Price but greater than
the Initial Price, the product of the Initial Price and the percentage of the
Reference Property Value that represents the Cash Reorganization Price, and
(iii) if the Reference Property Value is less than or equal to the Initial
Price, the Cash Reorganization Price. The "Adjusted Present Value" of any Cash
Reorganization Amount is the U.S. Dollar Equivalent (as defined herein) of the
Cash Reorganization Amount, discounted on a semi-annual basis (assuming a
360-day year of twelve 30-day months) at the Adjusted Treasury Rate (as defined
herein) from the Exchange Date to the date on which the Cash Reorganization
Price is paid to holders of the applicable Reference Securities in connection
with the Cash Distribution Event or Partial Cash Distribution Event.
The Trust will not dissolve upon the occurrence of a Partial Cash
Distribution Event. However, on the third Business Day following payment of any
Cash Reorganization Price to holders of a Reference Security in connection with
a Partial Cash Distribution Event (a "Partial Cash Distribution Date"), the
Contracting Stockholder will pay the Trust an amount equal to the product of (i)
the number of STRYPES, (ii) the number of units of such Reference Securities
constituting Reference Property immediately prior to such Partial Cash
Distribution Event and (iii) the Adjusted Present Value of the Cash
Reorganization Amount. The Bank of New York will distribute such amount PRO RATA
to the holders of STRYPES as soon as practicable thereafter. The Contracting
Stockholder will pay any remaining Cash Reorganization Price to AMP. Following
such distributions, the Reference Property will include, in lieu of the
Reference Securities involved in such Partial Cash Distribution Event, the
securities or other non-cash property retained by or distributed to holders of
such Reference Securities as a result of such Partial Cash Distribution Event,
as well as any other cash, securities and other property constituting Reference
Property prior to such event.
See "Investment Objective and Policies--The Contract--Cash Distribution
Events" and "--Nominee Trust Agreement; Acceleration."
TRUST ASSETS
The Trust's assets will consist of: (i) a series of zero-coupon U.S.
Treasury Securities with face amounts and maturities corresponding to the
amounts and payment dates of the distributions payable with respect to the
STRYPES, comprising approximately % of the initial assets of the Trust and
(ii) the Contract with the Contracting Stockholder relating to the Reference
Property, comprising approximately % of the initial assets of the Trust.
Pursuant to the terms of the Contract, upon receipt of the Escrow Amount (as
defined herein) from the Escrow Agent (as defined herein), the Contracting
Stockholder is obligated to deliver to the Trust for the benefit of the holders
of the STRYPES absolutely on the Business Day immediately preceding the Exchange
Date an aggregate number or amount of Reference Property equal to the product of
the Exchange Amount and the aggregate number of STRYPES then outstanding,
subject to AMP's Cash Settlement Option.
The purchase price under the Contract is equal to $ (assuming the
Underwriter's over-allotment option is not exercised) and is payable to the
Contracting Stockholder by the Trust on or about , 1997. Of such
amount, $1,000,000 (the "Escrow Amount") will be deposited with National
Australia Bank Limited as escrow agent (the "Escrow Agent") on or about
, 1997 and, in accordance with the Escrow Agreement among the Escrow
Agent, the Trust, the Contracting Stockholder and AMP (the "Escrow Agreement"),
will be held by the Escrow Agent in escrow and paid to the Contracting
Stockholder on the second Business Day prior to the Exchange Date upon notice
from the Trust, or earlier upon the occurrence of a Dissolution Event. No other
consideration is payable by the Trust
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<PAGE>
to the Contracting Stockholder in connection with its acquisition of the
Contract or the performance of the Contract by the Contracting Stockholder. See
"Investment Objective and Policies--The Contract."
The Contracting Stockholder is National Australia Trustees Limited, ACN 007
350 405 ("National Australia Trustees"), in its capacity as trustee for a trust
arrangement (the "Australian Trust") established under the laws of Victoria,
Australia pursuant to a Nominee Trust Agreement, dated 1997, between
National Australia Trustees as trustee and AMP as beneficiary (as amended and
supplemented by the Contract, the "Nominee Trust Agreement"). The assets of the
Contracting Stockholder under the Contract initially will be the maximum number
of Bank Ordinary Shares or, upon the occurrence of a Reorganization Event (as
defined herein) other than a Dissolution Event (as defined herein) or the
substitution of assets by AMP as described herein, other securities, cash or
property deliverable by the Contracting Stockholder pursuant to the Contract
(the "Exchange Property"). So long as no Dissolution Event has occurred, at the
direction of AMP, the Contracting Stockholder may exchange the foregoing assets
for U.S. or Australian Government obligations as described herein under
"Investment Objective and Policies -- The Contract." Upon the occurrence of a
Dissolution Event, the Contracting Stockholder shall hold the Exchange Property
in trust absolutely for the Trust and AMP shall have only a contingent interest
in the Exchange Property not required to be delivered to holders of STRYPES.
Thereafter, the Contracting Stockholder shall act solely in accordance with the
directions of the Custodian and, pursuant to the Contract, shall distribute to
the Trust (for the benefit of the holders of STRYPES absolutely) for
distribution PRO RATA to holders of STRYPES, the cash, securities and other
property payable for the benefit of the holders of STRYPES under the Contract.
Upon the occurrence of a Partial Cash Distribution Event, the Contracting
Stockholder shall act only in accordance with the instructions of the Custodian
with respect to the portion of the aggregate Cash Reorganization Price required
to be distributed to the Trust in accordance with the Contract, with any
remaining Cash Reorganization Price thereafter being distributed to AMP or at
AMP's direction. See "Investment Objective and Policies--The Contract--Nominee
Trust Agreement; Acceleration."
RELATIONSHIP TO BANK ORDINARY SHARES
Holders of the STRYPES will receive distributions at the rate of $ or %
of the issue price per annum. For the years ended September 30, 1991, 1992,
1993, 1994, 1995 and 1996, the total dividends per Bank ADS in U.S. dollar terms
was US$1.041, US$0.648, US$0.416, US$0.667, US$1.023 and US$1.290, respectively.
Any future determination as to the payment of dividends on the Bank Ordinary
Shares will be at the discretion of the Bank's Board of Directors and will
depend upon the Bank's operating results, financial condition and capital
requirements, contractual restrictions, general business conditions and such
other factors as the Bank's Board of Directors deems relevant. Also, dividends
on the Bank Ordinary Shares are payable in Australian dollars, while the
distributions on the STRYPES will be made in U.S. dollars. For a description of
certain dividends paid on Bank Ordinary Shares and certain information regarding
the exchange rate of U.S. dollars for Australian dollars, see "Investment
Objectives and Policies--The Bank." There can be no assurance that the
distribution yield on the STRYPES will be higher than the dividend yield on the
Bank Ordinary Shares over the term of the Trust. Holders of STRYPES will not be
entitled to receive any future dividends on the Bank Ordinary Shares unless and
until such time, if any, as the Trust shall have delivered Bank Ordinary Shares
or Bank ADSs in exchange for STRYPES on the Exchange Date or upon earlier
dissolution of the Trust, and unless the applicable record date for determining
stockholders entitled to receive such dividends occurs after such delivery. See
"Risk Factors-- No Stockholder Rights."
The opportunity for equity appreciation afforded by an investment in the
STRYPES is less than that afforded by a direct investment in the Reference
Property because, whether or not a Partial Cash Distribution Event occurs, the
value of the Reference Property receivable by a holder of a STRYPES upon
exchange on the Exchange Date will not exceed the issue price of such STRYPES
unless the Reference Property Value exceeds the Threshold Appreciation Price,
which represents an appreciation of % over
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<PAGE>
the Initial Price. Moreover, whether or not a Partial Cash Distribution Event
occurs, each STRYPES will entitle the holder to receive on the Exchange Date
only % (the percentage equal to the Initial Price divided by the Threshold
Appreciation Price) of any appreciation of the value of the Reference Property
Value above the Threshold Appreciation Price. Holders of STRYPES will realize
the entire decline in value if the Reference Property Value is less than the
Initial Price. As described herein under "Investment Objective and Policies--The
Contract--General," the "Threshold Appreciation Price" initially will be $ and
the "Initial Price" initially will be $ (the last reported per share sale
price of Bank Ordinary Shares on the ASX on , 1997 multiplied by five,
translated into U.S. dollars at US$ = A$1.00, the mid-point of the bid and
ask prices of exchanging U.S. dollars for Australian dollars as reported on the
Reuters page "WRLD" at the time of pricing), provided that such amounts will be
adjusted as described herein upon any distribution to holders on any Partial
Cash Distribution Date of cash constituting Reference Property. See "Risk
Factors--Limitations on Opportunity for Equity Appreciation; Potential Losses."
DILUTION
The percentage of each type of Reference Property (or the amount of cash or
combination of cash and Reference Property) that holders of STRYPES are entitled
to receive upon exchange on the Exchange Date will not be adjusted for certain
events, such as offerings of Bank Ordinary Shares by the Bank for cash (except
certain rights and warrants offerings) or in connection with acquisitions. The
Bank is not restricted in connection with the STRYPES from issuing additional
Bank Ordinary Shares during the term of the Trust. In addition, principal
stockholders of the Bank, including the Contracting Stockholder and AMP, are not
precluded from selling Bank Ordinary Shares or from participating in or voting
for a reorganization, merger or acquisition of the Bank. The Contracting
Stockholder is precluded from selling Bank Ordinary Shares held by it pursuant
to the Contract except for tendering the Bank Ordinary Shares or other Reference
Securities it holds in connection with any consolidation, merger or acquisition
of the Bank or successor issuer of Reference Securities as a whole if required
by applicable law or in connection with permitted substitution of Exchange
Property. Neither the Bank nor any stockholder of the Bank, including the
Contracting Stockholder and AMP, has any obligation to consider the interests of
holders of STRYPES for any reason. Additional issuances of Bank Ordinary Shares
or other Reference Securities may materially and adversely affect the price of
Bank Ordinary Shares or other Reference Securities and, because of the
relationship of the percentage of each type of Reference Property (or the amount
of cash or combination of cash and Reference Property) to be received on the
Exchange Date or the cash to be received resulting from any Partial Cash
Distribution Event to the price of such other Reference Property, such other
events may materially and adversely affect the trading price of the STRYPES.
There can be no assurance that the Bank or any successor will not take any of
the foregoing actions, or that it will not make offerings of, or that principal
stockholders will not sell any, Bank Ordinary Shares or other Reference
Securities in the future, or as to the amount of any such offerings or sales.
See "Risk Factors--Reference Property Adjustments."
TERM OF THE TRUST
The Trust will dissolve on or shortly after the Exchange Date unless
dissolved earlier upon the occurrence of a Dissolution Event. On or shortly
after the Exchange Date, the Reference Property or cash to be exchanged for the
STRYPES and any other remaining Trust assets, net of any remaining Trust
expenses, if any, will be distributed PRO RATA to holders. Upon the occurrence
of any Dissolution Event, the Contract will accelerate, the Escrow Amount will
be held for the benefit of and paid to the Contracting Stockholder, the holders
of the STRYPES will become absolutely entitled to the assets received pursuant
to the Contract, the Trust's other assets will be liquidated, the net assets of
the Trust will be distributed PRO RATA to the holders as soon as practicable
thereafter, and the Trust will dissolve. See "Investment Objective and
Policies--The Contract" and "--Trust Dissolution" and "Risk Factors--Limited
Term."
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CERTAIN TAX CONSIDERATIONS
The Trust will be taxable as a grantor trust for United States Federal
income tax purposes. Accordingly, each holder will be treated for United States
Federal income tax purposes as the owner of its PRO RATA portion of the U.S.
Treasury Securities and the Contract, and income received (including original
issue discount treated as received) by the Trust will generally be treated as
income of the holders. See "Certain Tax Considerations--United States Federal
Income Tax."
The U.S. Treasury Securities held by the Trust will be treated for United
States Federal income tax purposes as having "original issue discount" which
will accrue over the term of the U.S. Treasury Securities. It is currently
anticipated that each quarterly cash distribution to the holders will be treated
as a tax-free return of the holders' costs of the U.S. Treasury Securities and
any previously included original issue discount, and therefore will not be
considered current income to holders upon receipt thereof for United States
Federal income tax purposes. However, a holder (whether on the cash or accrual
method of tax accounting) must recognize currently as income original issue
discount on the U.S. Treasury Securities as it accrues. See "Certain Tax
Considerations--United States Federal Income Tax."
Under existing law, a holder should not recognize income, gain or loss upon
the Trust's entry into the Contract or over the term of the Contract. In
general, the delivery of Reference Property pursuant to the Contract will not be
taxable to the holders. A holder will recognize taxable gain or loss upon
receipt of cash, if any, upon dissolution of the Trust or to the extent AMP
exercises the Cash Settlement Option, and may do so in certain other
circumstances. In general, each holder's initial tax basis in any Reference
Property received from the Contracting Stockholder and the Trust on the Exchange
Date or upon earlier dissolution of the Trust will be equal to its basis in its
PRO RATA portion of the Contract less the portion of such basis allocable to any
cash that is received. The proper United States Federal income tax treatment of
the receipt by a holder of its PRO RATA portion of cash distributed as a result
of a Partial Cash Distribution Event prior to dissolution of the Trust is
uncertain and will depend upon various factors. See "Certain Tax
Considerations--United States Federal Income Tax."
For Australian income tax purposes the Trust will not be treated as a
resident of Australia. As it is not in receipt of Australian source income, the
Trust will not be subject to Australian tax on income earned. Quarterly
distributions of the Trust will not, therefore, be subject to Australian tax
whether by withholding or otherwise.
There will not be any Australian tax consequences to the Trust arising from
the delivery of Reference Property pursuant to the Contract and the distribution
of the Reference Property to the U.S. holders. The sale of STRYPES or shares in
an Australian listed company will not generate assessable income to U.S. holders
or otherwise be subject to Australian capital gains tax except in certain
circumstances described below and under "Certain Tax Considerations--Australian
Taxation." Capital gains tax upon the sale of STRYPES or shares in an Australian
listed company may apply where the U.S. holder and the U.S. holder's associates
together beneficially hold, prior to the sale, 10% or more of the issued capital
of the Australian listed company, such as the Bank, in which the shares are
held. See "Certain Tax Considerations--Australian Taxation."
In the event AMP exercises its Cash Settlement Option, any Australian
withholding tax payable thereon will be payable by AMP. It is not contemplated
that any withholding tax will be payable on such payment by AMP nor on any
payment of those funds by the Trust to U.S. holders.
Where U.S. holders acquire, on the Exchange Date, Reference Property
comprising shares in an Australian corporation, such as the Bank, there may be
Australian tax consequences in relation to dividends paid by that Australian
corporation. In general terms, fully franked dividends are not subject to
withholding tax while unfranked dividends paid to a U.S. holder will be subject
to 15% Australian dividend withholding tax. See "Certain Tax
Considerations--Australian Taxation."
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<PAGE>
MANAGEMENT ARRANGEMENTS
The Trust will be internally managed and will not have an investment
adviser. The Trust's portfolio will not be actively managed. The administration
of the Trust will be overseen by the Trustees. The day-to-day administration of
the Trust will be carried out by The Bank of New York (or its successor) as
trust administrator (the "Administrator"). The Bank of New York (or its
successor) will also act as custodian for the Trust's assets (the "Custodian"),
as paying agent, transfer agent and registrar (the "Paying Agent") with respect
to the STRYPES, and as exchange agent (the "Exchange Agent") with respect to
exchanges of foreign currency amounts received under the Contract into U.S.
dollars, and calculation of any U.S. Dollar Equivalent. Except as aforesaid, The
Bank of New York has no other affiliation with, and is not engaged in any other
transaction with, the Trust. For their services, the Trust will pay The Bank of
New York in its capacities as the Administrator, the Custodian, the Paying Agent
and the Exchange Agent at the closing of the Offering a one-time, up-front
amount in respect of its fee. See "Management Arrangements."
RISK FACTORS
The Trust has adopted a fundamental policy that the Contract may not be
disposed of during the term of the Trust and that, unless the Trust dissolves
prior to the Exchange Date due to the occurrence of a Dissolution Event, the
U.S. Treasury Securities may not be disposed of prior to their respective
maturities. The Trust will continue to hold the Contract despite any significant
decline in the value of the Reference Property or adverse changes in the
financial condition of the Bank or other issuer of Reference Property.
Although the STRYPES will provide investors with a current distribution
yield, there is no assurance that the distribution yield on the STRYPES will be
higher than the yield on the Reference Property over the term of the Trust. In
addition, the opportunity for equity appreciation afforded by an investment in
the STRYPES is less than that afforded by a direct investment in the Bank
Ordinary Shares. The value of the Reference Property receivable by a holder of a
STRYPES upon exchange on the Exchange Date will exceed the issue price of such
STRYPES only if the Reference Property Value exceeds the Threshold Appreciation
Price, which, assuming a Partial Cash Distribution Event does not occur,
represents an appreciation of % over the Initial Price. Moreover, assuming a
Partial Cash Distribution Event does not occur, because each STRYPES will
entitle the holder to receive only % of each type of Reference Security if the
Reference Property Value exceeds the Threshold Appreciation Price, holders of
the STRYPES will be entitled to receive upon exchange only % of any
appreciation of the value of the Reference Property above the Threshold
Appreciation Price. As described herein, the Reference Property Value will
represent a determination of the value of the Reference Property immediately
prior to any Partial Cash Distribution Date and the Exchange Date. Furthermore,
the amount of cash per STRYPES distributed on any Partial Cash Distribution Date
or as a result of a Cash Dissolution Event will be the Cash Reorganization
Amount adjusted by a present value calculation that discounts such Cash
Reorganization Amount to the payment date from the Exchange Date as described
herein. Accordingly, there can be no assurance that the amount receivable by the
holder of a STRYPES on the Exchange Date or as a result of any Dissolution Event
plus any cash distribution to the holder resulting from any Partial Cash
Distribution Event will be equal to or greater than the issue price of the
STRYPES. If the Reference Property Value is less than the Initial Price on the
Exchange Date (whether or not a Partial Cash Distribution Event occurs), the
amount distributed to the holder of a STRYPES may be less than the issue price
paid for the STRYPES, in which case an investment in STRYPES will result in a
loss. See "Investment Objectives and Policies--General" and "--The Contract."
The Trust is classified as a "non-diversified" investment company under the
Investment Company Act. Consequently, the Trust is not limited by the Investment
Company Act in the proportion of its assets that may be invested in the
securities of a single issuer. Since the only securities held by the Trust will
be the U.S. Treasury Securities and the Contract, the Trust may be subject to
greater risk than would be the case for an investment company with more
diversified investments.
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<PAGE>
The trading prices of the STRYPES in the secondary market will be directly
affected by the trading prices of Banks ADSs or Bank Ordinary Shares or other
Reference Property in the secondary market. It is impossible to predict whether
the price of Bank ADSs or Bank Ordinary Shares or other Reference Property will
rise or fall. Trading prices of Bank ADSs or Bank Ordinary Shares or other
Reference Property will be influenced by the Bank's or successor issuer's
operating results and prospects and by economic, financial and other factors and
market conditions.
Holders of STRYPES will not be entitled to any rights with respect to the
Bank Ordinary Shares or other Reference Securities (including, without
limitation, voting rights and rights to receive any dividends or other
distributions in respect thereof) unless and until such time, if any, as the
holders shall have received Bank Ordinary Shares or other Reference Securities
in exchange for STRYPES on the Exchange Date or upon the distribution of the
Bank Ordinary Shares or other Reference Securities following the occurrence of a
Dissolution Event.
The bankruptcy or winding up of, or similar events affecting, the
Contracting Stockholder or AMP could adversely affect the time of exchange or,
as a result, the amount received by the holders of the STRYPES. See "Risk
Factors--Risk Relating to Insolvency of Contracting Stockholder or AMP."
Holders will experience a taxable event upon receipt of cash, if any, upon
dissolution of the Trust. Because of an absence of authority as to the proper
character of any gain or loss resulting from such a taxable event, the ultimate
tax consequences to holders as a result of the Contracting Stockholder
satisfying its obligation under the Contract, in whole or in part, with cash is
uncertain. See "Risk Factors."
LISTING
The STRYPES have been approved for listing on the NYSE, subject to official
notice of issuance.
13
<PAGE>
FEE TABLE
<TABLE>
<S> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum Sales Load (as a percentage of offering price).... 3%(a)
Automatic Dividend Reinvestment Plan Fees................. Not Applicable
ANNUAL EXPENSES (as a percentage of net assets)
Management Fees(b)........................................ 0%
Other Expenses(c)......................................... 0%
--
TOTAL ANNUAL EXPENSES(c).................................... 0%
--
--
</TABLE>
<TABLE>
<CAPTION>
EXAMPLE 1 YEAR 3 YEARS
----------- -----------
<S> <C> <C>
An investor would pay the following expenses on a $1,000
investment, including the maximum sales load of $30 and
assuming (1) no annual expenses and (2) a 5% annual return
throughout the periods: $ 30 $ 30
</TABLE>
- ------------------------
(a) See the cover page of this Prospectus and "Underwriting."
(b) See "Management Arrangements." The Trust will be internally managed;
consequently there is no separate investment advisory fee paid by the Trust.
The Bank of New York will act as the administrator of the Trust.
(c) The organization costs of the Trust in the amount of $10,000, the costs
associated with the initial registration and offering of the STRYPES
estimated to be approximately $580,000, and approximately $450,000 in
respect of anticipated ongoing expenses over the term of the Trust will be
paid by the Trust. Any unanticipated operating expenses of the Trust will be
paid by Merrill Lynch & Co., Inc., which will be reimbursed by AMP. See
"Management Arrangements--Estimated Expenses." Absent such arrangements, the
Trust's "Other Expenses" and "Total Annual Expenses" would be approximately
.0165% of the Trust's net assets.
The foregoing Fee Table is intended to assist investors in understanding the
costs and expenses that a shareholder in the Trust will bear directly or
indirectly. The Example set forth above assumes reinvestment of all dividends
and distributions and utilizes a 5% annual rate of return as mandated by
Securities and Exchange Commission regulations. THE EXAMPLE SHOULD NOT BE
CONSIDERED A REPRESENTATION OF FUTURE EXPENSES OR ANNUAL RATES OF RETURN, AND
ACTUAL EXPENSES OR ANNUAL RATES OF RETURN MAY BE MORE OR LESS THAN THOSE ASSUMED
FOR PURPOSES OF THE EXAMPLE.
14
<PAGE>
THE TRUST
WBK STRYPES Trust is a Delaware business trust and will be registered as a
closed-end management investment company under the Investment Company Act. The
Trust was formed on March 14, 1996 pursuant to a Trust Agreement dated as of
such date (as amended and restated as of September 17, 1997 the "Declaration of
Trust"). The term of the Trust will expire on or shortly after ,
2000, except that the Trust may be dissolved prior to such date under certain
limited circumstances. The Trust will be treated as a grantor trust for United
States Federal income tax purposes. The Trust's principal office is located at
850 Library Avenue, Suite 204, Newark, Delaware 19715, and its telephone number
is (302) 738-6680.
USE OF PROCEEDS
The net proceeds of the Offering will be approximately $ (or
approximately $ , if the Underwriter's over-allotment option is
exercised in full), after payment of the sales load, the expenses of the
Offering and the other expenses payable by the Trust as described herein. At the
time of the closing of the Offering, or shortly thereafter, the net proceeds of
the Offering will be used to purchase a fixed portfolio comprised of a series of
zero-coupon U.S. Treasury Securities with face amounts and maturities
corresponding to the amounts and payment dates of the distributions payable with
respect to the STRYPES, to pay the purchase price under the Contract to the
Contracting Stockholder and to pay the Escrow Amount under the Escrow Agreement
to the Escrow Agent.
INVESTMENT OBJECTIVE AND POLICIES
UNLESS THE CONTEXT OTHERWISE REQUIRES, THE FOLLOWING DISCUSSION ASSUMES THAT
ON THE EXCHANGE DATE, THE REFERENCE PROPERTY CONSISTS ONLY OF BANK ORDINARY
SHARES.
GENERAL
The Trust will purchase and hold (i) a series of zero-coupon U.S. Treasury
Securities maturing on a quarterly basis through the Exchange Date and (ii) the
Contract with the Contracting Stockholder and AMP relating to the Reference
Property. The Trust's investment objective is to distribute to holders of
STRYPES on a quarterly basis $ per STRYPES (which amount equals the PRO
RATA portion of the fixed quarterly distributions from the proceeds of the
maturing U.S. Treasury Securities held by the Trust) and, on the Exchange Date,
a percentage of the number or amount of each type of Reference Security and
other property constituting part of the Reference Property (or, in certain
circumstances, cash, or a combination of cash, Reference Securities and other
property, with an equal value) per STRYPES equal to the Exchange Amount. The
Exchange Amount is equal to: (a) if the Reference Property Value is greater than
or equal to the Threshold Appreciation Price, % of the number or amount of each
type of Reference Property, (b) if the Reference Property Value is less than the
Threshold Appreciation Price but is greater than the Initial Price, a percentage
of the number or amount of each type of Reference Property, allocated as
proportionately as practicable, so that the aggregate value thereof is equal to
the Initial Price, and (c) if the Reference Property Value is less than or equal
to the Initial Price, 100% of the number or amount of each type of Reference
Property. The "Initial Price" initially will be $ , provided that,
following the distribution of cash constituting Reference Property as a result
of a Partial Cash Distribution Event, the Initial Price will be the product of
the Initial Price in effect immediately prior to such distribution and the
fraction obtained by dividing (i) the result of subtracting the aggregate Cash
Reorganization Price for the Reference Securities included in the Reference
Property that were disposed of in connection with such Partial Cash Distribution
Event from the Reference Property Value (computed as of the related Partial Cash
Distribution Date assuming such disposition had occurred) by (ii) the Reference
Property Value (computed as aforesaid), with such product being rounded to the
nearest cent. The "Threshold Appreciation Price" initially will be $ ,
provided that, following the distribution of cash constituting Reference
Property as a result of a Partial Cash Distribution Event, the Threshold
Appreciation Price will
15
<PAGE>
be the product of the Threshold Appreciation Price in effect immediately prior
to such distribution and the fraction obtained by dividing (i) the result of
subtracting the aggregate Cash Reorganization Price for the Reference Securities
included in the Reference Property that were disposed of in connection with such
Partial Cash Distribution Event from the Reference Property Value (computed as
of the related Partial Cash Payment Date assuming such disposition had occurred)
by (ii) the Reference Property Value (computed as aforesaid), with such product
being rounded to the nearest cent.
THERE CAN BE NO ASSURANCE THAT THE AMOUNT RECEIVABLE BY THE HOLDER OF A
STRYPES ON THE EXCHANGE DATE OR AS A RESULT OF ANY DISSOLUTION EVENT PLUS ANY
CASH DISTRIBUTION TO THE HOLDER RESULTING FROM ANY PARTIAL CASH DISTRIBUTION
EVENT WILL BE EQUAL TO OR GREATER THAN THE ISSUE PRICE OF THE STRYPES. IF THE
REFERENCE PROPERTY VALUE ON THE EXCHANGE DATE IS LESS THAN THE INITIAL PRICE
(WHETHER OR NOT A PARTIAL CASH DISTRIBUTION EVENT OCCURS), THE AMOUNT
DISTRIBUTED TO THE HOLDER OF A STRYPES MAY BE LESS THAN THE ISSUE PRICE OF THE
STRYPES, IN WHICH CASE AN INVESTMENT IN STRYPES WILL RESULT IN A LOSS. Holders
otherwise entitled to receive fractional units or interests of any Reference
Security or other property constituting part of the Reference Property in
respect of their aggregate holdings of STRYPES will receive cash in lieu
thereof. See "Fractional Interests."
The term "Reference Property" initially means five Bank Ordinary Shares and
shall be subject to adjustment from time to time prior to the Business Day
immediately preceding the Exchange Date to reflect the addition, substitution or
distribution of any cash, securities and/or other property resulting from the
application of the adjustment provisions described below under "--The
Contract--Reference Property Adjustments." As more fully described below, upon
application of such adjustment provisions, in the future the Reference Property
may include, in addition to or in lieu of Bank Ordinary Shares, other securities
of the Bank, securities of another issuer, cash or other property. The term
"Reference Security" means, at any time, any security (as defined in Section
2(1) of the Securities Act) then constituting part of the Reference Property.
The term "Reference Property Value" means, subject to the adjustment provisions
described below, the sum, determined as of 10:00 A.M. (New York City time) on
the second Business Day preceding the Exchange Date, any Partial Cash
Distribution Date or the date of any distribution following a Dissolution Event,
as the case may be (each such date being a "Reference Date"), of the U.S. Dollar
Equivalent of (a) for any portion of the Reference Property consisting of cash,
the amount of such cash, (b) for any portion of the Reference Property
consisting of property other than cash or Reference Securities, the fair market
value of such property (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator) as of
10:00 A.M. (New York City time) on the third Business Day preceding the
Reference Date, and (c) for any portion of the Reference Property consisting of
a Reference Security, an amount equal to the average Closing Price (as defined
herein) per unit of such Reference Security for the 20 Trading Days immediately
prior to, but not including, the second Trading Day preceding the Reference Date
multiplied by the number of units of such Reference Security constituting part
of the Reference Property. The term "U.S. Dollar Equivalent" with respect to the
value of any asset or liability means (i) if such asset or liability is
denominated or valued in U.S. dollars, such U.S. dollar amount; (ii) if such
asset or liability (other than cash) is denominated or valued in other than in
U.S. dollars, the product of the value of such asset or liability and (x) the
U.S. dollar noon buying rate in New York City for cable transfers (the "Noon
Buying Rate") of the currency in which the asset or liability is denominated or
valued as certified by the Federal Reserve Bank of New York on the date on or as
of which the value of the asset or liability is being determined or (y) if the
Noon Buying Rate for such currency is not available on such date, a rate of
exchange determined by the Exchange Agent and (iii) if such asset or liability
is cash, the U.S. dollar amount that the Exchange Agent would deliver in
exchange for such cash pursuant to the Administration Agreement (as defined
herein) assuming such exchange occurs on the payment or distribution date in
respect of which the value of such asset or liability is being determined and
the rate of exchange is comparable to that afforded to the Exchange Agent's best
customers for comparable volume.
16
<PAGE>
At the request of a STRYPES holder, Bank Ordinary Shares constituting
Reference Property which such holder may be entitled to receive on the Exchange
Date or otherwise will be delivered in the form of Bank ADSs representing such
shares and evidenced by Bank ADRs, but only if at the time of delivery Bank ADSs
are listed on the NYSE or another national or regional U.S. stock exchange or
quoted on a U.S. automated quotation system and if and to the extent such Bank
Ordinary Shares are accepted for deposit by the depositary for the Bank ADSs.
Any such request shall have been received by the Administrator at least 30 days
prior to the Exchange Date or other applicable distribution date. Any such
request may be revoked provided such revocation is received by the Administrator
at least 30 days prior to the Exchange Date or other applicable distribution
date. A Bank ADS request/revocation form is attached hereto as Annex A. In the
event that a holder elects to receive Bank ADSs, on the Exchange Date or other
distribution date, as the case may be, the Trust will deposit the Bank Ordinary
Shares with the Bank ADR depositary with instructions to register ADRs in such
holder's name and to deliver such ADRs as requested by such holder and the Trust
will be responsible for the payment of any fees of the Bank ADR depositary in
connection therewith. Any such payment will be reimbursed by Merrill Lynch &
Co., Inc., which in turn will be reimbursed by AMP.
The "Closing Price" of (i) a Bank Ordinary Share constituting a Reference
Security on any date of determination means (a) (w) the closing sale price per
ADS (or, if no closing sale price per ADS is reported, the last reported per ADS
sale price) of Bank ADSs on the NYSE on such date or, if Bank ADSs are not
listed for trading on the NYSE on such date, as reported in the composite
transactions for the principal United States securities exchange on which Bank
ADSs are so listed, or, if Bank ADSs are not so listed, as reported by National
Association of Securities Dealers, Inc. Automated Quotation System, or if Bank
ADSs are not so reported, the last quoted per ADS bid price for Bank ADSs in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or (b) if Bank ADSs are not outstanding or traded, (y) the closing
price per share (or, if no closing price per share is reported, the last
reported per share sale price) of Bank Ordinary Shares on the ASX on such date
or, if Bank Ordinary Shares are not listed for trading on the ASX on such date,
the per share market value of Bank Ordinary Shares on such date as determined by
a nationally recognized independent investment banking firm in Australia
retained for this purpose by the Administrator, multiplied by (z) the U.S.
dollar noon buying rate in New York City for cable transfers of Australian
dollars as certified by the Federal Reserve Bank of New York on such date; and
(ii) a Reference Security other than a Bank Ordinary Share on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of such security on the NYSE on such date or, if
such security is not listed for trading on the NYSE on such date, as reported in
the composite transactions for the principal United States securities exchange
on which such security is so listed, or, if such security is not so listed on a
United States exchange, as reported by National Association of Securities
Dealers, Inc. Automated Quotation System, or, if such security is not so
reported, the last quoted bid price for such security in the over-the-counter
market as reported by the National Quotation Bureau or similar organization, or,
if such bid price is not available, the U.S. Dollar Equivalent of the market
value of such security on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator. A "Trading Day" is defined as a day on which the security the
Closing Price of which is being determined (A) is not suspended from trading on
any securities exchange or association or over-the-counter market at the close
of business and (B) has traded at least once on the securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security or, in connection with calculating the Reference
Property Value for Bank Ordinary Shares using clause (i)(a) of the definition of
Closing Price, the primary trading market for the trading of Bank ADSs. The term
"Business Day" means any day that is not a Saturday, a Sunday or a day on which
the NYSE, The NASDAQ National Market, or banking institutions or trust companies
in The City of New York and any other place where payment under the Contract or
the Escrow Agreement is required to be made are authorized or obligated by law
or executive order to close.
Pursuant to the terms of the Contract, the Contracting Stockholder is
obligated to deliver to the Trust on the Business Day immediately preceding the
Exchange Date the aggregate number or amount of each
17
<PAGE>
type of Reference Security and other property constituting part of the Reference
Property required by the Trust in order to exchange all of the STRYPES
(including STRYPES issued pursuant to the over-allotment option granted by the
Trust to the Underwriter and STRYPES issued in connection with the formation of
the Trust) on the Exchange Date in accordance with the Trust's investment
objective. The obligation of the Contracting Stockholder to deliver Reference
Property under the Contract may be cash settled, at the option of AMP (the "Cash
Settlement Option"), in whole or in part, if AMP delivers to the Trust on the
Business Day immediately preceding the Exchange Date, in lieu of the portion of
the number or amount of each type of Reference Property otherwise deliverable in
respect of which the Cash Settlement Option is exercised, cash in an amount
equal to the value of such Reference Property immediately prior to the Exchange
Date. To the extent that AMP elects to satisfy its obligation under the Contract
by delivering cash or the Reference Property includes cash, holders will receive
cash on the Exchange Date. On or prior to the twenty-sixth Business Day
preceding the Exchange Date, the Administrator will notify The Depository Trust
Company (the "Depository") and publish a notice in THE WALL STREET JOURNAL or
another daily newspaper of national circulation stating whether the applicable
percentage of the number or amount of the Reference Property or cash will be
delivered in exchange for the STRYPES on the Exchange Date. At the time such
notice is published, the Reference Property Value will not have been determined.
If the Contracting Stockholder delivers Reference Property, holders will be
responsible for the payment of any and all brokerage costs upon the subsequent
sale thereof.
The Contract will comprise approximately % of the Trust's initial
assets. The Trust has adopted a fundamental policy that the Contract may not be
disposed of during the term of the Trust and that, unless the Trust dissolves
prior to the Exchange Date upon the occurrence of a Dissolution Event, the U.S.
Treasury Securities may not be disposed of prior to their respective maturities.
The foregoing fundamental policies of the Trust may not be changed without the
vote of 100% in interest of the holders of STRYPES. The Trust has also adopted a
policy to invest at least 65% of its portfolio initially in the Contract. While
the Trust would ordinarily expect to maintain its investment in the Contract at
or above 65% of its assets, its proportionate investment in the Contract could
fall below 65% of its assets as result of a Partial Cash Distribution Event or
fluctuations in the relative value of its investment in the Contract and its
investment in U.S. Treasury Securities.
TRUST ASSETS
The Trust's assets primarily will consist of (i) U.S. Treasury Securities
and (ii) the Contract. The Trust may also make certain temporary investments.
See "--Temporary Investments." For illustrative purposes only, the following
table shows the number of Bank Ordinary Shares or amount of cash (in U.S.
dollars) that a holder would receive for each STRYPES at various Reference
Property Values. The table assumes that there will be no Reference Property
adjustments as described below under "--The Contract-- Reference Property
Adjustments" and "--Cash Distribution Events" and, accordingly, that on the
Exchange Date, the Reference Property will consist of five Bank Ordinary Shares.
There can be no assurance that the Reference Property Value will be within the
range set forth below. Given an Initial Price of $ and a Threshold
Appreciation Price of $ , a holder would receive on the Exchange Date
the following number of Bank Ordinary Shares or amount of cash (if the
Contracting Stockholder elects to satisfy its obligation under the Contract in
whole with cash) per STRYPES:
<TABLE>
<CAPTION>
REFERENCE NUMBER OF BANK ADS
PROPERTY VALUE NUMBER OF BANK (ASSUMING 5 BANK
OF BANK ORDINARY ORDINARY ORDINARY SHARES PER AMOUNT OF
SHARES SHARES BANK ADS) CASH
- ---------------- -------------- -------------------- ---------
<S> <C> <C> <C>
</TABLE>
18
<PAGE>
The following table sets forth information regarding the distributions to be
received on the U.S. Treasury Securities, the portion of each year's
distributions that will constitute a return of capital for United States Federal
income tax purposes and the amount of original issue discount accruing, assuming
a yield-to-maturity accrual election, on the U.S. Treasury Securities with
respect to a holder who acquires its STRYPES at the issue price from the
Underwriter pursuant to the Offering. See "Certain Tax Considerations--United
States Federal Income Tax."
<TABLE>
<CAPTION>
ANNUAL GROSS ANNUAL INCLUSION
ANNUAL GROSS DISTRIBUTIONS FROM OF ORIGINAL
DISTRIBUTIONS FROM U.S. TREASURY ANNUAL RETURN ISSUE DISCOUNT
U.S. TREASURY SECURITIES PER OF CAPITAL PER IN INCOME PER
YEAR SECURITIES STRYPES STRYPES STRYPES
- ----------------- ------------------- ------------------- -------------- ----------------
<S> <C> <C> <C> <C>
1997............. $ $ $ $
1998.............
1999.............
2000.............
</TABLE>
The anticipated annual distribution of $ per STRYPES is payable
quarterly on each February 15, May 15, August 15 and November 15, commencing
November 15, 1997 (or, if any such date is not a Business Day, the next
succeeding Business Day). Quarterly distributions on the STRYPES will consist
solely of the cash received from the proceeds of the maturing U.S. Treasury
Securities held by the Trust. The Trust will not be entitled to any future
dividends that may be declared on the Bank Ordinary Shares except Extraordinary
Cash Dividends (as defined herein). See "Dividends and Distributions."
ENHANCED YIELD; LESS POTENTIAL FOR EQUITY APPRECIATION THAN BANK ORDINARY
SHARES; NO DEPRECIATION PROTECTION
Although the STRYPES will provide investors with a current distribution
yield, there is no assurance that the distribution yield on the STRYPES will be
higher than the dividend yield on the Bank Ordinary Shares or other Reference
Securities over the term of the Trust. In addition, the opportunity for equity
appreciation afforded by an investment in the STRYPES is less than that afforded
by a direct investment in the Bank Ordinary Shares. The value of the Bank
Ordinary Shares receivable by a holder of a STRYPES on the Exchange Date (plus
any cash received in connection with any Partial Cash Distribution Event) will
exceed the issue price of such STRYPES only if the Reference Property Value
exceeds the Threshold Appreciation Price, which represents an appreciation of
% of the Initial Price. Moreover, because each STRYPES will entitle the
holder to receive only % of the number or amount of each type of Reference
Security and other property constituting part of the Reference Property if the
Reference Property Value exceeds the Threshold Appreciation Price, holders of
the STRYPES will be entitled to receive upon exchange only % (the
percentage equal to the Initial Price divided by the Threshold Appreciation
Price) of any appreciation of the value of the Reference Property above the
Threshold
19
<PAGE>
Appreciation Price. Holders of STRYPES will bear the entire decline in value if
the Reference Property Value is less than the Initial Price.
THE BANK
Westpac Banking Corporation (the "Bank"), together with its subsidiaries
("Westpac"), is one of the four major banking organizations in Australia.
Westpac is engaged in a broad range of banking and financial services, including
general banking (retail, commercial and institutional banking), finance company
activities, investment management and insurance. On September 26, 1997, the
market capitalization of the Bank was in excess of A$15 billion, which ranked it
in the top ten Australian companies listed on the ASX.
Westpac was the first bank established in Australia. It was founded in 1817
and was incorporated in 1850 as Bank of New South Wales by an Act of the New
South Wales Parliament. In 1982, the Bank acquired The Commercial Bank of
Australia Limited and changed its name to Westpac Banking Corporation. The
Bank's principal office is located at 60 Martin Place, Sydney, New South Wales,
2000, Australia and its telephone number is (61)(2)9266-3311.
For each of the Bank's fiscal years indicated below, the high, low, average
and year-end Noon Buying Rates for Australian dollars were:
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
----------------------------------------------------------------
1997(1) 1996 1995 1994 1993 1992
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
(US$PER A$1.00)
High.............................. 0.8120 0.8026 0.7778 0.7467 0.7224 0.8004
Low............................... 0.7163 0.7318 0.7100 0.6460 0.6450 0.7112
Average(2)........................ 0.7728 0.7718 0.7429 0.7109 0.6839 0.7528
Close............................. 0.7227 0.7912 0.7556 0.7400 0.6450 0.7139
</TABLE>
- ------------------------
(1) Through September 26, 1997.
(2) The average of the exchange rates on the last day of each month during the
period.
The principal exchange for the Bank Ordinary Shares is the ASX. Bank ADSs,
each representing five Bank Ordinary Shares, are listed on the NYSE. The Bank
Ordinary Shares are also listed on the Tokyo Stock Exchange and The Stock
Exchange, New Zealand.
20
<PAGE>
The table below shows, for the calendar periods indicated, the reported high
and low market quotations for the Bank Ordinary Shares on the ASX based on its
daily official list and for the Bank ADSs on the NYSE.
<TABLE>
<CAPTION>
PER BANK
ORDINARY SHARE PER BANK ADS
---------------- -----------------------
QUARTER ENDING HIGH LOW HIGH LOW
- -------------------------------------- ------- ------- ---------- ----------
<S> <C> <C> <C> <C>
1994:
March............................... A $5.55 A $4.45 US $20 1/8 US $15 1/4
June................................ 5.08 4.15 18 3/8 15 1/4
September........................... 4.86 4.12 17 7/8 15 1/4
December............................ 4.58 3.90 17 1/2 14 7/8
1995:
March............................... 5.07 4.30 21 3/8 16 3/8
June................................ 5.51 4.80 20 1/8 17 1/2
September........................... 5.50 4.82 20 5/8 17 7/8
December............................ 5.96 5.28 22 1/2 19 3/4
1996:
March............................... 6.49 5.53 24 3/8 21 1/2
June................................ 6.33 5.30 24 7/8 21 3/8
September........................... 6.59 5.20 26 20 1/2
December............................ 7.50 6.44 30 3/8 25 1/4
1997:
March............................... 7.90 6.93 30 1/8 27
June................................ 8.10 6.43 30 1/4 25 3/8
September (through September 26).... 9.04 7.66 32 15/16 28 1/16
</TABLE>
The table below sets forth the total dividends paid on each fully paid Bank
Ordinary Share in respect of each fiscal year of the Bank indicated. Amounts are
translated into U.S. dollars at the Noon Buying Rate on each of the respective
payment dates for interim and final dividends.
<TABLE>
<CAPTION>
TOTAL
TOTAL DIVIDENDS PER TOTAL DIVIDENDS PER DIVIDENDS PER
BANK ORDINARY SHARE BANK ORDINARY SHARE BANK ADS
-------------------- -------------------- --------------
<S> <C> <C> <C>
Fiscal Year Ended September 30
1991.............................. A$0.275 US$0.208 US$1.041
1992.............................. 0.180 0.130 0.648
1993.............................. 0.120 0.083 0.416
1994.............................. 0.180 0.135 0.677
1995.............................. 0.280 0.205 1.023
1996.............................. 0.330 0.258 1.290
</TABLE>
On July 4, 1997, the Bank paid an interim dividend of A$0.19 per Bank
Ordinary Share for the first six months of its fiscal year ended September 30,
1997.
Any future determination as to the payment of dividends on the Bank Ordinary
Shares will be at the discretion of the Bank's Board of Directors and will
depend upon the Bank's operating results, financial condition and capital
requirements, contractual restrictions, general business conditions and such
other factors as the Bank's Board of Directors deems relevant.
Morgan Guaranty Trust Company of New York acts as depositary for the Bank
ADSs.
21
<PAGE>
Holders of STRYPES will not be entitled to receive any future dividends on
the Reference Securities unless and until such time, if any, as the Contracting
Stockholder shall have delivered Reference Securities on the Business Day prior
to the Exchange Date or upon the occurrence of a Dissolution Event, and unless
the applicable record date for determining stockholders entitled to receive such
dividends occurs after such delivery. At any time that the Trust holds Reference
Securities as a result of the foregoing, such Reference Securities will be held
by the Trust for the benefit of the holders of STRYPES absolutely. See "Risk
Factors--No Stockholder Rights."
The Bank is subject to the information requirements of the Exchange Act
applicable to foreign private issuers. Accordingly, the Bank files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Copies of such material can be inspected and copied at the public
reference facilities maintained by the Commission at the address specified under
"Additional Information." Reports and other information concerning the Bank may
also be inspected at the offices of the NYSE.
THE BANK IS NOT AFFILIATED WITH THE TRUST, THE UNDERWRITER, THE CONTRACTING
STOCKHOLDER OR AMP, WILL NOT RECEIVE ANY OF THE PROCEEDS FROM THE SALE OF THE
STRYPES AND WILL HAVE NO OBLIGATIONS WITH RESPECT TO THE STRYPES. THIS
PROSPECTUS RELATES ONLY TO THE STRYPES OFFERED HEREBY AND DOES NOT RELATE TO THE
BANK, BANK ADSs OR BANK ORDINARY SHARES.
THE CONTRACT
GENERAL. On the Business Day immediately preceding the Exchange Date,
pursuant to the terms of the Contract, the Contracting Stockholder is obligated
to deliver to the Trust an aggregate number or amount of each type of the
Reference Property equal to the product of the Exchange Amount and the aggregate
number of STRYPES then outstanding and, pursuant to the Escrow Agreement, the
Escrow Agent is obligated to deliver the Escrow Amount to the Contracting
Stockholder. The obligation of the Contracting Stockholder to deliver shares of
Reference Property under the Contract may be cash settled, at the option of AMP,
in whole or in part, if AMP delivers to the Trust on the Business Day
immediately preceding the Exchange Date, in lieu of the portion of the Reference
Property otherwise deliverable in respect of which the Cash Settlement Option is
exercised, U.S. dollars in an amount (calculated to the nearest 1/100th of a
dollar or, if there is not a nearest 1/100th of a dollar, then to the next
higher 1/100th of a dollar) equal to the Reference Property Value. In the event,
and to the extent, that AMP exercises the Cash Settlement Option or is otherwise
obligated to deliver cash under the terms of the Contact, holders of the STRYPES
will receive cash on the Exchange Date.
REFERENCE PROPERTY ADJUSTMENTS. The Reference Property is subject to
adjustment if an issuer of a Reference Security shall: (i) pay a stock dividend
or make a distribution with respect to such Reference Security in Reference
Securities; (ii) subdivide or split the outstanding units of such Reference
Security into a greater number of units; (iii) combine the outstanding units of
such Reference Security into a smaller number of units; (iv) issue by
reclassification of units of such Reference Security any units of another
security of such issuer; (v) issue rights or warrants to all holders of such
Reference Security entitling them to subscribe for or purchase any of its
securities or other property (other than rights to purchase units of such
Reference Security pursuant to a plan for the reinvestment of dividends or
interest); or (vi) pay a dividend or make a distribution to all holders of such
Reference Security of cash, securities or other property (excluding any cash
dividend on any Reference Security consisting of capital stock that does not
constitute an Extraordinary Cash Dividend (as defined below), excluding any
payment of interest on such Reference Security consisting of an evidence of
indebtedness and excluding any dividend or distribution referred to in clause
(i), (ii), (iii), (iv) or (v) above) or issue to all holders of such Reference
Security rights or warrants to subscribe for or purchase any of its securities
or other property (other than rights to purchase units of such Reference
Security pursuant to a plan for the reinvestment of dividends or interest and
rights and warrants referred to in clause (v) above) (any of the foregoing cash,
securities or
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other property or rights or warrants are referred to as the "Distributed
Assets") (any such event described in clause (i), (ii), (iii), (iv), (v) or
(vi), a "Dilution Event").
In the case of the Dilution Events referred to in clauses (i), (ii), (iii)
and (iv) above, the Reference Property shall be adjusted to include the number
of units of such Reference Security and/or security of such issuer which a
holder of units of such Reference Security would have owned or been entitled to
receive immediately following any such event had such holder held, immediately
prior to such event, the number of units of such Reference Security constituting
part of the Reference Property immediately prior to such event. Each such
adjustment shall become effective immediately after the effective date for such
subdivision, split, combination or reclassification, as the case may be. Each
such adjustment shall be made successively.
In the case of the Dilution Event referred to in clause (v) above, the
Reference Property shall be adjusted by multiplying the number of Reference
Securities constituting Reference Property immediately prior to the date of
issuance of the rights or warrants referred to in clause (v) above by a
fraction, the numerator of which shall be the number of Reference Securities
outstanding on the date of issuance of such rights or warrants, immediately
prior to such issuance, plus the number of additional Reference Securities
offered for subscription or purchase pursuant to such rights or warrants, and
the denominator of which shall be the number of Reference Securities outstanding
on the date of issuance of such rights or warrants, immediately prior to such
issuance, plus the number of additional Reference Securities which the aggregate
offering price of the total number of Reference Securities so offered for
subscription or purchase pursuant to such rights or warrants would purchase at
the current market price (determined as the average Closing Price per Reference
Security for the 20 Trading Days immediately prior to the date such rights or
warrants are issued, subject to certain adjustments), which shall be determined
by multiplying such total number of Reference Securities by the exercise price
of such rights or warrants and dividing the product so obtained by such current
market price. To the extent that Reference Securities are not delivered after
the expiration of such rights or warrants, or if such rights or warrants are not
issued, the Reference Property shall be readjusted to the Reference Property
which would then be in effect had such adjustments for the issuance of such
rights or warrants been made upon the basis of delivery of only the number of
Reference Securities actually delivered.
In the case of the Dilution Event referred to in clause (vi) above, the
Reference Property shall be adjusted to include, from and after such dividend,
distribution or issuance, (x) in respect of that portion, if any, of the
Distributed Assets consisting of cash, the amount of such Distributed Assets
consisting of cash received for each unit of such Reference Security multiplied
by the number of units of such Reference Security constituting part of the
Reference Property on the date of such dividend, distribution or issuance,
immediately prior to such dividend, distribution or issuance, without interest
thereon, plus (y) in respect of that portion, if any, of the Distributed Assets
which are other than cash, the number or amount of each type of Distributed
Assets other than cash received with respect to each unit of such Reference
Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property on the date of such dividend,
distribution or issuance, immediately prior to such dividend, distribution or
issuance.
An "Extraordinary Cash Dividend" means, with respect to any consecutive
12-month period, the amount, if any, by which the aggregate amount of all cash
dividends or any other distribution made by the issuer of a Reference Security
or made pursuant to a scheme of arrangement effecting a distribution of
distributable profits or reserves (other than a bonus issue), whether in cash or
in specie, on any Reference Security consisting of capital stock occurring in
such 12-month period (or, if such Reference Security was not outstanding at the
commencement of such 12-month period or was not then a part of the Reference
Property, occurring in such shorter period during which such Reference Security
was outstanding and was part of the Reference Property) exceeds on a per share
basis 12% of the average of the Closing Prices per share of such Reference
Security over such 12-month period (or such shorter period during which such
Reference Security was outstanding and was part of the Reference Property);
provided that, for purposes
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of the foregoing definition, the amount of cash dividends paid on a per share
basis will be appropriately adjusted to reflect the occurrence during such
period of any stock dividend or distribution of shares of capital stock of the
issuer of such Reference Security or any subdivision, split, combination or
reclassification of shares of such Reference Security.
In the event of (A) any consolidation or merger of an issuer of a Reference
Security with or into another entity (other than a consolidation or merger in
which such issuer is the continuing corporation and in which the Reference
Security outstanding immediately prior to the consolidation or merger is not
exchanged for cash, securities or other property of such issuer or another
entity) or acquisition of an issuer of a Reference Security by another entity,
(B) any sale, transfer, lease or conveyance to another corporation of the
property of an issuer of a Reference Security as an entirety or substantially as
an entirety, (C) any statutory exchange of securities of an issuer of a
Reference Security with another entity, (D) any scheme of arrangement or (E) any
liquidation, dissolution, winding up or bankruptcy of an issuer of a Reference
Security including the Bank as such (excluding any distribution in such Dilution
Event referred to in clause (vi) above) (any such event described in clause (A),
(B), (C), (D) or (E), a "Reorganization Event"), the Reference Property shall be
adjusted to include, from and after the effective date for such Reorganization
Event, in lieu of the number of units of such Reference Security constituting
part of the Reference Property immediately prior to the effective date for such
Reorganization Event, the amount or number of any cash, securities and/or other
property owned or received in such Reorganization Event with respect to each
unit of such Reference Security multiplied by the number of units of such
Reference Security constituting part of the Reference Property immediately prior
to the effective date for such Reorganization Event.
The Administrator is required, within ten Business Days following the
occurrence of an event that requires an adjustment to the Reference Property (or
if the Administrator is not aware of such occurrence, as soon as practicable
after becoming so aware), to provide written notice to the holders of the
STRYPES of the occurrence of such event and a statement in reasonable detail
setting forth the amount or number of each type of Reference Security and other
property then constituting part of the Reference Property.
No adjustments to the Reference Property will be made for certain other
events, such as offerings of Bank Ordinary Shares by the Bank for cash (except
as described above) or in connection with acquisitions. Likewise, no adjustments
to the Reference Property will be made for any sales of Bank Ordinary Shares by
AMP or the Contracting Stockholder.
CASH DISTRIBUTION EVENTS. Upon the occurrence of (a) an event described in
clause (iii) of the definition of Dissolution Event (a "Cash Dissolution Event")
or (b) any consolidation, merger or acquisition of an issuer of a Reference
Security with, into or by another entity in which some but less than all of the
consideration for the Reference Securities constituting the Reference Property
immediately prior to such consolidation, merger or acquisition is cash (a
"Partial Cash Distribution Event"), the Contracting Stockholder will pay to the
Trust pursuant to the Contract out of the cash paid to holders of such Reference
Securities in connection with such event an amount of cash equal to the product
of (i) the number of STRYPES, (ii) the number of units of such Reference
Securities constituting Reference Property immediately prior to such Cash
Dissolution Event or Partial Cash Dissolution Event and (iii) the Adjusted
Present Value of the Cash Reorganization Amount. The term "Cash Reorganization
Amount" with respect to any Cash Reorganization Price means an amount equal to
(i) if the Reference Property Value is greater than or equal to the Threshold
Appreciation Price, % of the Cash Reorganization Price, (ii) if the Reference
Property Value is less than the Threshold Appreciation Price but greater than
the Initial Price, the product of the Initial Price and the percentage of the
Reference Property Value that represents the Cash Reorganization Price, and
(iii) if the Reference Property Value is less than or equal to the Initial
Price, the Cash Reorganization Price. The "Adjusted Present Value" of any Cash
Reorganization Amount is the U.S. Dollar Equivalent of the Cash Reorganization
Amount, discounted on a semi-annual basis (assuming a 360-day year of twelve
30-day months) at the Adjusted Treasury Rate from the Exchange Date to the date
on which the Cash Reorganization Price is paid to holders of the applicable
Reference Securities in connection with the Cash Distribution Event or Partial
Cash Distribution Event.
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The Trust will not dissolve upon the occurrence of a Partial Cash
Distribution Event. However, on the third Business Day following payment of any
Cash Reorganization Price to holders of a Reference Security in connection with
a Partial Cash Distribution Event (a "Partial Cash Distribution Date"), the
Contracting Stockholder will pay the Trust an amount equal to the product of (i)
the number of STRYPES, (ii) the number of units of such Reference Security
constituting Reference Property immediately prior to such Partial Cash
Distribution Event and (iii) the Adjusted Present Value of the Cash
Reorganization Amount. The Bank of New York, as Paying Agent, will distribute
such amount PRO RATA to the holders of STRYPES as soon as practicable
thereafter. The Contracting Stockholder will pay any remaining Cash
Reorganization Price to AMP. Following such distributions, the Reference
Property will include, in lieu of the Reference Securities involved in such
Partial Cash Distribution Event, only the securities or other non-cash property
retained by or distributed to holders of such Reference Securities as a result
of such Partial Cash Distribution Event, as well as any other cash securities
and other property constituting Reference Property prior to such event.
"Adjusted Treasury Rate" means, with respect to any Cash Dissolution Event
or Partial Cash Distribution Event, the rate per annum equal to (i) the yield,
under the heading which represents the average for the immediately prior week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Federal
Reserve Board and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life (as
defined herein) (if no maturity is within three months before or after the
maturity corresponding to the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life will be
interpolated, and the Adjusted Treasury Rate will be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the date on which such event is consummated, in
each case calculated on the third Business Day preceding the date on which such
event is consummated.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before to
three months after the occurrence of the Cash Dissolution Event or Partial Cash
Distribution Event, as the case may be, the two most closely corresponding
United States Treasury securities will be used as the Comparable Treasury Issue,
and the Adjusted Treasury Rate will be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month, using such securities.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Administrator. "Reference Treasury Dealer" means a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer").
"Comparable Treasury Price" means, with respect to any Cash Dissolution
Event or Partial Cash Distribution Event, (i) the average of five Reference
Treasury Dealer Quotations for the date on which such event is consummated,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Paying Agent obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any prepayment date, the average, as determined by the
Administrator, of the bid and asked prices for the
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Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Administrator by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding the date on which the Cash Dissolution Event or Partial Cash
Distribution Event is consummated.
"Remaining Life" means, with respect to any Cash Dissolution Event or
Partial Cash Distribution Event, the period from the third Business Day
following the date of payment of the Cash Reorganization Price to the holders of
the applicable Reference Securities to and including the Exchange Date.
NOMINEE TRUST AGREEMENT; ACCELERATION. The Contracting Stockholder's assets
initially will be the maximum number of Bank Ordinary Shares deliverable under
the Contract. The Contracting Stockholder's activities are limited to holding
and administering these assets pursuant to the Nominee Trust Agreement and the
Contract. Pursuant to the Contract, the Contracting Stockholder must have the
legal ownership of the maximum number or amount of each type of Reference
Security and other property constituting part of the Reference Property
deliverable by the Contracting Stockholder under the Contract. The Contracting
Stockholder will at the direction of AMP pay over to AMP as beneficiary any
dividends, interest, principal or other payments received by the Contracting
Stockholder in respect of any Reference Property and any Cash Reorganization
Price not payable and paid to the Trust on any Partial Cash Distribution Date,
unless (a) a Dissolution Event has occurred, (b) such dividends, interest,
principal or other payments constitute part of the Reference Property or (c) the
payment of such amount to AMP would cause the assets of the Contracting
Stockholder to become insufficient under the Contract. AMP shall have the right
to direct the Contracting Stockholder to vote any Reference Securities for so
long as such securities are owned by the Contracting Stockholder and
beneficially owned by AMP, unless a Dissolution Event has occurred. Upon the
occurrence of a Dissolution Event, the Contracting Stockholder shall hold the
Exchange Property absolutely for the Trust, and AMP shall have a contingent
interest in the Exchange Property not required to be delivered to the Trust for
delivery to holders of STRYPES. Thereafter, the Contracting Stockholder shall
act solely in accordance with the instructions of the Custodian.
Unless the Contracting Stockholder or AMP is in default in its obligations
under the Nominee Trust Agreement and the Contract, AMP will be permitted to
substitute for the Reference Property held by the Contracting Stockholder assets
consisting of short-term, direct obligations of the U.S. Government or the
Australian Government (collectively, "Government Obligations"). Any Government
Obligations held by the Contracting Stockholder as substitute assets will be
required to have an aggregate market value (expressed in U.S. dollars) at the
time of substitution and at daily mark-to-market valuations thereafter of not
less than 150% (or, from and after any Insufficiency Determination that shall
not be cured by 4:00 P.M. (New York City time) on the third Business Day
following the day on which notice thereof is given, as described below, 200%) of
the aggregate value of the number or amount of each type of Reference Security
and other property constituting part of the Reference Property for which such
obligations are being substituted at the time of each valuation.
If the Administrator shall make a determination that Government Obligations
held by the Contracting Stockholder pursuant to the Nominee Trust Agreement as
substitute assets shall fail to meet the foregoing requirements at any valuation
(an "Insufficiency Determination"), and such failure shall not be cured by 4:00
P.M. (New York City time) on the third Business Day following the day on which
notice of such determination is given, then, unless a Exchange Property Event of
Default (as defined below) under the Contract shall have occurred and be
continuing, the Contracting Stockholder shall, if practicable, commence (i)
sales of the assets of the Contracting Stockholder consisting of Government
Obligations and (ii) purchases, using the proceeds of such sales, of each type
of Reference Security and other property then constituting part of the Reference
Property, in such numbers or amounts sufficient to cause the assets of the
Contracting Stockholder to meet the requirements of the Nominee Trust Agreement
and the Contract. The Contracting Stockholder shall discontinue such sales and
purchases if at any time an Exchange Property Event of Default under the
Contract shall have occurred and be continuing.
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An "Exchange Property Event of Default" under the Contract shall mean, with
respect to the Contracting Stockholder at any time, (A) if no Government
Obligations shall be held as assets in substitution for Reference Property at
such time, failure of the assets held by the Contracting Stockholder to consist
of at least the maximum number or amount of each type of Reference Security and
other property constituting part of the Reference Property deliverable by such
Contracting Stockholder under the Contract; and (B) if any Government
Obligations shall be owned by the Contracting Stockholder as substitute assets
for Reference Property at such time, failure of such Government Obligations to
have a market value (expressed in U.S. dollars) at such time of at least 105% of
the difference between (x) the aggregate value (expressed in U.S. dollars) of
the maximum number or amount of each type of Reference Security and other
property constituting part of the Reference Property deliverable by the
Contracting Stockholder under the Contract and (y) the aggregate value
(expressed in U.S. dollars) of the number or amount of each type of Reference
Security and other property constituting part of the Reference Property assets
held by the Contracting Stockholder at such time.
The occurrence of an Exchange Property Event of Default, certain bankruptcy,
insolvency events affecting the Contracting Stockholder or AMP and certain other
events (each such event, a "Default") will cause an automatic acceleration of
the Contracting Stockholder's obligations under the Contract. In any such event,
the Contracting Stockholder will hold a number or amount of each type of
Reference Security and other property constituting part of the Reference
Property having an aggregate value equal to the "Aggregate Acceleration Value"
of the Contract for the benefit of the holders of the STRYPES absolutely. The
Aggregate Acceleration Value will be based on an "Acceleration Value" determined
by the Administrator on the basis of quotations from independent dealers. Each
quotation will be for a U.S. dollar amount that would be paid to the relevant
dealer in consideration of an agreement between the Trust and such dealer that
would have the effect of preserving the rights of the holders of the STRYPES to
receive the number or amount of each type of Reference Security and other
property constituting part of the Reference Property under a portion of the
Contract that corresponds to 1,000 of the STRYPES offered hereby. The
Administrator will request quotations from four nationally recognized
independent dealers on or as soon as reasonably practicable following the date
of acceleration. If four quotations are provided, the Acceleration Value will be
the arithmetic mean of the two quotations remaining after disregarding the
highest and the lowest quotations. If two or three quotations are provided, the
Acceleration Value will be the arithmetic mean of such quotations. If one
quotation is provided, the Acceleration Value will be equal to such quotation.
The Aggregate Acceleration Value will be computed by dividing the Acceleration
Value by 1,000 and multiplying the quotient thereof by the aggregate number of
STRYPES then outstanding, except that, if no quotations are provided, the
Aggregate Acceleration Value will be the value of the aggregate number or amount
of each type of Reference Security and other property constituting part of the
Reference Property that would be required to be delivered on such date under the
Contract if the Exchange Date were redefined for all purposes to be the
acceleration date. Upon the occurrence of a Default, the number or amount of
each type of Reference Security and other property constituting part of the
Reference Property deliverable for each STRYPES will be based solely on the
Aggregate Acceleration Value described above for the Contract.
If a Cash Dissolution Event or certain events of bankruptcy or insolvency of
the issuer of a Reference Security shall occur, the Contracting Stockholder's
obligations under the Contract shall be automatically accelerated and the
Contracting Stockholder shall deliver to but only upon notice of such event from
the Trust, on the earliest practicable Business Day following (but in no event
later than the tenth Business Day following) (i) the date of payment to holders
of the applicable Reference Securities of the applicable Cash Reorganization
Price, in the case of a Cash Dissolution Event or (ii) in all other cases, the
effective date of such event (in each case, the "Early Settlement Date"), the
aggregate amount or number of each type of Reference Property it holds that
would be required to be delivered by the Contracting Stockholder under the
Contract if the Exchange Date were redefined for all purposes of the Contract to
be the Early Settlement Date.
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For purposes of the Contract, unless otherwise specifically provided, the
value of a number or amount of any type of Reference Property shall be the U.S.
Dollar Equivalent of (a) for any Reference Property consisting of cash, the
amount of such cash at the time of valuation, (b) for any Reference Property
consisting of property other than cash or Reference Securities, the fair market
value (as determined by a nationally recognized independent banking firm
retained for this purpose by the Contracting Stockholder) as of the time of
valuation of such property, and (c) for any Reference Property consisting of a
Reference Security, an amount equal to the market price of a unit of such
Reference Security at the time of valuation multiplied by the number of units of
such Reference Security then being valued.
Upon the occurrence of a Dissolution Event, the Contracting Stockholder will
hold the Reference Property on trust absolutely for the Trust and AMP will have
only a contingent interest in the Reference Property not required to be
delivered to the holders of the STRYPES. Thereafter the Contracting Stockholder
shall act solely in accordance with the directions of the Custodian and shall
pursuant to the Contract distribute to the Trust, for distribution PRO RATA to
the holders, the Aggregate Acceleration Value in the form of Reference Property.
See "--Trust Dissolution."
FRACTIONAL INTERESTS. No fractional units of any Reference Security will be
delivered to holders of STRYPES if the Contracting Stockholder satisfies its
obligations under the Contract by delivering Reference Property. In lieu of any
fractional unit otherwise deliverable to the Trust in respect of the Contracting
Stockholder's obligations under the Contract, the Trust shall be entitled to
receive an amount in cash equal to the value of such fractional unit based on
the average Closing Price per unit of such Reference Security on the 20 Trading
Days immediately prior to, but not including, the second Trading Day preceding
the Exchange Date.
To the extent practicable, the Contracting Stockholder will deliver to the
Trust fractional interests of any Reference Property other than cash or a
Reference Security if the Contracting Stockholder satisfies its obligations
under the Contract by delivering Reference Property. If such delivery is not
practicable, in lieu of delivering any such fractional interest otherwise
deliverable in respect of the Contracting Stockholder's obligations under the
Contract, the Trust shall be entitled to receive an amount in cash equal to the
value of such fractional interest based on the fair market value (as determined
by a nationally recognized independent investment banking firm retained for this
purpose by the Administrator) as of 10:00 A.M. (New York City time) on the third
Business Day preceding the Exchange Date of such Reference Property other than
cash or a Reference Security.
DESCRIPTION OF CONTRACTING STOCKHOLDER. The Contracting Stockholder is the
trustee of a trust established under the laws of Australia pursuant to a Nominee
Trust Agreement, dated September 26, 1997, between National Australia Trustees
Limited as trustee (the "Contracting Stockholder") and AMP as sole beneficiary
(as supplemented by the Contract, the "Nominee Trust Agreement"). References
herein to the Contracting Stockholder are to National Australia Trustees
Limited, as trustee of the trust established by the Nominee Trust Agreement. On
or prior to the Closing Date, the Contracting Stockholder will acquire from AMP
the Bank Ordinary Shares it is required to own on such date in accordance with
the Contract. Thereafter until the occurrence of a Dissolution Event, the
ownership of the beneficial interest in the assets of the Contracting
Stockholder shall be vested in AMP. Upon the occurrence of a Dissolution Event,
the Contracting Stockholder will act only in accordance with the instructions of
the Custodian until the assets held by the Contracting Stockholder have been
distributed to the Trust to the extent required by and in accordance with the
Contract, with any remaining assets thereafter continuing to be held for the
benefit of AMP until distributed to AMP at AMP's direction. Upon the occurrence
of a Partial Cash Distribution Event, the Contracting Stockholder shall act only
in accordance with the instructions of the Custodian with respect to the portion
of the aggregate Cash Reorganization Price required to be distributed to the
Trust pursuant to the Contract, with the beneficial interest in any remaining
aggregate Cash Reorganization Price thereafter being held for AMP until
distributed to AMP at AMP's direction.
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On September 8, 1997, AMP owned or managed approximately 212 million Bank
Ordinary Shares or 11.9% of the Bank Ordinary Shares then outstanding.
PURCHASE PRICE. The purchase price under the Contract is equal to
$ in the aggregate, with $ payable to the Contracting
Stockholder by the Trust on or about , 1997 and $1,000,000 payable to
the Escrow Agent to be held for the purposes of the Contract under the Escrow
Agreement. No other consideration is payable by the Trust to the Contracting
Stockholder or AMP in connection with its acquisition of the Contract or the
performance of the Contract by the Contracting Stockholder and AMP.
The Contract will be valued by the Trust at fair value as determined in good
faith at the direction of the Trustees (if necessary, through consultation with
accountants, bankers and other specialists). See "Net Asset Value."
THE U.S. TREASURY SECURITIES
The Trust will purchase and hold a series of zero-coupon U.S. Treasury
Securities with face amounts and maturities corresponding to the amounts and
payment dates of the distributions payable with respect to the STRYPES. Up to
% of the Trust's total assets initially may be invested in these U.S.
Treasury Securities. In the event that the Contract is accelerated as described
under "--Cash Distribution Events" or "--Nominee Trust Agreement; Acceleration,"
the Administrator will liquidate any such U.S. Treasury Securities then held in
the Trust and distribute the proceeds therefrom PRO RATA to the holders,
together with amounts distributed upon acceleration.
ESCROW AGENT
The Escrow Agent is National Australia Bank Limited. Pursuant to the Escrow
Agreement, the Escrow Amount will be held in a demand account of the Escrow
Agent, with any earnings on the Escrow Amount to be distributed to AMP. In the
event of any termination of the Escrow Agreement by the Trust or the resignation
of the Escrow Agent, the Trust must engage a new Escrow Agent to carry out the
duties of the Escrow Agent as set forth in the Escrow Agreement.
TEMPORARY INVESTMENTS
To the extent necessary to enable the Paying Agent to make the next
succeeding quarterly distribution, any moneys deposited with or received by the
Trust will be invested by the Paying Agent in short-term obligations of the U.S.
Government maturing no later than the Business Day preceding the next following
distribution date.
TRUST DISSOLUTION
The Trust will dissolve on or shortly after the Exchange Date, except if
dissolved earlier under certain limited circumstances. Although the Trust has
adopted a fundamental policy that it will not dispose of the Contract or the
Escrow Agreement prior to the Exchange Date, under certain circumstances the
Contract and the Escrow Agreement may terminate prior to the Exchange Date. The
Trust will be dissolved prior to the Exchange Date upon the occurrence of (i) an
Exchange Property Event of Default, (ii) certain events involving the
liquidation, dissolution, winding up or bankruptcy of the Contracting
Stockholder or AMP or certain defaults by either of them under the Contract,
(iii) the liquidation, dissolution, winding up or bankruptcy of an issuer of a
Reference Security, including the Bank as such, other than in connection with a
consolidation, merger or acquisition of such issuer with, into or by another
entity, or (iv) any consolidation, merger or acquisition of an issuer of a
Reference Security with, into or by another entity in connection with which all
the Reference Securities constituting the Reference Property immediately prior
to the consolidation, merger or acquisition are exchanged for consideration
consisting solely of cash and no other property (each, a "Dissolution Event").
Upon the occurrence of a Dissolution Event, the holders of
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the STRYPES will become absolutely entitled to the assets received pursuant to
the Contract, the Escrow Amount will be paid to the Contracting Stockholder, the
net assets of the Trust will be distributed PRO RATA to the holders as soon as
practical thereafter and the term of the Trust will expire. See "--The
Contract-- Cash Distribution Events" and "--Nominee Trust Agreement;
Acceleration."
Written notice of any dissolution shall be sent to holders specifying the
record date for the distribution to holders, the amount distributable
(including, if applicable, the number or amount of each type of Reference
Security and other property constituting part of the Reference Property to which
they are absolutely entitled) with respect to each STRYPES and the time of
dissolution as determined by the Trustees. Any such notice will be provided by
mail, sent to each holder at such holder's address as it appears on the register
for the STRYPES, first class, postage prepaid not less than nine days prior to
the date on which such distribution is to be made. At or prior to the mailing of
such notice, the Administrator shall publish a public announcement in THE WALL
STREET JOURNAL or another daily newspaper of national circulation in the United
States.
FRACTIONAL UNITS AND INTERESTS
No fractional units of any Reference Security or amount of each type of
Reference Security and other property constituting part of the Reference
Property, or fractional interests of any Reference Property other than cash or a
Reference Security, will be distributed by the Trust to holders of STRYPES on
the Exchange Date or upon earlier dissolution of the Trust. All fractional units
or interests to which holders of STRYPES would otherwise be entitled on the
Exchange Date or upon earlier dissolution of the Trust will be aggregated by the
Administrator and, in lieu of the fractional units or interests to which a
holder would otherwise have been entitled in respect of the total number of
STRYPES held by such holder, such holder will receive cash.
INVESTMENT RESTRICTIONS
The Trust has adopted a fundamental policy that the Trust may not purchase
any securities or instruments other than the U.S. Treasury Securities, the
Contract and any Reference Security received pursuant to the Contract and, for
cash management purposes, short-term obligations of the U.S. Government; issue
any securities or instruments except for the STRYPES; make short sales or
purchase securities on margin; write put or call options; borrow money;
underwrite securities; purchase or sell real estate, commodities or commodities
contracts; or make loans. The Trust has adopted a fundamental policy that the
Contract may not be disposed of during the term of the Trust and that, unless
the Trust dissolves prior to the Exchange Date due to the occurrence of a
Dissolution Event, the U.S. Treasury Securities may not be disposed of prior to
their respective maturities. The Trust has also adopted a policy to invest at
least 65% of its portfolio initially in the Contract. While the Trust would
ordinarily expect to maintain its investment in the Contract at or above 65% of
its assets, its proportionate investment in the Contract could fall below 65% of
its assets as a result of a Partial Cash Distribution Event or fluctuations in
the relative value of its investment in the Contract and its investment in U.S.
Treasury Securities.
Because of the foregoing limitations, the Trust's investments will be
concentrated initially in the banking and financial services industry, which is
the principal industry in which the Bank currently operates. However, to the
extent that in the future the Bank diversifies its operations into one or more
other industries or is acquired by an entity that operates in one or more other
industries, the Trust's investments will be less concentrated in the banking and
financial services industry.
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RISK FACTORS
NO ACTIVE PORTFOLIO MANAGEMENT
It is a fundamental policy of the Trust that the Contract may not be
disposed of during the term of the Trust and that, unless the Trust dissolves
prior to the Exchange Date upon the occurrence of a Dissolution Event, the U.S.
Treasury Securities may not be disposed of prior to their respective maturities
and the Escrow Agreement may not be disposed of prior to the second Business Day
prior to the Exchange Date. As a result, the Trust will continue to hold the
Contract despite any significant decline in the value of the Reference Property,
including the Bank Ordinary Shares, or adverse changes in the financial
condition of the issuer of the Reference Security, including the Bank. The Trust
will not be managed like a typical closed-end investment company.
ABSENCE OF TRADING HISTORY; MARKETABILITY; POSSIBILITY OF THE STRYPES TRADING AT
A DISCOUNT FROM NET ASSET VALUE
The STRYPES have no trading history and it is not possible to predict how
they will trade in the secondary market. The trading price of the STRYPES may
vary considerably prior to the Exchange Date due to, among other things,
fluctuations in trading prices of the Bank Ordinary Shares, Bank ADSs or other
Reference Securities (which may occur due to changes in the financial condition,
results of operations or prospects of the Bank or other issuer of Reference
Securities, or because of complex and interrelated political, economic,
financial and other factors that can affect the capital markets generally, the
stock exchanges or quotation systems on which the Bank Ordinary Shares, Bank
ADSs or other Reference Securities are traded and the market segment of which
the Bank or other issuer of Reference Securities is a part), fluctuations in
interest rates and rates of exchange between the Australian dollar and the U.S.
dollar, and other factors that are difficult to predict and beyond the Trust's
control.
The Underwriter currently intends, but is not obligated, to make a market in
the STRYPES. There can be no assurance that a secondary market will develop or,
if a secondary market does develop, that it will provide the holders of the
STRYPES with liquidity of investment or that it will continue for the life of
the STRYPES. The STRYPES have been approved for listing on the NYSE, subject to
official notice of issuance. There can be no assurance, however, that the
STRYPES will not later be delisted or that trading in the STRYPES on the NYSE
will not be suspended. In the event of a delisting or suspension of trading on
such exchange, the Trust will apply for listing of the STRYPES on another
national securities exchange or for quotation on another trading market. If the
STRYPES are not listed or traded on any securities exchange or trading market,
or if trading of the STRYPES is suspended, pricing information for the STRYPES
may be more difficult to obtain, and the price and liquidity of the STRYPES may
be adversely affected.
The Trust is a recently organized closed-end investment company with no
previous operating history. Shares of closed-end investment companies frequently
trade at a discount from their net asset value, which is a risk separate and
distinct from the risk that the Trust's net asset value will decrease. The Trust
cannot predict whether the STRYPES will trade at, below or above their net asset
value. The risk of purchasing investments that might trade at a discount is more
pronounced for investors who wish to sell their investments in a relatively
short period of time after completion of the Trust's initial public offering
because for those investors realization of a gain or loss on their investments
is likely to be more dependent upon the existence of a premium or discount than
upon portfolio performance. STRYPES are not subject to redemption.
REFERENCE PROPERTY ADJUSTMENTS
The Reference Property (or, in the event AMP elects to exercise the Cash
Settlement Option or is otherwise obligated to deliver cash under the Contract,
the amount of cash or combination of cash and Reference Property) that the Trust
is entitled to receive (for the benefit of the holders of the STRYPES
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absolutely) pursuant to the Contract on the Business Day immediately preceding
the Exchange Date or upon acceleration of the Contract is subject to adjustment
for certain events arising from, among other things, a merger, consolidation or
acquisition in which the Bank is not the surviving entity and the liquidation,
dissolution, winding up or bankruptcy of the Bank or other issuer of a Reference
Security, as well as stock splits and combinations, stock dividends and certain
other actions of the Bank or other issuer of a Reference Security that modify
its capital structure. See "Investment Objective and Policies--The
Contract--Reference Property Adjustments." Such number or amount of each type of
Reference Property (or amount of cash or combination of cash and Reference
Property) to be received by the Trust will not be adjusted for other events,
such as offerings of Bank Ordinary Shares for cash (other than certain rights
and warrants offerings) or in connection with acquisitions.
The Bank is not restricted in connection with the STRYPES from issuing
additional Bank Ordinary Shares during the term of the Trust. In addition, no
stockholder of the Bank, including AMP and the Contracting Stockholder, is
precluded from selling Bank Ordinary Shares (other than AMP and the Contracting
Stockholder during the 90 day period following the date of this Prospectus
applicable to certain Bank Ordinary Shares) or from participating in or voting
for a reorganization, merger or acquisition of the Bank. The Contracting
Stockholder is precluded from selling Bank Ordinary Shares except for tendering
the Bank Ordinary Shares or other Reference Securities it holds in connection
with any consolidation, merger or acquisition of the Bank or successor issuer of
Reference Securities as a whole or in connection with permitted substitution of
collateral or delivering to the Trust on the Business Day immediately preceding
the Exchange Date. Neither the Bank nor any stockholder of the Bank, including
the Contracting Stockholder and AMP, has any obligation to consider the
interests of the holders of the STRYPES for any reason. Additional issuances,
sales, reorganizations, mergers and acquisitions may materially and adversely
affect the price of Bank Ordinary Shares, Bank ADSs or other Reference
Securities and, because of the relationship of the number of Bank Ordinary
Shares (or amount of cash) to be received pursuant to the Contract to the price
of the Bank Ordinary Shares, such other events may materially and adversely
affect the trading price of the STRYPES. There can be no assurance that the Bank
will not take any of the foregoing actions, or that it will not make offerings
of, or that principal stockholders, including the Contracting Stockholder and
AMP, will not sell any Bank Ordinary Shares, in the future, or as to the amount
of any such offerings or sales.
LIMITED TERM
The term of the Trust will expire on or shortly after the Exchange Date,
unless the Trust is dissolved earlier upon the occurrence of a Dissolution
Event. On or shortly after the Exchange Date, the Trust will distribute the
Reference Property and/or cash received by the Trust (for the benefit of holders
of the STRYPES absolutely) pursuant to the Contract and other net assets held by
the Trust PRO RATA to holders and dissolve shortly thereafter. Upon the
occurrence of a Dissolution Event, the holders of the STRYPES become absolutely
entitled to the assets received pursuant to the Contract, the Trust's other
assets will be liquidated, the Escrow Amount will be paid to the Contracting
Stockholder, the net assets of the Trust will be distributed PRO RATA to holders
as soon as practicable thereafter and the term of the Trust will expire.
NON-DIVERSIFIED PORTFOLIO
The Trust's assets will consist almost entirely of the Contract and the U.S.
Treasury Securities. As a result, investments in the Trust may be subject to
greater risk than would be the case for a company with a more diversified
portfolio of investments.
COMPARISON TO OTHER EQUITY SECURITIES; RELATIONSHIP TO BANK ORDINARY SHARES
The terms of the STRYPES are similar to those of ordinary equity securities
in that the value of the Reference Property (or, in the event AMP exercises the
Cash Settlement Option, the amount of cash or combination of cash and Reference
Property) that a holder of a STRYPES will receive on the Exchange
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Date is not fixed, but is based on the Reference Property Value (see "Investment
Objective and Policies-- General" and "--The Contract"). ACCORDINGLY, THERE CAN
BE NO ASSURANCE THAT THE AMOUNT RECEIVABLE BY THE HOLDER OF A STRYPES ON THE
EXCHANGE DATE OR AS A RESULT OF ANY DISSOLUTION EVENT PLUS ANY CASH DISTRIBUTION
TO THE HOLDER FOLLOWING ANY PARTIAL CASH DISTRIBUTION EVENT WILL BE EQUAL TO OR
GREATER THAN THE ISSUE PRICE OF THE STRYPES. IF THE REFERENCE PROPERTY VALUE IS
LESS THAN THE INITIAL PRICE ON THE EXCHANGE DATE, WHETHER OR NOT A PARTIAL CASH
DISTRIBUTION EVENT OCCURS, THE AMOUNT DISTRIBUTED TO THE HOLDER OF A STRYPES MAY
BE LESS THAN THE ISSUE PRICE PAID FOR THE STRYPES, IN WHICH CASE AN INVESTMENT
IN THE STRYPES WILL RESULT IN A LOSS. SEE "INVESTMENT OBJECTIVES AND
POLICIES--GENERAL" AND "--THE CONTRACT."
The trading prices of the STRYPES in the secondary market will be affected
by the trading prices of the Bank Ordinary Shares, Bank ADSs or other Reference
Securities in the secondary market. It is impossible to predict whether the
price of the Bank Ordinary Shares or other Reference Property will rise or fall.
Trading prices of Bank Ordinary Shares will be influenced by the Bank's
operating results and prospects and by economic, financial and other factors and
market conditions that can affect the capital markets generally, including the
level of, and fluctuations in, the trading prices of stocks generally and sales
of substantial amounts of Bank Ordinary Shares in the market subsequent to the
offering of the STRYPES or the perception that such sales could occur.
LIMITATIONS ON OPPORTUNITY FOR EQUITY APPRECIATION; POTENTIAL LOSSES
The opportunity for equity appreciation afforded by an investment in the
STRYPES is less than the opportunity for equity appreciation afforded by a
direct investment in the Bank Ordinary Shares or Bank ADSs because the amount
receivable by a holder of a STRYPES on the Exchange Date, whether or not a
Partial Cash Distribution Event occurs, will exceed the issue price of such
STRYPES only if the Reference Property Value exceeds the Threshold Appreciation
Price (which represents an appreciation of % over the Initial Price).
Moreover, assuming no Partial Cash Distribution Event occurs, each STRYPES will
entitle the holder to receive on the Exchange Date only % (the percentage
equal to the Initial Price divided by the Threshold Appreciation Price) of any
appreciation of the value of the Reference Property Value above the Threshold
Appreciation Price. See "Investment Objective and Policies--The Contract."
Because the price of the Reference Property is subject to market fluctuations,
the value of the Reference Property (or, in the event AMP exercises the Cash
Settlement Option or is otherwise obligated to deliver cash under the Contract,
the amount of cash or combination or cash and Reference Property) received by
the Trust (for the benefit of holders of the STRYPES absolutely) on the Business
Day immediately preceding the Exchange Date, determined as described herein, may
be more or less than the issue price paid for the STRYPES.
NO STOCKHOLDER RIGHTS
Holders of the STRYPES will not be entitled to any rights with respect to
the Reference Property (including, without limitation, voting rights and rights
to receive any dividends or other distributions in respect thereof) until such
time, if any, as the Contracting Stockholder shall have delivered the Reference
Property on the Business Day prior to the Exchange Date or upon the occurrence
of a Dissolution Event, and unless the applicable record date, if any, for the
exercise of such right occurs after such delivery. For example, in the event
that an amendment is proposed to the constituent documents of the Bank and the
record date for determining the stockholders of record entitled to vote on such
amendment occurs prior to such delivery, holders of the STRYPES will not be
entitled to vote on such amendment and AMP as beneficial owner of the Reference
Property will be entitled to, or to direct the Contracting Stockholder to,
exercise all voting rights with respect to such amendment, without regard to the
interests of the holders of the STRYPES.
The Contracting Stockholder is not responsible for the determination or
calculation of the amount receivable by holders of the STRYPES on the Exchange
Date or upon earlier dissolution of the Trust. The
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Contract among the Trust, the Contracting Stockholder and AMP is a commercial
transaction and does not create any rights in, or for the benefit of, any third
party, including any holder of STRYPES.
RISK RELATING TO INSOLVENCY OF AMP AND CONTRACTING STOCKHOLDER
AMP
AMP is presently established under the Australian Mutual Provident Society's
Act 1910 of NSW, Australia.
If AMP were to be wound up in New South Wales, the winding up provisions of
the Companies (New South Wales) Code would apply to regulate the liquidation
process and the powers of a liquidator to interfere with pre-liquidation
transactions. It is possible that, if AMP were wound up in another State in
Australia, any risk to the holder of a STRYPES relating to the winding up or
insolvency of AMP will arise from the operation of the provisions of Division 7A
of Part 5.6 or Part 5.7B of the Corporations Law, which regulate the liquidation
process and the powers of a liquidator to interfere with pre-liquidation
transactions. The risks are discussed below under "--Disclaimer," "--Undue
Preference and Unfair Preference" and "--Undervalued Transactions and
Uncommercial Transactions."
AMP is expected to be demutualized and reconstructed as a company limited by
shares (after the date of execution of the Contract) and subject to the
Corporations Law after the procedural requirements set out in Division 2 of Part
2 of the Australian Mutual Provident Society (Demutualisation and
Reconstruction) Act 1997 of NSW, Australia are satisfied. When AMP is registered
as a company under the Corporations Law, it will be a company for the purposes
of the Corporations Law, and any risk to the holder of a STRYPES relating to the
winding up or insolvency of AMP after its demutualization and reconstruction
would arise from the operation of the provisions in the Corporations Law which
regulate the liquidation process and the powers of a liquidator to interfere
with pre-liquidation transactions. The risks are discussed below under
"--Disclaimer," "--Undue Preference and Unfair Preference" and
"--Undervalued Transactions and Uncommercial Transactions."
As AMP is a life insurance company, it is also regulated by the Life
Insurance Act 1995 and will also be regulated by that Act after its
demutualization and reconstruction. Under the Life Insurance Act 1995, the
business of AMP may be placed under judicial management if, among other things,
AMP is or is likely to become unable to meet its liabilities or fails to meet a
solvency standard. A judicial manager has the same power to disclaim property of
AMP as a liquidator would have under the Corpoations Law (see discussion below
under the heading "--Disclaimer").
AMP may also be wound up by a Court under the Life Insurance Act 1995 upon
recommendation by the judicial manager or by the Insurance and Superannuation
Commissioner, such winding up to be conducted in accordance with the
Corporations Law. The risks to the holder of a STRYPES relating to the winding
up of AMP are discussed below under "--Disclaimer," "--Undue Preference and
Unfair Preference" and "--Undervalued Transactions and Uncommercial
Transactions."
CONTRACTING STOCKHOLDER (IN ITS PERSONAL CAPACITY)
The Contracting Stockholder is incorporated under the provisions of the
Corporations Law. The risk to the holder of a STRYPES relating to the winding up
or insolvency of the Contracting Stockholder (in its personal capacity) would
arise from the operation of the provisions in the Corporations Law which
regulate the liquidation process and the powers of a liquidator to interfere
with pre-liquidation transactions. The risks to the holder of a STRYPES relating
to the winding up of the Contracting Stockholder are discussed below under the
headings "--Disclaimer," "--Undue Preference and Unfair Preference" and
"--Undervalued Transactions and Uncommercial Transactions."
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CONTRACTING STOCKHOLDER (IN ITS TRUSTEE CAPACITY)
To the extent that the Contracting Stockholder holds the types of Reference
Property or cash in trust for the Trust, the risk to the holder of a STRYPES
would arise as a result of the powers provided under trustee legislation in
Australia and by the general power of the court to administer a trust. These
powers allow a court to make various orders, including, injunctive orders or
vesting orders, which may have the effect of delaying or preventing delivery of
the Reference Property or cash under the Contract, which could adversely affect
the value of the STRYPES on the Exchange Date or upon earlier dissolution of the
Trust.
DISCLAIMER
Section 454 of the Companies (New South Wales) Code and Division 7A of Part
5.6 of the Corporations Law deal with circumstances in which contracts such as
the Contract can be disclaimed. Any action to disclaim the outstanding
obligations of AMP or the Contracting Stockholder under the Contract would at
least delay settlement. AMP believes that the Contract would not be disclaimed
so as to prevent the delivery of shares of Reference Property or cash under the
Contract. However, if the Contract were validly disclaimed, this would adversely
affect the value of the STRYPES on the Exchange Date or upon earlier dissolution
of the Trust.
UNDUE PREFERENCE AND UNFAIR PREFERENCE
Under Section 451 of the Companies (New South Wales) Code (incorporating
section 122 of the Australian Bankruptcy Act) and Part 5.7B of the Corporations
Law, transactions occurring at a time when a company is insolvent and which have
the effect of improving the position of an unsecured creditor over other
unsecured creditors, can be challenged by a liquidator. AMP believes that it and
the Contracting Stockholder will not be insolvent at the time of the Contract
and that the subsequent completion of the Contract will not have the effect of
improving the position of an unsecured creditor over other unsecured creditors.
However, if delivery of the Reference Property or cash under the Contract was
found to be a preference, this would adversely affect the value of the STRYPES
on the Exchange Date or upon earlier dissolution of the Trust and delay
settlement of the Contract.
UNDERVALUED TRANSACTIONS AND UNCOMMERCIAL TRANSACTIONS
Under Section 451 of the Companies (New South Wales) Code (incorporating
section 120 of the Australian Bankruptcy Act), transfers of property for no
consideration, or for less than market value, and, under Part 5.7B of the
Corporations Law, transactions which it may be expected that a reasonable person
in the company's position would not have entered into, can be challenged by a
liquidator. AMP believes that the Contract will constitute an enforceable
obligation under these provisions and would not be set aside in the event of the
insolvency of AMP or the Contracting Stockholder. However, if delivery of the
Reference Property or cash under the Contract was found, for example, to involve
a transfer for inadequate consideration, this would adversely affect the value
of the STRYPES on the Exchange Date or upon earlier dissolution of the Trust and
delay settlement of the Contract.
RISKS RELATING TO CREDITOR COMPROMISE UNDER PART 5.3A OF THE CORPORATIONS LAW
Under Part 5.3A of the Corporations Law, a company that is or is likely to
become insolvent may seek protection by appointing an Administrator. A
moratorium then operates while the Administrator investigates the company in
order to report to creditors. Creditors must then decide the company's future,
including whether to reconstruct the company's affairs under a "Deed of Company
Arrangement". If the Contracting Stockholder became insolvent and its creditors
approved a deed incorporating provisions to compromise the Contracting
Stockholder's outstanding obligations, this could have an adverse impact on the
Contracting Stockholder's obligation to deliver Reference Securities or cash or
other Reference Property under the Contract and delay settlement of the
Contract.
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U.S. BANKRUPTCY MATTERS
The Contracting Stockholder and AMP are domiciled in Australia and are not
engaged in business in the United States. Consequently, if the Contracting
Stockholder or AMP were to become insolvent, the Contracting Stockholder or AMP
would most likely be subject to the Australian insolvency laws discussed above.
However, it is possible that the Contracting Stockholder or AMP could become a
debtor under Title 11 of the United States Code (the "Bankruptcy Code").
In the event the Contracting Stockholder or AMP were to become debtors under
the Bankruptcy Code, the Trust believes that the Contract would constitute a
"securities contract" for purposes of the Bankruptcy Code, performance of which
would not be subject to the automatic stay provisions of the Bankruptcy Code. It
is, however, possible that the Contract will be determined not to qualify as a
"securities contract" for this purpose, in which event, if the Contracting
Stockholder or AMP became subject to the Bankruptcy Code, there could be a delay
in settlement of the Contract, which could adversely affect the time of exchange
or, as a result, the amount received by the holders in respect of the STRYPES.
BANKS (SHAREHOLDINGS) ACT 1972 AND THE BANK'S DEED OF SETTLEMENT
The acquisition and exchange of STRYPES may also have implications for
holders of STRYPES under the Banks (Shareholdings) Act 1972 of Australia
("BSA"). This section is a general summary of the requirements of BSA as they
may affect the purchase or exchange of, STRYPES. This summary does not purport
to be exhaustive nor to give legal advice and should not be relied on by
potential investors, who should seek their own legal advice in relation to all
aspects of the proposed investment including but not limited to those referred
to below.
The BSA prohibits a person having an interest in any voting shares of the
Bank if the nominal amount of the shares in which they have an interest exceeds
10% of the aggregate nominal amounts of all the voting shares (including Bank
Ordinary Shares) of the Bank without the approval of the Treasurer of the
Commonwealth of Australia. Where a person is deemed to be an associate of
another person, the (first) person is deemed to have an interest in the shares
in which their associate has an interest. Acquiring a STRYPES may give the
holder of STRYPES an interest in voting shares of the Bank for the purposes of
the BSA.
The terms "interest in shares" and "associate" are defined in the BSA and
may be relevant to a STRYPES holder. In particular, the concepts may be relevant
as to whether or not the acquisition or exchange of STRYPES is permitted under
the BSA and whether or not the acquisition or exchange of STRYPES or other
interests in Bank Ordinary Shares by a STRYPES holder is permitted under the
BSA. Reference should therefore be made to the BSA in order to determine whether
or not a proposed STRYPES holder, whether alone or with an "associate" would
upon the acquisition or exchange of a STRYPES or the subsequent acquisition of
other interests in Bank Ordinary Shares, acquire an interest in Bank Ordinary
Shares that is not permitted under BSA.
Substantial fines may be imposed under the BSA on a person who fails to
comply with the restrictions imposed under the BSA. In addition, a person may as
a result of a failure to comply with those restrictions be the subject of
various orders under the BSA, including an order to dispose of the interests it
has in Bank Ordinary Shares (including by virtue of holding STRYPES).
Under the Deed of Settlement (being the Bank's constituent document), a
person must not at any time own a number of Bank Ordinary Shares that is greater
than the percentage of total Bank Ordinary Shares, which is that person's
prescribed percentage. Unless a person has board approval from the Bank, the
prescribed percentage is 10%. A person is deemed to own a Bank Ordinary Share if
the person has the power to vote or control the power to vote, or the power to
dispose or to control the power to dispose of a Bank Ordinary Share, or if the
person has an interest in a Bank Ordinary Share for the purposes of BSA
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(the concept of an "interest" in a Bank Ordinary Share is described above and is
applicable in this regard). Accordingly, a holder of STRYPES may, for the
purposes of the Deed of Settlement, be the owner of the number of Bank Ordinary
Shares which the holder of STRYPES could acquire in exchange for the STRYPES. In
addition, the Deed of Settlement imports the restrictions found in the BSA which
are described above. A breach of the Deed of Settlement's ownership restrictions
or the BSA will entitle the Board of Directors of the Bank to order a disposal
of interests a STRYPES holder holds in Bank Ordinary Shares (including by virtue
of holding STRYPES). This paragraph is a summary of the requirements of the Deed
of Settlement as they may affect an application for, or exchange of, STRYPES.
The summary does not purport to be exhaustive nor to give legal advice and
should not be relied on by potential investors, who should seek their own legal
advice in relation to all aspects of the proposed investment including but not
limited to those referred to in this paragraph.
FOREIGN ACQUISITIONS AND TAKEOVERS ACT OF 1975
The acquisition and exchange of STRYPES may also have implications for
holders under the Foreign Acquisitions and Takeovers Act of 1975 (Cth) of
Australia ("FATA"). The following paragraph is a general summary of the
requirements of FATA as they may affect a purchase of or exchange of STRYPES.
The summary does not purport to be exhaustive nor to give legal advice and
should not be relied on by potential investors, who should seek their own legal
advice in relation to all aspects of the proposed investment, including but not
limited to those referred to below.
FATA empowers the Treasurer of the Commonwealth of Australia to prohibit a
proposed acquisition of shares in an Australian corporation where the result of
the acquisition will be that a foreign person, together with its associates,
would have an interest of not less than 15% of the issued shares in the
corporation, or two or more foreign persons (together with their associates)
would in the aggregate have an interest of not less than 40% of the issued
shares in the corporation. Where such an acquisition has already occurred, the
Treasurer has the power to order a person who acquired the shares to dispose of
them. The concepts of "acquisition", "interest", "associate" and "foreign
person" are very broadly defined in FATA. In addition, FATA requires certain
persons who propose to make such acquisitions first to notify the Treasurer of
their intention to do so. The acquisition of STRYPES might constitute an
acquisition or proposed acquisition of the Bank Ordinary Shares for the purpose
of FATA and the exchange of STRYPES for Bank Ordinary Shares will clearly do so.
FATA would require any existing interest in the Bank Ordinary Shares held by a
potential investor or his associates to be aggregated with any interest to be
acquired by virtue of acquisition or exchange of STRYPES for the purposes of
determining whether FATA is complied with.
ASSOCIATIONS ARISING AS A RESULT OF STRYPES TRADING AND CHAPTER 6 CORPORATION
LAW IMPLICATIONS
The acquisition of STRYPES may have implications for holders of STRYPES
under Chapter 6 of the Corporations Law. The precise implications depend upon
the holder's particular circumstances.
The following explanation is provided to assist holders of STRYPES in
identifying the practical obligations that may arise from holding and from
exchanging STRYPES. The obligations of holders will, however, be affected by
circumstances peculiar to individual holders, and holders should obtain their
own advice on the obligations they may have under the Corporations Law.
Disclosure obligations (including obligations on substantial shareholders)
and limitations on acquisitions, under Chapter 6 of the Corporations Law, may
(depending on the holder's other entitlements to Bank Ordinary Shares under the
Corporations Law) affect holders in respect of acquisitions, continuing
holdings, exchanges and dispositions of STRYPES. These obligations and
limitations depend on the "entitlement" of a holder of STRYPES to Bank Ordinary
Shares. A holder is "entitled" under section 609 of the Corporations Law to
securities in which the holder has a relevant interest, securities in which
associates of the holder have a relevant interest, and certain types of
transactional entitlements.
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The Trust has been advised by Allen Allen & Hemsley that by virtue of the
Contract it will be entitled to the Bank Ordinary Shares and therefore will have
a "relevant interest" in the number of Bank Ordinary Shares which are the
subject of the Contract. Consequently, under section 34 of the Corporations Law,
a holder of STRYPES will have a "relevant interest" in the number of Bank
Ordinary Shares that would be acquired upon exchange of STRYPES. A holder of
STRYPES may also have a relevant interest in Bank Ordinary Shares as a result of
holding Bank Ordinary Shares directly.
An "associate" of a holder of STRYPES is a person with whom the holder is
connected in ways specified in sections 10-17 of the Corporations Law. These
include the parent company or subsidiary company of the holder and persons with
whom the holder is acting in concert in relation to securities of or the affairs
of the Bank.
Under Part 6.7 of the Corporations Law, a person who is entitled to 5% or
more of all Bank Ordinary Shares must give written notice to the Bank and to the
ASX.
Under Part 6.2 of the Corporations Law, a person is prohibited from
acquiring Bank Ordinary Shares (or STRYPES) if the acquisition would take the
holder's or any other person's entitlement to Bank Ordinary Shares past 20% of
all Bank Ordinary Shares or increase the acquirer's or any other person's
entitlement to Shares to between 20% and 90% of all Bank Ordinary Shares, unless
such person complies with certain specified procedures such as obtaining the
consent of shareholders of the Bank or making a takeover bid for all the
outstanding Bank Ordinary Shares.
TAX MATTERS
Holders will experience a taxable event upon the exchange of STRYPES to the
extent that AMP satisfies the Contracting Stockholder's obligations under the
Contract with cash. Because of an absence of authority as to the proper
character of any gain or loss resulting from such a taxable event, the ultimate
tax consequences to holders as a result of AMP exercising its Cash Settlement
Option, in whole or in part, or otherwise satisfying the Contracting
Stockholder's obligations in cash is uncertain. Accordingly, prospective
investors in the STRYPES should consult their own tax advisors in this regard.
Investors should also consult their own tax advisors concerning the proper
treatment of their PRO RATA share of the Trust's fees and expenses and the
application of the United States Federal income tax laws to their particular
situations as well as any consequences of the purchase, ownership and
disposition of the STRYPES arising under the laws of any other taxing
jurisdiction. The tax consequences of investing in the STRYPES are described in
greater detail under "Certain Tax Considerations."
DESCRIPTION OF THE STRYPES
Each STRYPES represents a proportionate share of beneficial interest in the
Trust, and a total of 29,000,000 STRYPES will be issued in the Offering,
assuming no exercise of the Underwriter's over-allotment option. Upon
liquidation of the Trust, holders are entitled to share PRO RATA in the net
assets of the Trust available for distribution. STRYPES have no preemptive,
redemption or conversion rights. The STRYPES, when issued and outstanding, will
be fully paid and nonassessable.
Holders are entitled to one vote for each STRYPES held on all matters to be
voted on by holders and are not able to cumulate their votes in the election of
Trustees. The Trust intends to hold annual meetings as required by the rules of
the NYSE. The holders have the right, upon the declaration in writing or vote of
more than two-thirds of the outstanding STRYPES, to remove a Trustee. The
Trustees will call a meeting of holders to vote on the removal of a Trustee upon
the written request of the record holders of 10% of the STRYPES or to vote on
other matters upon the written request of the record holders of 51% of the
STRYPES (unless substantially the same matter was voted on during the preceding
12 months).
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BOOK-ENTRY SYSTEM
The STRYPES will be issued in the form of one or more global securities (the
"Global Securities") deposited with the Depository and registered in the name of
a nominee of the Depository.
The Depository has advised the Trust and the Underwriter as follows: The
Depository is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to Section 17A of the Exchange Act. The
Depository was created to hold securities of persons who have accounts with the
Depository ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of certificates. Such participants
include securities brokers and dealers, banks, trust companies and clearing
corporations. Indirect access to the Depository's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a Global Security, the Depository or its nominee will
credit the respective STRYPES represented by such Global Security to the
accounts of participants. The accounts to be credited shall be designated by the
Underwriter. Ownership of beneficial interests in such Global Securities will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Global Securities will
be shown on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depository or its nominee for such Global
Securities. Ownership of beneficial interests in such Global Securities by
persons that hold through participants will be shown on, and the transfer of
that ownership interest within such participant will be effected only through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the STRYPES.
Except as set forth below, owners of beneficial interests in such Global
Securities will not be entitled to have the STRYPES registered in their names
and will not receive or be entitled to receive physical delivery of the STRYPES
in definitive form and will not be considered the owners or holders thereof.
Payment of Reference Property or amounts payable or other consideration
deliverable on exchange of, and any quarterly distributions on, STRYPES
registered in the name of or held by the Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner or
the holder of the Global Security. None of the Trust, any Trustee, the
Administrator, the Paying Agent or the Custodian for the STRYPES will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Trust expects that the Depository, upon receipt of any payment in
respect of a Global Security, will credit immediately participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in such Global Security as shown on the records of the Depository. The Trust
also expects that payments by participants to owners of beneficial interests in
such Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in "street name," and will be the
responsibility of such participants.
A Global Security may not be transferred except as a whole by the Depository
to a nominee or a successor of the Depository. If the Depository is at any time
unwilling or unable to continue as depositary
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and a successor depositary is not appointed by the Trust within ninety days, the
Trust will issue STRYPES in definitive registered form in exchange for the
Global Security representing such STRYPES. In addition, the Trust may at any
time and in its sole discretion determine not to have any STRYPES represented by
one or more Global Securities and, in such event, will issue STRYPES in
definitive registered form in exchange for all of the Global Securities
representing the STRYPES. Further, if the Trust so specifies with respect to the
STRYPES, an owner of a beneficial interest in a Global Security representing
STRYPES may, on terms acceptable to the Trust and the Depository for such Global
Security, receive STRYPES in definitive form. In any such instance, an owner of
a beneficial interest in a Global Security will be entitled to physical delivery
in definitive form of STRYPES represented by such Global Security equal in
number to that represented by such beneficial interest and to have such STRYPES
registered in its name.
TRUSTEES
The Trustees of the Trust consist of three individuals, none of whom is an
"interested person" of the Trust as defined in the Investment Company Act. The
Trustees of the Trust are responsible for the overall supervision of the
operations of the Trust and perform the various duties imposed on the trustees
of management investment companies by the Investment Company Act.
The Trustees of the Trust are:
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
NAME, AGE AND ADDRESS TITLE DURING PAST FIVE YEARS
- ------------------------------------- -------------------- --------------------------
<S> <C> <C>
Donald J. Puglisi, 52 Managing Trustee Professor of Finance
Department of Finance University of Delaware
University of Delaware
Newark, DE 19716
William R. Latham III, 53 Trustee Professor of Economics
Department of Economics University of Delaware
University of Delaware
Newark, DE 19716
James B. O'Neill, 58 Trustee Professor of Economics
Center for Economic University of Delaware
Education & Entrepreneurship
University of Delaware
Newark, DE 19716
</TABLE>
COMPENSATION OF TRUSTEES
Each unaffiliated Trustee will be paid by the Trust, in respect of its
annual fees and anticipated out-of-pocket expenses, out of the proceeds of the
Offering, a one-time, up-front fee of $10,800. The Trust's Managing Trustee will
also receive an additional up-front fee of $3,600 for serving in that capacity.
The Trustees will not receive, either directly or indirectly, any compensation,
including any pension or retirement benefits, from the Trust. None of the
Trustees receives any compensation for serving as a trustee or director of any
other affiliated investment company.
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MANAGEMENT ARRANGEMENTS
PORTFOLIO MANAGEMENT AND ADMINISTRATION
The Trust will be internally managed and will not have an investment
adviser. The Trust's portfolio will not be actively managed. The Trustees of the
Trust will authorize the purchase of the Contract and the U.S. Treasury
Securities as directed by the Declaration of Trust. It is a fundamental policy
of the Trust that the Contract may not be disposed of during the term of the
Trust and that, unless the Trust dissolves prior to the Exchange Date due to the
occurrence of a Dissolution Event, the U.S. Treasury Securities may not be
disposed of prior to their respective maturities.
The Trust will pay all expenses incurred in the operation of the Trust,
including, among other things, accounting services, expenses for legal and
auditing services, taxes, costs of printing proxies, listing fees, if any, stock
certificates and shareholder reports, charges of the Custodian (as defined
below) and the Paying Agent (as defined below), expenses of registering the
STRYPES under Federal and state securities laws, Commission fees, fees and
expenses of Trustees, accounting costs, brokerage costs, litigation and other
extraordinary or non-recurring expenses, mailing and other expenses properly
payable by the Trust. See "--Estimated Expenses."
ADMINISTRATOR
The day-to-day affairs of the Trust will be managed by The Bank of New York,
as trust administrator pursuant to an Administration Agreement. Under the
Administration Agreement, the Trustees have delegated most of their operational
duties to the Administrator, including without limitation, the duties to: (i)
pay, or cause to be paid, all expenses incurred by the Trust; (ii) with the
approval of the Trustees, engage legal and other professional advisors (other
than the independent public accountants for the Trust); (iii) instruct the
Paying Agent to pay distributions on STRYPES as described herein; (iv) cause the
legal and other professional advisors engaged by it to prepare and mail, file or
publish all notices, proxies, reports, tax returns and other communications and
documents for the Trust, and keep all books and records for the Trust; (v) at
the direction of the Trustees, and upon being furnished with reasonable security
and indemnity as the Administrator may require, institute and prosecute legal
and other appropriate proceedings to enforce the rights and remedies of the
Trust; and (vi) make, or cause to be made, all necessary arrangements with
respect to meetings of Trustees and any meetings of holders of STRYPES. The
Administrator will not, however, select the independent public accountants for
the Trust or sell or otherwise dispose of the Trust assets or cause the
Contracting Stockholder to sell or otherwise dispose of the assets of the
Contracting Stockholder (except in connection with an acceleration of the
Contract as described under "Investment Objective and Policies--The
Contract--Cash Distribution Events" and "--Nominee Trust Agreement;
Acceleration," or the settlement of the Contract on the Business Day immediately
preceding the Exchange Date).
The Bank of New York will also act as Exchange Agent, and in such capacity
will provide the U.S. dollar exchange rate quotes required by the Contract and
will convert Australian dollars and other foreign currency into U.S. dollars as
required in the Contract.
The Administration Agreement may be terminated by either the Trust or the
Administrator upon 60 days prior written notice, except that no termination
shall become effective until a successor Administrator has been chosen and has
accepted the duties of the Administrator.
Except for its roles as Administrator, Custodian, Exchange Agent and Paying
Agent of the Trust, The Bank of New York has no other affiliation with, and is
not engaged in any other transactions with, the Trust.
The address of the Administrator is 101 Barclay Street, New York, New York
10286.
CUSTODIAN
The Trust's custodian is The Bank of New York pursuant to a custodian
agreement (the "Custodian Agreement"). In the event of any termination of the
Custodian Agreement by the Trust or the resignation
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of the Custodian, the Trust must engage a new Custodian to carry out the duties
of the Custodian as set forth in the Custodian Agreement.
PAYING AGENT
The paying agent, transfer agent and registrar for the STRYPES is The Bank
of New York pursuant to a paying agent agreement (the "Paying Agent Agreement").
In the event of any termination of the Paying Agent Agreement by the Trust or
the resignation of the Paying Agent, the Trust will use its best efforts to
engage a new Paying Agent to carry out the duties of the Paying Agent.
CONTRACTING STOCKHOLDER
The Contracting Stockholder is National Australia Trustees Limited,
appointed pursuant to the Nominee Trust Agreement. In the event of any
termination of the Nominee Trust Agreement or the resignation of the Contracting
Stockholder, AMP will use its best efforts to engage a new Contracting
Stockholder acceptable to the Custodian to carry out and perform the duties of
the Contracting Stockholder. The Contracting Stockholder cannot resign or be
removed unless a replacement has been appointed by AMP with the consent of the
Trust.
INDEMNIFICATION
The Trust will indemnify each Trustee, the Administrator, the Exchange
Agent, the Paying Agent and the Custodian with respect to any claim, liability
or loss which it may incur in acting as Trustee, Administrator, Exchange Agent,
Paying Agent or Custodian, as the case may be, and any reasonable expense
incurred in connection with any such claim, liability or loss (including the
reasonable costs and expenses of the defense against any claim or liability)
except in the case of willful misfeasance, bad faith, gross negligence or
reckless disregard of their respective duties. Subject to the satisfaction of
certain conditions, Merrill Lynch & Co., Inc. will reimburse the Trust for any
amounts it may be required to pay as indemnification to any Trustee, the
Administrator, the Exchange Agent, the Paying Agent or the Custodian, and
Merrill Lynch & Co., Inc. will in turn be reimbursed by AMP for all such
reimbursements paid by it. AMP will indemnify the Contracting Stockholder with
respect to any claim, liability or loss which it may incur as such, and any
reasonable expense incurred in connection with any such claim, liability or loss
(including the reasonable costs and expenses of the defense against any claim or
liability) except in the case of willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties.
ESTIMATED EXPENSES
At the closing of the Offering, the Trust will pay to each of the
Administrator, the Exchange Agent, the Custodian and the Paying Agent a
one-time, up-front amount in respect of its fee and, in the case of the
Administrator, certain anticipated ongoing expenses of the Trust over the term
of the Trust. The anticipated Trust expenses to be borne by the Trust include,
among other things, expenses for legal and independent accountants' services,
costs of printing proxies, STRYPES certificates and holder reports and stock
exchange fees. Organization costs of the Trust in the amount of $10,000 and
estimated costs of the Trust in connection with the initial registration and
public offering of the STRYPES in the amount of approximately $580,000 will be
paid by the Trust.
The amount payable to the Administrator in respect of the anticipated
ongoing expenses of the Trust was determined based on expense estimates made in
good faith on the basis of information currently available to the Trust,
including estimates furnished by the Trust's agents. Merrill Lynch & Co., Inc.
will pay any unanticipated operating expenses of the Trust. Merrill Lynch & Co.,
Inc. will be reimbursed by AMP for all fees and expenses of the Trust paid by
it.
DIVIDENDS AND DISTRIBUTIONS
The Trust intends to distribute to holders on a quarterly basis the proceeds
of the U.S. Treasury Securities held by the Trust. The first distribution, in
respect of the period from , 1997 until November 14, 1997, will be made
on November 17, 1997 to holders of record as of November 1, 1997, and
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will equal $ per STRYPES. Thereafter, distributions will be made on February
15, May 15, August 15 and November 15 (or, of any such date is not a Business
Day, the next succeeding Business Day) of each year to holders of record as of
each February 1, May 1, August 1 and November 1, respectively. Upon dissolution
of the Trust as described in "Investment Objective and Policies--Trust
Dissolution" each holder will share PRO RATA in any remaining net assets of the
Trust.
NET ASSET VALUE
The net asset value of the STRYPES will be calculated by the Trust no less
frequently than quarterly by dividing the value of the net assets of the Trust
(the value of its assets less its liabilities) by the total number of STRYPES
outstanding. The Trust's net asset value will be published semi-annually as part
of the Trust's semi-annual report to holders and at such other times as the
Trustees may determine. The U.S. Treasury Securities held by the Trust will be
valued at the mean between the last current bid and asked prices or, if
quotations are not available, as determined in good faith by the Trust.
Short-term investments having a maturity of 60 days or less are valued at cost
with accrued interest or discount earned included in interest receivable. The
Contract will be valued at the mean of the bid prices received by the
Administrator from at least three independent broker-dealer firms unaffiliated
with the Trust who are in the business of making bids on financial instruments
similar to the Contract and with terms comparable thereto.
CERTAIN TAX CONSIDERATIONS
UNITED STATES FEDERAL INCOME TAX
Set forth in full below is the opinion of Brown & Wood LLP, counsel to the
Trust, as to certain United States Federal income tax consequences of the
purchase, ownership and disposition of the STRYPES. Such opinion is based upon
laws, regulations, rulings and decisions now in effect, all of which are subject
to change (including retroactive changes in effective dates) or possible
differing interpretations. The discussion below deals only with STRYPES held as
capital assets and does not purport to deal with persons in special tax
situations, such as financial institutions, insurance companies, regulated
investment companies, dealers in securities or currencies, tax-exempt entities,
or persons holding STRYPES as a hedge against currency risks, as a position in a
"straddle" or as part of a "hedging" or "conversion" transaction for tax
purposes. It also does not deal with holders of STRYPES other than original
purchasers thereof (except where otherwise specifically noted herein). Moreover,
the discussion below generally does not address the tax consequences of
ownership of the Reference Property. The following discussion also does not
address the tax consequences of investing in the STRYPES arising under the laws
of any state, local or foreign jurisdiction. Persons considering the purchase of
the STRYPES should consult their own tax advisors concerning the application of
the United States Federal income tax laws to their particular situations as well
as any consequences of the purchase, ownership and disposition of the STRYPES
arising under the laws of any other taxing jurisdiction.
As used herein, the term "U.S. holder" means a beneficial owner of STRYPES
that is for United States Federal income tax purposes (i) a citizen or resident
of the United States, (ii) a corporation, a partnership or other entity created
or organized in or under the laws of the United States or of any political
subdivision thereof (other than a partnership that is not treated as a United
States person under any applicable Treasury regulations), (iii) an estate the
income of which is subject to United States Federal income taxation regardless
of its source, or (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust. Notwithstanding the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as United States persons prior to such date that elect to
continue to be treated as United States persons also will be a U.S. holder. As
used herein, the term "non-U.S. holder" means a beneficial owner of STRYPES that
is not a U.S. holder. Unless otherwise specifically provided, the following
opinion of Brown & Wood LLP assumes that on the Exchange Date the Reference
Property that holders of the STRYPES will receive will be only Bank Ordinary
Shares.
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CLASSIFICATION OF THE TRUST
The Trust will be classified as a grantor trust under subpart E, Part I of
subchapter J of the Internal Revenue Code of 1986, as amended (the "Code"). As
such, holders of the STRYPES will be treated for United States Federal income
tax purposes as owners of a PRO RATA undivided interest in the Trust's assets
which will consist of the U.S. Treasury Securities and the Contract.
Accordingly, each holder will be required to report on its United States Federal
income tax return its pro rata share of the entire income on the Trust's assets
in accordance with such holder's regular method of tax accounting.
U.S. HOLDERS
As previously discussed, each U.S. holder will be considered the owner of
its PRO RATA portion of the U.S. Treasury Securities and the Contract held by
the Trust. The cost to a U.S. holder of its STRYPES will be allocated among such
U.S. holder's PRO RATA portion of the U.S. Treasury Securities and the Contract
(in proportion to the relative fair market values thereof on the date on which
the U.S. holder acquires its STRYPES) in order to determine the U.S. holder's
initial tax basis in the U.S. holder's PRO RATA portion of the U.S. Treasury
Securities and the Contract. It is currently anticipated that % and % of
the net proceeds of the offering will be used by the Trust to purchase the U.S.
Treasury Securities and as payments under the Contract, respectively.
The U.S. Treasury Securities held by the Trust will be treated for United
States Federal income tax purposes as having original issue discount which will
accrue over the term of the U.S. Treasury Securities. In general, a U.S. holder
will be treated as having purchased each U.S. Treasury Security held by the
Trust with original issue discount in an amount equal to the excess of the U.S.
holder's PRO RATA portion of the amount payable on such U.S. Treasury Security
over the U.S. holder's initial tax basis therefor as discussed above. A U.S.
holder (whether on the cash or accrual method of tax accounting) will be
required to include such original issue discount in income for United States
Federal income tax purposes as it accrues in accordance with a constant yield
method. Because it is expected that 20% or more of the holders of STRYPES will
be accrual basis taxpayers, original issue discount on any short-term U.S.
Treasury Securities (I.E., any U.S. Treasury Security with a maturity of one
year or less from the date it is purchased by the Trust) held by the Trust will
also be currently includable in income by U.S. holders as it accrues on a
straight-line basis (unless a U.S. holder elects to accrue such original issue
discount on a constant yield basis). A U.S. holder's tax basis in its pro rata
portion of a U.S. Treasury Security will be increased by the amount of any
original issue discount included in income by the U.S. holder with respect to
such U.S. Treasury Security (as described above). A U.S. holder will also be
required to recognize capital gain or loss with respect to such U.S. holder's
PRO RATA portion of the U.S. Treasury Securities upon an early dissolution of
the Trust in an amount equal to the difference between the U.S. holder's PRO
RATA portion of the proceeds received by the Trust upon the sale thereof and the
U.S. holder's adjusted tax basis in its PRO RATA portion of the U.S. Treasury
Securities. Such capital gain or loss would be long-term capital gain or loss if
the STRYPES have been held by the U.S. holder for more than one year.
Each U.S. holder will also be treated as having entered into a PRO RATA
portion of the Contract. Except upon early dissolution of the Trust or possibly
upon payment of cash following a Partial Cash Distribution Event by the
Contracting Stockholder prior thereto (as discussed below), under current law, a
U.S. holder generally should not be required to recognize any income, gain or
loss with respect to the Contract until the Exchange Date. On the Exchange Date,
if the Contracting Stockholder delivers Reference Property pursuant to the
Contract in respect of a U.S. holder's STRYPES, the U.S. holder will generally
not realize any taxable gain or loss upon the receipt of such Reference
Property. However, a U.S. holder will generally be required to recognize taxable
gain or loss with respect to any cash received in lieu of fractional units of
any Reference Security, fractional interests of any Reference Property other
than cash, and any Reference Property consisting of cash. The amount of such
gain or loss recognized by a U.S. holder will be equal to the difference, if
any, between the amount of cash received by the U.S. holder and the portion of
the U.S. holder's tax basis in the Contract that is allocable to such fractional
units of any Reference Security, fractional interests of any Reference Property
other than cash, and any Reference Property consisting of
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cash. Any such taxable gain or loss attributable to cash received in lieu of
fractional units of any Reference Security and fractional interests of any
Reference Property other than cash will be treated as short-term capital gain or
loss and, because the matter is uncertain, any such taxable gain or loss
attributable to any Reference Property consisting of cash could be treated as
short-term capital gain or loss, as long-term capital gain or loss (depending
upon the U.S. holder's holding period for the STRYPES), or as ordinary income or
loss. A U.S. holder will have an initial tax basis in any Reference Property (as
allocated among the Reference Property in accordance with the relative fair
market values thereof, as determined on the Exchange Date) received thereby on
the Exchange Date (other than cash received in lieu of fractional units,
fractional interests and any Reference Property consisting of cash) in an amount
equal to the U.S. holder's tax basis in the Contract less the portion of such
tax basis that is allocable to any such fractional units of any Reference
Security, fractional interests of any Reference Property and any Reference
Property consisting of cash (as described above) and will realize taxable gain
or loss with respect to any such Reference Property received thereby on the
Exchange Date only upon the subsequent sale or disposition by the U.S. holder of
such Reference Property. In addition, a U.S. holder's holding period for any
Reference Property received by such U.S. holder on the Exchange Date will begin
on the Exchange Date and will not include the period during which the U.S.
holder held the related STRYPES.
Alternatively, if AMP satisfies the Contract with cash in respect of a U.S.
holder's STRYPES, the U.S. holder will recognize taxable gain or loss with
respect to the Contract in an amount equal to the difference, if any, between
the total amount of cash received by such U.S. holder on the Exchange Date and
an amount equal to the U.S. holder's tax basis in the Contract. It is uncertain
whether such gain or loss would be treated as capital or ordinary. If such gain
or loss is properly treated as capital, then such gain or loss will be treated
as long-term capital gain or loss if the STRYPES has been held by the U.S.
holder for more than one year as of the Business Day immediately preceding the
Exchange Date. If such gain or loss is properly treated as ordinary gain or
loss, it is possible that the deductibility of any loss by a U.S. holder who is
an individual could be subject to the limitations applicable to miscellaneous
itemized deductions provided for under Section 67(a) of the Code. In general,
Section 67(a) of the Code provides that an individual may only deduct
miscellaneous itemized deductions for a particular taxable year to the extent
that the aggregate amount of the individuals's miscellaneous itemized deductions
for such taxable year exceed two percent of the individual's adjusted gross
income for such taxable year (the miscellaneous itemized deductions and other
itemized deductions allowable to high-income individuals, however, are generally
subject to further limitations under Section 68 of the Code). Prospective
investors in the STRYPES who are individuals should also be aware that
miscellaneous itemized deductions are not allowable in computing the United
States Federal alternative minimum tax imposed by Section 55 of the Code.
Prospective investors in the STRYPES are urged to consult their own tax advisors
concerning the character of any gain or loss realized on the Exchange Date with
respect to the Contract in the event that AMP satisfies the Contracting
Stockholder's obligations under the Contract, in whole or in part, with cash on
the Exchange Date, as well as the deductibility of any such loss.
In the event that a U.S. holder receives a combination of cash and Reference
Property on the Exchange Date, the U.S. holder should be required to apply the
foregoing rules to the STRYPES held thereby on a PRO RATA basis in proportion to
the amount of Reference Property and cash received thereby.
Upon the sale or other disposition of a STRYPES prior to the Exchange Date,
a U.S. holder generally will be required to allocate the total amount realized
by such U.S. holder upon such sale or other disposition between the U.S.
holder's PRO RATA portion of the U.S. Treasury Securities and the Contract based
upon their relative fair market values (as determined on the date of
disposition). A U.S. holder will generally be required to recognize taxable gain
or loss with respect to each such component (I.E., the U.S. holder's PRO RATA
portion of the U.S. Treasury Securities and the Contract) in an amount equal to
the difference, if any, between the amount realized with respect to each such
component upon the sale or disposition of the STRYPES (as determined in the
manner described above) and the U.S. holder's adjusted tax basis in each such
component. Any such gain or loss will generally be treated as long-term capital
gain or loss if the U.S. holder has held the STRYPES for more than one year at
the time of disposition.
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The proper treatment of the payment by AMP or Merrill Lynch & Co., Inc. of
various costs and expenses associated with the organization and operation of the
Trust is uncertain. It is possible that there will be no United States Federal
income tax consequences to U.S. holders as a result of any such payments.
However, it is possible that the Internal Revenue Service ("IRS") could assert
that any such payments constitute income to U.S. holders. If the IRS were to
prevail in treating such payments as income, then an individual U.S. holder who
itemizes deductions could possibly amortize and deduct over the term of the
Trust (subject to any applicable limitation such as those in Section 67(a) of
the Code) its PRO RATA portion of any such costs. Moreover, a U.S. holder should
be permitted to amortize and deduct over the term of the Trust (subject to any
applicable limitations such as those in Section 67(a) of the Code) its PRO RATA
portion of the one-time, up-front fees paid to the Administrator, the Custodian
and the Paying Agent, and should be permitted to deduct (subject to any
applicable limitations such as those in Section 67(a) of the Code) its PRO RATA
portion of the other expenses described under "Management
Arrangements--Estimated Expenses" incurred by the Trust resulting from its
ongoing operations (including the fees payable to the Trustees) as such expenses
are incurred. Brown & Wood LLP, counsel to the Trust, believes that a U.S.
holder's pro rata portion of the expenses directly incurred by a U.S. holder in
connection with the organization of the Trust, underwriting discounts and
commissions and other offering expenses should be includable in the cost to the
U.S. holder of the STRYPES. However, there can be no assurance that the IRS will
not take a contrary view. If the IRS were to prevail in treating such expenses
as excludible from a U.S. holder's cost of the STRYPES, such expenses would not
be includable in the basis of the assets of the Trust and should instead,
subject to the limitations provided for under Section 67(a) of the Code, be
amortizable and deductible over the term of the Trust.
POSSIBLE ALTERNATIVE CHARACTERIZATIONS OF THE CONTRACT
Brown & Wood LLP, counsel to the Trust, believes the Contract should be
treated for United States Federal income tax purposes as a prepaid forward
contract for the purchase of a variable number of shares of Bank Ordinary
Shares. The IRS could conceivably take the view that the Contract should be
treated as a loan to the Contracting Stockholder in exchange for a contingent
debt obligation of the Contracting Stockholder. If the IRS were to prevail in
making such an assertion, a U.S. holder might be required to include original
issue discount in income over the term of the STRYPES based on the excess of the
anticipated value of the Bank Ordinary Shares to be received in respect of the
Contract over the amount paid for the Contract. In addition, a U.S. holder would
be required to include interest (rather than capital gain) in income on the
Exchange Date or earlier disposition of the STRYPES in an amount equal to the
excess, if any, of the value of the Bank Ordinary Shares received on the
Exchange Date (or the proceeds from prior disposition of the Contract) over the
aggregate of the basis of the Contract and any interest on the Contract
previously included in income (or might be entitled to an ordinary deduction to
the extent of interest previously included in income and not ultimately
received). The IRS could also conceivably take the view that a U.S. holder
should simply include in income as interest the amount of cash actually received
each year in respect of the STRYPES.
MISCELLANEOUS TAX MATTERS
Special tax rules may apply to persons holding STRYPES as part of a
"synthetic security" or other integrated investment, or as part of a straddle,
hedging transaction or other combination of offsetting positions. For instance,
Section 1258 of the Code may possibly require certain U.S. holders of the
STRYPES who enter into hedging transactions or offsetting positions with respect
to the STRYPES to treat all or a portion of any gain realized on the STRYPES as
ordinary income in instances where such gain may have otherwise been treated as
capital gain. U.S. holders hedging their positions with respect to the STRYPES
or otherwise holding their STRYPES in a manner described above should consult
their own tax advisors regarding the applicability of Section 1258 of the Code,
or any other provision of the Code, to their investment in the STRYPES.
46
<PAGE>
If as a result of a Dissolution Event, cash, Reference Securities, or a
combination of cash and Reference Securities is delivered pursuant to the
Contract, U.S. holders generally will be required to recognize taxable gain or
loss in respect of any cash received, including any cash received in lieu of
fractional units of Reference Securities or fractional interests of Reference
Property and, in some instances, in respect of any Reference Securities received
upon receipt thereof. Moreover, in some instances, U.S. holders may be required
to recognize at the time of a Reorganization Event taxable gain or loss in
respect of the amount of cash (and, in some cases, Reference Securities) which
is fixed at the time of such Reorganization Event and is to be delivered
pursuant to the Contract. It is uncertain whether any taxable gain or loss
recognized by a U.S. holder as a result of a Reorganization Event would be
capital or ordinary. U.S. holders are urged to consult their own tax advisors
concerning the specific tax consequences of a Reorganization Event on their
investment in a STRYPES.
The proper United States Federal income tax treatment of the receipt by a
U.S. holder of such U.S. holder's PRO RATA portion of cash distributed as a
result of a Partial Cash Distribution Event prior to dissolution of the Trust is
uncertain. It is possible that such a distribution would be treated as a
tax-free return of the U.S. holder's basis in its PRO RATA portion of the
Contract to the extent the amount of such distribution does not exceed such U.S.
holder's basis in its PRO RATA portion of the Contract. Under this analysis, a
U.S. holder would be required to recognize taxable gain as a result of cash
distributed as a result of a Partial Cash Distribution Event that is received
prior to the dissolution of the Trust to the extent that the amount of such
distribution exceeds the U.S. holder's tax basis in its PRO RATA portion of the
Contract. Alternatively, upon the receipt by a U.S. holder of such U.S. holder's
PRO RATA portion of cash distributed as a result of a Partial Cash Distribution
Event prior to the dissolution of the Trust, the U.S. holder may be required to
recognize taxable gain or loss with respect to the U.S. holder's PRO RATA
portion of the Contract in an amount equal to the difference between the amount
of cash received by such U.S. holder and such U.S. holder's tax basis in its PRO
RATA portion of the Contract that is allocable to the proportionate amount of
the Contract in respect of which such cash is received. It is unclear whether
any taxable gain or loss recognized by a U.S. holder as a result of the payment
by the Contracting Shareholder of cash distributed as a result of a Partial Cash
Distribution Event prior to dissolution of the Trust would be treated as capital
gain or loss or ordinary income or loss. Prospective investors in the STRYPES
should consult their own tax advisors concerning the tax consequences to them of
the payment by the Contracting Shareholder of cash distributed as a result of a
Partial Cash Distribution Event.
THE TAXPAYER RELIEF ACT OF 1997
On August 5, 1997, the Taxpayer Relief Act of 1997 (the "Tax Act") was
enacted into law. The Tax Act reduces the maximum rates on long-term capital
gains recognized on capital assets held by individual taxpayers for more than
eighteen months as of the date of disposition (and would further reduce the
maximum rates on such gains in the year 2001 and thereafter for certain
individual taxpayers who meet specified conditions). Prospective investors
should consult their own tax advisors concerning these tax law changes.
NON-U.S. HOLDERS
Subject to the discussion below concerning income that is effectively
connected with a trade or business conducted by a non-U.S. holder in the United
States, payments of interest (including original issue discount) made with
respect to the U.S. Treasury Securities will not be subject to United States
withholding tax, provided that such non-U.S. holder complies with applicable
certification requirements. In general, for a non-U.S. holder to qualify for
this exemption from taxation, the last United States payor in the chain of
payment prior to payment to a non-U.S. holder (the "Withholding Agent") must
have received in the year in which a payment of interest or principal occurs, or
in either of the two preceding calendar years, a statement that (i) is signed by
the beneficial owner of the U.S. Treasury Securities under penalties of perjury,
(ii) certifies that such owner is not a U.S. holder and (iii) provides the name
and
47
<PAGE>
address of the beneficial owner. The statement may be made on an IRS Form W-8 or
a substantially similar form, and the beneficial owner must inform the
Withholding Agent of any change in the information on the statement within 30
days of such change. If STRYPES is held through a securities clearing
organization or certain other financial institutions, the organization or
institution may provide a signed statement to the Withholding Agent. However, in
such case, the signed statement must be accompanied by a copy of the IRS Form
W-8 or the substitute form provided by the beneficial owner to the organization
or institution.
Any capital gain realized in respect of STRYPES by a non-U.S. holder will
generally not be subject to United States Federal income tax if (i) such gain is
not effectively connected with a United States trade or business of such
non-U.S. holder and (ii) in the case of an individual non-U.S. holder, such
individual is not present in the United States for 183 days or more in the
taxable year of the sale or other disposition, or the gain is not attributable
to a fixed place of business maintained by such individual in the United States
and such individual does not have a "tax home" (as defined for United States
Federal income tax purposes) in the United States.
If any interest or gain realized by a non-U.S. holder is effectively
connected with the non-U.S. holder's conduct of a trade or business in the
United States, such interest or gain will be subject to regular United States
Federal income tax in the same manner as if the non-U.S. holder were a U.S.
holder. In addition, in such event, if such non-U.S. holder is a foreign
corporation, such interest or gain may be included in the earnings and profits
of such non-U.S. holder in determining such non-U.S. holder's United States
branch profits tax liability.
BACKUP WITHHOLDING AND INFORMATION REPORTING
A beneficial owner of STRYPES may be subject to information reporting and to
backup withholding at a rate of 31 percent of certain amounts paid to the
beneficial owner unless such beneficial owner provides proof of an applicable
exemption or a correct taxpayer identification number and otherwise complies
with applicable requirements of the backup withholding rules.
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's United States Federal income tax provided the required
information is furnished to the IRS.
PROSPECTIVE INVESTORS IN THE STRYPES SHOULD BE AWARE THAT THERE IS NO
AUTHORITY DIRECTLY ADDRESSING THE PROPER UNITED STATES FEDERAL INCOME TAX
TREATMENT OF THE STRYPES OR SECURITIES WITH TERMS SUBSTANTIALLY THE SAME AS THE
STRYPES AND THAT NO RULING HAS BEEN REQUESTED FROM THE IRS WITH RESPECT TO THE
STRYPES. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT THE IRS WILL AGREE WITH THE
FOREGOING DISCUSSION AND THAT THE IRS WILL NOT ASSERT A CONTRARY POSITION AS TO
THE PROPER UNITED STATES FEDERAL INCOME TAX TREATMENT OF THE STRYPES WHICH MIGHT
CAUSE THE CHARACTER AND TIMING OF INCOME, GAIN OR LOSS RECOGNIZED WITH RESPECT
TO A STRYPES TO DIFFER SIGNIFICANTLY FROM SUCH CHARACTER AND TIMING DISCUSSED
ABOVE. PROSPECTIVE INVESTORS IN THE STRYPES ARE THEREFORE URGED TO CONSULT WITH
THEIR OWN TAX ADVISORS PRIOR TO MAKING AN INVESTMENT IN THE STRYPES.
AUSTRALIAN TAXATION
The taxation discussion below of certain Australian tax consequences is
based on the advice of Coopers & Lybrand, Sydney and outlines certain Australian
tax considerations for U.S. holders in relation to the purchase, ownership and
disposition of the STRYPES and the acquisition, ownership and disposition of
Reference Property comprising shares in an Australian corporation, such as the
Bank. The discussion is intended only as a descriptive summary and does not
purport to be a complete technical
48
<PAGE>
analysis or listing of all potential Australian tax effects. This discussion is
based upon laws, regulations, rulings and decisions now in effect and is subject
to changes in Australian law, including in any double taxation convention
between Australia and the United States (the "Treaty"), including retroactive
changes in effective dates, or possible differing interpretations.
Persons considering the purchase of the STRYPES should consult their own tax
advisors concerning the application of Australia's tax laws to their particular
situations as well as any consequences of the purchase, ownership and
disposition of STRYPES or Reference Property arising under the laws of any other
taxing jurisdiction.
The Trust would not be treated as a resident of Australia for Australian
income tax purposes. As it is not in receipt of Australian source income it will
not be subject to Australian tax on income earned. Therefore, quarterly
distributions by the Trust to non-Australian resident holders of STRYPES will
not be subject to Australian tax whether by withholding or otherwise.
On the Exchange Date, the Contracting Stockholder will deliver Reference
Property pursuant to the Contract unless and to the extent AMP satisfies the
Contract with cash. The U.S. holders will be absolutely entitled to Reference
Property comprising shares in an Australian corporation, such as the Bank, on
the Exchange Date and there would not be any Australian tax consequences to the
Trust arising from the delivery of Reference Property pursuant to the Contract
and the distribution of that Reference Property to the U.S. Holders.
The sale of STRYPES or shares in an Australian company may generate
assessable income to certain U.S. holders, such as banks, insurance companies
and other persons or institutions in the business of investment. The provisions
of the Treaty, however, are designed to ensure that this income, less all
allowable deductions, is subject to Australian tax only if the U.S. holder who
is a U.S. resident carries on business in Australia through a permanent
establishment and the income earned is effectively connected with that permanent
establishment.
The sale of STRYPES or shares in an Australian listed company by a U.S.
holder will not generate a net capital gain and therefore will not be subject to
Australian capital gains tax unless:
- the Australian listed company shares are held by U.S. citizens or U.S.
corporations who are residents of Australia;
- the U.S. holder is a non-Australian resident but the U.S. holder and the
U.S. holder's associates together beneficially hold or at any time during
the five years prior to the sale held shares or interests in shares
representing ten percent or more of the issued capital of the Australian
listed company in which the shares are held, such as the Bank. For the
purposes of determining whether ten percent or more of the issued capital
is held, it is possible that any interest the U.S. holder and the U.S.
holder's associates have in the shares by virtue of entitlements under
STRYPES held could be aggregated with holdings of shares by the U.S.
holder and the U.S. holder's associates; or
- the U.S. holder is a non-Australian resident but has at any time used the
STRYPES or Australian company shares in carrying on trade or business
through a permanent establishment in Australia.
and the consideration received for the STRYPES or Australian listed company
shares, as the case may be, (or their market value, if the disposition is not at
arm's length or for no consideration) exceeds the U.S. holder's cost base in the
STRYPES or shares after that cost base is adjusted, where appropriate, for the
effect of inflation.
The Australian income tax rate on capital gains is the same as the ordinary
income tax rate applicable to the relevant taxpayer, subject to capital gains
tax averaging where applicable. In the case of companies this rate is presently
36%.
49
<PAGE>
An individual who is a U.S. holder will be a resident of Australia if, for
example, that person:
- is domiciled in Australia, unless the person's permanent place of abode is
outside Australia; or
- has been in Australia for 183 days or more in a year of income unless that
person has a usual place of abode outside Australia and does not intend to
take up residence in Australia.
However, if that individual would be a resident of the United States for the
purposes of U.S. law, the Treaty allocates residence for the purposes of the
Treaty solely to the country in which the person maintains a permanent home (or
habitual abode) or with which the person has closer personal and economic ties.
A corporation who is a U.S. holder will be a resident of Australia if it is
incorporated in Australia or if it carries on business in Australia and has
either its central management and control in Australia or its voting power
controlled by shareholders who are residents of Australia.
To the extent AMP cash settles any of the obligations of the Contracting
Stockholder under the Contract, any Australian withholding tax payable thereon
will be paid by AMP. It is not contemplated that any withholding tax will be
payable on such payment by AMP or on any payment of those funds by the Trust to
U.S. holders.
Where the U.S. holder acquires, on the Exchange Date, Reference Property
comprising shares in an Australian corporation, such as the Bank, there may be
Australian tax consequences in relation to dividends paid by that Australian
listed corporation. Dividends paid by an Australian corporation may be paid as
franked or unfranked dividends. Australian corporations are required to provide
shareholders with notices detailing the extent to which the dividend is franked
or unfranked and the deductions (if any) of dividend withholding tax. Broadly,
to the extent to which those dividends are paid out of profits which have been
subject to Australian company income tax, they will be franked dividends. Fully
franked dividends paid to a non-resident will be exempt from Australian dividend
withholding tax. Unfranked or partially franked dividends will be subject to
Australian dividend withholding tax to the extent to which the dividend is
unfranked, unless a specific exemption is available.
The interaction of Australian income tax law and the Treaty limits the
Australian dividend withholding tax on unfranked or partially franked dividends
paid to a U.S. resident who is beneficially entitled to the dividend to 15
percent of the unfranked part of the gross dividend. However, where the U.S.
resident carries on business in Australia through a permanent establishment or
performs independent personal services from a fixed base in Australia and the
holding is effectively connected with the permanent establishment or fixed base,
the 15 percent limit should not apply and a dividend withholding tax at the rate
of 30 percent should apply in respect of such dividends in such circumstances.
However, under Australian law an Australian payer of dividends to a U.S.
resident in such circumstances is only obliged to withhold at the rate of 15
percent and, as a matter of policy, the Australian Taxation Office does not seek
to collect any further withholding tax.
No stamp, issue, registration or similar taxes are payable in Australia in
connection with the issue of STRYPES by the Trust. A transfer of or agreement to
transfer STRYPES will not be subject to stamp duty in any State or Territory of
Australia. Stamp duty will be payable by AMP with respect to the delivery on the
Business Day prior to the Exchange Date of Reference Property comprising shares
in an Australian company, such as the Bank, to the U.S. holders. The duty levied
is at the rate of 0.3% calculated on the higher of the sale price or value of
those shares. Subsequent transfers of Australian company shares by U.S. holders
would also be subject to stamp duty although where the transaction is
"on-market" (that is, on the ASX) the stamp duty is payable by the brokers
involved at 0.15% for the selling broker and 0.15% for the buying broker. The
brokers are reimbursed by their clients.
There are no specific estate, inheritance or gift taxes or duties imposed in
Australia.
50
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement (the
"Purchase Agreement"), the Trust has agreed to sell to Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Underwriter"), and the Underwriter has agreed
to purchase 29,000,000 STRYPES.
In the Purchase Agreement, the Underwriter has agreed, subject to the terms
and conditions set forth in the Purchase Agreement, to purchase all of the
STRYPES being sold pursuant to the Purchase Agreement if any of the STRYPES are
purchased.
The Underwriter has advised the Trust that it proposes initially to offer
the STRYPES to the public at the public offering price set forth on the cover
page of this Prospectus. The Underwriter has also advised the Trust that it
proposes to offer STRYPES to certain dealers at the initial public offering
price less a concession not in excess of $ per STRYPES. The Underwriter
may allow, and such dealers may reallow, a discount not in excess of $ per
STRYPES to certain other dealers. After the initial public offering, the public
offering price, concession and discount may be changed. The sales load of
$ per STRYPES is equal to % of the initial public offering price.
Investors must pay for any STRYPES purchased in the initial public offering on
or before , 1997.
The Trust has granted the Underwriter an option, exercisable for 30 days
from the date of this Prospectus, to purchase up to an aggregate of 3,840,000
additional STRYPES (subject to decrease by the number of STRYPES resulting from
the split of the initial STRYPES described below) to cover over-allotments, if
any, at the initial public offering price less the sales load. To the extent the
Underwriter exercises such option, the Underwriter will have a firm commitment,
subject to certain conditions, to purchase a number of additional STRYPES.
Prior to the Offering, there has been no public market for the STRYPES. The
STRYPES have been accepted for listing on the NYSE, subject to official notice
of issuance.
The Contracting Stockholder and AMP have agreed, subject to certain
exceptions, not to directly or indirectly offer, sell, contract to sell, or
otherwise dispose of, any of an aggregate of 164.2 million Bank Ordinary Shares
(in the case of AMP) owned on the date hereof by AMP in its Statutory Fund No. 1
or (in the case of Contracting Stockholder) so much of such 164.2 million Bank
Ordinary Shares as are held in the name of the Contracting Stockholder, Bank
ADSs or securities convertible or exercisable into, or exchangeable for, Bank
Ordinary Shares for a period of 90 days after the date of this Prospectus,
without the prior written consent of the Underwriter. AMP and its subsidiaries
shall be entitled to deal in any other Bank Ordinary Shares, whether held by
AMP's Statutory Fund No. 1 or otherwise, in accordance with applicable law and
whatever trading policies, practices or strategies of AMP or any of its
subsidiaries then in effect. In addition to such 164.2 million Bank Ordinary
Shares, at September 8, 1997 AMP owned or managed approximately 48 million
additional Bank Ordinary Shares.
AMP has agreed to indemnify the Underwriter against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments the
Underwriter may be required to make in respect thereof.
In connection with the Offering, ML IBK Positions, Inc., an affiliate of
Merrill Lynch, Pierce, Fenner & Smith Incorporated, has subscribed for and
purchased one STRYPES for a purchase price of $100. Prior to the Offering, the
initial STRYPES will be split into the smallest whole number of STRYPES that
would result in the per STRYPES amount recorded as capital, after effecting the
split, not exceeding the public offering price per STRYPES. Under the Contract,
the Contracting Stockholder will be obligated to deliver to the Trust on the
Business Day immediately preceding the Exchange Date a number or amount of each
type of Reference Property (or, in certain circumstances, cash with an equal
value) in respect of such STRYPES on the same terms as the STRYPES offered
hereby.
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<PAGE>
Until the distribution of the STRYPES is completed, rules of the Commission
may limit the ability of the Underwriter and any selling group members to bid
for and purchase the STRYPES, the Bank Ordinary Shares or the Bank ADSs. As an
exception to these rules, the Underwriter is permitted to engage in certain
transactions that stabilize the price of the STRYPES, the Bank Ordinary Shares
or the Bank ADSs. Such transactions consist of bids or purchases for the purpose
of pegging, fixing or maintaining the price of the STRYPES, the Bank Ordinary
Shares or the Bank ADSs.
If the Underwriter creates a short position in the STRYPES in connection
with the Offering, I.E., if it sells more STRYPES than are set forth on the
cover page of this Prospectus, the Underwriter may reduce that short position by
purchasing STRYPES in the open market. The Underwriter may also elect to reduce
any short position by exercising all or part of the over-allotment option
described above.
The Underwriter may also impose a penalty bid on certain selling group
members. This means that if the Underwriter purchases STRYPES in the open market
to reduce the Underwriter's short position or to stabilize the price of the
STRYPES, they may reclaim the amount of the selling concession from any selling
group members who sold those STRYPES as part of the Offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security.
Neither the Trust nor the Underwriter makes any representation or prediction
as to the direction or magnitude of any effect that the transactions described
above may have on the price of the STRYPES, the Bank Ordinary Shares or the Bank
ADSs. In addition, neither the Trust nor the Underwriter makes any
representation that the Underwriter will engage in such transactions or that
such transactions, once commenced, will not be discontinued without notice.
The Underwriter renders investment banking and other financial services to
the Bank from time to time.
LEGAL MATTERS
Certain legal matters will be passed upon for the Trust and for the
Underwriter by their counsel, Brown & Wood LLP, New York, New York. Certain
matters of Delaware law will be passed upon for the Trust by Richards, Layton &
Finger, Wilmington, Delaware, and certain matters of Australian law will be
passed upon for the Trust by Allen Allen & Hemsley, Sydney, New South Wales,
Australia. Certain legal matters will be passed upon for AMP and the Contracting
Stockholder by Coudert Brothers, New York, New York and Minter Ellison, Sydney,
New South Wales, Australia.
EXPERTS
The statement of assets, liabilities and capital included in this Prospectus
has been audited by Deloitte & Touche LLP, independent auditors, as stated in
their opinion appearing herein, and has been included in reliance upon such
opinion given on the authority of said firm as experts in auditing and
accounting.
ADDITIONAL INFORMATION
The Trust has filed with the Commission, Washington D.C. 20549, a
Registration Statement on Form N-2 under the Securities Act with respect to the
STRYPES offered hereby. Further information concerning the STRYPES and the Trust
may be found in the Registration Statement, of which this Prospectus constitutes
a part. The Registration Statement may be inspected without charge at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies of all or any part thereof may
be obtained from such office after payment of the fees prescribed by the
Commission. The Commission maintains a Web site at http://www.sec.gov containing
reports, proxy and information statements and other information regarding
registrants, such as the Trust, that file electronically with the Commission.
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INDEPENDENT AUDITORS' REPORT
To the Board of Trustees and Shareholder of WBK STRYPES Trust:
We have audited the accompanying statement of assets, liabilities and
capital of WBK STRYPES Trust as of September 24, 1997. This financial statement
is the responsibility of the Trust's management. Our responsibility is to
express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the statement of assets, liabilities and
capital is free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statement. An audit also includes assessing the accounting principles used and
significant estimates made by the Trust's management, as well as evaluating the
overall financial statement presentation. We believe that our audit of the
financial statement provides a reasonable basis for our opinion.
In our opinion, the financial statement referred to above presents fairly,
in all material respects, the financial position of WBK STRYPES Trust, as of
September 24, 1997 in conformity with generally accepted accounting principles.
/s/ Deloitte & Touche LLP
New York, New York
September 29, 1997
53
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WBK STRYPES TRUST
STATEMENT OF ASSETS, LIABILITIES AND CAPITAL
SEPTEMBER 24, 1997
ASSETS
<TABLE>
<S> <C>
Cash................................................................................. $ 100
Total Assets..................................................................... $ 100
---------
---------
LIABILITIES
Total Liabilities.................................................................... $ 0
---------
---------
NET ASSETS........................................................................... $ 100
---------
---------
CAPITAL
STRYPES
STRYPES issued and outstanding (Note 3)............................................ $ 100
---------
---------
</TABLE>
- ------------------------
(1) The Trust was created as a Delaware business trust on March 14, 1996 and has
had no operations other than matters relating to its organization and
registration as a non-diversified, closed-end management investment company
under the Investment Company Act of 1940, as amended. Costs incurred in
connection with the organization of the Trust and ongoing administrative
expenses will be paid or reimbursed by the Contracting Stockholder.
(2) Offering expenses will be payable upon completion of the Offering and also
will be paid by the Contracting Stockholder.
(3) On September 24, 1997, the Trust issued one STRYPES to ML IBK Positions,
Inc., an affiliate of Merrill Lynch, Pierce, Fenner & Smith Incorporated, in
consideration for a purchase price of $100.
The Declaration of Trust provides that prior to the Offering, the Trust will
split the outstanding STRYPES to be effected on the date that the price and
underwriting discount of the STRYPES being offered to the public is
determined, but prior to the sale of the STRYPES to the Underwriter. The
outstanding STRYPES will be split into the smallest whole number of STRYPES
that would result in the per STRYPES amount recorded as capital, after
effecting the split, not exceeding the public offering price per STRYPES.
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<PAGE>
INDEX OF DEFINED TERMS
Set forth below are the locations herein of certain defined terms.
<TABLE>
<CAPTION>
PAGE
TERM NUMBERS
- --------------------------------------------------------------------------------------------------- -------------
<S> <C>
Acceleration Value................................................................................. 27
Adjusted Present Value............................................................................. 2, 8, 24
Adjusted Treasury Rate............................................................................. 25
Administrator...................................................................................... 12
Aggregate Acceleration Value....................................................................... 27
AMP................................................................................................ 1, 6
associate.......................................................................................... 38
ASX................................................................................................ 1, 3, 5
Australia.......................................................................................... 4
Australian Trust................................................................................... 9
Bank............................................................................................... 1, 5, 20
Bank ADRs.......................................................................................... 1, 6
Bank ADSs.......................................................................................... 1, 6
Bank Ordinary Shares............................................................................... 1, 6
Bankruptcy Code.................................................................................... 36
BSA................................................................................................ 36
Business Day....................................................................................... 17
Cash Dissolution Event............................................................................. 2, 7, 24
Cash Reorganization Amount......................................................................... 2, 8, 24
Cash Reorganization Price.......................................................................... 2, 8
Cash Settlement Option............................................................................. 2, 7, 18
Closing Price...................................................................................... 17
Code............................................................................................... 44
Commission......................................................................................... 22
Comparable Treasury Issue.......................................................................... 25
Comparable Treasury Price.......................................................................... 25
Contract........................................................................................... 1, 6
Contracting Stockholder............................................................................ 1, 6, 28
Custodian.......................................................................................... 12
Custodian Agreement................................................................................ 41
Declaration of Trust............................................................................... 15
Default............................................................................................ 27
Depository......................................................................................... 18
Dilution Event..................................................................................... 23
Dissolution Event.................................................................................. 2, 7, 29
Distributed Assets................................................................................. 23
Early Settlement Date.............................................................................. 27
Escrow Agent....................................................................................... 8
Escrow Agreement................................................................................... 8
Escrow Amount...................................................................................... 8
Exchange Act....................................................................................... 5
Exchange Agent..................................................................................... 12
Exchange Date...................................................................................... 1, 5
Exchange Property.................................................................................. 9
Exchange Property Event of Default................................................................. 27
Extraordinary Cash Dividend........................................................................ 23
</TABLE>
55
<PAGE>
<TABLE>
<CAPTION>
PAGE
TERM NUMBERS
- --------------------------------------------------------------------------------------------------- -------------
<S> <C>
FATA............................................................................................... 37
Global Securities.................................................................................. 39
Government Obligations............................................................................. 26
holders............................................................................................ 6
Initial Price...................................................................................... 1, 3, 6, 10, 15
Insufficiency Determination........................................................................ 26
Investment Company Act............................................................................. 5
IRS................................................................................................ 46
National Australia Trustees........................................................................ 9
Nominee Trust Agreement............................................................................ 9, 28
non-U.S. holder.................................................................................... 43
Noon Buying Rate................................................................................... 16
NYSE............................................................................................... 1
Offering........................................................................................... 5
Original Issue Discount............................................................................ 11
Partial Cash Distribution Date..................................................................... 3, 8, 25
Partial Cash Distribution Event.................................................................... 2, 7, 24
participants....................................................................................... 39
Paying Agent....................................................................................... 12
Paying Agent Agreement............................................................................. 42
Primary Treasury Dealer............................................................................ 25
Purchase Agreement................................................................................. 51
Quotation Agent.................................................................................... 25
Reference Date..................................................................................... 16
Reference Property................................................................................. 1, 6, 16
Reference Property Value........................................................................... 16
Reference Security................................................................................. 16
Reference Treasury Dealer.......................................................................... 25
Reference Treasury Dealer Quotations............................................................... 25
Remaining Life..................................................................................... 26
Reorganization Event............................................................................... 24
STRYPES............................................................................................ 1
Tax Act............................................................................................ 47
Threshold Appreciation Price....................................................................... 1, 3, 6, 10, 15
Trading Day........................................................................................ 17
Treasury Constant Maturities....................................................................... 25
Treaty............................................................................................. 49
Trust.............................................................................................. 1, 5
Underwriter........................................................................................ 51
U.S. Dollar Equivalent............................................................................. 16
U.S. holder........................................................................................ 43
U.S. Treasury Securities........................................................................... 1, 6
Westpac............................................................................................ 5, 20
Withholding Agent.................................................................................. 47
</TABLE>
56
<PAGE>
FORM OF BANK ADS REQUEST/REVOCATION LETTER
WBK STRYPES-SM- TRUST
WBK STRYPES Trust
c/o The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Dear Sirs:
[The undersigned, being the owner of the number of STRYPES specified below
issued by the Trust referred to above, hereby DIRECTS AND INSTRUCTS The Bank of
New York, as Administrator (the "Administrator") of the WBK STRYPES Trust (the
"Trust"), upon the Exchange Date or upon the occurrence of a Dissolution Event,
as described in the Trust Prospectus, dated September , 1997, to deliver any
ordinary shares, par value A$1.00 per share, of Westpac Banking Corporation (the
"Bank Shares") to which the undersigned is entitled pursuant to said STRYPES, to
the depositary (the "Depositary") for American Depositary Shares evidencing such
Bank Shares ("ADSs") and to direct the Depositary on the behalf of the
undersigned to register the ADSs as set forth below.
We acknowledge and agree that (i) in the event that the Depositary does not
accept the Bank Shares for deposit, the Administrator will deliver the Bank
Shares to or at the instructions of the undersigned and (ii), following the
delivery of the Bank Shares to the Depositary with the instructions as described
above, you shall have no further liability for the undersigned as owner of the
STRYPES and the undersigned shall cease to be the beneficial owner of the Trust
assets.](1)
[The undersigned, being the owner of the number of STRYPES specified below
issued by the Trust referred to above, hereby REVOKES the previous instructions
to The Bank of New York regarding delivery of any ordinary shares, par value
A$1.00 per share, of Westpac Banking Corporation (the "Bank Shares") relating to
said STRYPES in the form of American Depositary Shares and requests that such
Bank shares be delivered as set forth below.](2)
Very truly yours,
______________________________________
Name of Transferee:
Transferee's DTC Participant: ________
By: __________________________________
Date: ________________________________
Number of STRYPES owned: _____________
- ------------------------
- -SM- Service mark of Merrill Lynch & Co., Inc.
(1) Strike out if this is a revocation letter.
(2) Strike out if this is a request letter.
A-1
<PAGE>
Please register the [ADSs](1) [Bank Ordinary Shares](2) as follows:
Name: ________________________________
Address: _____________________________
Taxpayer ID Number: __________________
Notice: Please keep a copy of this for your records.
- ------------------------
(1) Strike out if this is a revocation letter.
(2) Strike out if this is a request letter.
A-2
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE TRUST OR THE UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER
THAN THOSE SPECIFICALLY OFFERED HEREBY, OR OF ANY SECURITIES OFFERED HEREBY, IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE AN OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN
THE AFFAIRS OF THE TRUST SINCE THE DATE HEREOF OR SINCE THE DATES AS OF WHICH
INFORMATION IS SET FORTH HEREIN. IN THE EVENT THAT ANY SUCH CHANGE SHALL OCCUR
DURING THE PERIOD IN WHICH APPLICABLE LAW REQUIRES DELIVERY OF THIS PROSPECTUS,
THIS PROSPECTUS WILL BE AMENDED OR SUPPLEMENTED ACCORDINGLY.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary........................................................ 5
Fee Table................................................................. 14
The Trust................................................................. 15
Use of Proceeds........................................................... 15
Investment Objective and Policies......................................... 15
Investment Restrictions................................................... 30
Risk Factors.............................................................. 31
Description of the STRYPES................................................ 38
Trustees.................................................................. 40
Management Arrangements................................................... 41
Dividends and Distributions............................................... 42
Net Asset Value........................................................... 43
Certain Tax Considerations................................................ 43
Underwriting.............................................................. 51
Legal Matters............................................................. 52
Experts................................................................... 52
Additional Information.................................................... 52
Independent Auditors' Report.............................................. 53
Statement of Assets,
Liabilities and Capital................................................. 54
Index of Defined Terms.................................................... 55
Form of ADR Request/Revocation Letter..................................... A-1
</TABLE>
------------------------
UNTIL , 1997 (25 DAYS AFTER THE COMMENCEMENT OF THE OFFERING),
ALL DEALERS EFFECTING TRANSACTIONS IN THE STRYPES, WHETHER OR NOT PARTICIPATING
IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS DELIVERY
REQUIREMENT IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
29,000,000 STRYPES
WBK STRYPES-SM- TRUST
(EXCHANGEABLE FOR ORDINARY SHARES OF
WESTPAC BANKING CORPORATION)
---------------------
P R O S P E C T U S
---------------------
MERRILL LYNCH & CO.
, 1997
-SM-Service mark of Merrill Lynch & Co., Inc.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART C
OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
1. FINANCIAL STATEMENTS
Independent Auditors' Report
Statement of Assets, Liabilities and Capital as of September 24, 1997
2. EXHIBITS
(a) (1) Amendment to Restated Trust Agreement*
(2) Form of Amended and Restated Trust Agreement
(3) Restated Certificate of Trust*
(b) Not applicable
(c) Not applicable
(d) (1) Form of Specimen certificate for STRYPES (included in
Exhibit 2(a)(2))
(2) Portions of the Declaration of Trust of the Registrant
defining the rights of holders of STRYPES (included in
Exhibit 2(a)(2))
(e) Not applicable
(f) Not applicable
(g) Not applicable
(h) Form of Purchase Agreement
(i) Not applicable
(j) Form of Custodian Agreement
(k) (1) Form of Administration Agreement
(2) Form of Paying Agent Agreement
(3) Form of Forward Purchase Contract
(4) Form of Escrow Agreement
(5) Form of Fund Expense Agreement
(6) Form of Fund Indemnity Agreement
(7) Form of Nominee Trust Agreement
(l) Opinion and Consent of Brown & Wood LLP, U.S. counsel to the
Trust
(m) Not applicable
(n) (1) Tax Opinion and Consent of Brown & Wood LLP, U.S. counsel to
the Trust
(2) Tax Opinion and Consent of Coopers & Lybrand, Australian tax
adviser to the Trust
(3) Consent of Deloitte & Touche LLP, independent auditors for
the Trust
(4) Consent of Allen Allen & Hemsley, Australian counsel to the
Trust
(o) Not applicable
(p) Form of Subscription Agreement
(q) Not applicable
(r) Financial Data Schedule
- ------------------------
* Filed previously.
ITEM 25. MARKETING ARRANGEMENTS
See Exhibit (h) to this Registration Statement.
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be incurred in connection with the offering described in
this Registration Statement will be paid by the Trust.
C-1
<PAGE>
ITEM 27. PERSON CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
The Trust will be internally managed and will not have an investment
adviser. The information in the Prospectus under the caption "Management
Arrangements" is incorporated herein by reference.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES
There will be one record holder of the STRYPES as of the effective date of
this Registration Statement.
ITEM 29. INDEMNIFICATION
Section 7.6 of the Amended and Restated Trust Agreement and Section 6 of the
Purchase Agreement provide for indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "1933 Act"), may be permitted to trustees, officers and
controlling persons of the Registrant, pursuant to the foregoing provisions or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission (the "Commission") such indemnification is against
public policy as expressed in the 1933 Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a trustee, officer
or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such trustee, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
The Trust is internally managed and does not have an investment adviser.
ITEM 31. LOCATION OF ACCOUNTS AND RECORDS
All accounts, books and other documents required to be maintained by Section
31(a) of the Investment Company Act of 1940, as amended, and the rules
promulgated thereunder are maintained at the offices of the Registrant, 850
Library Avenue, Suite 204, Newark, Delaware 19715, its custodian, The Bank of
New York, 101 Barclay Street, New York, New York 10286 and its paying agent, The
Bank of New York, 101 Barclay Street, New York, New York 10286.
ITEM 32. MANAGEMENT SERVICES
Not applicable.
ITEM 33. UNDERTAKINGS
(a) The Registrant hereby undertakes to suspend the offering of the STRYPES
covered hereby until it amends its prospectuses contained herein if (1)
subsequent to the effective date of this Registration Statement, its net asset
value per STRYPES declines more than 10 percent from its net asset value per
STRYPES as of the effective date of the Registration Statement or (2) the net
asset value per STRYPES increases to an amount greater than its net proceeds as
stated in the prospectuses contained herein.
(b) The Registrant hereby undertakes that (i) for purpose of determining any
liability under the 1933 Act, the information omitted from the form of
prospectuses filed as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrant under Rule
497(h) under the 1933 Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; (ii) for the purpose of
determining any liability under the 1933 Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of the securities
at that time shall be deemed to be the initial bona fide offering thereof.
C-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Newark, State of Delaware, on the 29th
day of September, 1997.
WBK STRYPES Trust
By: /s/ DONALD J. PUGLISI
-----------------------------------------
Donald J. Puglisi
MANAGING TRUSTEE
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registrant's Registration Statement has been signed below by the
following persons, in the capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- --------------------------------------------------------- ---------------------- ------------------------
<C> <S> <C>
/s/ DONALD J. PUGLISI
-------------------------------------------- Managing Trustee September 29, 1997
Donald J. Puglisi
WILLIAM R. LATHAM III*
-------------------------------------------- Trustee
William R. Latham III
JAMES B. O'NEILL*
-------------------------------------------- Trustee
James B. O'Neill
*By: /s/ DONALD J. PUGLISI
-------------------------------------------- September 29, 1997
(Donald J. Puglisi, Attorney-in-Fact)
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER PAGE
- ---------- ---------
<C> <S> <C> <C>
(a) (1) Amendment to Restated Trust Agreement*............
(2) Form of Amended and Restated Trust Agreement......
(3) Restated Certificate of Trust*....................
(b) Not applicable....................................
(c) Not applicable....................................
(d) (1) Form of Specimen certificate for STRYPES (included
in Exhibit 2(a)(2))...............................
(2) Portions of the Declaration of Trust of the
Registrant defining the rights of holders of
STRYPES (included in Exhibit 2(a)(2)).............
(e) Not applicable....................................
(f) Not applicable....................................
(g) Not applicable....................................
(h) Form of Purchase Agreement........................
(i) Not applicable....................................
(j) Form of Custodian Agreement.......................
(k) (1) Form of Administration Agreement..................
(2) Form of Paying Agent Agreement....................
(3) Form of Forward Purchase Contract.................
(4) Form of Escrow Agreement..........................
(5) Form of Fund Expense Agreement....................
(6) Form of Fund Indemnity Agreement..................
(7) Form of Nominee Trust Agreement...................
(l) Opinion and Consent of Brown & Wood LLP, U.S.
counsel to the Trust..............................
(m) Not applicable....................................
(n) (1) Tax Opinion and Consent of Brown & Wood LLP, U.S.
counsel to the Trust..............................
(2) Tax Opinion and Consent of Coopers & Lybrand,
Australian tax adviser to the Trust...............
(3) Consent of Deloitte & Touche LLP, independent
auditors for the Trust............................
(4) Consent of Allen Allen & Hemsley, Australian
counsel to the Trust..............................
(o) Not applicable....................................
(p) Form of Subscription Agreement....................
(q) Not applicable....................................
(r) Financial Data Schedule...........................
</TABLE>
- ------------------------
* Filed previously.
<PAGE>
Exhibit (a)(2)
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
WBK STRYPES TRUST
Dated as of __________ __, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.............................................. 2
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME..................................................... 8
SECTION 2.2 OFFICE................................................... 8
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF EITHER OR
BOTH OF THE DEPOSITOR AND THE INITIAL TRUSTEE............ 8
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST.............. 8
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES................ 8
SECTION 2.6 PORTFOLIO ACQUISITION.................................... 10
SECTION 2.7 PORTFOLIO ADMINISTRATION................................. 10
SECTION 2.8 LIMITATIONS ON TRUSTEES' POWERS. ........................ 13
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT........................................ 14
SECTION 3.2 DISTRIBUTIONS TO HOLDERS................................. 14
SECTION 3.3 SEGREGATION.............................................. 14
SECTION 3.4 INVESTMENTS.............................................. 14
SECTION 3.5 EXPENSES................................................. 15
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION............................................... 15
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE...................................... 15
ii
<PAGE>
SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND
INTERCHANGE OF CERTIFICATES.............................. 16
SECTION 5.3 REPLACEMENT OF CERTIFICATES.............................. 16
SECTION 5.4 LIMITATION ON LIABILITY.................................. 17
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES................. 17
ARTICLE VI
EXECUTION OF THE CONTRACT AND
OTHER TRANSACTION DOCUMENTS
SECTION 6.1 EXECUTION OF THE CONTRACT AND OTHER
TRANSACTION DOCUMENTS.....................................17
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES................................................. 17
SECTION 7.2 VACANCIES................................................ 18
SECTION 7.3 POWERS................................................... 18
SECTION 7.4 MEETINGS................................................. 18
SECTION 7.5 RESIGNATION AND REMOVAL.................................. 19
SECTION 7.6 LIABILITY................................................ 19
SECTION 7.7 COMPENSATION............................................. 19
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS...................................... 20
SECTION 8.2 BOOKS AND RECORDS; REPORTS............................... 20
SECTION 8.3 DISSOLUTION.............................................. 21
SECTION 8.4 AMENDMENT AND WAIVER..................................... 22
SECTION 8.5 ACCOUNTANTS.............................................. 23
SECTION 8.6 NATURE OF HOLDER'S INTEREST.............................. 24
SECTION 8.7 DELAWARE LAW TO GOVERN................................... 24
SECTION 8.8 NOTICES.................................................. 25
SECTION 8.9 SEVERABILITY............................................. 25
SECTION 8.10 COUNTERPARTS............................................. 25
SECTION 8.11 SUCCESSORS AND ASSIGNS................................... 25
Schedule I - U.S. Treasury Securities.................................Exh. I-1
Annex A - Form of Bank ADS Request.........................................A-1
iii
<PAGE>
EXHIBIT A - STRYPES CERTIFICATE.......................................Exh. A-1
EXHIBIT B - FORWARD PURCHASE AGREEMENT................................Exh. B-1
EXHIBIT C - INDEMNITY AGREEMENT.......................................Exh. C-1
EXHIBIT D - NOMINEE TRUST AGREEMENT...................................Exh. D-1
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of September __, 1997
(the "Trust Agreement"), by and among ML IBK Positions, Inc. as sponsor (the
"Sponsor"), Donald J. Puglisi, William R. Latham III and James B. O'Neill, as
trustees (the "Trustees"), and the Holders (as defined herein), constituting WBK
STRYPES Trust (the "Trust").
W I T N E S E T H:
WHEREAS, Paul A. Pepe, as depositor (the "Depositor") and Douglas R.
Robinson, as trustee (the "Initial Trustee"), have previously entered into a
Trust Agreement dated as of March 14, 1996 (as subsequently amended, the
"Original Agreement"), creating XYZ STRYPES Trust;
WHEREAS, the Depositor has transferred his interest in XYZ STRYPES Trust
to the Sponsor;
WHEREAS, the Trustees hereby ratify and approve the transfer of the
interest of the Depositor in XYZ STRYPES Trust to the Sponsor;
WHEREAS, pursuant to an Instrument of Appointment, Acceptance, and
Resignation, dated as of February , 1997 (the "Instrument"), the Initial
Trustee appointed the Trustees as successor trustees to the Initial Trustee, the
Trustees accepted such appointment, and the Initial Trustee thereupon resigned
as trustee of the Trust;
WHEREAS, the Sponsor hereby waives the thirty (30) day notice requirement
of Section 5 of the Original Agreement and ratifies and approves the actions
taken pursuant to the Instrument;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement; and
WHEREAS, the Trust has previously issued one STRYPES to the Sponsor in
consideration of the aggregate purchase price therefor of $100, in satisfaction
of the requirements of Section 14(a)(1) under the Investment Company Act (as
hereinafter defined);
NOW, THEREFORE, the parties hereto agree to amend and restate the Original
Agreement as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Trust Agreement, the
following words and phrases shall have the meanings listed below. Any reference
to any agreement shall be a reference to such agreement as supplemented or
amended from time to time.
"ABSOLUTELY ENTITLED" - Absolutely Entitled shall have the meaning it
would have as interpreted under principles of Australian income tax and trust
law and references in this Agreement to the Trust or Trustees holding or
receiving Reference Property or Reference Securities "for the benefit of the
Holders absolutely" shall have a corresponding meaning.
"ACCELERATION AMOUNT NOTICE" - An Acceleration Amount Notice as defined in
the Contract.
"ACCELERATION VALUE" - The Acceleration Value as defined in the Contract.
"ADMINISTRATION AGREEMENT" - The Administration Agreement between the
Administrator and the Trust, and any substitute agreement therefor entered into
pursuant to Section 2.5(a) hereof.
"ADMINISTRATOR" - The Bank of New York, a New York banking corporation, or
its successor as permitted under Section 6.1 of the Administration Agreement or
appointed pursuant to Section 2.5(a) hereof.
"AGGREGATE ACCELERATION VALUE" - The Aggregate Acceleration Value as
defined in the Contract.
"AMP" - Australian Mutual Provident Society, an Australian mutual
insurance company.
"BANK" - Westpac Banking Corporation, an Australian bank.
"BANK ADRs" - Bank ADSs evidenced by American Depositary Receipts of the
Bank.
"BANK ADSs" - American Depositary Shares of the Bank.
"BANK ORDINARY SHARES" - Ordinary Shares, par value A$1.00 per share of
the Bank.
"BUSINESS DAY" - Any day that is not a Saturday, a Sunday or a day on
which the New York Stock Exchange, the National Association of Securities
Dealers, Inc. National Market, or banking institutions or trust companies in The
City of New York and other place
2
<PAGE>
where payment under the Contract or the Escrow Agreement is required to be made
are authorized or obligated by law or executive order to close.
"CASH DISSOLUTION EVENT" - A Cash Dissolution Event as defined in the
Contract.
"CASH SETTLEMENT OPTION" - The option of AMP described in Section 2.5 (a)
of the Contract in whole or in part to settle the Contract for a cash payment on
the Settlement Date.
"CERTIFICATE" - Any certificate evidencing the ownership of STRYPES
substantially in the form of Exhibit A hereto.
"CLOSING DATE" - The Closing Date as defined in the Contract.
"CODE" - The Internal Revenue Code of 1986, as amended from time to time;
each reference herein to any section of the Code or any regulation thereunder
shall constitute a reference to any successor provision thereto.
"COMMENCEMENT DATE" - The day on which the Purchase Agreement is executed.
"COMMISSION" - The United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Trust Agreement such Commission is not existing or
performing the duties now assigned to it, then the body performing such duties
on such date.
"CONTRACT" - The Forward Purchase Contract among the Trust, AMP, the
Custodian, the Administrator and the Contracting Stockholder, substantially in
the form of Exhibit B hereto.
"CONTRACT CONSIDERATION" - The Contract Consideration as defined in the
Contract.
"CONTRACTING STOCKHOLDER" - The person named as "Seller" in the Contract.
"CUSTODIAN" - The Bank of New York or its successor as permitted under
paragraph 11 of the Custodian Agreement or appointed pursuant to Section 2.5(a)
hereof.
"CUSTODIAN AGREEMENT" - The Custodian Agreement, dated as of , 1997,
between the Custodian and the Trust, and any substitute agreement therefor
entered into pursuant to Section 2.5(a) hereof.
"DATE OF DELIVERY" - A Date of Delivery as defined in the Contract.
3
<PAGE>
"DEPOSITARY" - The Depository Trust Company, or any successor thereto.
"DISSOLUTION EVENT" - A Dissolution Event as defined in the Contract.
"DISTRIBUTION DATE" - Each February 15, May 15, August 15 and November 15,
of each year, commencing November 15, 1997, to and including , 2000 (or
if any such date is not a Business Day, then the first Business Day thereafter).
"EARLY SETTLEMENT DATE" - The Early Settlement Date as defined in the
Contract.
"ESCROW AGENT" - National Australia Bank Limited or its successor as
permitted under Clause 5.4(b) of the Escrow Agreement or appointed pursuant to
Section 2.5(a) hereof.
"ESCROW AGREEMENT" - The Escrow Agreement among the Trust, the Escrow
Agent, AMP and the Contracting Stockholder.
"EVENT OF DEFAULT" - An Event of Default as defined in the Contract.
"EXCHANGE" - The delivery by the Trustees to the Holders of Reference
Property (and to the extent that AMP elects to exercise the Cash Settlement
Option or is otherwise obligated to pay cash under the Contract, the amount of
cash with an equal value, as specified in the Contract as payable in respect
thereof) in mandatory exchange for the STRYPES on the Exchange Date.
"EXCHANGE ACT" - The Securities Exchange Act of 1934, as amended from time
to time; each reference herein to any section of such Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"EXCHANGE DATE" - __________ __, 2000.
"FIRM CONSIDERATION AMOUNT" - The Firm Consideration Amount as defined in
the Contract.
"FIRM PAYMENT DATE" - The Firm Payment Date as defined in the Contract.
"FUND EXPENSE AGREEMENT" - Fund Expense Agreement among AMP, Merrill Lynch
and The Bank of New York.
"HOLDER" - The registered owner of any STRYPES as recorded on the books of
the Paying Agent.
"INDEMNITY AGREEMENT" - The Fund Indemnity Agreement among the Trust,
Merrill Lynch and AMP substantially in the form of Exhibit C hereto.
4
<PAGE>
"INDEPENDENT DEALERS" - Independent Dealers as defined in the Contract.
"INVESTMENT COMPANY ACT" - The Investment Company Act of 1940, as amended
from time to time; each reference herein to any section of such Act or any rule
or regulation thereunder shall constitute a reference to any successor provision
thereto.
"LIQUIDATION VALUE" - The aggregate proceeds received by the Trust from
the sale of the U.S. Treasury Securities pursuant to Section 2.6(b) hereof.
"MANAGING TRUSTEE" - The Trustee designated the Managing Trustee by
resolution of the Trustees.
"MERRILL LYNCH" - Merrill Lynch & Co., Inc.
"NOMINEE TRUST AGREEMENT" - The Nominee Trust Agreement among National
Australia Trustees Limited and AMP, in substantially the form of Exhibit D
hereto.
"OPTION CONSIDERATION AMOUNT" - The Option Consideration Amount as defined
in the Contract.
"ORIGINAL AGREEMENT" - The meaning specified in the recitals hereof.
"PARTICIPANT" - A Person having an account with the Depositary.
"PAYING AGENT" - The Bank of New York or its successor as permitted under
Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.5(a) hereof.
"PAYING AGENT AGREEMENT" - The Paying Agent Agreement between the Paying
Agent and the Trust, and any substitute agreement therefor entered into pursuant
to Section 2.5(a) hereof.
"PERSON" - An individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency or instrumentality thereof.
"PROSPECTUS" - The prospectus of the Trust relating to the offering of the
STRYPES and constituting a part of the Registration Statement, as first filed
with the Commission pursuant to Rule 497(b) or (h) under the Securities Act, and
as subsequently amended or supplemented by the Trust.
"PURCHASE AGREEMENT" - The Purchase Agreement among the Trust, the
Contracting Stockholder, AMP and the Underwriter relating to the issue and sale
of the STRYPES, as described in the Prospectus.
5
<PAGE>
"QUARTERLY DISTRIBUTION" - $______ (or, in the case of the period from and
including __, 1997 to and including November 14, 1997, $_______).
"RECORD DATE" - Each February 1, May 1, August 1 and November 1, of each
year, commencing November 1, 1997.
"REFERENCE PROPERTY" - The Reference Property as defined in the Contract.
"REFERENCE SECURITY" - A Reference Security as defined in the Contract.
"REFERENCE SECURITY ISSUER DISSOLUTION EVENT" - A Reference Security
Issuer Dissolution Event as defined in the Contract.
"REGISTRATION STATEMENT" - The Registration Statement on Form N-2
(Registration Nos. 333-1787; 811-7565) of the Trust, as amended.
"SECURITIES ACT" - The Securities Act of 1933, as amended from time to
time; each reference herein to any section of such Act or any rule or regulation
thereunder shall constitute a reference to any successor provision thereto.
"SETTLEMENT DATE" - The Settlement Date as defined in the Contract.
"STRYPES" - Structured Yield Product Exchangeable for Stock(sm)
representing a proportionate share of beneficial ownership in the Trust
evidencing a Holder's undivided interest in the Trust and right to receive a pro
rata distribution upon liquidation of the Trust Estate.
"SUBSCRIPTION AGREEMENT" - The Subscription Agreement, dated as of
September 24, 1997, between the Trust and ML IBK POSItions, Inc.
"TEMPORARY INVESTMENTS" - Direct short-term U.S. government obligations,
as specified from time to time by the Trustees or through standing instructions
from the Trustees to the Administrator or the Paying Agent.
"TRANSFER AGENT AND REGISTRAR" - With respect to any Reference Security at
any time, the Person then acting as transfer agent and registrar for such
Reference Security.
"TRUST ACCOUNT" - The account created pursuant to Section 3.1 hereof.
"TRUST ESTATE" - The Contract, the Escrow Agreement and the U.S. Treasury
Securities held at any time by the Trust, together with any Temporary
Investments held at any time pursuant to Section 3.4 hereof, and any proceeds
thereof or therefrom and any other moneys held at any time in the Trust Account.
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"TRUSTEE" - Each of Donald J. Puglisi, William R. Latham III and James B.
O'Neill solely in such Person's capacity as a Trustee of the Trust created and
continued hereunder and not in such Person's individual capacity, or such
Trustee's successor in interest in such capacity, or any successor appointed as
herein provided.
"UNDERWRITER" - The Underwriter named in the Purchase Agreement.
"U.S. TREASURY SECURITIES" - The meaning specified in Section 2.6(b)
hereof.
- ----------
(sm) Service mark of Merrill Lynch & Co., Inc.
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ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME. The Trust is named "WBK STRYPES Trust," as such name may
be modified from time to time by the Trustees following written notice to the
Holders. The Trust's activities may be conducted under the name of the Trust or
any other name deemed advisable by the Trustees.
SECTION 2.2 OFFICE. The address of the principal office of the Trust is
c/o Puglisi & Associates, 850 Library Avenue, Suite 204, Newark, Delaware 19715.
On ten Business Days written notice to the Holders the Trustees may designate
another principal office.
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF EITHER OR BOTH OF THE
DEPOSITOR AND THE INITIAL TRUSTEE. The Sponsor and the Trustees hereby ratify
and approve any and all actions taken by either or both of the Depositor and the
Initial Trustee on behalf of the Trust on or prior to the date hereof in
connection with the registration of the Trust under the Investment Company Act,
in connection with the registration of the offer and sale of the STRYPES under
the Securities Act, or otherwise incident to, or connected with, or necessary to
accomplish, the foregoing or the offer and sale of the STRYPES by the
Underwriter and the operation of the Trust as described in the Prospectus.
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsor
hereby creates the Trust in order that it may acquire the U.S. Treasury
Securities, enter into the Contract, issue and sell to the Sponsor and the
Underwriter the STRYPES, hold the Trust Estate in trust for the use and benefit
of all present and future Holders and otherwise carry out the terms and
conditions of this Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The Trustees hereby declare
that they will accept and hold the Trust Estate in trust for the use and benefit
of all present and future Holders. The Depositor has heretofore deposited with
the Initial Trustee the sum of $1 to accept and hold in trust hereunder until
the issuance and sale of the STRYPES to the Underwriter, whereupon such sum
shall be donated to an organization satisfying the requirements of Section
170(c)(2) of the Code selected by unanimous consent of the Trustees.
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance of
the provisions of Section 2.4 hereof, the Sponsor authorizes and directs the
Trustees, on behalf of the Trust:
(a) to enter into and perform (and, in accordance with Section
8.4(a) hereof, amend), the Contract, the Purchase Agreement, the Indemnity
Agreement, the
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Custodian Agreement, the Administration Agreement, the Subscription
Agreement, the Escrow Agreement and the Paying Agent Agreement and to
perform all obligations of the Trustees (including the obligation to
provide indemnity hereunder and thereunder) and enforce all rights and
remedies of the Trust under each of such agreements; and if any of the
Custodian Agreement, the Administration Agreement and the Paying Agent
Agreement terminates, or the agent of the Trust thereunder resigns or is
discharged, to appoint a substitute agent and enter into a new agreement
with such substitute agent containing provisions substantially similar to
those contained in the agreement being terminated; provided that in any
such new agreement (i) the Custodian and the Paying Agent shall each be a
commercial bank or trust company organized and existing under the laws of
the United States of America or any state therein, shall have full trust
powers and shall have minimum capital, surplus and retained earnings of
not less than $100,000,000; and (ii) the Administrator shall be a
reputable financial institution eligible and qualified in all respects to
carry out its obligations under the Administration Agreement;
(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust
Account and to make payments out of the Trust Account as set forth in
Article III hereof;
(c) to issue and sell to the Underwriter an aggregate of up to
STRYPES (including those STRYPES subject to the over-allotment option of
the Underwriter provided for in the Purchase Agreement) pursuant to the
Purchase Agreement and as contemplated by the Prospectus; provided,
however, that subsequent to the determination of the public offering price
per STRYPES and related underwriting discount for the STRYPES to be sold
to the Underwriter but prior to the sale of the STRYPES to the
Underwriter, the STRYPES originally issued to the Sponsor shall be split
into a greater number of STRYPES so that immediately following such split
the value of the STRYPES held by the Sponsor will equal the aforesaid
public offering price per STRYPES;
(d) to select independent public accountants and, subject to the
provisions of Section 8.5 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by Section
2.7(b) hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect
the Trust and the rights and interests of Holders, and to pay the costs
thereof;
(g) to delegate any or all of its powers and duties hereunder as
contemplated by the Custodian Agreement, the Paying Agent Agreement, the
Escrow Agreement and the Administration Agreement, to the extent permitted
by applicable law; and
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(h) to adopt the fundamental policies set forth in the Prospectus,
to adopt and amend a code of regulations, and take any and all such other
actions as necessary or advisable to carry out the purposes of the Trust,
subject to the provisions hereof and applicable law, including, without
limitation, the Investment Company Act.
SECTION 2.6 PORTFOLIO ACQUISITION. In furtherance of the provisions of
Section 2.4 hereof, the Sponsor further specifically authorizes and directs the
Trustees, acting on behalf of the Trust:
(a) to enter into the Contract with respect to the Reference
Property with the Contracting Stockholder and, subject to satisfaction of
the conditions set forth in the Contract and in the Escrow Agreement, to
pay to the Contracting Stockholder the Firm Consideration Amount and any
Option Consideration Amount thereunder with the proceeds of the sale of
the STRYPES, net of (1) the underwriting discount, (2) the purchase price
paid for the U.S. Treasury Securities as provided in paragraph (b) below,
(3) an amount in cash equal to the difference between the aggregate amount
of all Quarterly Distributions to be made on the STRYPES and the aggregate
proceeds to be received from the U.S. Treasury Securities upon maturity,
and (4) expenses in Section 3.5 hereof paid on the date hereof; and,
subject to the adjustments and exceptions set forth in the Contract, the
Contract shall entitle the Trust to receive from the Contracting
Stockholder (and/or AMP) on the Settlement Date for the benefit of the
Holders absolutely a specified number or amount of each type of Reference
Security and other property constituting part of the Reference Property
(and to the extent that AMP elects to exercise the Cash Settlement Option
or is otherwise obligated to pay cash under the Contract, an amount of
cash with an equal value) so that the Trust may execute the Exchange with
the Holders by registering the Holders as the owners of the Reference
Property; and
(b) to purchase for settlement on the Firm Payment Date, and on any
Date of Delivery, as appropriate, with the proceeds of the sale the
STRYPES, net of the underwriting discount, U.S. Treasury securities from
such brokers or dealers as the Trustees shall designate in writing to the
Administrator having the terms set forth on Schedule I hereto ("U.S.
Treasury Securities").
SECTION 2.7 PORTFOLIO ADMINISTRATION. In furtherance of the provisions of
Section 2.4 hereof, the Sponsor further specifically authorizes and directs the
Trustees:
(a) DETERMINATION OF REFERENCE PROPERTY ADJUSTMENTS. Upon receipt of
any notice pursuant to Section 6.6(a) of the Contract of an event
requiring an adjustment to the Reference Property, or upon otherwise
acquiring knowledge of such an event, to calculate the required adjustment
and furnish notice thereof to the Administrator or to request from the
Administrator such further information as may be necessary to calculate or
effect the required adjustment;
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(b) SELECTION OF SECURITIES DEALERS; INDEPENDENT INVESTMENT BANK. At
such times and for such purposes provided in the Contract, (i) to select
four of the nationally recognized securities dealers in The City of New
York to provide net bids for the purchase of rights or warrants referred
to in Section 3.1(b) of the Contract and to deliver notice to the
Administrator and (ii) to select and retain a nationally recognized
investment banking firm to determine the market value of any Reference
Property as provided in the Contract, including, without limitation,
Reference Property consisting of property other than cash or Reference
Securities, and to deliver to the Contracting Stockholder notice pursuant
to Section 9.1 of the Contract identifying the firm proposed to be
selected and retained, and to consult with the Contracting Stockholder on
such selection and retention as provided in such Section 9.1;
(c) ACCELERATION UPON EVENT OF DEFAULT. Upon receipt of any notice
pursuant to Section 9.1 of the Contract that an Event of Default has
occurred, or upon otherwise acquiring notice that an Event of Default has
occurred, to request quotations from Independent Dealers, compute the
Acceleration Value and the Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to the Contract, all
as described in Section 9.1 of the Contract;
(d) DETERMINATION OF CONTRACT CONSIDERATION. To calculate, at such
times and in such manner as provided in the Contract, the aggregate number
or amount of each type of Reference Security and other property
constituting part of the Reference Property (and to the extent AMP elects
to exercise the Cash Settlement Option or is otherwise obligated to pay
cash under the Contract, the amount of cash with an equal value) required
to be delivered by the Contracting Stockholder and/or AMP under Sections
2.1, 2.3, 2.4 and 2.5 of the Contract or, if a Dissolution Event shall
have occurred, the aggregate number or amount of each type of Reference
Security and other property constituting part of the Reference Property
that would be required to be delivered by the Contracting Stockholder
and/or AMP under the Contract if the Exchange Date were redefined for all
purposes of the Contract (including, without limitation, for purposes of
Section 2.4 thereof) to be the Early Settlement Date, all as provided in
Section 9.2 of the Contract; and
(e) DISTRIBUTION OF CONTRACT CONSIDERATION ON EXCHANGE DATE. Unless
a Dissolution Event shall have occurred or AMP elects to exercise the Cash
Settlement Option with respect to the Reference Property otherwise
deliverable under the Contract (in which event the cash received in
respect thereof shall be distributed pro rata to the Holders on the
Exchange Date) or a Partial Cash Distribution Event occurs (in which event
the cash received in respect thereof shall be distributed pro rata to the
Holder on the related Partial Cash Distribution Date):
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(i) DETERMINATION OF INTERESTS. To determine, on the Exchange
Date: (A) for each Holder, such Holder's pro rata share of the total
amount of each type of Reference Security and other property
constituting part of the Reference Property delivered to the Trust
for the benefit of the Holders absolutely on the Settlement Date
under the Contract; and (B) the amount of the fractional units or
interests of any type of Reference Property, if any, allocable to
each Holder and in the aggregate and to notify the Contracting
Stockholder and AMP of the foregoing determination in accordance
with the Contract;
(ii) DELIVERY OF REFERENCE SECURITIES. To deliver the units of
any Reference Security (after the payment of fractional units or
interests) to the Transfer Agent and Registrar on the Exchange Date,
with instructions that such units be re-registered and re-issued as
follows:
(A) for and in the name of each Holder (other than the
Depositary) who holds STRYPES in definitive form, the Transfer
Agent and Registrar shall be instructed to issue definitive
certificates representing a number of units of such Reference
Security equal to such Holder's pro rata share of the total
number of units of such Reference Security delivered to the
Trust on the Settlement Date under the Contract, rounded down
to the nearest integral number; and
(B) the Transfer Agent and Registrar shall be instructed
to all units of such Reference Security (after the payment of
fractional units or interests) to the account of the Custodian
held through the Depositary, who shall then be instructed to
transfer and credit such units of such Reference Security to
each Participant who holds STRYPES, with each Participant
receiving its pro rata share of the total number of units of
such Reference Security delivered to the Trust on the
Settlement Date under the Contract, reduced by the aggregate
cash value of any fractional units of such Reference Security
allocable to such Participant;
(iii) DELIVERY OF OTHER REFERENCE PROPERTY. To distribute on
the Exchange Date to each Holder such Holder's pro rata share of the
total number or amount of each type of Reference Property consisting
of cash or property other than cash or a Reference Security
delivered to the Trust on the Settlement Date under the Contract
rounding down to the nearest integral number in respect of any such
property;
(iv) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL UNITS OR
INTERESTS. To distribute on the Exchange Date to each Holder to
which a fractional unit or interest of any particular type of
Reference Property is allocable as determined pursuant to clause
(i)(B) above such Holder's pro rata portion of the proceeds obtained
from the cash payment of all
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fractional units or interests of such type of Reference Property
pursuant to Section 2.4 of the Contract; and
(v) RECORD DATE. The distributions described in this Section
2.7(e) shall be made to Holders of record as of the close of
business on the Business Day preceding the Exchange Date.
(f) HOLDER'S REQUEST FOR BANK ADRS. At the request of a Holder, Bank
Ordinary Shares constituting Reference Property which such Holder may be
entitled to receive on the Exchange Date or otherwise will be delivered in
the form of Bank ADSs representing such shares and evidenced by Bank ADRs,
but only if at the time of delivery Bank ADSs are listed on the New York
Stock Exchange or another national or regional U.S. stock exchange or
quoted on a U.S. automated quotation system and if and to the extent such
Bank Ordinary Shares are accepted for deposit by the depositary for the
Bank ADSs. Any such request shall have been received by the Administrator
at least 30 days prior to the Exchange Date or other applicable
distribution date. Any such request may be revoked provided such
revocation is received by the Administrator at least 30 days prior to the
Exchange Date or other applicable distribution date. A Bank ADS
request/revocation form is attached hereto as Annex A. In the event that a
Holder elects to receive Bank ADSs, on the Exchange Date or other
distribution date, as the case may be, the Trust will deposit the Bank
Ordinary Shares with the Bank ADR depositary with instructions to register
ADRs in such Holder's name and to deliver such ADRs as requested by such
Holder and the Trust will be responsible for the payment of any fees of
the Bank ADR depositary in connection therewith. Any such payment will be
reimbursed by Merrill Lynch, which in turn will be reimbursed by AMP.
SECTION 2.8 LIMITATIONS ON TRUSTEES' POWERS. The Trustees, acting on
behalf of the Trust, are not permitted:
(a) to purchase or hold any securities or instruments except for
the U.S. Treasury Securities, the Contract, the Escrow
Agreement, any Reference Security received pursuant to the
Contract, and the Temporary Investments contemplated by
Section 3.4 hereof;
(b) to dispose of the Contract or the Escrow Agreement prior to
the Exchange Date;
(c) to issue any securities or instruments except for the STRYPES,
or to issue any STRYPES other than the STRYPES sold to the
Sponsor and the STRYPES to be sold pursuant to the Purchase
Agreement and until such STRYPES have been so purchased and
paid for in full;
(d) to make short sales or purchases on margin;
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(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would
vary the investment of the Holders within the meaning of
Treasury Regulation Section 301.7701-4(c), or otherwise take
any action or direct or permit any action to be taken that
would or could cause the Trust not to be a "grantor trust"
under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
STRYPES, establish with the Paying Agent an account to be called the "Trust
Account." All moneys received by the Trustees in respect of the Contract, the
U.S. Treasury Securities and any Temporary Investments held pursuant to Section
3.4 hereof, all moneys received from the sale of the STRYPES to the Sponsor, and
any proceeds from the sale of the STRYPES to the Underwriter after the purchase
of the Contract and the U.S. Treasury Securities shall be credited to the Trust
Account.
SECTION 3.2 DISTRIBUTIONS TO HOLDERS. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent a check or by any
other means mutually agreed upon by the Holder and the Trustees, in the amount
equal to such Holder's pro rata share of the Quarterly Distribution computed as
of the close of business on such Distribution Date.
SECTION 3.3 SEGREGATION. All moneys and other assets deposited or received
by the Trustees hereunder shall be held by them in trust as part of the Trust
Estate until required to be disbursed or otherwise disposed of in accordance
with the provisions of this Trust Agreement, and the Trustees shall handle such
moneys and other assets in such manner as shall constitute the segregation and
holding in trust within the meaning of the Investment Company Act.
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SECTION 3.4 INVESTMENTS. To the extent necessary to enable the Paying
Agent to make the next succeeding Quarterly Distribution, any moneys deposited
with or received by the Trustees in the Trust Account shall be invested as soon
as possible by the Paying Agent in Temporary Investments maturing no later than
the Business Day preceding the next following Distribution Date. Except as
otherwise specifically provided herein or in the Paying Agent Agreement, the
Paying Agent shall not have the power to sell, transfer or otherwise dispose of
any Temporary Investment prior to the maturity thereof, or to acquire additional
Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof upon maturity to the payment
of the next succeeding Quarterly Distribution. All such Temporary Investments
shall be selected from time to time by the Trustees or pursuant to standing
instructions from the Trustees to the Administrator, and the Administrator
and/or Paying Agent shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary Investment. Any interest or
other income received on any moneys in the Trust Account shall, upon receipt
thereof, be deposited into the Trust Account. Notwithstanding the foregoing, not
more than 5% of the assets of the Trust may be held at any time in the form of
cash and Temporary Investments, and the Trustees shall distribute cash, or
liquidate Temporary Investments and distribute the proceeds thereof, if, when
and to the extent needed to maintain compliance with the foregoing restriction.
SECTION 3.5 EXPENSES. The Trust will pay all expenses incurred in the
operation of the Trust, including, among other things, accounting services,
expenses for legal and auditing services, taxes, costs of printing proxies,
listing fees, if any, stock certificates and shareholder reports, charges of the
Custodian and the Paying Agent, expenses of registering the STRYPES under
Federal and state securities laws, Commission fees, fees and expenses of
Trustees, accounting costs, brokerage costs, litigation and other extraordinary
or non-recurring expenses, mailing and other expenses properly payable by the
Trust.
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION. The Trustees shall have no right or obligation to
redeem the STRYPES.
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE. Each Certificate evidencing STRYPES shall
be countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Paying Agent in substantially the form of Exhibit A hereto with
the blanks appropriately filled in, shall be dated the date of execution and
delivery by the Paying Agent and shall represent a fractional undivided interest
in the Trust, the numerator of which fraction shall be the number of STRYPES set
forth on the face of such Certificate and the
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denominator of which shall be the total number of STRYPES outstanding at that
time. All STRYPES shall be issued in registered form and shall be numbered
serially. Pending the preparation of definitive Certificates, the Trustees may
execute and the Paying Agent shall authenticate and deliver temporary
Certificates (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Paying Agent). Temporary Certificates
shall be issuable as registered Certificates substantially in the form of the
definitive Certificates but with such omissions, insertions and variations as
may be appropriate for temporary Certificates, all as may be determined by the
Trustees with the concurrence of the Paying Agent. Every temporary Certificate
shall be executed by the Managing Trustee and be authenticated by the Paying
Agent upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Certificates. Without unreasonable delay the
Managing Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates may be surrendered in exchange therefor without
charge at each office or agency of the Paying Agent and the Paying Agent shall
authenticate and deliver in exchange for such temporary Certificates definitive
Certificates for a like aggregate number of STRYPES. Until so exchanged, the
temporary Certificates shall be entitled to the same benefits hereunder as
definitive Certificates.
SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND INTERCHANGE OF
CERTIFICATES. STRYPES may be transferred by the Holder thereof by presentation
and surrender of properly endorsed Certificates at the office of the Paying
Agent, accompanied by such documents executed by the Holder or his authorized
attorney as the Paying Agent deems necessary to evidence the authority of the
person making the transfer. Certificates issued pursuant to this Trust Agreement
are interchangeable for one or more other Certificates evidencing an equal
aggregate number of STRYPES and all Certificates issued as may be requested by
the Holder and deemed appropriate by the Paying Agent shall be issued in
denominations of one STRYPES or any multiple thereof. The Paying Agent may deem
and treat the person in whose name any STRYPES shall be registered upon the
books of the Paying Agent as the owner of such STRYPES for all purposes
hereunder and the Paying Agent shall not be affected by any notice to the
contrary. The transfer books maintained by the Paying Agent for the purposes of
this Section 5.2 shall include the name and address of the record owners of the
STRYPES and shall be closed in connection with the dissolution of the Trust
pursuant to Section 8.3 hereof. A sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such transfer
shall be paid to the Paying Agent by the Holder. A Holder may be required to pay
a fee for each new Certificate to be issued pursuant to the preceding paragraph
in such amount as may be specified by the Paying Agent and approved by the
Trustees. All Certificates cancelled pursuant to this Trust Agreement may be
voided by the Paying Agent in accordance with the usual practice of the Paying
Agent or in accordance with the instructions of the Trustees; provided, however,
that the Paying Agent shall not be required to destroy cancelled Certificates.
The Paying Agent may adopt other reasonable rules and regulations for the
registration, transfer and tender of STRYPES as it may, in its discretion, deem
necessary.
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SECTION 5.3 REPLACEMENT OF CERTIFICATES In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and substitution therefor upon the
Holder's furnishing the Paying Agent with proper identification and satisfactory
indemnity, complying with such other reasonable regulations and conditions as
the Paying Agent may prescribe and paying such expenses and charges, including
any bonding fee, as the Paying Agent may incur or reasonably impose; provided
that if the Trust has dissolved or is in the process of dissolving, the Paying
Agent, in lieu of issuing such new Certificate, may, upon the terms and
conditions set forth herein, make the distributions set forth in Section 8.3(c)
hereof. Any mutilated Certificate shall be duly surrendered and cancelled before
any duplicate Certificate shall be issued in exchange and substitution therefor.
Upon issuance of any duplicate Certificate pursuant to this Section 5.3, the
original Certificate claimed to have been lost, stolen or destroyed shall become
null and void and of no effect, and any bona fide purchaser thereof shall have
only such rights as are afforded under Article 8 of the Uniform Commercial Code
to a Holder presenting a Certificate for transfer in the case of an overissue.
SECTION 5.4 LIMITATION ON LIABILITY. Pursuant to ss.3803(a) of the
Delaware Business Trust Act, 12 Del. C. ss.3801, et seq., the Holders of the
STRYPES shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES.
(A) The consideration received by the Trust for the issuance of the
STRYPES shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(B) Upon issuance of the STRYPES as provided in this Trust
Agreement, the STRYPES so issued shall be deemed to be validly issued, fully
paid and non-assessable.
(C) Every person, by virtue of having become a Holder in accordance
with the terms of this Trust Agreement, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
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ARTICLE VI
EXECUTION OF THE CONTRACT AND
OTHER TRANSACTION DOCUMENTS
SECTION 6.1 EXECUTION OF THE CONTRACT AND OTHER TRANSACTION DOCUMENTS. The
Contract and other transaction documents shall be countersigned manually or in
facsimile by the Managing Trustee and executed manually by each of the
Contracting Stockholder, AMP, the Escrow Agreement, and the Custodian, as
applicable, and shall be dated the date of execution and delivery by the
Contracting Stockholder.
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES. The Trust shall have three Trustees who shall
initially be elected by the Initial Trustee. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next regular annual or special
meeting of Holders called for the purpose of electing Trustees and, then, until
such Trustee's successor is duly elected and qualified. Holders may not cumulate
their votes in the election of Trustees. Each Trustee shall not be considered to
have qualified for the office unless such Trustee shall agree to be bound by the
terms of this Trust Agreement and shall evidence his consent by executing this
Trust Agreement or a supplement hereto.
SECTION 7.2 VACANCIES. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) of a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the STRYPES entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person," as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
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<PAGE>
SECTION 7.3 POWERS. The Trust will be managed solely by the Trustees, who
will, subject to the provisions of Article II and Section 8.6(b) hereof, have
complete and exclusive control over the management, conduct and operation of the
Trust's business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
SECTION 7.4 MEETINGS. Meetings of the Trustees shall be held from time to
time upon the call of any Trustee on not less than 48 hours notice (which may be
waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
SECTION 7.5 RESIGNATION AND REMOVAL. Any Trustee may resign and be
discharged of the Trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding STRYPES, notice of which vote
shall be given to the remaining Trustees and the Administrator. The resignation,
removal or failure to reelect any Trustee shall not cause the termination of the
Trust.
SECTION 7.6 LIABILITY. The Trustees shall not be liable to the Trust or
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of STRYPES or Certificates representing STRYPES and shall in no event assume or
incur any
19
<PAGE>
liability, duty or obligation to any Holder or to any other Person, other than
as expressly provided for herein. The Trustees may employ agents, attorneys,
administrators, accountants and auditors, and shall not be answerable for the
default or misconduct of any such Persons if such Persons shall have been
selected with reasonable care. Action in good faith may include action taken in
good faith in accordance with an opinion of counsel. In no event shall any
Trustee be personally liable for any expenses with respect to the Trust subject
to Section 8.6(c). Each Trustee shall be indemnified by the Trust with respect
to any claim, liability or loss arising out of or in connection with such
Trustee's acting as Trustee of the Trust and with respect to all reasonable
costs and expenses (including the reasonable costs of investigation, preparation
for and defense of legal and/or administrative proceedings relating to a claim
against such Trustee and reasonable attorneys' fees and disbursements) incurred
in connection with any such claim, liability or loss, except in the case of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties of his office. Notwithstanding the foregoing, it is understood that the
Trust shall not, in respect of the legal expenses of any Trustee in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel).
SECTION 7.7 COMPENSATION. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsor, the Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $3,600 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of a
Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS. The Trustees shall not hold annual or
regular meetings of Holders except as set forth herein and except as may be
required under the rules of the New York Stock Exchange. A special meeting may
be called at any time by the Trustees or upon petition of Holders of not less
than 51% of the STRYPES outstanding (unless substantially the same matter was
voted on during the preceding 12 months), and shall be called as required by the
Investment Company Act and the rules and regulations thereunder, including,
without limitation, when requested by the Holders of not less than 10% of the
STRYPES outstanding for the purposes of voting upon the question of the removal
of any Trustee or Trustees. The Trustees shall establish, and notify the Holders
in writing of, the record date for each such meeting which shall be not less
than 10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior to
such record date if appropriate), mail by first class mail to each Holder a
notice of
20
<PAGE>
meeting and a proxy statement and form of proxy in the form approved by the
Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein, in the Prospectus
(including, without limitation, changes to the Trust's fundamental policies set
forth in the Prospectus) or in any provision of the Investment Company Act and
the rules and regulations thereunder, any action may be taken by vote of Holders
of a majority of the STRYPES outstanding present in person or by proxy if
Holders of a majority of STRYPES outstanding on the record date are so
represented. Each STRYPES shall have one vote and may be voted in person or by
duly executed proxy. Any proxy may be revoked by notice in writing, by a
subsequently dated proxy or by voting in person at the meeting, and no proxy
shall be valid after eleven months following the date of its execution. Each
STRYPES shall have one vote and may be voted in person or by duly executed
proxy; provided, however, that any investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), owning STRYPES in
excess of the limits imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the
1940 Act must vote their STRYPES in proportion to the vote of all other Holders
that are not investment companies registered under the 1940 Act.
SECTION 8.2 BOOKS AND RECORDS; REPORTS. (a) The Trustees shall keep a
certified copy or duplicate original of this Trust Agreement on file at the
office of the Trust and the office of the Administrator available for inspection
at all reasonable times during its usual business hours by any Holder. The
Trustees shall keep proper books of record and account for all the transactions
under this Trust Agreement at the office of the Trust and the office of the
Administrator, and such books and records shall be open to inspection by any
Holder at all reasonable times during usual business hours. The Trustees shall
retain all books and records in compliance with Section 31 of the Investment
Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth, either
in the instruments by means of which payment is made or in a separate statement,
the amount being paid from the Trust Account expressed as a dollar amount per
STRYPES and the other information required under Section 19 of the Investment
Company Act and the rules and regulations thereunder. The Trustees shall prepare
and file or distribute reports as required by Section 30 of the Investment
Company Act and the rules and regulations thereunder. The Trustees shall prepare
and file such reports as may from time to time be required to be filed or
distributed to Holders under any applicable state or Federal statute or rule or
regulation thereunder, and shall file such tax returns as may from time to time
be required under any applicable state or Federal statute or rule or regulation
thereunder. One of the Trustees shall be designated by resolution of the
Trustees to make the filings and give the notices required by Rule 17g-1 under
the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the U.S. Treasury Securities will be valued at the
mean between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at
21
<PAGE>
cost with accrued interest or discount earned included in interest receivable
and (iii) the Contract will be valued at the mean of the bid prices received by
the Administrator from at least three independent broker-dealer firms
unaffiliated with the Trust to be named by the Trustees who are in the business
of making bids on financial instruments similar to the Contract and with terms
comparable thereto.
SECTION 8.3 DISSOLUTION. (a) The Trust created hereby shall dissolve, and
its affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the STRYPES have not theretofore been
issued or (y) the net worth of the Trust is not at least $100,000 at such time,
(ii) the date five Business Days after the Closing Date, (iii) the date which is
21 years less 91 days after the death of the last survivor of all of the
descendants of Joseph P. Kennedy living on the date hereof, and (iv) any time
after the occurrence of a Dissolution Event or the Settlement Date under the
Contract, upon the unanimous vote or consent of the Holders. The Trust is
irrevocable, the Sponsor has no right to withdraw any assets constituting a
portion of the Trust Estate, and the dissolution of the Sponsor shall not
operate to dissolve the Trust. The death or incapacity of any Holder shall not
operate to terminate this Trust Agreement, nor entitle his legal representatives
or heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of the Trust, and shall not otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Written notice of any dissolution shall be sent to Holders specifying
the record date for any distribution to Holders, the amount distributable
(including, if applicable, the number or amount of each type of Reference
Security and other property constituting part of the Reference Property) with
respect to each STRYPES and the time of dissolution as determined by the
Trustees, upon which the books maintained by the Paying Agent pursuant to
Section 5.2 hereof shall be closed. Any such notice shall be provided by mail,
sent to each Holder at such Holder's address as it appears on the books of the
Paying Agent, first class, postage prepaid not less than nine days prior to the
date on which such distribution is to be made. At or prior to the mailing of
such notice, the Administrator shall publish a public announcement in The Wall
Street Journal or another daily newspaper of national circulation.
(c) Subject to any applicable provisions of law, for purposes of
dissolution under Sections 8.3(a)(ii), (iii) and (iv) hereof, within five
Business Days after such dissolution, the Trustees shall effect the sale of any
remaining property of the Trust (other than any Reference Property received
pursuant to the Contract and cash), and the Paying Agent shall distribute pro
rata as soon as practicable thereafter to each Holder, upon surrender for
cancellation of its Certificates, its interest in the Trust Estate. Together
with the distribution to the Holders, the Trustees shall furnish the Holders
with a final statement as of the date of the distribution of the amount
distributable with respect to each STRYPES. Any sale of the Trust Estate made
under this Section 8.3(c) shall be made through such executing brokers or to
such dealers as the Trustees, seeking best price and execution for the Trust,
shall designate in writing to the Paying Agent, taking into account such factors
as price, commission, size of order, difficulty of execution and brokerage skill
required.
22
<PAGE>
(d) Notwithstanding anything to the contrary contained herein, no
fractional units of any Reference Security or amount of each type of Reference
Security and other property constituting part of the Reference Property, or
fractional interests of any Reference Property other than cash or a Reference
Security, will be distributed to Holders pursuant to Section 8.3(c) hereof upon
dissolution of the Trust. All fractional units or interests to which Holders
would otherwise be entitled upon dissolution of the Trust will be aggregated and
liquidated by the Contracting Stockholder who shall be notified by the
Administrator pursuant to delegated authority by the Trustees and, in lieu of
the fractional units or interests to which a Holder would otherwise have been
entitled in respect of the total number of STRYPES held by such Holder, such
Holder will receive its pro rata portion of the proceeds from such liquidation
(net of any brokerage or related expenses).
SECTION 8.4 AMENDMENT AND WAIVER. (a) This Trust Agreement other than
8.3(a)(iv) or Section 8.6(b) may be amended from time to time by the Trustees
for any purpose prior to the issuance and sale to the Underwriter of the STRYPES
and thereafter without the consent of any of the Holders (i) to cure any
ambiguity or to correct or supplement any provision contained herein or therein
which may be defective or inconsistent with any other provision contained herein
or therein; (ii) to change any provision hereof or thereof as may be required by
applicable law or the Commission or any successor governmental agency exercising
similar authority; or (iii) to make such other provisions in regard to matters
or questions arising hereunder or thereunder as shall not materially adversely
affect the interests of the Holders (as determined in good faith by the
Trustees, who may rely on an opinion of counsel).
(b) This Trust Agreement other than 8.3(a)(iv) or Section 8.6(b) may also
be amended from time to time by the Trustees (or the performance of any of the
provisions of the Trust Agreement other than 8.3(a)(iv) or Section 8.6(b) may be
waived) with the consent by the required vote of the Holders in accordance with
Section 8.1 hereof; provided that this Trust Agreement may not be amended (i)
without the consent by vote of the Holders of all STRYPES then outstanding, so
as to increase the number of STRYPES issuable hereunder above the number of
STRYPES specified in Section 2.5(c) hereof or such lesser number as may be
outstanding at any time during the term of this Trust Agreement, (ii) to reduce
the interest in the Trust represented by STRYPES without the consent of the
Holders of such STRYPES, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law or (iv) without the consent by vote of the
Holders of all STRYPES then outstanding, if such amendment would effect a change
in Section 2.4 or 2.8 hereof in the voting requirements set forth in Section 8.1
hereof or this Section 8.4.
(c) Any of the agreements referred to in Section 2.5(a) hereof may be
amended from time to time by the Trustees and the other parties thereto for any
purpose without the consent of any of the Holders.
(d) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder.
23
<PAGE>
(e) Notwithstanding subsections (a) and (b) of this Section 8.4, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent, the Escrow Agent or the Custodian to take any action or direct or
permit any Person to take any action that (i) would vary the investment of
Holders within the meaning of Treasury Regulation Section 301.7701-4(c), or (ii)
would or could cause the Trust not to be a "grantor trust" under the Code.
SECTION 8.5 ACCOUNTANTS. (a) The Trustees shall, in accordance with
Section 30 of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having securities
registered on a national securities exchange are required to file annually
pursuant to Section 13(a) of the Exchange Act and the rules and regulations
issued thereunder. The Trustees shall transmit to the Holders, at least
semi-annually, the reports required by Section 30(d) of the Investment Company
Act and the rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of investments
on the date of such balance sheet, a list showing the amounts and values of such
investments owned on the date of such balance sheet, and a statement of income
for the period covered by the report. Financial statements contained in such
annual reports shall be accompanied by a certificate of independent public
accounts based upon an audit not less in scope or procedures than that which
independent public accountants would ordinarily make for the purpose of
complying with generally accepted auditing standards and shall contain such
information as the Commission may prescribe. Each such report shall state that
such independent public accountants have verified investments owned, either by
actual examination or by receipt of a certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a) above
shall be selected at a meeting held within 30 days before or after the beginning
of the fiscal year by the vote, cast in person, of a majority of the Trustees
who are not "interested persons" as defined in the Investment Company Act and
such selection shall be submitted for ratification at the first meeting of
Holders to be held as set forth in Section 8.1 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the STRYPES present at a special meeting of Holders, if Holders of more
than 50% of STRYPES outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the STRYPES outstanding to terminate such
employment at any time without penalty.
(c) The foregoing provisions of this Section 8.5 are in addition to any
applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
SECTION 8.6 NATURE OF HOLDER'S INTEREST. (a) Until there is a Dissolution
Event or an obligation of the Seller to deliver the Reference Property on the
occurrence of the Settlement Date under the Contract, each Holder holds at any
given time a beneficial interest in the Trust Estate (including the Contract)
but does not have any right to
24
<PAGE>
take possession of any portion of the Trust Estate (including the Contract).
Until that time, each Holder has expressly waived any right he may have under
any rule of law, or the provisions of any statute, or otherwise, to require the
Trustees at any time to account, in any manner other than as expressly provided
in this Trust Agreement for the Reference Property, the Contract, the U.S.
Treasury Securities or other assets or moneys from time to time received, held
and applied by the Trustees hereunder. No Holder shall have any right except as
provided herein to control or determine the operation and management of the
Trust or the obligations of the parties hereto. Nothing set forth herein or in
the Certificates representing STRYPES shall be construed to constitute the
Holders from time to time as partners or members of an association.
(b) On the occurrence of a Dissolution Event or the Settlement Date under
the Contract, each Holder is Absolutely Entitled as against the Trustees to the
Reference Property being the Contract Consideration required to be delivered by
the Contracting Stockholder and/or the AMP under the Contract. The Trustee must
act at the direction of the Holders to distribute the Reference Property
pro-rata to the Holders or as the Holders direct or otherwise deal with the
Reference Property as the Holders direct from time to time.
(c) On the occurrence of a Dissolution Event or the Settlement Date under
the Contract, the Trustees shall not be indemnified by the Trust and each of
them hereby waives any such right to indemnity (whether this indemnity arises in
accordance with Section 7.6 hereof or under the operation of law or otherwise)
nor shall any Trustee be indemnified out of the Reference Property for its
expenses and other liabilities properly occurred under Section 3.5 hereof or
otherwise under this Agreement. The prohibition on indemnification described in
the immediately preceding sentence shall not, however, limit the right of a
Trustee to be indemnified or compensated in accordance with the terms of the
Fund Indemnity Agreement and Fund Expense Agreement.
SECTION 8.7 DELAWARE LAW TO GOVERN. This Trust Agreement is executed and
delivered in the State of Delaware, and all laws or rules of construction of the
State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
SECTION 8.8 NOTICES Any notice, demand, direction or instruction to be
given to the Sponsor hereunder shall be in writing and shall be duly given if
mailed or delivered to ML IBK Positions, Inc. at World Financial Center, North
Tower, New York, New York 10281, or at such other address as shall be specified
by the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
c/o 850 Library Avenue, Suite 204, Newark, Delaware 19715, and to each Trustee
at such Trustee's address set forth beneath its signature below, or such other
address as shall be specified to the other parties hereto by such party in
writing. Any notice to be given to a Holder shall be duly given if mailed, first
class postage prepaid, or by such other substantially
25
<PAGE>
equivalent means as the Trustees may deem appropriate, or delivered to such
Holder at the address of such Holder appearing on the registry of the Paying
Agent.
SECTION 8.9 SEVERABILITY. If any one or more of the covenants, agreements,
provisions or terms of this Trust Agreement shall be for any reason whatsoever
held invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions and terms
of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
SECTION 8.10 COUNTERPARTS This Trust Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 8.11 SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsor and Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
26
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By
----------------------------------
Name:
Title:
TRUSTEES:
--------------------------------------
Name: Donald J. Puglisi
Address: 850 Library Avenue, Suite 204
Newark, Delaware 19715
--------------------------------------
Name: William R. Latham III
Address: 850 Library Avenue, Suite 204
Newark, Delaware 19715
--------------------------------------
Name: James B. O'Neill
Address: 850 Library Avenue, Suite 204
Newark, Delaware 19715
<PAGE>
Schedule I
U.S. TREASURY SECURITIES
All terms specified are for stripped principal or interest components of
U.S. Treasury debt obligations.
Maturity Par Amount CUSIP No.
- ------------------ ------------- -----------------------------------------
<PAGE>
Annex A
Form of Bank ADS Request/Revocation
WBK STRYPES(sm) TRUST
WBK STRYPES Trust
c/o The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Dear Sirs:
[The undersigned, being the owner of the number of STRYPES specified below
issued by the Trust referred to above, hereby directs and instructs The Bank of
New York, as Administrator of the WBK STRYPES Trust (the "Trust"), upon the
Exchange Date or upon the occurrence of a Dissolution Event, as described in the
Trust Prospectus, dated September , 1997, to deliver any ordinary shares, par
value A$1.00 per share, of Westpac Banking Corporation (the "Bank Shares") to
which the undersigned is entitled pursuant to said STRYPES, to the depositary
(the "Depositary") for American Depositary Shares evidencing such Bank Shares
("ADSs") and to direct the Depositary on the behalf of the undersigned to
register the ADSs as set forth below.
We acknowledge and agree that, upon the delivery of the Bank Shares to the
Depositary with the instructions as described above, you shall have no further
liability for the undersigned as owner of the STRYPES. The undersigned shall
cease to be the beneficial owner of the Trust.](1)
<PAGE>
[The undersigned, being the owner of the number of STRYPES specified below
issued by the Trust referred to above, hereby revokes the previous instructions
to The Bank of New York regarding delivery of any ordinary shares of Westpac
Banking Corporation (the "Bank Shares") relating to said STRYPES in the form of
American Depositary Shares and request that such Bank Shares be delivered as set
forth below](2)
Very truly yours,
-----------------------------
Name of Transferee:
Transferee's DTC Participant:
By:
Date:
Number of STRYPES owned:
Please register the [ADSs](1) [Bank Ordinary Shares](2) as follows:
Name:
Address:
Taxpayer ID Number:
- ----------
(SM) Service mark of Merrill Lynch & Co., Inc
(1) Strike out if this is a revocation letter.
(2) Strike out if this is a request letter.
<PAGE>
Exhibit A
WBK STRYPES TRUST
NO. ____________________ STRYPES(MM) CUSIP NO. _______
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND
NON-ASSESSABLE STRYPES, PAR VALUE A $1.00 PER STRYPES, OF WBK STRYPES TRUST
CONSTITUTING FRACTIONAL UNDIVIDED BENEFICIAL INTERESTS IN WBK STRYPES TRUST, A
TRUST CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT TO AN AMENDED AND
RESTATED TRUST AGREEMENT (THE "TRUST AGREEMENT") BETWEEN ML IBK POSITIONS, INC.
AND THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN). THIS
CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
TO WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF
ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE
OF THE TRUST'S PAYING AGENT,___________________________________________________
_____________________. THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY
THE REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE
OF THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR
ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE
PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT
AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
WBK STRYPES TRUST
By
---------------------------------------
Donald J. Puglisi
Managing Trustee
COUNTERSIGNED:
as Paying Agent
By
------------------------------
Authorized Signature
- ----------
(MM) Service Mark of Merrill Lynch & Co., Inc.
<PAGE>
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT BETWEEN ML IBK POSITIONS,
INC. AND THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN) TO
WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS
AND IS BOUND.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act _________
tenants in common (State)
Additional abbreviations also may be used though not in the above list.
For value received, _______________________ hereby sell, assign and transfer
unto
Please insert social securities or
other identifying number of assignee
- ------------------------------------
- ------------------------------------
- --------------------------------------------------------------------------------
- -------
(Please Print or Typewrite Name and Address, Including Zip Code, of Assignee)
______________ STRYPES of fractional undivided beneficial interest represented
by the within Certificate, and do hereby irrevocably constitute and appoint
_________ Attorney to transfer the said STRYPES on the books of the within-named
Trust with full power of substitution in the premises.
Dated:
----------------------------
-------------------------------------------
NOTICE: The Signature to this assignment must correspond
with the name as written upon the face of the
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.
<PAGE>
Signature Guaranteed:
-----------------------------------------------------------
The Signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved
signature guarantee medallion program), pursuant to S.E.C.
Rule 17Ad-15.
<PAGE>
Exhibit 99.2(h)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
WBK STRYPES TRUST
(a Delaware business trust)
PURCHASE AGREEMENT
Dated: September , 1997
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Table of Contents
SECTION 1. Representations and Warranties.......................... 3
(a) Representations and Warranties by the Trust............. 3
(i) Compliance with Registration Requirements....... 3
(ii) Independent Accountants......................... 4
(iii) Financial Statement............................. 4
(iv) No Material Adverse Change in Business.......... 4
(v) Good Standing of the Trust; No Subsidiaries..... 5
(vi) Registration Under the 1940 Act................. 5
(vii) Outstanding STRYPES............................. 5
(viii) Authorization of Agreement...................... 5
(ix) Authorization and Description of the Securities. 5
(x) Authorization of Trust's Fundamental Agreements. 5
(xi) Compliance with Acts............................ 6
(xii) Description of Fundamental Agreements........... 6
(xiii) Absence of Defaults and Conflicts............... 6
(xiv) Absence of Proceedings.......................... 7
(xv) No Investment Restrictions, etc................. 7
(xvi) Exhibits........................................ 7
(xvii) Absence of Further Requirements................. 7
(xviii) Title to Property............................... 8
(b) Representations and Warranties by the Contracting
Stockholder and AMP..................................... 8
(i) Authority....................................... 8
(ii) Delivery of Bank Ordinary Shares................ 8
(iii) Authorization of Agreement...................... 9
(iv) Authorization of the Fundamental Agreements..... 9
(v) Absence of Defaults and Conflicts............... 9
(vi) Absence of Further Requirements................. 10
(c) Representations and Warranties by AMP................... 12
(i) Authority....................................... 12
(ii) Delivery of Bank Ordinary Shares................ 12
(iii) Authorization of Agreement...................... 12
(iv) Trust Registration Statement and Prospectus..... 13
(v) Authorization of the Fundamental Agreements..... 13
(vi) Absence of Defaults and Conflicts............... 13
(vii) Absence of Further Requirements................. 14
(viii) Forward Purchase Contract....................... 14
(ix) No Immunity from Legal Process.................. 15
(x) Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process....................... 15
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(xi) No Withholdings................................. 15
(xii) Enforceability of New York Judgment............. 15
(xiii)No Approvals Required for U.S. Dollar
Payments........................................ 16
(d) Officer's Certificates................................ 16
SECTION 2. Sale and Delivery to Underwriter; Closing............. 16
(a) Initial Securities.................................... 16
(b) Option Securities..................................... 16
(c) Payment............................................... 17
(d) Denominations; Registration........................... 17
SECTION 3. Covenants............................................. 17
(a) Covenants of the Trust.......................... 17
(i) Compliance with Securities Regulations and
Commission Requests............................. 17
(ii) Filing of Amendments............................ 18
(iii) Delivery of Trust Registration Statements....... 18
(iv) Delivery of Trust Prospectuses.................. 18
(v) Continued Compliance with Securities Laws....... 18
(vi) Blue Sky Qualifications......................... 19
(vii) Rule 158........................................ 19
(viii)Use of Proceeds................................. 19
(ix) Listing......................................... 19
(x) Reporting Requirements.......................... 19
(b) Covenants of the Contracting Stockholder.............. 20
(i) Restriction on Sale of Securities............... 20
(ii) Purpose Statement............................... 20
SECTION 4. Payment of Expenses................................... 20
(a) Expenses Payable by the Trust......................... 20
(b) Termination of Agreement.............................. 21
SECTION 5. Conditions............................................ 21
(a) Conditions of Underwriter's Obligations......... 21
(1) Effectiveness of Trust Registration Statement... 21
(2) Opinion of New York Counsel for Underwriter and
Trust........................................... 21
(3) Opinion of Delaware Counsel for the Trust....... 22
(4) Opinion of New York Counsel for the Contracting
Stockholder..................................... 22
(5) Opinion of Australian Counsel for the Trust..... 22
(6) Opinion of Australian Counsel for the Contracting
Stockholder and AMP............................. 22
(8) Trustee's Certificate........................... 23
(9) Bank Condition.................................. 23
(10) Certificates of Contracting Stockholder and AMP. 23
(11) Maintenance of Rating........................... 23
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(12) Approval of Listing............................. 24
(13) No Objection.................................... 24
(14) Fundamental Agreements.......................... 24
(15) Conditions to Purchase of Option Securities..... 24
(16) Additional Documents............................ 25
(b) Termination of Agreement........................ 25
SECTION 6. Indemnification....................................... 26
(a) Indemnification of the Underwriter and the Trust by
AMP................................................... 26
(b) Indemnification of the Trust.......................... 27
(c) Actions against Parties; Notification................. 27
(d) Settlement without Consent if Failure to Reimburse.... 27
SECTION 7. Contribution.......................................... 28
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.............................................. 29
SECTION 9. Termination of Agreement.............................. 29
(a) Termination; General.................................. 29
(b) Liabilities........................................... 30
SECTION 10. Notices............................................... 30
SECTION 11. Parties............................................... 30
SECTION 12. Consent to Jurisdiction; Appointment of Agent to
Accept Service of..................................... 30
(a) Consent to Jurisdiction............................... 30
(b) Appointment of Service Agent.......................... 31
(c) Survival.............................................. 31
SECTION 13. Foreign Taxes......................................... 31
SECTION 14. Waiver Of Immunities.................................. 32
SECTION 15. Judgment Currency..................................... 32
SECTION 16. GOVERNING LAW AND TIME................................ 32
SECTION 17. Effect of Headings.................................... 33
SECTION 18. Limitation of Liability............................... 33
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WBK STRYPES Trust
(a Delaware business trust)
25,000,000 STRYPES(sm)
Exchangeable for Ordinary Shares of WESTPAC BANKING CORPORATION
PURCHASE AGREEMENT
September __, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
WBK STRYPES Trust (such trust and the trustees thereof acting in their
capacities as such being referred to herein as the "Trust"), a statutory
business trust created under the Business Trust Act (the "Delaware Act") of the
State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(Sections 3801 et seq.)), National Australia Trustees Limited ACN 007 350 405
("National Australia Trustees") as trustee of a trust established pursuant to a
Nominee Trust Agreement, dated as of ________, 1997 (the "Nominee Trust
Agreement"), among National Australia Trustees Limited and Australian Mutual
Provident Society, an Australian mutual insurance company ("AMP") (such trust
and National Australia Trustees Limited acting as trustee thereof being referred
to herein as the "Contracting Stockholder") and AMP confirm their respective
agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriter") with respect to (i) the issue and sale by the
Trust and the purchase by the Underwriter of 25,000,000 of the Trust's
Structured Yield Product Exchangeable for Stock(SM) (the "STRYPES"), and (ii)
the grant by the Trust to the Underwriter of the option described in Section
2(b) hereof to purchase all or any part of 3,750,000 additional STRYPES to cover
over-allotments, if any. The aforesaid 25,000,000 STRYPES (the "Initial
Securities") to be purchased by the Underwriter pursuant to this Agreement and
all or any part of the 3,750,000
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(SM) Service mark of Merrill Lynch & Co., Inc.
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STRYPES subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities." The
Securities are to be issued pursuant to an Amended and Restated Trust Agreement,
dated as of ________ __, 1997, among the trustees of the Trust (the "Trustees")
ML IBK Positions, Inc., as sponsor (the "Trust Agreement"). The Trust has issued
one STRYPES to ML IBK Positions, Inc. in consideration for a purchase price of
$100 in satisfaction of the requirements of Section 14(a)(1) of the 1940 Act (as
herein defined).
The STRYPES will be exchanged for a specified number or amount of each
type of security and other property constituting part of the Reference Property
(as defined in the Trust Agreement) or, in certain circumstances, cash, or a
combination of cash and Reference Property, with an equal value, upon conclusion
of the term of the Trust on ______ __, 2000 (the "Exchange Date") or upon
earlier dissolution of the Trust in certain circumstances. The initial Reference
Property will be ordinary shares, par value A$1.00 per share (the "Bank Ordinary
Shares"), of Westpac Banking Corporation, an Australian bank (the "Bank"),
deliverable upon exchange of the STRYPES. On any Partial Cash Distribution Date
(as defined in the Forward Purchase Contract hereinafter referred to), cash will
be distributed to holders of STRYPES as set forth in the Forward Purchase
Contract.
The Trust, the Contracting Stockholder and AMP understand that the
Underwriter proposes to make a public offering of the Securities as soon as the
Underwriter deems advisable after this Agreement has been executed and
delivered.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") (i) a notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company; and (ii) a registration
statement on Form N-2 (Nos. 333-1787 and 811-7565) for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
Pre-Effective Amendments No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7, No. 8
and No. 9 thereto, including a preliminary prospectus relating to the offering
of the Securities. Promptly after execution and delivery of this Agreement, the
Trust will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (h) of
Rule 497 ("Rule 497(h)") of the 1933 Act Regulations or (ii) if the Trust has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare
and file a term sheet (a "Trust Term Sheet") in accordance with the provisions
of Rule 434 and Rule 497(h). The information included in such prospectus or in
such Trust Term Sheet, as the case may be, that was omitted from such
registration statement (as so amended) at the time it became effective but that
is deemed to be part of such registration statement (as so amended) at the time
it became effective (i) pursuant to paragraph (b) of Rule 430A is referred to as
"Rule 430A Information" or (ii) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Any prospectus relating to the offering
of the Securities used before such registration statement (as so amended) became
effective but on or after the date on which said Pre-Effective Amendment No. 5
was filed with the Commission, and any prospectus relating to the offering of
the Securities that omitted, as applicable, the Rule 430A Information or the
Rule 434 Information, that was used after such
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effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "Trust preliminary prospectus." Such registration statement (as
so amended), including the exhibits thereto and the schedules thereto, if any,
at the time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Trust Registration
Statement." Any registration statement filed by the Trust pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Trust Rule
462(b) Registration Statement," and after such filing the term "Trust
Registration Statement" shall include the Trust Rule 462(b) Registration
Statement. The final prospectus relating to the offering of the Securities, in
the form first furnished to the Underwriter for use in connection with the
offering of the Securities is referred to herein as the "Trust Prospectus." If
Rule 434 is relied on, the term "Trust Prospectus" shall refer to the Trust
preliminary prospectus dated ________ __, 1997 together with the Trust Term
Sheet and all references in this Agreement to the date of the Trust Prospectus
shall mean the date of the Trust Term Sheet. For purposes of this Agreement, all
references to the Trust Registration Statement, any Trust preliminary
prospectus, the Trust Prospectus or any Trust Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
Prior to the closing under this Agreement, the Trust, the Contracting
Stockholder and AMP will enter into a forward purchase contract (the "Forward
Purchase Contract"), pursuant to which the Contracting Stockholder will agree to
sell and the Trust will agree to purchase, immediately prior to the Exchange
Date, the Reference Property required by the Trust to exchange all of the
Securities on the Exchange Date, subject to AMP's right (and in certain
circumstances, its obligation) to satisfy the Contracting Stockholder's
obligations thereunder in whole or in part through cash payment in lieu of
delivery of all or a part of the Reference Property (the "Forward Purchase").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Trust. The Trust represents and
warrants to the Underwriter as of the date hereof, as of Closing Time referred
to in Section 2(c) hereof, and as of each Date of Delivery (if any) referred to
in Section 2(b) hereof, and agrees with the Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Trust Registration Statement or any Trust Rule 462(b)
Registration Statement pursuant to Section 8(d) of the 1933 Act, or order
pursuant to Section 8(e) of the Investment Company Act of 1940, as amended
(the "1940 Act"), has been issued and no proceedings for either such
purpose have been instituted or are pending or, to the knowledge of the
Trust, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
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At the respective times the Trust Registration Statement, any Trust
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at Closing Time (and, if any Option
Securities are purchased, at each Date of Delivery), the Notification, the
Trust Registration Statement, the Trust Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1940 Act and the rules and regulations of the
Commission under the 1940 Act (the "1940 Act Regulations"), and did not
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 not misleading. Neither the Trust Prospectus nor
any amendments or supplements thereto, at the time the Trust Prospectus or
any such amendment or supplement was issued and at Closing Time (and, if
any Option Securities are purchased, at each Date of Delivery), included
or will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Trust will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Trust
Registration Statement (or any amendments or supplements thereto) or the
Trust Prospectus (or any amendments or supplements thereto) made in
reliance upon and in conformity with information furnished to the Trust in
writing by the Underwriter expressly for use in the Trust Registration
Statement (or any amendments or supplements thereto) or the Trust
Prospectus (or any amendments or supplements thereto).
The Trust preliminary prospectus and the prospectus relating to the
offering of the Securities filed as part of Pre-Effective Amendment No. 5
to the Trust Registration Statement as originally filed or as part of any
amendment subsequent thereto, or filed pursuant to Rule 497 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations and the 1940 Act Regulations, and, if applicable, each Trust
preliminary prospectus and the Trust Prospectus delivered to the
Underwriter for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified certain
financial statements and supporting schedules included in the Trust
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statement. The statement of assets, liabilities and
capital included in the Trust Registration Statement and the Trust
Prospectus, together with the notes thereto, present fairly the financial
position of the Trust at the date indicated; said financial statement has
been prepared in conformity with United States generally accepted
accounting principles.
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(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Trust Registration Statement
and the Trust Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs,
business prospects, management, investment objectives or investment
policies of the Trust, whether or not arising in the ordinary course of
business (a "Material Adverse Effect") and (B) there have been no
transactions entered into by the Trust, other than those in the ordinary
course of business, which are material with respect to the Trust.
(v) Good Standing of the Trust; No Subsidiaries. The Trust has been
duly created and is validly existing as a business trust in good standing
under the Delaware Act with power and authority to own its properties and
to conduct its business as described in the Trust Prospectus and to enter
into and perform its obligations under this Agreement, the Trust Agreement
and the Forward Purchase Contract; the Trust is and will, under current
law, be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; and the
Trust has no subsidiaries.
(vi) Registration Under the 1940 Act. The Trust is registered with
the Commission as a non-diversified, closed-end management investment
company under the 1940 Act. No order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the
knowledge of the Trust, threatened by the Commission. No person is serving
or acting as an officer or trustee of the Trust, except in accordance with
the provisions of the 1940 Act.
(vii) Outstanding STRYPES. All of the outstanding STRYPES have been
duly and validly authorized and issued and are fully paid and
non-assessable undivided beneficial interests in the assets of the Trust;
and the form of certificate used to evidence the STRYPES is in due and
proper form and complies with all provisions of applicable law.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Trust.
(ix) Authorization and Description of the Securities. The Securities
have been duly authorized by the Trust for issuance and sale to the
Underwriter pursuant to this Agreement and, when issued and delivered by
the Trust pursuant to this Agreement against payment of the purchase price
therefor as provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust;
the STRYPES conform to all statements relating thereto contained in the
Trust Prospectus and such description conforms to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Trust.
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(x) Authorization of Trust's Fundamental Agreements. Each of the
Forward Purchase Contract, the Administration Agreement, to be dated _____
__, 1997, between the Trust and The Bank of New York as administrator (the
"Administration Agreement"), the Custodian Agreement, dated ________ __,
____, between the Trust and The Bank of New York as custodian (the
"Custodian Agreement"), the Paying Agent Agreement, to be dated _____ __,
1997, between the Trust and The Bank of New York as paying agent (the
"Paying Agent Agreement"), the Fund Indemnity Agreement, to be dated _____
__, 1997, between the Trust and Merrill Lynch & Co., Inc. (the "Fund
Indemnity Agreement") and the Escrow Agreement, to be dated ___________,
1997, among the Trust, AMP, the Contracting Stockholder and National
Australia Bank Limited (the "Escrow Agreement"), (the Forward Purchase
Contract, the Administration Agreement, the Custodian Agreement, the
Paying Agent Agreement, the Fund Indemnity Agreement and the Escrow
Agreement are collectively referred to herein as the "Trust's Fundamental
Agreements") has been duly authorized by the Trust and, at Closing Time,
will have been duly executed and delivered by the Trust and (assuming the
due authorization, execution and delivery by the other parties thereto)
will constitute a valid and binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xi) Compliance with Acts. The Trust Agreement, the Nominee Trust
Agreement, the Fund Expense Agreement dated as of , 1997 among AMP,
Merrill Lynch & Co., Inc. and The Bank of New York (the "Fund Expense
Agreement"), and the Trust's Fundamental Agreements (collectively, the
"Fundamental Agreements") comply with all applicable provisions of the
1933 Act and the 1940 Act, and all approvals of such documents required
under the 1940 Act by the holders of the STRYPES and the Trustees have
been obtained and are in full force and effect.
(xii) Description of Fundamental Agreements. The Fundamental
Agreements will conform in all material respects to the respective
statements relating thereto contained in the Trust Prospectus and, to the
extent forms thereof were filed as exhibits to the Trust Registration
Statement, will be in substantially the respective forms so filed.
(xiii) Absence of Defaults and Conflicts. The execution, delivery
and performance by the Trust of this Agreement and each of the Trust's
Fundamental Agreements and the consummation of the transactions
contemplated herein, therein and in the Trust Registration Statement
(including the issuance and sale of the Securities and the delivery of the
Reference Property or cash or both in exchange therefor, the consummation
of the Forward Purchase Contract and the use of the proceeds from the sale
of the Securities as described in the Trust Prospectus under the caption
"Use of Proceeds") and compliance
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by the Trust with its obligations hereunder, under the Securities and
under each of the Trust's Fundamental Agreements do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust pursuant
to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Trust
is a party or by which it may be bound, or to which any of the property or
assets of the Trust is subject (collectively, "Agreements and
Instruments") (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse Effect
or such encumbrances created by the express terms of the Trust's
Fundamental Agreements), nor will such action result in any violation of
the provisions of the Trust Agreement or the restated trust certificate of
the Trust filed with the State of Delaware on _______ __, 1997 or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Trust or any of its assets or
properties. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness of the Trust (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Trust.
(xiv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Trust, threatened, against or affecting the Trust, which is required
to be disclosed in the Trust Registration Statement (other than as
disclosed therein), or which might, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, or which
might, individually or in the aggregate, reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
Fundamental Agreements (including the issuance and sale of the Securities
and the delivery of the Reference Property or cash or both in exchange
therefor and the consummation of the Forward Purchase) or the performance
by the Trust of its obligations hereunder or thereunder; the aggregate of
all pending legal or governmental proceedings to which the Trust is a
party or of which any of its property or assets is the subject which are
not described in the Trust Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xv) No Investment Restrictions, etc. There are no material
restrictions, limitations or regulations with respect to the ability of
the Trust to invest its assets as described in the Trust Prospectus, other
than as described therein.
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(xvi) Exhibits. There are no contracts or documents which are of a
character required to be described in the Trust Registration Statement or
the Trust Prospectus or to be filed as exhibits thereto which have not
been so described or filed as required.
(xvii) Absence of Further Requirements. No declaration or filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the Trust to own and use its assets and to
conduct its business in the manner described in the Trust Prospectus or
for the performance by the Trust of its obligations under this Agreement
or any Fundamental Agreement or the consummation by the Trust of the
transactions contemplated herein or therein (including the issuance and
sale of the Securities and the delivery of the Reference Property or cash
or both in exchange therefor and the consummation of the Forward
Purchase), except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws.
(xviii) Title to Property. The Trust has good title to all
properties owned by it, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances
of any kind except such as (A) are described in the Trust Prospectus or
(B) do not, singly or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed to be
made of such property by the Trust.
(b) Representations and Warranties by the Contracting Stockholder and AMP.
The Contracting Stockholder to its best knowledge without making any independent
investigation and AMP represent and warrant to the Underwriter and the Trust as
of the date hereof, as of Closing Time referred to in Section 2(c) hereof, and
as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and
agree with the Underwriter and the Trust, as follows:
(i) Authority. The Contracting Stockholder has been duly created and
is validly existing as a corporation under the laws of the State of New
South Wales, Australia with power and authority to own its properties and
to conduct its business as described in the Trust Prospectus and to enter
into and perform its obligations under this Agreement, and the Fundamental
Agreements to which it is a party, and to sell, transfer and deliver the
Bank Ordinary Shares or other Reference Property to be sold, transferred
and delivered to the Trust by the Contracting Stockholder pursuant to the
Forward Purchase Contract.
(ii) Delivery of Bank Ordinary Shares. At Closing Time (and, if any
Option Securities are purchased, at the applicable Date of Delivery), the
transfer and delivery by AMP to the Contracting Stockholder of the legal
title to the Bank Ordinary Shares relating to the STRYPES to be issued at
Closing Time and the applicable Date of Delivery shall have been made
pursuant to the Nominee Trust Agreement, and the Contracting Stockholder
will have such rights in and to such Bank Ordinary Shares as are set forth
in the Forward Purchase Contract and the Nominee Trust Agreement free and
clear of any
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security interest, mortgage, pledge, lien, encumbrance, claim or equity
(except for any encumbrance, claim or equity created by the Trust or
arising by virtue of the Forward Purchase Contract or the Nominee Trust
Agreement). If immediately prior to the Exchange Date the Contracting
Stockholder delivers to the Trust Bank Ordinary Shares or other Reference
Property pursuant to the Forward Purchase Contract, upon delivery by the
Contracting Stockholder to the Trust of the Bank Ordinary Shares or other
Reference Property to be sold by the Contracting Stockholder pursuant to
the Forward Purchase Contract, assuming the Trust purchased for value in
good faith and without notice of any adverse claim, the Trust will have
acquired all rights in and to such Bank Ordinary Shares or other Reference
Property, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (except for any encumbrance, claim or equity
created by the Trust or arising by virtue of the Forward Purchase Contract
or the Nominee Trust Agreement). The sale, transfer and delivery of Bank
Ordinary Shares or other Reference Property by the Contracting Stockholder
to the Trust as contemplated by the Forward Purchase Contract is not, and
at the time of delivery of such Bank Ordinary Shares or other Reference
Property will not be, subject to any right of first refusal or similar
rights of any person pursuant to any contract to which the Contracting
Stockholder is a party or by which it is bound.
(iii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Contracting Stockholder.
(iv) Authorization of the Fundamental Agreements. Each of the
Fundamental Agreements to which the Contracting Stockholder is a party has
been duly authorized by the Contracting Stockholder and, at Closing Time,
will have been duly executed and delivered by the Contracting Stockholder
and (assuming the due authorization, execution and delivery by the other
parties thereto) will constitute a valid and binding agreement of the
Contracting Stockholder, enforceable against the Contracting Stockholder
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
Amounts received by the Contracting Stockholder at Closing Time and at
each Date of Delivery, if any, pursuant to the Forward Purchase Contract
will not be used by the Contracting Stockholder for the purpose, whether
immediate, incidental or ultimate, of buying or carrying a margin stock,
as such terms are defined in Regulation G promulgated by the Board of
Governors of the Federal Reserve System.
(v) Absence of Defaults and Conflicts. The execution, delivery
and/or performance by the Contracting Stockholder of this Agreement and
the Fundamental Agreements to which it is a party or to which it is
subject and the consummation by the Contracting Stockholder of the
transactions contemplated herein and therein and compliance by the
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Contracting Stockholder with its obligations hereunder and thereunder do
not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Stockholder Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Contracting Stockholder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument to which the Contracting
Stockholder is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Contracting Stockholder is
subject (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not, singly or in the aggregate, materially and
adversely affect the ability of the Contracting Stockholder to perform its
obligations under this Agreement or any of the Fundamental Agreements to
which it is a party or to which it is subject and except such encumbrances
created by the express terms of the Fundamental Agreements), nor will such
action result in any violation of any applicable law, statute, rule or
regulation of any government or government instrumentality having
jurisdiction over the Contracting Stockholder or any of its assets,
properties or operations (other than any state securities or "blue sky"
law, statute, rule or regulation, as to which no representation and
warranty is made), or any applicable judgment, order, writ or decree of
any government, government instrumentality or domestic court having
jurisdiction over the Contracting Stockholder or any of its assets,
properties or operations (except in all cases for such violations that
would not, singly or in the aggregate, materially and adversely affect the
ability of the Contracting Stockholder to perform its obligations under
this Agreement or any of the Fundamental Agreements to which it is a party
or to which it is subject). As used herein, a "Stockholder Repayment
Event" with respect to the Contracting Stockholder means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Contracting Stockholder.
(vi) Absence of Further Requirements. No declaration or filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the execution, delivery or performance by the
Contracting Stockholder of this Agreement or the other Fundamental
Agreements to which it is a party or the consummation by the Contracting
Stockholder of the transactions contemplated herein or therein, except
such as have been already obtained or as may be required under the 1933
Act, the 1933 Act Regulations or state securities laws in connection with
the offer and sale of the STRYPES contemplated hereby. The Contracting
Stockholder is not an "affiliate" of the Bank within the meaning of Rule
144 and Rule 405 under the Securities Act, and the Bank Ordinary Shares
acquired by the Contracting Stockholder at or prior to Closing Time may be
offered, transferred, sold, and delivered by the Contracting Stockholder
to the Trust and by the Trust to the holders of STRYPES, in each case as
contemplated by this Agreement and the Fundamental Agreements, and the
STRYPES may be offered and sold as contemplated
10
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hereby, in each case without registration of the Bank Ordinary Shares
under the Securities Act.
(vii) Forward Purchase Contract. The representations and warranties
of the Contracting Stockholder and National Australia Trustees set forth
in Article IV of the Forward Purchase Contract are true and correct on and
as of the date hereof with the same effect as though such representations
and warranties had been set forth in full in this Agreement.
(viii) No Immunity from Legal Process. The Contracting Stockholder
and its obligations under this Agreement and the Fundamental Agreements to
which it is a party or is subject are subject to civil and commercial law
and to suit and neither it nor any of its properties, assets or revenues
has any right in Australia or the United States or any political
subdivision thereof of immunity from any legal action, suit or proceeding,
from the giving of any relief in any such legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of any
court, from service of process, attachment upon or prior to judgment, or
attachment in aid of execution of judgment, or from execution of a
judgment, or other legal process or proceeding for the giving of any
relief or for the enforcement of a judgment, in any such jurisdiction,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with this Agreement or any of the
Fundamental Agreements to which it is a party or is subject; and, to the
extent that the Contracting Stockholder or any of its properties, assets
or revenues may have or may hereafter become entitled to any such right of
immunity in any jurisdiction in which proceedings may at any time be
commenced, the Contracting Stockholder has effectively waived such right
and consented to such relief and enforcement.
(ix) Consent to Jurisdiction; Appointment of Agent to Accept Service
of Process. The Contracting Stockholder has the power to submit, and
pursuant to Section 12 of this Agreement has legally, validly, effectively
and irrevocably submitted, to the jurisdiction of any United States
federal or state court in the State of New York, County of New York, and
has the power to designate, appoint and empower and pursuant to Section 12
of this Agreement has legally, validly, effectively and irrevocably
designated, appointed and empowered an agent for service of process in any
suit or proceeding based on or arising under this Agreement in any United
States federal or state court in the State of New York.
(x) No Withholdings. Payments in respect of this Agreement or any of
the Fundamental Agreements to which the Contracting Stockholder is a party
or is subject, including the transfer, sale and delivery of the Bank
Ordinary Shares or other Reference Property pursuant to the Forward
Purchase Contract, are not subject under the laws of Australia or any
political subdivision thereof or therein to any withholdings or similar
charges for or on account of taxation or otherwise.
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<PAGE>
(xi) No Registration, Transfer or Similar Taxes or Duties. Except
for New South Wales ad valorem stamp duty payable on (a) the Forward
Purchase Contract, (b) the transfer of Bank Ordinary Shares from the Trust
to holders of the STRYPES, (c) the amount A$200 on the Nominee Trust
Agreement and (d) nominal stamp duty on each of the Purchase Agreement,
Escrow Agreement, and the Sponsorship Agreement (all of which AMP has paid
or will cause to be paid), there is no registration tax, transfer tax,
stamp duty or similar tax or duty imposed by Australia or any political
subdivision thereof or therein, in connection with any of the transactions
contemplated hereby or thereby.
(xii) Enforceability of New York Judgment. Any final judgment for a
fixed or readily calculable sum of money rendered by any court of the
State of New York or of the United States located in the State of New York
having jurisdiction under its own domestic laws in respect of any suit,
action or proceeding against the Contracting Stockholder based upon this
Agreement or any of the Fundamental Agreements would be declared
enforceable against the Contracting Stockholder by the courts of Australia
without reexamination, review of the merits of the cause of action in
respect of which the original judgment was given or relitigation of the
matters adjudicated upon or payment of any stamp, registration or similar
tax or duty, provided that (A) the judgment is consistent with public
policy in Australia, (B) the judgment was not given or obtained by fraud
or in a manner contrary to natural justice, (C) the judgment was not based
on a clear mistake of law or fact, (D) the judgment was not directly or
indirectly for the payment of taxes or other charges of a like nature or
of a fine or other penalty, (E) the judgment is for a fixed sum and (F)
the judgment does not conflict with another prior judgment in an action
between the same parties and concerning the same issue. The Contracting
Stockholder is not aware of any reason why the enforcement in Australia of
such a judgment in respect of any of this Agreement or any of the
Fundamental Agreements to which it is a party would be contrary to public
policy of Australia.
(xiii) No Approvals Required for U.S. Dollar Payments. No exchange
control authorization or any other authorization, approval, consent or
license of any governmental authority or agency of or in Australia is
required for the payment by the Contracting Stockholder of any amounts in
United States dollars pursuant to the terms of this Agreement or any of
the Fundamental Agreements to which it is a party or is subject.
(xiv) Miscellaneous. The Bank ADSs are listed on the New York Stock
Exchange and the Bank is eligible to use Form F-3 under the Securities Act
for a primary offering of non-investment grade securities pursuant to
General Instruction B.1 of such form.
(c) Representations and Warranties by AMP. AMP represents and warrants to
the Underwriter and the Trust as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with the Underwriter and the
Trust, as follows:
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<PAGE>
(i) Authority. AMP has been duly established and is validly existing
as a mutual insurance company under the laws of Australia with power and
authority to enter into and perform its obligations under this Agreement,
and the Fundamental Agreements to which it is a party, and to sell,
transfer and deliver the Bank Ordinary Shares to be sold by AMP to the
Contracting Stockholder prior to Closing Time or any Date of Delivery
pursuant to the Nominee Trust Agreement.
(ii) Delivery of Bank Ordinary Shares. At the time of delivery of
the Bank Ordinary Shares by AMP to the Contracting Stockholder pursuant to
the Nominee Trust Agreement, AMP was the sole registered and beneficial
owner of and had all rights in and to the Bank Ordinary Shares the legal
title of which was transferred and delivered by AMP to the Contracting
Stockholder free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity (except for any encumbrance, claim or
equity created by the Trust or arising by virtue of the Forward Purchase
Contract or the Nominee Trust Agreement). If any Option Securities are
purchased, at each Date of Delivery, if any, AMP having previously been
the sole registered and beneficial owner of certain Bank Ordinary Shares
will have transferred and delivered to the Contracting Stockholder
pursuant to the Nominee Trust Agreement all rights in and to such Bank
Ordinary Shares the legal title, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity (except for any
encumbrance, claim or equity created by the Trust or arising by virtue of
the Forward Purchase Contract or the Nominee Trust Agreement).
(iii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by AMP.
(iv) Trust Registration Statement and Prospectus. At the respective
times the Trust Registration Statement, any Trust Rule 462(b) Registration
Statement and any post-effective amendments thereto became or will become
effective and at Closing Time (and, if any Option Securities are
purchased, at the applicable Date of Delivery), the Notification, the
Trust Registration Statement, the Trust Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1940 Act and the 1940 Act Regulations, and did not 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 not misleading. Neither the Trust Prospectus nor any
amendments or supplements thereto, at the time the Trust Prospectus or any
such amendment or supplement was issued and at Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Trust Registration
Statement (or any amendments or supplements thereto) or the Trust
Prospectus (or any amendments or supplements thereto)
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<PAGE>
made in reliance upon and in conformity with information furnished to the
Trust in writing by the Underwriter expressly for use in the Trust
Registration Statement (or any amendments or supplements thereto) or Trust
Prospectus (or any amendments or supplements thereto).
Each Trust preliminary prospectus and the prospectus relating to the
offering of the Securities filed as part of Pre-Effective Amendment No. 5
or any subsequent amendment to the Trust Registration Statement as
originally filed, or filed pursuant to Rule 497 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and the 1940 Act Regulations.
(v) Authorization of the Fundamental Agreements. Each of the
Fundamental Agreements to which AMP is a party has been duly authorized by
AMP and, at the Closing Time, will have been duly executed and delivered
by AMP and (assuming the due authorization, execution and delivery by the
other parties thereto) will constitute a valid and binding agreement of
AMP, enforceable against AMP in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). Amounts received by AMP
at Closing Time and at each Date of Delivery, if any, pursuant to the
Nominee Trust Agreement will not be used by AMP for the purpose, whether
immediate, incidental or ultimate, of buying or carrying a margin stock,
as such terms are defined in Regulation G promulgated by the Board of
Governors of the Federal Reserve System.
(vi) Absence of Defaults and Conflicts. The execution, delivery
and/or performance by AMP of this Agreement and the Fundamental Agreements
to which it is a party or is subject and the consummation by AMP of the
transactions contemplated herein and therein and compliance by AMP with
its obligations hereunder and thereunder do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Stockholder Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of AMP or any subsidiary
of AMP pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or any other agreement or instrument to
which AMP or any subsidiary of AMP is a party or by which it or any of
them may be bound, or to which any of the property or assets of AMP or any
subsidiary of AMP is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not, singly or in
the aggregate, materially and adversely affect the ability of AMP to
perform its obligations under this Agreement or any of the Fundamental
Agreements to which it is a party or is subject and except such
encumbrances created by the express terms of the Fundamental Agreements),
nor will such action result in any violation of any applicable law,
statute, rule or regulation of any
14
<PAGE>
government or government instrumentality having jurisdiction over AMP or
any subsidiary of AMP or any of their assets, properties or operations
(other than any state securities or "blue sky" law, statute, rule or
regulation, as to which no representation and warranty is made), or any
applicable judgment, order, writ or decree of any government, government
instrumentality or domestic court having jurisdiction over AMP or any
subsidiary of AMP or any of their assets, properties or operations (except
in all cases for such violations that would not, singly or in the
aggregate, materially and adversely affect the ability of AMP to perform
its obligations under this Agreement or any of the Fundamental Agreements
to which it is a party or is subject). As used herein, a "Stockholder
Repayment Event" with respect to AMP means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by AMP or any subsidiary of AMP.
(vii) Absence of Further Requirements. No declaration or filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the execution, delivery or performance by AMP
of this Agreement or the Fundamental Agreements to which it is a party or
is subject or the consummation by AMP of the transactions contemplated
herein or therein, except such as have been already obtained. AMP is not
an "affiliate" of the Bank within the meaning of Rule 144 and Rule 405
under the Securities Act, and the Bank Ordinary Shares currently owned by
AMP may be offered, transferred, sold, and delivered by AMP to the
Contracting Stockholder as contemplated hereby and by the Nominee Trust
Agreement, the Forward Purchase Agreement and the Prospectus and the
STRYPES may be offered and sold as contemplated hereby, without
registration of the Bank Ordinary Shares under the Securities Act.
(viii) Forward Purchase Contract. The representations and warranties
of AMP set forth in Section IV of the Forward Purchase Contract are true
and correct on and as of the date hereof with the same effect as though
such representations and warranties had been set forth in full in this
Agreement.
(ix) No Immunity from Legal Process. AMP and its obligations under
this Agreement and the Fundamental Agreements to which it is a party or is
subject are subject to civil and commercial law and to suit and neither it
nor any of its properties, assets or revenues has any right in Australia
or the United States or any political subdivision thereof of immunity from
any legal action, suit or proceeding, from the giving of any relief in any
such legal action, suit or proceeding, from setoff or counterclaim, from
the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment, in any such
jurisdiction, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement or any
of the Fundamental Agreements
15
<PAGE>
to which it is a party or is subject; and, to the extent that AMP or any
of its properties, assets or revenues may have or may hereafter become
entitled to any such right of immunity in any jurisdiction in which
proceedings may at any time be commenced, AMP has effectively waived such
right and consented to such relief and enforcement.
(x) Consent to Jurisdiction; Appointment of Agent to Accept Service
of Process. AMP has the power to submit, and pursuant to Section 12 of
this Agreement has legally, validly, effectively and irrevocably
submitted, to the jurisdiction of any United States federal or state court
in the State of New York, County of New York, and has the power to
designate, appoint and empower and pursuant to Section 12 of this
Agreement has legally, validly, effectively and irrevocably designated,
appointed and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement in any United States
federal or state court in the State of New York.
(xi) No Withholdings. Payments in respect of this Agreement or any
of the Fundamental Agreements to which AMP is a party or is subject,
including the transfer, sale and delivery of the Bank Ordinary Shares to
the Contracting Shareholder at Closing Time pursuant to the Nominee Trust
Agreement, are not subject under the laws of Australia or any political
subdivision thereof or therein to any withholdings or similar charges for
or on account of taxation or otherwise.
(xii) Enforceability of New York Judgment. Any final judgment for a
fixed or readily calculable sum of money rendered by any court of the
State of New York or of the United States located in the State of New York
having jurisdiction under its own domestic laws in respect of any suit,
action or proceeding against AMP based upon this Agreement or any of the
Fundamental Agreements to which it is a party or is subject would be
declared enforceable against AMP by the courts of Australia without
reexamination, review of the merits of the cause of action in respect of
which the original judgment was given or relitigation of the matters
adjudicated upon or payment of any stamp, registration or similar tax or
duty, provided that (A) the judgment is consistent with public policy in
Australia, (B) the judgment was not given or obtained by fraud or in a
manner contrary to natural justice, (C) the judgment was not based on a
clear mistake of law or fact, (E) the judgment was not directly or
indirectly for the payment of taxes or other charges of a like nature or
of a fine or other penalty, and (D) the judgment is for a fixed sum. AMP
is not aware of any reason why the enforcement in Australia of such a
judgment in respect of any of this Agreement or any of the Fundamental
Agreements to which it is a party would be contrary to public policy in
Australia.
(xiii) No Approvals Required for U.S. Dollar Payments. No exchange
control authorization or any other authorization, approval, consent or
license of any governmental authority or agency of or in the Commonwealth
of Australia is required for the payment by AMP of any amounts in United
States dollars pursuant to the terms of this Agreement or any of the
Fundamental Agreements.
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(d) Officer's Certificates. Any certificate signed by any Trustee of the
Trust and delivered to the Underwriter or counsel for the Underwriter shall be
deemed a representation and warranty by the Trust to the Underwriter as to the
matters covered thereby. Any certificate signed by or on behalf of National
Australia Trustees, the Contracting Stockholder or AMP and delivered to the
Underwriter or counsel to the Underwriter or to the Trust or counsel to the
Trust shall be deemed a representation and warranty by National Australia
Trustees, the Contracting Stockholder or AMP, as the case may be, to the
Underwriter or the Trust, as the case may be, as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to the Underwriter, and the Underwriter agrees to purchase
from the Trust, STRYPES at the price per STRYPES of $_______________________.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an option to the Underwriter to purchase up
to an additional _________ STRYPES at the price per STRYPES set forth in Section
2(a). The option hereby granted will expire 30 days after the date hereof and
may be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriter to the
Trust setting forth the number of Option Securities as to which the Underwriter
is then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Underwriter, but shall not be later than
seven full business days (or, in the case of any exercise of said option by
notice given after Closing Time (as hereinafter defined), earlier than two full
business days) after the exercise of said option, nor in any event prior to
Closing Time.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood LLP, One World Trade Center, New York, New York 10048, or at such other
place as shall be agreed upon by the Underwriter and the Trust, at 9:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriter and the Trust (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that any
or all of the Option Securities are purchased by the Underwriter, payment of the
purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Underwriter and the Trust, on each Date of Delivery as
specified in the notice from the Underwriter to the Trust.
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Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Underwriter of certificates for the Securities to be purchased by it.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Underwriter may request in writing at least one full
business day before Closing Time or the relevant Date of Delivery, as the case
may be. The certificates for the Initial Securities and the Option Securities,
if any, will be made available for examination and packaging by the Underwriter
in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants.
(a) Covenants of the Trust. The Trust covenants with the Underwriter
as follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Trust, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the Underwriter
immediately, and confirm the notice in writing, (A) when any
post-effective amendment to the Trust Registration Statement shall become
effective, or any supplement to the Trust Prospectus or any amended Trust
Prospectus shall have been filed, (B) of the receipt of any comments from
the Commission, (C) of any request by the Commission for any amendment to
the Trust Registration Statement or any amendment or supplement to the
Trust Prospectus or for additional information, and (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the Trust
Registration Statement or of any order preventing or suspending the use of
any Trust preliminary prospectus or any order pursuant to Section 8(e) of
the 1940 Act, or of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Trust will
promptly effect the filings necessary pursuant to Rule 497(h) and will
take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 497(h) was received
for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Trust will make every reasonable effort
to prevent the issuance of any stop order pursuant to Section 8(d) of the
1933 Act or any order pursuant to Section 8(e) of the 1940 Act and, if any
such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(ii) Filing of Amendments. The Trust will give the Underwriter
notice of its intention to file or prepare any amendment to the Trust
Registration Statement (including any filing under Rule 462(b)), any Trust
Term Sheet or any amendment, supplement or revision to either the
prospectus relating to the offering of the Securities included in the
Trust Registration Statement at the time it became effective or to the
Trust
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<PAGE>
Prospectus, whether pursuant to the 1933 Act, the 1940 Act or otherwise,
will furnish the Underwriter with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the
Underwriter or counsel for the Underwriter shall reasonably object.
(iii) Delivery of Trust Registration Statements. The Trust has
furnished or will deliver to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Trust Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver
to the Underwriter, without charge, a conformed copy of the Trust
Registration Statement as originally filed and of each amendment thereto
(without exhibits). If applicable, the copies of the Trust Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(iv) Delivery of Trust Prospectuses. The Trust has delivered to the
Underwriter, without charge, as many copies of each Trust preliminary
prospectus as the Underwriter reasonably requested, and the Trust hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Trust will furnish to the Underwriter, without charge, during the
period when the Trust Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Trust Prospectus
(as amended or supplemented) as the Underwriter may reasonably request. If
applicable, the Trust Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Trust will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, and the 1940 Act and the 1940 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Trust Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriter or for the Trust, to amend the Trust
Registration Statement or amend or supplement the Trust Prospectus in
order that the Trust Prospectus will not include any untrue statements of
a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of either such counsel, at any such
time to amend the Trust Registration Statement or amend or supplement the
Trust Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations or the 1940 Act or the 1940 Act Regulations,
the Trust will promptly prepare and file with the Commission, subject to
Section 3(a)(ii), such amendment or supplement
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<PAGE>
as may be necessary to correct such statement or omission or to make the
Trust Registration Statement or the Trust Prospectus comply with such
requirements, and the Trust will furnish to the Underwriter such number of
copies of such amendment or supplement as the Underwriter may reasonably
request.
(vi) Blue Sky Qualifications. The Trust will use its best efforts,
in cooperation with the Underwriter, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Underwriter may designate
and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement;
provided, however, that the Trust shall not be obligated to file any
general consent to service of process or to qualify as a foreign trust or
association or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Trust will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement.
(vii) Rule 158. The Trust will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Trust will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Trust
Prospectus under "Use of Proceeds."
(ix) Listing. The Trust will use its best efforts to effect and
maintain the listing of the Securities on the New York Stock Exchange.
(x) Reporting Requirements. The Trust, during the period when the
Trust Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations and all documents required to be filed with
the Commission pursuant to the 1940 Act within the time periods required
by the 1940 Act and the 1940 Act Regulations.
(b) Covenants of the Contracting Stockholder and AMP. The
Contracting Stockholder and AMP covenant with the Underwriter and the Trust as
follows:
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(i) Restriction on Sale of Securities. During a period of 90 days
from the date of the Trust Prospectus, neither the Contracting Stockholder
nor AMP will, without the prior written consent of the Underwriter, (x)
offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any of an aggregate of 164 million Bank Ordinary Shares held
on the date hereof either by AMP in its Statutory Fund No.1 or the
Contracting Stockholder, securities convertible into, exchangeable for or
repayable with such Bank Ordinary Shares, or rights or warrants to acquire
such Bank Ordinary Shares, or (y) participate in the filing of any
registration statement under the 1933 Act with respect to any Bank
Ordinary Shares, securities convertible into, exchangeable for or
repayable with Bank Ordinary Shares, or rights or warrants to acquire Bank
Ordinary Shares. The foregoing sentence shall not apply to the execution
and delivery by the Contracting Stockholder and AMP of the Forward
Purchase Contract and the execution and delivery by AMP of the Nominee
Trust Agreement or the consummation by the Contracting Stockholder and AMP
of the transactions contemplated therein. AMP and its subsidiaries shall
be entitled to deal in any other Bank Ordinary Shares, whether held by
AMP's Statutory Fund No. 1 or otherwise in accordance with applicable law
and whatever trading policies, practices or strategies of AMP or any of
its subsidiaries then in effect.
(ii) Purpose Statement. At or prior to Closing Time, the Contracting
Stockholder and AMP each will deliver to the Trust a duly executed purpose
statement on Form F. R. G-3 of the Board of Governors of the Federal
Reserve System.
SECTION 4. Payment of Expenses.
(a) Expenses Payable by the Trust. The Trust will pay all expenses incident to
the performance by the Trust and the Contracting Stockholder of their respective
obligations under this Agreement and the Registration Agreement, including (i)
the preparation, printing and filing of the Notification and Pre-Effective
Amendment No. 5 to the Trust Registration Statement (including financial
statements and exhibits) and of each amendment, to the Trust Registration
Statement filed thereafter with the Commission, (ii) the preparation, printing
and delivery to the Underwriter of the Forward Purchase Contract and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriter, (iv) the
fee's and disbursements of the Trust's counsel, accountants and other advisors,
(v) the fees and disbursements of the Contracting Stockholder's counsel and
other advisors, (vi) the qualification of the Securities under securities laws
in accordance with the provisions of Section 3(a)(vi) hereof, including filing
fees and the reasonable fees and disbursements of the counsel for the
Underwriter in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vii) the printing and delivery
to the Underwriter of copies of each Trust preliminary prospectus, any Trust
Term Sheets and of the Trust Prospectus and any amendments or supplements
thereto, (viii) the preparation, printing and delivery to the Underwriter of
copies of the Blue Sky Survey and any supplement thereto, (ix) the fees and
expenses of any transfer
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agent or registrar for Securities, (x) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities and (xi) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5(b) or Section 9(a)(i)
hereof, the Contracting Stockholder shall reimburse the Underwriter for all of
its out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
SECTION 5. Conditions.
(a) Conditions of Underwriter's Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy of the representations and warranties of
the Trust, the Contracting Stockholder and AMP contained in Sections 1(a), 1(b)
and 1(c) hereof, respectively, to the accuracy of the statements in certificates
of any Trustee of the Trust, the Contracting Stockholder or AMP delivered
pursuant to the provisions hereof, to the performance by the Trust and the
Contracting Stockholder and AMP of their respective covenants and other
obligations hereunder, and to the following further conditions:
(1) Effectiveness of Trust Registration Statement. The Trust
Registration Statement, including any Trust Rule 462(b) Registration
Statement, shall have become effective and at Closing Time and no stop
order suspending the effectiveness of the Trust Registration Statement
pursuant to Section 8(d) of the 1933 Act, or order pursuant to Section
8(e) of the 1940 Act, shall have been issued and no proceedings therefor
shall have been initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriter. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 497(h) (or a
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A)
or, if the Trust has elected to rely upon Rule 434, a Trust Term Sheet
shall have been filed with the Commission in accordance with Rule 497(h).
(2) Opinion of New York Counsel for Underwriter and Trust. At
Closing Time, the Underwriter shall have received the favorable opinion,
dated as of Closing Time, of Brown & Wood LLP, New York counsel for the
Underwriter and the Trust with respect to such matters as the Underwriter
may reasonably request. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of
the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriter. Such counsel may also
state that,
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insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of public officials.
(3) Opinion of Delaware Counsel for the Trust. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing
Time, of Richards, Layton & Finger, Delaware counsel for the Trust, in
form and substance reasonably satisfactory to counsel for the Underwriter.
In giving such opinion such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of Delaware
and the federal law of the United States, upon the opinions of counsel
satisfactory to the Underwriter. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of public officials.
(4) Opinion of New York Counsel for the Contracting Stockholder and
AMP. At Closing Time, the Underwriter shall have received the favorable
opinion, dated as of Closing Time, of Coudert Brothers, New York counsel
for the Contracting Stockholder and AMP, in form and substance reasonably
satisfactory to counsel for the Underwriter. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the
United States, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of public officials.
(5) Opinion of Australian Counsel for the Trust. At Closing Time,
the Underwriter shall have received the favorable opinion, dated as of
Closing Time, of Allen & Hemsley, Australian counsel for the Trust, in
form and substance reasonably satisfactory to counsel for the Underwriter.
In giving such opinion such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of New South
Wales and the federal law of Australia, upon the opinions of counsel
satisfactory to the Underwriter. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of public officials.
(6) Opinion of Australian Counsel for the Contracting Stockholder
and AMP. At Closing Time, the Underwriter shall have received the
favorable opinion, dated as of Closing Time, of Minter Ellison, Australian
Counsel for the Contracting Stockholder and AMP, in form and substance
reasonably satisfactory to counsel for the Underwriter. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New South Wales and the
federal law of Australia, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of public officials.
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(7) Opinion of Australian Counsel for National Australia Trustees.
At Closing Time, the Underwriter shall have received the favorable
opinion, dated as of Closing Time, of Middletons Moore and Bevins,
Australian Counsel for National Australia Trustees, in form and substance
reasonably satisfactory to counsel for the Underwriter. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of Victoria and the federal
law of Australia, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of public officials.
(8) Trustee's Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Trust Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, business prospects, management, investment objectives or
investment policies of the Trust, whether or not arising in the ordinary
course of business, and the Underwriter shall have received a certificate
of the Managing Trustee, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations
and warranties contained in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing
Time, (iii) the Trust has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Trust
Registration Statement pursuant to Section 8(d) of the 1933 Act, or order
pursuant to Section 8(e) of the 1940 Act, has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(9) Bank Condition. At Closing Time, there shall not have been since
the date hereof, in the opinion of the Underwriter, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Bank and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(10) Certificates of Contracting Stockholder and AMP. At Closing
Time, the Underwriter shall have received certificates by or on behalf of
the Contracting Stockholder and AMP, dated as of Closing Time, to the
effect that (i) the representations and warranties contained in Section
1(b) hereof in the case of the Contracting Stockholder, and Sections 1(b)
and 1(c) in the case of AMP, are true and correct with the same force and
effect as though expressly made at and as of Closing Time and (ii) the
Contracting Stockholder or AMP, as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time pursuant to this Agreement and the
transactions contemplated hereby.
(11) Maintenance of Rating; Listing. Since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to any of the Bank's debt
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securities or preferred stock by any "nationally recognized statistical
rating agency," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have
publicly announced that it has under surveillance or review its rating of
any of the Bank's debt securities or preferred stock. At Closing Time, the
Bank ADSs shall be listed on the NYSE.
(12) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(13) No Objection. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(14) Fundamental Agreements. Each Fundamental Agreement shall have
been executed and delivered by all parties thereto, and AMP shall have
delivered to the Contracting Stockholder the number of Bank Ordinary
Shares required by the Nominee Trust Agreement.
(15) Conditions to Purchase of Option Securities. In the event that
the Underwriter exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Trust, the Contracting Stockholder and AMP contained
herein, and the statements in any certificates furnished by the Trust, the
Contracting Stockholder or AMP hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Underwriter shall have received:
(A) Trustee's Certificate. A certificate, dated such Date of
Delivery, of the Managing Trustee confirming that the certificate
delivered at Closing Time pursuant to Section 5(a)(8) hereof is true
and correct as of such Date of Delivery.
(B) Certificates of Contracting Stockholder and AMP. Certificates,
each dated such Date of Delivery, by or on behalf of the Contracting
Stockholder and AMP, each confirming that the certificate delivered
by the Contracting Stockholder or AMP, as the case may be, at
Closing Time pursuant to Section 5(a)(10) hereof is true and correct
as of such Date of Delivery.
(C) Opinion of New York Counsel for Underwriter and Trust. The
favorable opinion of Brown & Wood LLP, New York counsel for the
Underwriter and the Trust, in form and substance satisfactory to the
Underwriter, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion delivered pursuant to Section 5(a)(2)
hereof.
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(D) Opinion of Delaware Counsel for the Trust. The favorable opinion
of Richards, Layton & Finger, Delaware counsel for the Trust, in
form and substance reasonably satisfactory to counsel for the
Underwriter, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion delivered pursuant to Section 5(a)(3)
hereof.
(E) Opinion of New York Counsel for the Contracting Stockholder and
AMP. The favorable opinion of Coudert Brothers, New York counsel for
the Contracting Stockholder and AMP, in form and substance
reasonably satisfactory to counsel for the Underwriter, dated such
Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the
opinion delivered pursuant to Section 5(a)(4) hereof.
(F) Opinion of Australian Counsel for the Trust. The favorable
opinion of Allen & Hemsley, Australian counsel for the Trust, in
form and substance reasonably satisfactory to counsel for the
Underwriter, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion delivered pursuant to Section 5(a)(5)
hereof.
(G) Opinion of Australian Counsel for the Contracting Stockholder
and AMP. The favorable opinion of Minter Ellison, Australian counsel
for the Contracting Stockholder and AMP, in form and substance
reasonably satisfactory to counsel for the Underwriter, dated such
Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the
opinion delivered pursuant to Section 5(a)(6) hereof.
(H) Opinion of Australian Counsel for National Australian Trustees.
The favorable opinion of Middletons Moore and Bevins, Australian
counsel for National Australia Trustees, in form and substance
reasonably satisfactory to counsel for the Underwriter, dated such
Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the
opinion delivered pursuant to Section 5(a)(7) hereof.
(16) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, contained herein; and all proceedings taken by the Trust in
connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
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(b) Termination of Agreement. If any condition specified in subsection (a)
of this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after Closing Time, the
obligations of the Underwriter to purchase the relevant Option Securities, may
be terminated by the Underwriter by notice to the Trust, the Contracting
Stockholder and AMP at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 6, 7 and 12 shall survive any such termination and remain in full force
and effect.
SECTION 6. Indemnification.
(a) Indemnification of the Underwriter and the Trust by AMP. AMP agrees to
indemnify and hold harmless the Underwriter, the Trust and each person, if any,
who controls the Underwriter or the Trust within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Trust Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Trust preliminary prospectus or the Trust Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of 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 the representation and warranty contained in the last
sentence of Sections 1(b)(vi) and 1(c)(vi) hereunder by AMP being untrue
or allegedly untrue in whole or in part;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, or any such untrue or alleged untrue
misrepresentation or warranty referred to under (i) above; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of AMP; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in
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investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
or any such untrue or alleged untrue misrepresentation referred to under
(i) above, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Trust by the
Underwriter expressly for use in the Trust Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any Trust preliminary prospectus or the Trust
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Trust and AMP. The Underwriter agrees to
indemnify and hold harmless the Trust, AMP and each person, if any, who controls
the Trust or AMP within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Trust Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any Trust preliminary prospectus or the Trust
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Trust by the Underwriter
expressly for use in the Trust Registration Statement (or any amendment thereto)
or such Trust preliminary prospectus or the Trust Prospectus (or any amendment
or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by the Underwriter, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by AMP.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any
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investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If and to the extent that the indemnification
provided for in Section 6 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Trust, the Contracting Stockholder and AMP on the one hand and the
Underwriter on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Trust, the Contracting Stockholder and AMP on the one hand and of the
Underwriter on the other hand in connection with the statements or omissions or
misrepresentations or failures which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Trust, the Contracting Stockholder
and AMP on the one hand and the Underwriter on the other hand in connection with
the offering of the Securities pursuant to this Agreement shall be deemed to be
such that the Underwriter shall be responsible for that portion of the aggregate
amount of such losses, liabilities, claims, damages and expenses
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represented by the percentage that the total underwriting discount received by
the Underwriter as set forth on the cover of the Trust Prospectus, or, if Rule
434 is used, the corresponding location on the Trust Term Sheet, bears to the
aggregate initial public offering price of the Securities as set forth on such
cover and AMP shall be responsible for the balance. The relative fault of the
Trust, the Contracting Stockholder and AMP on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Trust, the Contracting Stockholder and AMP on the one hand or by
the Underwriter on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such misstatement or
omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the 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 any such untrue or
alleged untrue statement or omission or alleged omission.
The Trust, the Contracting Stockholder, AMP and the Underwriter agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or untrue or alleged untrue
misrepresentation or warranty.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each person, if any, who controls the Trust, the Contracting Stockholder or AMP
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Trust, the Contracting
Stockholder or AMP, as the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of the Trust, the Contracting Stockholder or AMP submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter
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or its controlling persons, or by or on behalf of the Trust, the Contracting
Stockholder or AMP, and shall survive delivery of the Securities to the
Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement, by
notice to the Trust, the Contracting Stockholder and AMP, at any time at or
prior to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Trust Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, business prospects, management,
investment objectives or investment policies of the Trust, or any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Bank and its subsidiaries
considered as one enterprise, in each case whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or Australia, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in U.S. or Australian national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriter,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in Bank Ordinary Shares or any other
securities of the Bank on any exchange or quotation system on which they are
listed, trading in American depositary shares representing Bank Ordinary Shares
listed on the New York Stock Exchange or trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by any
of Australian, United States federal or New York authorities, or (v) if there
has been any change in Australian taxation directly and materially affecting the
Securities or the imposition of exchange controls by the United States or
Australia directly and materially affecting the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 6, 7
and 12 shall survive such termination and remain in full force and effect.
SECTION 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the Underwriter at North Tower, World Financial
Center, New York, New York 10281, attention Douglas W. Squires; notices to the
Trust shall be directed to it c/o Puglisi & Associates, 850 Library Avenue,
Suite 204, Newark, Delaware 19715, attention of Donald J. Puglisi; notices to
the Contracting
31
1
<PAGE>
Stockholder shall be directed to 23 Hunter Street, Sydney, New South Wales 2000
Australia (facsimile 612 9221 3942) attention: Business Manager; and notices to
AMP shall be directed to Level 17, 33 Alfred Street, Sydney, New South Wales
2000 Australia (facsimile 612 9257 5891) attention: Senior Investment Manager.
SECTION 11. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriter, the Trust, the Contracting Stockholder, AMP and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 12. Consent to Jurisdiction; Appointment of Agent to Accept
Service of Process.
(a) Consent to Jurisdiction. The Contracting Stockholder and AMP (with
each such party being referred to in this Section 12 as the "Appointing Party")
each irrevocably consents and agrees that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter
arising out of or in connection with this Agreement may be brought in any United
States federal or state court in the State of New York, County of New York.
(b) Appointment of Service Agent. The Appointing Party designates,
appoints, and empowers CT Corporation System with offices currently at 1633
Broadway, New York, New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and its properties, assets and
revenues, service of any and all legal process, summons, notices and documents
that may be served in any action, suit or proceeding brought against the
Appointing Party in any such United States federal or state court with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement and that may be made on such designee, appointee
and agent in accordance with legal procedures prescribed for such courts. If for
any reason such designee, appointee and agent hereunder shall cease to be
available to act as such, the Appointing Party agrees to designate a new
designee, appointee and agent in The City of New York on the terms and for the
purposes of this Section 12 satisfactory to the Underwriter. The Appointing
Party further hereby irrevocably consents and agrees to the service of any and
all legal process, summons, notices and documents in any such action, suit or
proceeding against the Appointing Party, by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 12 (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) with a copy to the
Appointing Party as provided in Section 10. The Appointing Party agrees
32
<PAGE>
that the failure of any such designee, appointee and agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the holders of
the Securities, the Underwriter and the other persons referred to in Sections 7
and 8 to serve any such legal process, summons, notices and documents in any
other manner permitted by applicable law or to obtain jurisdiction over the
Appointing Party, or bring actions, suits or proceedings against it in such
other jurisdictions, and in such manner, as may be permitted by applicable law.
The Appointing Party irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any of the aforesaid actions, suits or proceedings arising
out of or in connection with this Agreement brought in the federal courts
located in The City of New York or the courts of the State of New York located
in The City of New York and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
(c) Survival. The provisions of this Section 12 shall survive any
termination of this Agreement, in whole or in part.
SECTION 13. Foreign Taxes.
All payments by the Contracting Stockholder and AMP to the Underwriter
hereunder shall be made free and clear of, and without deduction or withholding
for or on account of, any and all present and future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereinafter imposed, levied, collected, withheld or assessed by Australia or
any other jurisdiction in which the Contracting Stockholder or AMP, as the case
may be, has a branch or an office from which payment is made or deemed to be
made, excluding (i) any such tax imposed by reason of the Underwriter having
some connection with any such jurisdiction other than its participation as
Underwriter hereunder, and (ii) any income or franchise tax on the overall net
income of the Underwriter imposed by the United States of America or by the
State of New York or any political subdivision of the United States of America
or of the State of New York (all such non-excluded taxes, "Foreign Taxes"). If
the Contracting Stockholder or AMP is prevented by operation of law or otherwise
from paying, causing to be paid or remitting that portion of amounts payable
hereunder represented by Foreign Taxes withheld or deducted, then amounts
payable under this Agreement by such party shall, to the extent permitted by
law, be increased to such amount as is necessary to yield and remit to the
Underwriter an amount which, after deduction of all Foreign Taxes (including all
Foreign Taxes payable on such increased payments) equals the amount that would
have been payable if no Foreign Taxes applied.
SECTION 14. Waiver Of Immunities.
To the extent that the Contracting Stockholder, AMP or any of their
respective properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceed-
33
<PAGE>
ing, from the giving of any relief in any thereof, from set-off or counterclaim,
from the jurisdiction of any court, from service or process, from attachment
upon or prior to judgment, from attachment in aid of execution of judgment, or
from execution of judgment, or other legal process or proceeding for the giving
of any relief or for the enforcement of any judgment, in any jurisdiction in
which proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement or any of the Fundamental Agreements, the Contracting Stockholder
and AMP hereby irrevocably and unconditionally waive and agree not to plead or
claim, any such immunity and consent to such relief and enforcement.
SECTION 15. Judgment Currency.
The Contracting Stockholder and AMP, severally and not jointly, agree to
indemnify the Underwriter against any loss incurred by the Underwriter as a
result of any judgment or order being given or made for any amount due hereunder
and such judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order,
and (ii) the rate of exchange at which the Underwriter is able to purchase
United States dollars, at the business day nearest the date of judgment, with
the amount of the Judgment Currency actually received by the Underwriter. The
foregoing indemnity shall constitute separate and independent obligations of the
Contracting Stockholder and AMP, and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "rate of
exchange" shall include any premiums and costs or exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 18. Limitation of Liability. Except for any liability or other
obligation incurred by the Contracting Stockholder fraudulently, dishonestly,
with gross negligence, wilful misconduct, or by failure to use reasonable care,
the Contracting Stockholder is only liable in its capacity as trustee and to the
extent of the Contracting Stockholder's rights in the Exchange Property and the
parties to this Agreement other than the Contracting Stockholder may not sue the
Contracting Stockholder in any other capacity than as trustee, including seeking
appointment of a liquidator, administrator or any similar person to National
Australia Trustees. AMP shall promptly compensate the Underwriter for any losses
incurred by the Underwriter directly or indirectly arising from this provision.
34
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust, the Contracting Stockholder and
AMP a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriter, the Trust,
the Contracting Stockholder and AMP in accordance with its terms.
Very truly yours,
WBK STRYPES TRUST
--------------------------------------
Donald J. Puglisi, as Managing Trustee
SIGNED SEALED AND DELIVERED
on behalf of NATIONAL AUSTRALIA
TRUSTEES LIMITED (ACN 007 350 405)
by its duly appointed attorney
under power of attorney dated
28 May 1997
By
------------------------------------
Name:
Title:
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
By
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
<PAGE>
By
--------------------------------
Authorized Signatory
<PAGE>
Exhibit (j)
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this ___ day of _______ , 1997, by
and between The Bank of New York, a New York banking corporation (the
"Custodian"), and WBK STRYPES Trust, a business trust organized pursuant to the
Business Trust Act of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del.C. (Sections 3801 et seq.)) (such trust and the trustees
thereof acting in their capacity as such being referred to herein as the
"Trust"), under and by virtue of an Amended and Restated Trust Agreement, dated
as of ________ __, 1997 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end investment company, as
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"), formed to purchase and hold certain zero-coupon U.S. Government
securities (the "U.S. Treasury Securities"), to enter into and hold a forward
purchase contract (the "Contract") with The Bank of New York, as agent and
custodian for and on behalf of the Trust, and a trust established by Australian
Mutual Provident Society ("AMP"), an Australian mutual insurance company,
pursuant to a Deed of Settlement, dated as of ______, 1997, among ______,
National Australia Trustees and AMP (such trust being the "Contracting
Stockholder"), a stockholder of Westpac Banking Corporation, and to issue
Structured Yield Product Exchangeable for Stock(sm) (the "STRYPES") in
accordance with the terms and conditions of the Trust Agreement;
WHEREAS, the Trust desires to engage the services of the Custodian to
perform certain custodial duties for the Trust; and
WHEREAS, the Custodian is willing to assume such duties, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the respective meanings specified in the Trust Agreement.
- ----------
(sm) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
Exhibit (j)
2. APPOINTMENT OF CUSTODIAN; TRANSFER OF ASSETS. The Trust hereby
constitutes and appoints the Custodian, and the Custodian accepts such
appointment, as agent of the Trust and as custodian and foreign custodian
manager of all of the property, including but not limited to, the Contract, the
U.S. Treasury Securities, the Temporary Investments, any cash and any other
property at any time owned or held by the Trust (collectively, the "Assets").
The Trust hereby deposits the Assets with the Custodian and the Custodian hereby
accepts such into its custody, and the Trust shall deliver to the Custodian all
of the Assets, including all monies, securities and other property received by
the Trust at any time during the period of this Agreement, subject to the
following terms and conditions. The Custodian hereby agrees that it shall hold
the Assets in a segregated custody account, separate and distinct from all other
accounts, in accordance with Section 17(f) of, and in such manner as shall
constitute the segregation and holding in trust within the meaning of, the
Investment Company Act and the rules and regulations thereunder. The Custodian
hereby further agrees to abide by the guidelines attached hereto in Exhibit A
when it acts as foreign custodian manager. The Trust authorizes the Custodian,
for any Assets held hereunder, to use the services of any securities depository
permitted to perform such services for registered investment companies and their
custodians under Rule 17f-4 or 17f-5 under the Investment Company Act and which
has been approved by the Trust, including but not limited to, The Depository
Trust Company and the Federal Reserve Book Entry System. The Custodian shall be
under no duty or obligation to inspect, review or examine any Assets to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
3. ASSET DISPOSITION; EXAMINATIONS. The Custodian shall have no power or
authority to assign, hypothecate, pledge or otherwise dispose of the Assets,
except pursuant to a written direction in accordance with paragraph 4 below and
then only for the account of the Trust. The Assets shall be subject to no lien
or charge of any kind in favor of the Custodian for itself or for any other
Person claiming through the Custodian. The Custodian shall permit actual
examination of the Assets by the Trust's independent public accountant at the
end of each annual and semi-annual fiscal period of the Trust and at least one
other time during the fiscal year of the Trust chosen by such independent public
accountant and shall permit the inspection of the Assets by the Commission
through its employees or agents during the normal business hours of the
Custodian upon reasonable request.
4. AUTHORIZED ACTIONS. The Custodian shall take such reasonable actions
with respect to the Assets as directed in writing by the Trust or by any officer
of the Administrator duly authorized by the Trustees to give written
instructions on behalf of the
2
<PAGE>
Exhibit (j)
Trust and named in such certified resolutions of the Trustees, as may be
received by the Custodian from time to time.
5. CUSTODIAN'S ACTIONS TAKEN IN GOOD FAITH. In connection with the
performance of its duties under this Agreement, the Custodian shall have no
duties or obligations other than those specifically set forth herein or in the
Trust Agreement or as may subsequently be agreed in writing by the parties
hereto and shall be under no liability to the Trust or any Holder for any action
taken in good faith in reliance on any paper, order, certification, list,
demand, request, consent, affidavit, notice, opinion, direction, endorsement,
assignment, resolution, draft or other document, prima facie properly executed,
or for the disposition of the Assets pursuant to the Trust Agreement or in
respect of any action taken or suffered under the Trust Agreement in good faith,
in accordance with an opinion of counsel or at the direction of the Trust
pursuant hereto; provided that this provision shall not protect the Custodian
against any liability to which it would otherwise be subject by reason of its
willful misfeasance or gross negligence in the performance of its duties, or its
reckless disregard of its obligations and duties hereunder.
Notwithstanding any other provision of this Agreement, the Custodian shall
under no circumstances be liable for any punitive, exemplary, indirect or
consequential damages.
6. TRUST AGREEMENT VALIDITY. The Custodian shall not be responsible for
the validity or sufficiency of the Trust Agreement or the due execution thereof,
or for the form, character, genuineness, sufficiency, value or validity of any
of the Assets and the Custodian shall in no event assume or incur any liability,
duty or obligation to any Holder or to the Trust, other than as expressly
provided for herein. The Custodian shall not be responsible for or in respect of
the validity of any signature by or on behalf of the Trust.
7. LITIGATION OBLIGATIONS, COSTS AND INDEMNITY. The Custodian shall not be
under any obligation to appear in, prosecute or defend any action which in its
opinion may involve it in expense or liability, unless it shall be furnished
with such reasonable security and indemnity against such expense or liability as
it may require, and any reasonable pecuniary costs of the Custodian from such
actions shall be expenses which are reimbursable pursuant to paragraph 13
hereof.
8. TAXES; TRUST EXPENSES. In no event shall the Custodian be personally
liable for any taxes or other governmental charges imposed upon or in respect of
the Assets or upon the monies, securities or other properties included therein.
The Custodian shall be reimbursed and indemnified by the Trust for all such
taxes and charges, for any tax or charge imposed against the Trust and for any
reasonable expenses, including reasonable counsel fees,
3
<PAGE>
Exhibit (j)
interest, penalties and additions to tax which the Custodian may sustain or
incur with respect to such taxes or charges.
9. CUSTODIAN RESIGNATION, SUCCESSION. (a) The Custodian may resign by
executing an instrument in writing resigning as Custodian and delivering the
same to the Trust, not less than 60 days before the date specified in such
instrument when, subject to clause (b) of this paragraph 9, such resignation is
to take effect. Upon receiving such notice of resignation, the Trust shall use
its reasonable efforts promptly to appoint a successor Custodian in the manner
and meeting the qualifications provided in the Trust Agreement, by written
instrument or instruments delivered to the resigning Custodian and the successor
Custodian.
(b) In case no successor Custodian shall have been appointed within 30
days after notice of resignation has been received by the Trust, the resigning
Custodian may forthwith apply to a court of competent jurisdiction for the
appointment of a successor Custodian. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribed, appoint a successor
Custodian.
10. CUSTODIAN REMOVAL. The Trust may remove the Custodian upon 60 days
prior written notice to the Custodian and appoint a successor Custodian. In case
at any time the Custodian shall not meet the requirements set forth in the Trust
Agreement or shall become incapable of acting or if a court having jurisdiction
shall enter a decree or order for relief in respect of the Custodian in an
involuntary case, or the Custodian shall commence a voluntary case, under any
applicable bankruptcy, insolvency, or other similar law now or hereafter in
effect, or any receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) for the Custodian or for any substantial part of its
property shall be appointed, or the Custodian shall make any general assignment
for the benefit of creditors, or shall generally fail to pay its debts as they
become due, the Trust may remove the Custodian immediately and appoint a
successor Custodian. The termination of the Administration Agreement or the
Paying Agent Agreement shall cause the removal of the Custodian simultaneously
therewith.
11. TRANSFERS TO SUCCESSOR CUSTODIAN. Upon the request of any successor
Custodian, the Custodian hereunder shall, upon payment of all amounts due it,
execute and deliver an instrument acknowledged by it transferring to such
successor Custodian all the rights and powers of the resigning Custodian; and
the resigning Custodian shall transfer, deliver and pay over to the successor
Custodian the Assets at the time held by it hereunder, if any, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the resigning Custodian in the administration hereof as
may be
4
<PAGE>
requested by the successor Custodian, and shall thereupon be discharged from all
duties and responsibilities hereunder. Any resignation or removal of the
Custodian shall become effective upon such acceptance of appointment by the
successor Custodian. The indemnification of the resigning Custodian provided for
hereunder shall survive any resignation, discharge or removal of the Custodian
hereunder.
12. CUSTODIAN MERGER, CONSOLIDATION. Any corporation into which the
Custodian may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, shall be the successor Custodian hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto, provided
that such corporation meets the requirements set forth in the Trust Agreement.
13. COMPENSATION; EXPENSES. The Custodian shall receive compensation for
performing the usual, ordinary, normal and recurring services under this
Custodian Agreement and, with the prior written approval of the Trust,
reimbursement for any and all reasonable expenses and disbursements incurred
hereunder, as provided in Section 3.1 of the Administration Agreement.
14. SECTION 17(f) QUALIFICATION. The Custodian hereby represents that it
is qualified to act as a custodian under Section 17(f) of the Investment Company
Act.
15. INDEMNIFICATION. The Trust shall indemnify and hold the Custodian
harmless from and against any loss, damages, liability or claim incurred by
reason of any inaccuracy in information furnished to the Custodian by the Trust,
or any act or omission in the course of, connected with or arising out of any
services to be rendered hereunder, and any reasonable cost or expense (including
the reasonable costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements) incurred in connection with any such loss,
damages, liability or claim, provided that the Custodian shall not be
indemnified and held harmless from and against any such loss, damages,
liability, claim or reasonable cost or expense arising from its willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
its reckless disregard of its duties and obligations hereunder. Notwithstanding
the foregoing, it is understood that (i) the Trust shall not, in respect of the
legal expenses of the Custodian in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) and (ii) the
Trust shall not be liable for any settlement of any proceeding effected without
the written consent of the Trust, but if settled with such consent or if there
be a final judgment for the third party claimant, the Trust agrees to indemnify
the Custodian from and against any loss or
5
<PAGE>
Exhibit (j)
liability by reason of such settlement or judgment. Neither the Federal Reserve
Book Entry System nor The Depository Trust Company shall be deemed to be agents
of the Custodian.
16. RIGHTS OF SET-OFF; BANKER'S LIEN. The Custodian hereby waives all
rights of set-off or banker's lien it may have with respect to the Assets held
by it as Custodian hereunder.
17. TERMINATION. This Agreement shall terminate upon the earlier of the
dissolution of the Trust or the appointment of a successor Custodian.
18. CHOICE OF LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
19. NOTICES. All notices and other communications given by any party under
this Agreement shall be directed as follows (or to such other address for a
particular party as shall be specified by such party in a like notice given
pursuant to this Section 19):
The Trust: WBK STRYPES Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19716
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
The Custodian: The Bank of New York
Corporate Trust Department
101 Barclay Street
12th Floor East
New York, New York 10007
Attention: Betty Cocozzo
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery) to the offices set forth
above, in which case they shall be deemed received
6
<PAGE>
Exhibit (j)
on the first Business Day by which delivery shall have been made to said
offices, (ii) transmitted by any standard form of telecommunication to the
offices set forth above, in which case they shall be deemed received on the
first Business Day by which a standard confirmation that such transmission
occurred is received by the transmitting party (unless such confirmation states
that such transmission occurred after 5:00 P.M. on such first Business Day, in
which case delivery shall be deemed to have been received on the immediately
succeeding Business Day), or (iii) sent by certified or registered mail, return
receipt requested to the offices set forth above, in which case they shall be
deemed received when receipted for unless acknowledgment of receipt is refused
(in which case delivery shall be deemed to have been received on the first
Business Day on which such acknowledgment is refused).
20. NO THIRD PARTY BENEFICIARIES. Nothing herein, express or implied,
shall give to any Person, other than the Trust, the Custodian and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
21. AMENDMENTS; TRUST AGREEMENT CHANGES; WAIVER. This Agreement shall not
be deemed or construed to be modified, amended, rescinded, cancelled or waived,
in whole or in part, except by a written instrument signed by a duly authorized
representative of the party to be charged. The Trust shall notify the Custodian
of any change in the Trust Agreement prior to the effective date of any such
change. Failure of either party hereto to exercise any right or remedy hereunder
in the event of a breach hereof by the other party shall not constitute a waiver
of any such right or remedy with respect to any subsequent breach.
22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
7
<PAGE>
Exhibit (j)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WBK STRYPES TRUST
By
---------------------------------------
Donald J. Puglisi,
as Managing Trustee
THE BANK OF NEW YORK
By
---------------------------------------
Name:
Title:
<PAGE>
Exhibit (j)
EXHIBIT A
Rule 17f-5 Procedures and Guidelines
1. The Trust's Custodian shall serve as the Foreign Custody Manager for
the Trust pursuant to the Custodian Agreement between the Trust and the Foreign
Custody Manager and shall be responsible for managing the Trust's foreign
custody arrangements pursuant to the requirements of Rule 17f-5 under the
Investment Company Act. The Foreign Custody Manager shall not be responsible for
the selection or performance of compulsory depositories.
2. The Foreign Custody Manager shall notify the Trust's investment adviser
in writing as soon as reasonably possible of any material changes in the Trust
foreign custody arrangements.
3. The Foreign Custody Manager shall provide the Board with written
quarterly reports regarding a Trust's foreign custody arrangements for use at
its quarterly Board meetings which reports shall, among other things:
(i) notify the Board of the placement of Trust assets with a particular
foreign subcustodian; and
(ii) summarize for the Board the material changes in the Trust's foreign
custody arrangements that occurred during the prior quarter.
4. The Foreign Custody Manager shall agree to exercise the reasonable
care, prudence and diligence of a New York bank subject to a New York standard
of care having responsibility for the safekeeping of Trust assets in performing
its delegated duties and obligations to the Trust.
5. In selecting an Eligible Foreign Custodian, the Foreign Custody Manager
shall (i) require the Eligible Foreign Custodian to maintain Trust assets under
a New York standard of care for custodians as if the Eligible Foreign Custodian
were holding the Trust's assets in New York or (ii) determine that Trust's
assets shall be subject to reasonable care by the Eligible Foreign Custodian
considering all factors relevant to the safekeeping of such assets with
reference to standards of international banks and trust companies holding assets
for institutional clients in such country and, if there are no such standards,
with reference to the
<PAGE>
Exhibit (j)
standards of the principal custodians in the relevant market which act as
subcustodians for U.S. mutual funds.
6. Upon request of the Board, the Foreign Custody Manager shall make
itself available to report to the Trust's Board in person at its quarterly Board
meetings, or at such other times as the Board may from time to time require.
7. The Foreign Custody Manager shall agree to and shall provide the
Trust's investment adviser on a regular basis with the country materials it
provides to its other clients.
<PAGE>
Exhibit (k)(1)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of __________,
1997, by and between The Bank of New York, a New York banking corporation (the
"Administrator"), and WBK STRYPES Trust, a business trust organized pursuant to
the Business Trust Act of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del.C. (Sections 3801 et seq.))(such trust and the trustees
thereof acting in their capacity as such being referred to herein as the
"Trust"), under and by virtue of an Amended and Restated Trust Agreement, dated
as of _________ __, 1997 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management investment
company, as defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), formed to purchase and hold certain zero-coupon U.S.
Government securities (the "U.S. Treasury Securities"), to enter into and hold a
forward purchase contract (the "Contract") with The Bank of New York, as agent
and custodian for and on behalf of the Trust, National Australia Trustees
Limited ("National Australia Trustee"), acting as trustee of the trust
established pursuant to the Nominee Trust Agreement (hereinafter referred to as
the "Contracting Stockholder") and Australian Mutual Provident Society ("AMP"),
a stockholder of Westpac Banking Corporation, and to issue Structured Yield
Product Exchangeable for Stock(sm) (the "STRYPES") to the public in accordance
with the terms and conditions of the Trust Agreement;
WHEREAS, the Trust desires to engage the services of the Administrator to
assume certain duties and responsibilities of the Trustees under the Trust
Agreement and the Investment Company Act and to undertake certain services on
behalf of and subject to the supervision of the Trust as provided herein; and
WHEREAS, the Administrator is qualified and willing to assume such duties
and responsibilities and to undertake to render such services, subject to the
supervision of the Trust, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
<PAGE>
Exhibit (k)(1)
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the respective meanings specified in the Trust Agreement or the Contract.
ARTICLE II.
ENGAGEMENT OF ADMINISTRATOR
2.1 ENGAGEMENT. The Trust hereby engages the Administrator, and the
Administrator hereby agrees to be so engaged, to provide or cause the provision
of the services hereinafter enumerated.
2.2 SERVICES OF ADMINISTRATOR. Subject to the supervision of the Trust,
the Administrator shall on behalf of the Trust take the actions set forth in
Sections 2.6, 2.7 and 2.8 of the Trust Agreement, to the extent such
responsibilities can lawfully be delegated to the Administrator; provided,
however, that the Administrator shall not (i) render investment advisory
services to the Trust as defined in the Investment Company Act or the Investment
Advisers Act of 1940, as amended; (ii) have the power of the Trustees to sell
the U.S. Treasury Securities except as provided in Section 2.8 of the Trust
Agreement; or (iii) have the power to select the independent public accountants
for the Trust. Additionally, the Administrator shall be responsible for
rendering the following services to the Trust:
(a) pay, or cause the Paying Agent to pay, out of moneys paid to the
Administrator pursuant to the Fund Expense Agreement, dated as of _______ __,
1997, among AMP, Merrill Lynch & Co., Inc. ("Merrill Lynch") and the
Administrator (the "Fund Expense Agreement"), but in no event out of the Trust
Estate, the fees and expenses of the Trust incurred in connection with the
offering of the STRYPES as specified in Schedule I hereto;
(b) pay, or cause the Paying Agent to pay, out of moneys paid to the
Administrator pursuant to the Fund Expense Agreement, but in no event out of the
Trust Estate, the fees and expenses of the Trust incurred in connection with the
organization of the Trust as specified in Schedule II hereto;
2
<PAGE>
Exhibit (k)(1)
(c) instruct the Paying Agent on behalf of the Trust to take the
actions set forth in Sections 2.6, 2.7 and 2.8 of the Trust Agreement and to
otherwise perform the duties of the Paying Agent referred to in the Trust
Agreement;
(d) with the approval of the Trustees, engage legal and other
professional advisors, other than the Trust's independent accountants as
provided in clause 2.2 (iii) above, to perform services on behalf of the Trust;
(e) pay all demands, bills and invoices for expenses incurred by or
on behalf of the Trust, or cause the Paying Agent to pay the same, out of moneys
paid to the Administrator pursuant to the Fund Expense Agreement, but in no
event out of the Trust Estate and give notice to Merrill Lynch and AMP pursuant
to the fund indemnity agreement dated as of ______ __, 1997 (the "Fund Indemnity
Agreement"), among the Trust, AMP, and Merrill Lynch of any claim for
Indemnification Expenses (as defined in the Fund Indemnity Agreement) or any
threatened claim for Indemnification Expenses;
(f) (i) cause the legal and other professional advisors engaged
pursuant to Section 2.2(d) to prepare and mail, file or publish, or, as
appropriate, direct the Paying Agent to prepare and mail, file or publish, any
notices, proxies, reports, statements and other communications required to be
mailed or published pursuant to the Trust Agreement and the Investment Company
Act,
(ii) keep (or cause to be kept) all the books and records of
the Trust (other than those to be kept by the Paying Agent), and
(iii) cause the legal and other professional advisors engaged
pursuant to Section 2.2(d) to prepare and, as necessary, file any and all
reports, returns and other documents as required under the Investment Company
Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
the Internal Revenue Code of 1986, as amended, or, as reasonably requested by
the Trustees, under any other applicable laws, rules or regulations or
otherwise; provided, however, that responsibility for the adequacy and accuracy
of any such reports, returns and other documents shall be that of the Trustees
and provided, further, that the Administrator shall have no liability for the
adequacy or accuracy of such reports, returns and other documents;
(g) at the request of the Trust and upon being furnished with such
reasonable security and indemnity against any related expense or liability as
the Administrator may require, institute and prosecute, in accordance with the
instructions of the Trust, legal or other appropriate proceedings to enforce any
and all rights and remedies of the Trust;
3
<PAGE>
Exhibit (k)(1)
(h) review on behalf of the Trust all notices, reports, certificates
and other documents regarding the Contract and the U.S. Treasury Securities;
(i) make or cause to be made all necessary arrangements with respect
to meetings of Trustees and meetings of Holders, including, without limitation,
the preparation of notices, proxies and minutes, subject to the approval of the
Trust;
(j) in conjunction with the Trust, determine and publish (or cause
to be determined and published), in such manner as the Trust shall direct in
writing, the Trust's net asset value in accordance with Section 8.2(c) of the
Trust Agreement and the Trust's policy as set forth in the Prospectus;
(k) on or prior to the sixth Business Day preceding the Exchange
Date, notify the Depositary and publish (or cause to be published) a notice in
The Wall Street Journal or another daily newspaper of national circulation
stating whether the applicable percentage of the number or amount of each type
of Reference Security and other property constituting part of the Reference
Property or cash will be delivered in exchange for the STRYPES on the Exchange
Date;
(l) within ten Business Days following the occurrence of an event
that requires an adjustment to the Reference Property (or if the Administrator
is not aware of such occurrence, as soon as practicable after becoming so
aware), to provide written notice to the Holders of the occurrence of such event
and a statement in reasonable detail setting forth the amount or number of each
type of Reference Security and other property then constituting part of the
Reference Property;
(m) pay, or cause the Paying Agent to pay, out of moneys paid to the
Administrator pursuant to the Fund Expense Agreement, but in no event out of the
Trust Estate, any ADR Expenses (as defined in the Fund Expense Agreement);
(n) calculate the U.S. Dollar Equivalent and the Cash Reorganization
Amount and convert promptly into U.S. dollars all cash received by it in
Australian dollars or other currency other than U.S. dollars in respect of
Reference Property at the exchange rate used to calculate the U.S. Dollar
Equivalent of such amounts; and
(o) take any necessary actions in the event that a Partial Cash
Distribution Event shall occur.
2.3 CERTAIN RIGHTS OF THE ADMINISTRATOR. In connection with the
performance of its duties under this Agreement, the Administrator shall not be
liable to the
4
<PAGE>
Exhibit (k)(1)
Trust, the Trustees or any Holder (i) for any action taken or for refraining
from taking any action hereunder except in the case of its willful misfeasance,
bad faith, gross negligence or the reckless disregard of its duties hereunder,
(ii) with respect to any action taken or omitted to be taken by it in good faith
in accordance with the directions of the Trust or of any Trustee or (iii) in
connection with the performance of its duties under Section 2.2(j) hereof, for
good faith reliance upon information furnished by third parties selected by the
Administrator with due care. The Administrator shall under no circumstances be
liable for any punitive, exemplary, indirect or consequential damages. The
Administrator may consult with counsel and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon. The Administrator may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys appointed with
due care by it but shall be liable for the acts and omissions of such persons to
the same extent as if the functions had been performed by the Administrator
itself (except to the extent that the Trustees shall have directed the
Administrator to retain such persons in which event the Administrator shall not
be liable for such persons' acts or omissions). The Administrator shall not be
liable and shall be fully protected in acting upon any writing or document
reasonably believed by it to be genuine and to have been given, signed or made
by the proper person or persons and shall not be held to have any notice of any
change of authority of any person until receipt of written notice thereof from a
Trustee. Without limiting the generality of the preceding sentence, the
Administrator (i) may select and employ independent accountants acceptable to
the Trustees (other than the independent public accountants referred to in
clause (iii) of the first sentence of Section 2.2 of this Agreement and Section
2.5(d) of the Trust Agreement) to keep the financial books and records of the
Trust, to prepare the financial statements of the Trust and to prepare Trust tax
returns, and (ii) may select and engage attorneys acceptable to the Trustees to
prepare annual, semi-annual and periodical reports, notices of meetings and
proxy statements, annual reports to holders of STRYPES and other documents
required under the Investment Company Act or the Exchange Act.
2.4 POWER OF ATTORNEY. The Trust hereby appoints the Administrator, acting
through any duly appointed officer, its attorney-in-fact and agent for the
purpose of performing the duties prescribed in Sections 2.2(f)(iii) and 2.2(i).
2.5 DELIVERY OF CERTAIN DOCUMENTS. The Trust will deliver to the
Administrator, promptly following the execution hereof: (a) a complete conformed
copy of the registration statement of the Trust under the Securities Act and the
Investment Company Act, including all amendments, exhibits and schedules
thereto; and (b) the EDGAR access codes (Central Index Key, CIK Confirmation
Code, Password and Password Modification Access Code) employed to file such
registration statement.
5
<PAGE>
Exhibit (k)(1)
ARTICLE III.
COMPENSATION OF ADMINISTRATOR
3.1 COMPENSATION. For services to be rendered by the Administrator
pursuant to this Agreement, as custodian under the Custodian Agreement, dated as
of ______ __, 1997, between the Administrator, as custodian, and the Trust, for
services to be rendered by The Bank of New York (the "Paying Agent"), as paying
agent, transfer agent and registrar under the Paying Agent Agreement, dated as
of _______ __, 1997, between the Paying Agent and the Trust, and for the
payment of Trust expenses pursuant to Section 2.2(a), (b) and (e) hereof, the
Administrator shall receive only such fees and expenses as shall be paid to it
pursuant to the terms of the Fund Expense Agreement and shall have no recourse
to the Trust Estate for the payment of any such amounts.
3.2 ADDITIONAL SERVICES. If and to the extent that the Trust shall request
the Administrator to render services for the Trust, other than those to be
rendered by the Administrator hereunder, and if the Administrator agrees to
render such services, such additional services shall be compensated separately
on terms to be agreed upon between the Administrator and the Trust from time to
time.
ARTICLE IV.
TERMINATION
4.1 TERMINATION.
(a) This Agreement shall terminate immediately upon written notice
of termination from the Trust to the Administrator if any of the following
events shall occur:
(i) If the Administrator shall violate any provision of this
Agreement, the Trust Agreement, or the Investment Company Act, and after notice
of such violation, shall not cure such violation within 30 days;
or
(ii) If the Administrator shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or an order shall be made by a
court of competent jurisdiction for the appointment of a receiver, liquidator,
or trustee of the Administrator, or of all or substantially all of its property
by reason of the foregoing, or approving any petition filed
6
<PAGE>
Exhibit (k)(1)
against the Administrator for its reorganization, and such adjudication or order
shall remain in force or unstayed for a period of 30 days; or
(iii) If the Administrator shall institute proceedings for
voluntary bankruptcy, or shall file a petition seeking reorganization under the
Federal bankruptcy laws, or for relief under any law for the relief of debtors,
or shall consent to the appointment of a receiver of the Administrator or of all
or substantially all of its property, or shall make a general assignment for the
benefit of its creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or
(iv) Upon the voluntary or involuntary dissolution of the
Administrator, or unless the Trust shall have given its prior written consent
thereto, the merger or consolidation of the Administrator with any other entity.
If any of the events specified in clauses (ii), (iii) or (iv) of this
Section 4.1(a) shall occur, the Administrator shall give immediate written
notice thereof to the Trust.
(b) Notwithstanding anything to the contrary contained herein, this
Agreement shall terminate immediately (i) upon termination of the Trust
Agreement, (ii) upon termination of the Paying Agent Agreement, (iii) upon
termination of the Nominee Trust Agreement, (iv) upon termination of the
Custodian Agreement or (v) upon the resignation or removal of the Custodian.
(c) The Trust may remove the Administrator, or the Administrator may
resign, and thereby terminate this Agreement without penalty upon 60 days prior
written notice to the other party hereto; provided that neither party hereto may
terminate this Agreement pursuant to this Section 4.1(c) unless a successor
Administrator shall have been appointed and shall have accepted the duties of
the Administrator. If, within 30 days after notice by the Administrator to the
Trust of termination of this Agreement, no successor Administrator shall have
been selected and accepted the duties of the Administrator, the Administrator
may apply to a court of competent jurisdiction for the appointment of a
successor Administrator.
4.2 EFFECT OF TERMINATION. The Administrator shall forthwith upon
termination of this Agreement deliver to the Trust any records or other property
of the Trust then in the possession or custody of the Administrator. Any
obligation to indemnify the Administrator pursuant to Section 6.6 shall survive
the termination of this Agreement.
ARTICLE V.
7
<PAGE>
Exhibit (k)(1)
RECORDS AND REPORTS
5.1 BOOKS AND RECORDS; INSPECTION AND COPYING. The Administrator shall
keep, or cause to be kept, appropriate, and reasonably detailed and accurate,
books and records of all its activities pursuant to this Agreement. The Trust
shall have the right to inspect such books and records during the
Administrator's normal business hours upon reasonable request, and to make
copies of the same at the expense of the Trust.
5.2 ACCESS TO INFORMATION. The Administrator shall make available to the
Trust all information it receives and compiles with respect to the Contract and
the U.S. Treasury Securities, the moneys available to the Trust, the financial
condition of the Trust and all other relevant matters concerning the Trust.
ARTICLE VI.
MISCELLANEOUS
6.1 BINDING EFFECT; SUCCESSORS AND ASSIGNS. Any corporation into which the
Administrator may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Administrator shall be a party, shall be the successor Administrator
hereunder and under the Trust Agreement without the execution or filing of any
paper, instrument or further act to be done on the part of the parties hereto,
provided that such corporation meets the requirements set forth in the Trust
Agreement. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties with respect to the matters contained herein and supersedes all
prior agreements or understandings, whether oral or written. This Agreement
shall not be amended, changed, modified, or discharged, in whole or in part,
except by an instrument in writing signed by both parties hereto, or their
respective successors or permitted assigns.
6.3 NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 6.3):
The Trust: WBK STRYPES Trust
c/o Puglisi & Associates
8
<PAGE>
Exhibit (k)(1)
850 Library Avenue, Suite 204
Newark, Delaware 19716
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
The Administrator: The Bank of New York
101 Barclay Street
12th Floor, East
New York, New York 10286
Telephone: (212) 815-5366
Telecopier: (212) 815-7157
Except as otherwise specifically provided herein, all notices, reports and
other communications provided for hereunder shall be in writing and, unless some
other method of giving such notice, report or other communication is accepted by
the party to whom it is to be given or is required by the Trust Agreement or the
Investment Company Act, shall be deemed to have been duly given if either (i)
personally delivered (including delivery by courier service or by Federal
Express or any other nationally recognized overnight delivery service for next
day delivery) to the offices set forth above, in which case they shall be deemed
received on the first Business Day by which delivery shall have been made to
said offices, (ii) transmitted by any standard form of telecommunication to the
offices set forth above, in which case they shall be deemed received on the
first Business Day by which a standard confirmation that such transmission
occurred is received by the transmitting party (unless such confirmation states
that such transmission occurred after 5:00 P.M. on such first Business Day, in
which case delivery shall be deemed to have been received on the immediately
succeeding Business Day), or (iii) sent by certified or registered mail, return
receipt requested to the offices set forth above, in which case they shall be
deemed received when receipted for unless acknowledgment of receipt is refused
(in which case delivery shall be deemed to have been received on the first
Business Day on which such acknowledgment is refused).
6.4 APPLICABLE LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
6.5 NON-ASSIGNABILITY. This Agreement and the rights and obligations of
the parties hereunder may not be assigned or delegated by either party without
the prior written consent of the other party.
9
<PAGE>
Exhibit (k)(1)
6.6 INDEMNIFICATION. The Trust shall indemnify and hold the Administrator
harmless from and against any loss, damages, cost, liability or claim incurred
by reason of any inaccuracy in information furnished to the Administrator by the
Trustees, or any act or omission in the course of, connected with or arising out
of any services to be rendered hereunder, and any reasonable expense (including
the reasonable costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements) incurred in connection with any such loss,
damages, cost, liability or claim, provided that the Administrator shall not be
indemnified and held harmless from and against any such loss, damages, cost,
liability, claim or reasonable expense incurred by reason of its willful
misfeasance, bad faith, or gross negligence in the performance of its duties, or
its reckless disregard of its duties and obligations hereunder. Notwithstanding
the foregoing, it is understood that (i) the Trust shall not, in respect of the
legal expenses of the Administrator in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) and (ii) the
Trust shall not be liable for any settlement of any proceeding effected without
the written consent of the Trust, but if settled with such consent or if there
be a final judgment for the third party claimant, the Trust agrees to indemnify
the Administrator from and against any loss or liability by reason of such
settlement or judgment.
6.7 PROVISIONS OF LAW TO CONTROL. This Agreement shall be subject to the
applicable provisions of the Investment Company Act and the rules and
regulations of the Commission thereunder. To the extent that any provisions
herein contained conflict with any applicable provisions of the Investment
Company Act or such rules and regulations, the latter shall control.
6.8 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
10
<PAGE>
Exhibit (k)(1)
IN WITNESS WHEREOF the parties have hereunto executed this Administration
Agreement as of the day and year first above written.
WBK STRYPES TRUST
By:
- --------------------------------
Donald J. Puglisi,
as Managing Trustee
THE BANK OF NEW YORK
By:
- --------------------------------
Name: Betty Cocozza
Title:
<PAGE>
Exhibit (k)(1)
SCHEDULE I
Item
Amount
- ----
------
SEC Registration Fees
$294,092
NYSE Listing Fees
$ 72,620
NASD Fees
$ 30,500
Printing (other than STRYPES Certificates)
$100,000
Legal Fees
$ 80,000
Blue Sky Fees
$ 2,000
Miscellaneous
$ 10,000
--------
Total
589,212
<PAGE>
Exhibit (k)(1)
SCHEDULE II
Item
Amount
- ----
------
STRYPES Certificates
$ 2,000
Fees and Expenses of Special Delaware
Counsel to the Trust
12,000
-------
Total
14,000
<PAGE>
Exhibit (k)(2)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this _____ day of __________,
1997, by and between The Bank of New York (the "Paying Agent") and WBK STRYPES
Trust, a business trust organized pursuant to the Business Trust Act of the
State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(Sections 3801 et seq.)) (such trust and the trustees thereof acting in their
capacity as such being referred to herein as the "Trust") under and by virtue of
an Amended and Restated Trust Agreement, dated as of __________, 1997 (the
"Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management investment
company, as defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), formed to purchase and hold certain zero-coupon U.S.
Government securities (the "U.S. Treasury Securities"), to enter into and hold a
forward purchase contract with The Bank of New York, as agent and custodian for
and on behalf of the Trust and as administrator, National Australia Trustees
Limited ("National Australia Trustees") acting as trustee of a trust established
pursuant to the Nominee Trust Agreement (hereinafter referred to as the
"Contracting Stockholder") and Australian Mutual Provident Society ("AMP"), an
Australian mutual insurance company, a stockholder of Westpac Banking
Corporation (the "Bank"), and to issue Structured Yield Product Exchangeable for
Stock(sm) (the "STRYPES") to the public in accordance with the terms and
conditions of the Trust Agreement;
WHEREAS, the Trust desires to engage the services of the Paying Agent to
assume certain responsibilities and to perform certain duties as the paying
agent, transfer agent and registrar with respect to the STRYPES upon the terms
and conditions of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such
responsibilities and to perform such duties, subject to the supervision of the
Trust, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
- ----------
<PAGE>
Exhibit (k)(2)
(sm)Service mark of Merrill Lynch & Co., Inc.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the respective meanings specified in the Trust Agreement.
ARTICLE II
PAYING AGENT
2.1 APPOINTMENT OF PAYING AGENT AND ACCEPTANCE. The Trust Agreement
provides that The Bank of New York shall act as the initial Paying Agent. The
Bank of New York accepts such appointment and agrees to act in accordance with
its standard procedures and the provisions of the Trust Agreement and the
provisions set forth in this Article II as Paying Agent with respect to the
STRYPES. Without limiting the generality of the foregoing, The Bank of New York,
as Paying Agent, agrees that it shall establish and maintain the Trust Account,
subject to the provisions of Section 2.3 hereof.
2.2 CERTIFICATES AND NOTICES. The Trust shall deliver to the Paying Agent
the certificates and notices required to be delivered to the Paying Agent
pursuant to the Trust Agreement, and the Paying Agent shall mail or publish such
certificates or notices as required by the Trust Agreement, but the Paying Agent
shall have no responsibility to confirm or verify the accuracy of certificates
or notices of the Trust so delivered.
2.3 PAYMENTS AND INVESTMENTS. The Paying Agent shall make payments out of
the Trust Account as provided for in Section 3.2 of the Trust Agreement. The
Paying Agent on behalf of the Trust shall take the actions set forth in Sections
2.6, 2.7, 2.8, 3.4 and 8.3 of the Trust Agreement upon instructions to do so
from the Administrator (except that with respect to its obligations under
Section 8.3 of the Trust Agreement, the Paying Agent shall act without
instructions from the Administrator) and shall invest moneys on deposit in the
Trust Account in Temporary Investments in accordance with Section 3.4 of the
Trust Agreement. Except as otherwise specifically provided herein or in the
Trust Agreement, the Paying Agent shall not have the power to sell, transfer or
otherwise dispose of any Temporary Investment prior to the maturity thereof, or
to acquire additional Temporary Investments. The Paying Agent shall hold any
Temporary Investment to its maturity and shall apply the proceeds thereof paid
upon maturity to the payment of the next succeeding Quarterly Distribution. All
2
<PAGE>
Exhibit (k)(2)
such Temporary Investments shall be selected by the Trust from time to time or
pursuant to standing instructions from the Trust, and the Paying Agent shall
have no liability to the Trust or any Holder or any other Person with respect to
any such Temporary Investment.
2.4 INSTRUCTIONS FROM ADMINISTRATOR. The Paying Agent shall receive and
execute all instructions from the Administrator, except to the extent they
conflict with or are contrary to the terms of the Trust Agreement or this
Agreement.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
3.1 ORIGINAL ISSUE OF CERTIFICATES. On the date the STRYPES sold pursuant
to the Purchase Agreement are originally issued, certificates for the STRYPES
shall be issued by the Trust, and, at the written request of the Trust,
registered in such names and such denominations as the Underwriter shall have
previously requested of the Trust, executed manually or in facsimile by the
Managing Trustee and countersigned by the Paying Agent. At no time shall the
aggregate number of STRYPES represented by such countersigned certificates
exceed the number of then outstanding STRYPES.
3.2 REGISTRY OF HOLDERS. The Paying Agent shall maintain a registry of the
Holders of the STRYPES.
3.3 REGISTRATION OF TRANSFER OF THE STRYPES. The STRYPES shall be
registered for transfer or exchange, and new certificates shall be issued, in
the name of the designated transferee or transferees, upon surrender of the old
certificates in form deemed by the Paying Agent properly endorsed for transfer
with (a) all necessary endorsers' signatures guaranteed in such manner and form
as the Paying Agent may require by a guarantor reasonably believed by the Paying
Agent to be responsible, (b) such assurances as the Paying Agent shall deem
necessary or appropriate to evidence the genuineness and effectiveness of each
necessary endorsement and (c) satisfactory evidence of compliance with all
applicable laws relating to the collection of taxes or funds necessary for the
payment of such taxes.
3.4 LOST CERTIFICATES. If there shall be delivered to the Paying Agent (i)
evidence to its satisfaction of the destruction, loss or theft of any
certificate for a STRYPES and (ii) such security or indemnity as may be required
by it to hold it and any of its agents harmless, then, in the absence of notice
to the Paying Agent that such certificate has been acquired by a bona fide
purchaser, the Managing Trustee shall execute and upon its request the Paying
Agent shall countersign and deliver, in lieu of any such destroyed, lost or
stolen
3
<PAGE>
Exhibit (k)(2)
certificate, a new security of like tenor, and bearing a number not
contemporaneously outstanding. Any request by the Managing Trustee to the Paying
Agent to issue a replacement or new certificate pursuant to this Section 3.4
shall be deemed to be a representation and warranty by the Trust to the Paying
Agent that such issuance will comply with provisions of law, the Trust Agreement
and the resolutions adopted by the Trustees with respect to lost securities. If
after the delivery of such new certificate, a bona fide purchaser of the
original certificate in lieu of which such new certificate was issued presents
for payment such original certificate, the Trust and the Paying Agent shall be
entitled to recover such new certificate from the person to whom it was
delivered or any transferee thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Trust or the Paying
Agent in connection therewith. Upon the issuance of any new certificate under
this Section 3.4, the Trust and the Paying Agent may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Paying Agent) connected therewith.
3.5 TRANSFER BOOKS. The Paying Agent shall maintain the transfer books
listing the Holders of the STRYPES. In case of any written request or demand for
the inspection of the transfer books of the Trust or any other books in the
possession of the Paying Agent, the Paying Agent will notify the Trust and
secure instructions as to permitting or refusing such inspection. The Paying
Agent reserves the right, however, to exhibit the transfer books or other books
to any person in case it is advised by its counsel that its failure to do so
would be unlawful.
3.6 DISPOSITION OF CANCELLED CERTIFICATES; RECORDS. The Paying Agent shall
retain certificates which have been cancelled in transfer or in exchange and
accompanying documentation in accordance with applicable rules and regulations
of the Securities and Exchange Commission (the "Commission") for six calendar
years from the date of such cancellation, and shall make such records available
during this period at any time, or from time to time, for reasonable periodic,
special, or other examinations by representatives of the Commission and the
Board of Governors of the Federal Reserve System. In case of any request or
demand for the inspection of the register of the Trust or any other books in the
possession of the Paying Agent, the Paying Agent will notify the Trust and seek
to secure instructions as to permitting or refusing such inspection. The Paying
Agent reserves the right, however, to exhibit the register or other records to
any person in case it is advised by its counsel that its failure to do so would
(i) be unlawful, or (ii) expose it to liability, unless the Trust shall have
offered indemnification satisfactory to the Paying Agent.
ARTICLE IV
4
<PAGE>
Exhibit (k)(2)
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Paying Agent that:
(a) the Trust is a validly existing business trust under the
Delaware Act and has full power under the Trust Agreement to execute and deliver
this Agreement and to authorize, create and issue the STRYPES;
(b) this Agreement has been duly and validly authorized, executed
and delivered by the Trust and constitutes the valid and binding agreement of
the Trust, enforceable against the Trust in accordance with its terms, subject
as to such enforceability to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equitable principles;
(c) the form of the certificate evidencing the STRYPES complies with
all applicable laws of the State of Delaware and the State of New York;
(d) the STRYPES have been duly and validly authorized, executed and
delivered by the Trust and are validly issued;
(e) the offer and sale of the STRYPES subject to the Purchase
Agreement has been registered under the Securities Act and the Trust has been
registered under the Investment Company Act and no further action by or before
any governmental body or authority of the United States or of any state thereof
is required in connection with the execution and delivery of this Agreement or
the issuance of the STRYPES;
(f) the execution and delivery of this Agreement and the issuance
and delivery of the STRYPES do not and will not conflict with, violate, or
result in a breach of, the terms, conditions or provisions of, or constitute a
default under, the Trust Agreement, any law or regulation, any order or decree
of any court or public authority having jurisdiction over the Trust, or any
mortgage, indenture, contract, agreement or undertaking to which the Trust is a
party or by which it is bound; and
(g) no taxes are payable upon or in respect of the execution of this
Agreement or the issuance of the STRYPES.
ARTICLE V
5
<PAGE>
Exhibit (k)(2)
DUTIES AND RIGHTS
5.1 DUTIES. (a) The Paying Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any other Person by reason of this
Agreement.
(b) In the absence of bad faith, gross negligence or willful misfeasance
on its part in the performance of its duties hereunder or its reckless disregard
of its duties and obligations hereunder, the Paying Agent shall not be liable
for any action taken, suffered, or omitted in the performance of its duties
under this Agreement or in accordance with any direction or request of the
Managing Trustee not inconsistent with the provisions of this Agreement. The
Paying Agent shall under no circumstances be liable for any punitive, exemplary,
indirect or consequential damages hereunder.
5.2 RIGHTS. (a) The Paying Agent may rely and shall be protected in acting
or refraining from acting upon any communication authorized hereby and upon any
written instruction, notice, request, direction, consent, report, certificate,
share certificate or other instrument, paper or document reasonably believed by
it to be genuine. The Paying Agent shall not be liable for acting upon any
telephone communication authorized hereby which the Paying Agent believes in
good faith to have been given by the Managing Trustee.
(b) The Paying Agent may consult with legal counsel and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Paying Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Paying Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys appointed with
due care by it hereunder but shall be liable for the acts and omissions of such
persons to the same extent as if the functions had been performed by the Paying
Agent itself.
5.3 DISCLAIMER. The Paying Agent makes no representation as to (a) the
first two recitals of this Agreement or (b) the validity, sufficiency,
marketability or adequacy of the STRYPES.
5.4 COMPENSATION, EXPENSES AND INDEMNIFICATION. (a) The Paying Agent shall
receive for all services rendered by it under this Agreement and, upon the prior
written approval of the Trust, for all reasonable expenses, disbursements and
advances
6
<PAGE>
Exhibit (k)(2)
incurred or made by the Paying Agent in accordance with any provision of this
Agreement (including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), the compensation set forth in Section
3.1 of the Administration Agreement.
(b) The Trust shall indemnify the Paying Agent for and hold it
harmless against any loss, liability or claim arising out of or in connection
with the performance of its obligations under this Agreement and any reasonable
cost or expense (including the reasonable costs of investigation, preparation
for and defense of legal and/or administrative proceedings relating to a claim
against it and reasonable attorneys' fees and disbursements) incurred in
connection with any such loss, liability or claim, provided such loss,
liability, claim or reasonable cost or expense is not the result of gross
negligence, willful misfeasance or bad faith on its part in the performance of
its duties hereunder or its reckless disregard of its duties or obligations
hereunder. Notwithstanding the foregoing, it is understood that (i) the Trust
shall not, in respect of the legal expenses of the Paying Agent in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) and (ii) the Trust shall not be liable for any settlement of any
proceeding effected without the written consent of the Trust, but if settled
with such consent or if there be a final judgment for the third party claimant,
the Trust agrees to indemnify the Paying Agent from and against any loss or
liability by reason of such settlement or judgment. The indemnification provided
by this Section 5.4(b) shall survive the termination of this Agreement.
7
<PAGE>
Exhibit (k)(2)
ARTICLE VI
MISCELLANEOUS
6.1 TERM OF AGREEMENT. (a) The term of this Agreement is unlimited unless
terminated as provided in this Section 6.1 or unless the Trust is dissolved, in
which case this Agreement shall terminate ten days after the date of dissolution
of the Trust. This Agreement may be terminated by either party hereto without
penalty upon 60 days prior written notice to the other party hereto; provided
that neither party hereto may terminate this Agreement pursuant to this Section
6.1(a) unless a successor Paying Agent shall have been appointed and shall have
accepted the duties of the Paying Agent. Notwithstanding the foregoing, the
termination of the Trust Agreement, the Nominee Trust Agreement, the
Administration Agreement or the Custodian Agreement or the resignation or
removal of the Custodian shall cause the termination of this Agreement
simultaneously therewith. If, within 30 days after notice by the Paying Agent of
termination of this Agreement, no successor Paying Agent shall have been
selected and accepted the duties of the Paying Agent, the Paying Agent may apply
to a court of competent jurisdiction for the appointment of a successor Paying
Agent.
(b) The respective rights and duties of the Trust and the Paying
Agent under this Agreement shall cease upon termination of this Agreement,
except as otherwise provided in this paragraph (b) and except that Section 5.4
hereof shall survive the termination of this Agreement. Upon termination of this
Agreement, the Paying Agent shall, at the Trust's request, promptly deliver to
the Trust or to any successor Paying Agent as requested by the Trust (i) copies
of all books and records maintained by it and (ii) any funds deposited with the
Paying Agent by the Trust.
6.2 COMMUNICATIONS. All notices, requests and other communications given
by any party under this Agreement shall be directed as follows (or to such other
address for a particular party as shall be specified by such party in a like
notice given pursuant to this Section 6.2):
The Trust: WBK STRYPES Trust
c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
8
<PAGE>
Exhibit (k)(2)
The Paying Agent: The Bank of New York
101 Barclay Street
12th Floor, East
New York, New York 10286
Telephone: (212) 815-5366
Telecopier: (212) 815-7157
A copy of any notice, request or other communication given by any party
under this Agreement shall be directed to the Administrator if the duties of the
Administrator are being performed by a Person other than the Person performing
the obligations of the Paying Agent. Except for communications authorized to be
made by telephone pursuant to this Agreement, each such notice, request or
communication shall be in writing and shall be deemed to have been duly given if
either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery) to the offices set forth above, in which case they shall
be deemed received on the first Business Day by which delivery shall have been
made to said offices, (ii) transmitted by any standard form of telecommunication
to the offices set forth above, in which case they shall be deemed received on
the first Business Day by which a standard confirmation that such transmission
occurred is received by the transmitting party (unless such confirmation states
that such transmission occurred after 5:00 P.M. on such first Business Day, in
which case delivery shall be deemed to have been received on the immediately
succeeding Business Day), or (iii) sent by certified mail, return receipt
requested to the offices set forth above, in which case they shall be deemed
received when receipted for unless acknowledgment of receipt is refused (in
which case delivery shall be deemed to have been received on the first Business
Day on which such acknowledgment is refused). Communications shall be given by
the Trust (or by the Administrator, provided that the Trust shall not have
delivered to the Paying Agent an instrument in writing revoking the
authorization of the Administrator to act for it pursuant hereto) and on behalf
of the Paying Agent by a Relationship Manager.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties relating to the subject matter hereof.
6.4 NO THIRD PARTY BENEFICIARIES. Nothing herein, express or implied,
shall give to any Person, other than the Trust, the Paying Agent and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
9
<PAGE>
Exhibit (k)(2)
6.5 AMENDMENT; WAIVER. (a) This Agreement shall not be deemed or construed
to be modified, amended, rescinded, cancelled or waived, in whole or in part,
except by a written instrument signed by a duly authorized representative of the
party to be charged. The Trust shall notify the Paying Agent of any change in
the Trust Agreement prior to the effective date of any such change.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
6.6 SUCCESSORS AND ASSIGNS. Any corporation into which the Paying Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Paying Agent shall be a party, shall be the successor Paying Agent hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto, provided
that such corporation meets the requirements set forth in the Trust Agreement,
provided further that the Trust has given its prior written consent to the
Paying Agent with respect to any such merger, conversion or consolidation. This
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the respective successors of each of the Trust and the Paying Agent. This
Agreement shall not be assignable by either the Trust or the Paying Agent,
without the prior written consent of the other party.
6.7 SEVERABILITY. If any clause, provision or section hereof shall be
ruled invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
6.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6.9 GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
10
<PAGE>
Exhibit (k)(2)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
WBK STRYPES TRUST
By:
-------------------------------------
Donald J. Puglisi,
as Managing Trustee
THE BANK OF NEW YORK
By:
-------------------------------------
Name: Betty Cocozza
Title:
11
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
WBK STRYPES TRUST
FORWARD PURCHASE CONTRACT
Dated: ________________, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
I.
Definitions.............................. 2
1.1. Definitions.............................................. 2
"Acceleration Amount".............................. 2
"Acceleration Amount Notice"....................... 2
"Acceleration Date"................................ 2
"Acceleration Value"............................... 2
"Adjusted Present Value"........................... 3
"Adjusted Treasury Rate"........................... 3
"Administrator".................................... 3
"Aggregate Acceleration Value"..................... 3
"Agreement"........................................ 3
"AMP or Seller Event of Default"................... 3
"Adjusted Present Value"........................... 4
"Asset Value"...................................... 4
"Asset Value Requirement".......................... 4
"ASX".............................................. 4
"Australian Government Securities"................. 4
"Australian Trust"................................. 5
"Bank"............................................. 5
"Bank ADSs" or "ADSs".............................. 5
"Bank Ordinary Shares"............................. 5
"Bankruptcy Code".................................. 5
"Business Day"..................................... 5
"Cash Dissolution Event"........................... 5
"Cash Payment Amount".............................. 5
"Cash Reorganization Amount"....................... 5
"Cash Reorganization Price"........................ 5
"Cash Settlement Option"........................... 5
"CHESS"............................................ 5
"CHESS Identification"............................. 5
"Closing".......................................... 5
"Closing Date"..................................... 5
"Closing Price".................................... 5
"Comparable Treasury Issue"........................ 6
"Comparable Treasury Price"........................ 6
"Contract Commitment".............................. 6
"Contract Consideration"........................... 7
"Corporations Law"................................. 7
"Custodian"........................................ 7
"Date of Delivery"................................. 7
"delivery"......................................... 7
ii
<PAGE>
"Dissolution Event"................................ 7
"Distributed Assets"............................... 7
"Eligible Exchange Property"....................... 8
"Escrow Account"................................... 8
"Escrow Agent"..................................... 8
"Escrow Agreement"................................. 8
"Escrow Amount".................................... 8
"Event of Default"................................. 8
"Exchange Agent"................................... 8
"Exchange Amount".................................. 8
"Exchange Date".................................... 8
"Exchange Property"................................ 8
"Exchange Property Event of Default"............... 9
"Exchange Property Requirement".................... 9
"Extraordinary Cash Dividend"...................... 9
"Firm Consideration Amount"........................ 9
"Firm Contract Commitment"......................... 9
"Firm Payment Date"................................ 9
"Government Securities"............................ 9
"Indebtedness"..................................... 10
"Independent Dealers".............................. 10
"Ineligible Exchange Property"..................... 10
"Initial Amount"................................... 10
"Initial Price".................................... 10
"Initial STRYPES".................................. 10
"Insufficiency Determination"...................... 10
"Lien"............................................. 10
"Market Value"..................................... 10
"Maximum Contract Commitment"...................... 11
"Maximum Contract Consideration"................... 11
"Maximum Deliverable Number"....................... 11
"Nominee Trust Agreement".......................... 11
"NYSE"............................................. 11
"Option Consideration Amount"...................... 11
"Option Contract Commitment"....................... 11
"Option STRYPES"................................... 11
"Partial Cash Distribution Date"................... 11
"Partial Cash Distribution Event".................. 11
"Person"........................................... 11
"Prior Exchange Property".......................... 11
"Purchase Agreement"............................... 12
"Purchaser"........................................ 12
"Purchaser Repayment Event"........................ 12
"Quotation Agent".................................. 12
iii
<PAGE>
"Reference Date"................................... 12
"Reference Property"............................... 12
"Reference Property Value"......................... 12
"Reference Security"............................... 12
"Reference Security Issuer Dissolution Event"...... 12
"Reference Treasury Dealer"........................ 13
"Reference Treasury Dealer Quotations"............. 13
"Remaining Life"................................... 13
"Reorganization Event"............................. 13
"Responsible Officer".............................. 14
"Scheme of Arrangement"............................ 14
"Securities Account"............................... 14
"Securities Act"................................... 14
"Seller"........................................... 14
"Seller Repayment Event"........................... 14
"Settlement Date".................................. 14
"Sponsoring Broker"................................ 14
"Sponsorship Agreement"........................... 14
"STRYPES".......................................... 14
"STRYPES Trustee" or "Trustee"..................... 14
"Tax".............................................. 15
"Threshold Appreciation Price"..................... 15
"Trading Day"...................................... 15
"Transfer Restriction"............................. 15
"Trust Agreement".................................. 16
"Trustees"......................................... 16
"Underwriter"...................................... 16
"U.S. Government Securities"....................... 16
"U.S. Dollar Equivalent"........................... 16
II.
Contract Consideration or Cash Settlement............... 16
2.1. Sale and Purchase........................................ 16
2.2. Consideration............................................ 17
2.3. Delivery of Contract Consideration....................... 18
2.4. No Fractional Interests.................................. 19
2.5. Cash Settlement Option................................... 20
2.6. Conditions to Purchaser's Obligations.................... 21
2.7. The Seller............................................... 21
III.
Reference Property Adjustments..................... 22
iv
<PAGE>
3.1. (a) Adjustment for Subdivisions, Splits, Combinations
or Reclassifications............................... 22
(b) Adjustment for Issuance of Certain Rights or Warrants.... 23
(c) Adjustment for Distributions............................. 24
(d) Adjustment for Consolidation, Merger or Other
Reorganization Event..................................... 24
3.2. Cash Distribution Events................................. 25
IV.
Representations and Warranties of the Seller,
AMP and National Australia Trustees...................... 26
(a) Representations and Warranties of the Seller
and AMP ........................................... 26
(b) Representations and Warranties of AMP.............. 28
(c) Representations and Warranties of National
Australia Trustees................................. 30
Representations and Warranties of Purchaser................................ 31
Covenants.................................................................. 33
6.1. Exchange Property........................................ 33
6.2. Affirmative Covenants.................................... 33
6.3. Negative Covenants....................................... 34
6.4. Taxes.................................................... 34
6.5. Tax Treatment............................................ 35
6.6. Certain Notices.......................................... 35
6.7. Limitations on Trading During Certain Days............... 36
6.8. Further Assurances....................................... 36
6.9. The Bank (Shareholdings) Act 1972........................ 36
VII.
Administration of Exchange Property.................. 37
7.1. [Intentionally Deleted].................................. 37
7.2. Valuation of Exchange Property........................... 37
7.3. Substitution of Exchange Property........................ 37
7.4. Additional Exchange Property............................. 38
7.5. Examination of Exchange Property......................... 38
7.6. Insufficiency Determination.............................. 38
7.7. Transfer of Excess Exchange Property..................... 39
7.8. Maintenance of Exchange Property......................... 40
7.9. Investment of Cash Exchange Property..................... 40
7.10. Delivery of Contract Consideration....................... 41
7.11. Other Provisions Regarding the Exchange Property......... 41
v
<PAGE>
(a) Further Protections...................................... 41
(b) Delay in Enforcement; No Waiver.......................... 41
(c) Actions by Seller........................................ 42
vi
<PAGE>
VIII.
Distributions and other Matters in Respect of Exchange Property.... 42
IX.
Acceleration of Delivery........................ 43
9.1. Liquidation of Agreement Upon Event of Default........... 43
9.2. Cash Dissolution Event or Reference Security Issuer
Dissolution Event; Delivery.............................. 44
X.
Seller................................. 44
10.1. Duties of Seller......................................... 44
10.2. Reliance................................................. 44
10.3. Liability of Seller...................................... 44
10.4. Risk of Funds............................................ 45
10.5. Use of Sub-Agents or Attorneys........................... 45
10.6. Recitals and Statements.................................. 45
10.7. Knowledge................................................ 45
10.8. Merger................................................... 45
10.9. Resignation of Seller................................... 46
10.10. Removal................................................. 46
10.11. Release of Seller....................................... 46
10.12. Appointment of Successor................................ 46
10.13. Acceptance by Successor................................. 46
10.14. Limitation of Liability................................. 47
XI.
Miscellaneous............................. 47
11.1. Adjustments to Reference Property; Selection of
Independent Firm......................................... 47
11.2. Notices.................................................. 48
11.3. Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process................................ 48
(a) Consent to Jurisdiction............................. 48
(b) Appointment of Service Agent........................ 48
11.4. Survival................................................. 49
11.5. Waiver of Immunities..................................... 49
11.6. Judgment Currency........................................ 49
11.7. Governing Law; Consent to Jurisdiction................... 50
11.8. WAIVER OF JURY TRIAL..................................... 50
11.9. Headings; Entire Agreement............................... 50
vii
<PAGE>
11.10. Amendments; Waivers..................................... 50
11.11. Termination............................................. 50
11.12. Successors, Assigns..................................... 51
11.13. No Third Party Rights................................... 51
11.14. Application of Bankruptcy Code.......................... 51
11.15. Counterparts............................................ 51
11.16. Trustees................................................ 51
EXHIBIT A Option Unit Pricing Agreement..........................Ex A-1
EXHIBIT B Certificate for Substituted Exchange Property..........Ex B-1
EXHIBIT C Certificate for Additional Exchange Property...........Ex C-1
viii
<PAGE>
FORWARD PURCHASE CONTRACT
This Forward Purchase Contract is made as of this ____ day of September
__, 1997 among WBK STRYPES Trust, a business trust organized pursuant to the
Business Trust Act of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust and the trustees
thereof acting in their capacity as such being referred to herein as the
"Purchaser"), The Bank of New York, a New York banking corporation ("BONY"), as
agent and custodian for and on behalf of the Purchaser or any other custodian
appointed by BONY (together with BONY, the "Custodian") and as Administrator (as
defined herein), National Australia Trustees Limited, ACN 007 350 405 ("National
Australia Trustees"), acting as trustee for a trust arrangement (the "Australian
Trust"), established pursuant to the Nominee Trust Agreement (National Australia
Trustees, in such capacity, being referred to herein as the "Seller"), and
Australian Mutual Provident Society, ARBN 008 387 371, an Australian mutual
insurance company ("AMP").
WHEREAS, the Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 (File Nos. 333-1787 and
811-7565) and Pre-Effective Amendments No. 1, No. 2, No. 3, No. 4, No. 5, No. 6,
No. 7, No. 8 and No. 9 thereto contemplating the offering of up to 25,000,000 of
its Structured Yield Product Exchangeable for Stock(SM) (the "STRYPES"), the
terms of which contemplate that, on , 2000 (the "Exchange Date"), each
outstanding STRYPES will be exchanged for a specified number or amount of each
type of Reference Security (as defined herein) and other property constituting
part of the Reference Property (as defined herein) (or, under certain
circumstances, cash, or a combination of cash and Reference Property, with an
equal value).
WHEREAS, the Purchaser has agreed, pursuant to a purchase agreement dated
the date hereof (the "Purchase Agreement") among the Purchaser, the Seller, AMP
and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter"), to
issue and sell to the Underwriter an aggregate of 25,000,000 STRYPES (the
"Initial STRYPES") and, at the Underwriter's option, all or any part of
3,750,000 additional STRYPES (the "Option STRYPES") to cover over-allotments, if
any.
WHEREAS, the STRYPES are to be issued pursuant to an Amended and Restated
Trust Agreement, dated as of September __, 1997 (the "Trust Agreement"), among
the trustees of the Purchaser and ML IBK Positions, Inc., as Sponsor.
WHEREAS, in exchange for certain consideration to be paid by the Purchaser
hereunder, the Purchaser, the Seller and AMP desire to provide for the future
acquisition, sale and delivery of the aggregate number or amount of each type of
Reference Security and other property
- --------
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
constituting part of the Reference Property (or, under certain circumstances,
cash, or a combination of cash and Reference Property, with equal value)
required by the Purchaser in order to exchange all of the STRYPES on the
Exchange Date or earlier as described herein, at the prices established under
this Agreement.
WHEREAS, AMP beneficially owns at least ______ ordinary shares, par value
A$1.00 per share (the "Bank Ordinary Shares"), of Westpac Banking Corporation,
an Australian bank (the "Bank").
WHEREAS, pursuant to a Nominee Trust Agreement, dated as of September __,
1997 (the "Nominee Trust Agreement"), among National Australia Trustees as
trustee and AMP as beneficiary, on ________________, 1997, an aggregate of
_____________ Bank Ordinary Shares are held by the Seller as trustee for AMP and
the Seller has entered this agreement at the direction of AMP.
WHEREAS, the Seller, AMP and the Purchaser desire that beneficial
ownership of the Exchange Property (as defined herein) (including, without
limitation, voting rights and rights to receive any dividends, interest,
distributions and other payments in respect thereof) remain in AMP until the
Contract Consideration is vested in or delivered to the Purchaser pursuant to
the provisions of this Agreement; provided, however, that dividends, interest,
distributions and other payments and the proceeds of any sale required or
permitted by the provisions hereof shall be held by the Seller pursuant to the
terms of the Nominee Trust Agreement to the extent such dividends, interest,
distributions and other payments or proceeds constitute part of the Reference
Property.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereto, intending to be legally bound,
hereby mutually covenant and agree as follows:
I.
Definitions
1.1. Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following
terms, when used herein, shall have the following meanings:
"Acceleration Amount" has the meaning specified in Section 9.1
hereof.
"Acceleration Amount Notice" has the meaning specified in Section
9.1 hereof.
"Acceleration Date" means the date on which an Event of Default
shall have occurred.
2
<PAGE>
"Acceleration Value" has the meaning specified in Section 9.1
hereof.
"Adjusted Present Value" has the meaning specified in Section 3.2
hereof.
"Adjusted Treasury Rate" means, with respect to any Cash Dissolution
Event or Partial Cash Distribution Event, the rate per annum equal to (i)
the yield, under the heading which represents the average for the
immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor publication
which is published weekly by the Federal Reserve Board and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity corresponding to the Remaining Life (if no
maturity is within three months before or after the maturity corresponding
to the Remaining Life, yields for the two published maturities most
closely corresponding to the Remaining Life will be interpolated, and the
Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month) or (ii) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for the date on which such event is
consummated, in each case calculated on the third Business Day preceding
the date on which such event is consummated.
"Administrator" means The Bank of New York, the Administrator for
the Purchaser under the Administration Agreement to be dated as of
September __, 1997, or any successor thereto (the "Administration
Agreement").
"Aggregate Acceleration Value" has the meaning specified in Section
9.1 hereof.
"Agreement" means this Forward Purchase Contract and any schedules
and exhibits hereto.
"AMP or Seller Event of Default" means any of the following:
(i) AMP or the Seller shall commence a voluntary action or other
proceeding seeking a liquidation, reorganization or other relief with
respect to itself or its debts under the bankruptcy, insolvency or other
similar law now or hereafter applicable to AMP or the Seller, as the case
may be, or seeking the appointment of a trustee, receiver, administrator,
liquidator, custodian, judicial manager or other similar official of it or
any substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in an
involuntary action or other proceeding commenced against it, or shall take
any corporate action to authorize any of the foregoing; or
(ii) an involuntary action or other proceeding shall be commenced
against AMP or the Seller seeking liquidation, reorganization or other
relief with respect to it or its
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<PAGE>
debts under the bankruptcy, insolvency or other similar law now or
hereafter in effect applicable to AMP, or the Seller, as the case may be,
or seeking the appointment of a trustee, receiver, liquidator,
administrator, custodian, judicial manager or other similar official of it
or any substantial part of its property or AMP or the Seller's assets
shall become subject to the jurisdiction of a bankruptcy court or similar
forum; or an order for relief or similar decree shall be entered against
AMP or the Seller under bankruptcy, insolvency or other similar law now or
hereafter in effect except in each case for such actions or other
proceedings that are being contested in good faith; provided that such
involuntary action or proceeding shall be disregarded where AMP or the
Seller (as the case may be) has applied to a court of competent
jurisdiction within two Business Days of the commencement of such action
to strike out the action or other proceeding and where that court has
within five Business Days of the commencement of such action or other
proceeding struck out that action or other proceeding for the reason that
it was frivolous or vexatious, and in such circumstances the provisions of
Section 2.7 shall be deemed never to have operated; or
(iii) so long as the Reference Property includes Bank Ordinary
Shares and the Exchange Property held by the Seller includes Bank Ordinary
Shares held through CHESS, the Sponsoring Broker shall have resigned or
been removed and a replacement Sponsoring Broker shall not have been
appointed within two Business Days of the effective date of such
resignation or removal; or
(iv) all or a material part of this Agreement is terminated or is or
becomes void, illegal, invalid, unenforceable or of limited force and
effect; provided that the demutualization of AMP shall not constitute an
AMP or Seller Event of Default so long as in the opinion of counsel
acceptable to the Purchaser (acting reasonably) such demutualization will
not materially and adversely affect the ability of AMP or its successor in
the case of a demutualization or the Seller to perform its obligations
hereunder.
"Adjusted Present Value" has the meaning specified in Section 3.2
hereof.
"Asset Value" means, as of any date and with respect to any
particular type of Exchange Property, an amount equal to the aggregate
Market Value of such Exchange Property divided by the Exchange Property
Requirement for such Exchange Property.
"Asset Value Requirement" means, as of any date, the aggregate
Market Value on such date of the Maximum Contract Consideration on such
date, adjusted to reflect the Exchange Property Requirement with respect
to Government Securities held by the Seller as Exchange Property.
"ASX" means Australian Stock Exchange Limited (ACN 008 624 691).
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<PAGE>
"Australian Government Securities" means direct obligations of the
Commonwealth of Australia that mature on a date that is 90 days or less
from the date such obligations are acquired by the Seller hereunder, but
in any event prior to the Closing Date.
"Australian Trust" has the meaning specified on the first paragraph
of this Agreement.
"Bank" has the meaning specified in the fifth recital in this
Agreement.
"Bank ADSs" or "ADSs" means any American Depositary Shares of the
Bank.
"Bank Ordinary Shares" has the meaning specified in the fifth
recital in this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code.
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which the NYSE, the National Association of Securities Dealers,
Inc. National Market, or banking institutions or trust companies in The
City of New York and any other place where payment under this Agreement or
the Escrow Agreement is required to be made are authorized or obligated by
law or executive order to close.
"Cash Dissolution Event" has the meaning specified in the definition
of Reorganization Dissolution Event.
"Cash Payment Amount" has the meaning specified in Section 2.5(a)
hereof.
"Cash Reorganization Amount" has the meaning specified in Section
3.2 hereof.
"Cash Reorganization Price" has the meaning specified in Section 3.2
hereof.
"Cash Settlement Option" has the meaning specified in Section 2.5(a)
hereof.
"CHESS" means the Securities Clearing House System operated by ASX
to facilitate uncertificated share transfer and registration.
"CHESS Identification" means the holder identification number (HIN)
given to a holder of shares to facilitate the registration and transfer of
shares on CHESS.
"Closing" has the meaning specified in Section 2.3 hereof.
"Closing Date" means any date of the Closing.
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<PAGE>
"Closing Price" of (i) a Bank Ordinary Share constituting a
Reference Security on any date of determination means (a) (w) the closing
sale price per ADS (or, if no closing sale price per ADS is reported, the
last reported per ADS sale price) of Bank ADSs on the NYSE on such date
or, if Bank ADSs are not listed for trading on the NYSE on such date, as
reported in the composite transactions for the principal United States
securities exchange on which Bank ADSs are so listed, or, if Bank ADSs are
not so listed, as reported by National Association of Securities Dealers,
Inc. Automated Quotation System, or if Bank ADSs are not so reported, the
last quoted per ADS bid price for Bank ADSs in the over-the-counter market
as reported by the National Quotation Bureau or similar organization,
divided by (x) the number of Bank Ordinary Shares represented by Bank ADSs
on such date of determination, or (b) if Bank ADSs are not outstanding or
traded, (y) the closing price per share (or, if no closing price per share
is reported, the last reported per share sale price) of Bank Ordinary
Shares on the ASX on such date or, if Bank Ordinary Shares are not listed
for trading on the ASX on such date, the per share market value of Bank
Ordinary Shares on such date as determined by a nationally recognized
independent investment banking firm in Australia retained for this purpose
by the Administrator, multiplied by (z) the U.S. dollar noon buying rate
in New York City for cable transfers of Australian dollars for U.S.
dollars as certified by the Federal Reserve Bank of New York on such date;
and (ii) a Reference Security other than a Bank Ordinary Share on any date
of determination means the closing sale price (or, if no closing price is
reported, the last reported sale price) of such security on the NYSE on
such date or, if such security is not listed for trading on the NYSE on
such date, as reported in the composite transactions for the principal
United States securities exchange on which such security is so listed, or,
if such security is not so listed on a United States exchange, as reported
by National Association of Securities Dealers, Inc. Automated Quotation
System, or, if such security is not so reported, the last quoted bid price
for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, or, if such bid price
is not available, the U.S. dollar equivalent of the market value of such
security on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable
to the Remaining Life that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the Remaining Life. If
no United States Treasury security has a maturity which is within a period
from three months before to three months after the occurrence of the Cash
Dissolution Event or Partial Cash Distribution Event, as the case may be,
the two most closely corresponding United States Treasury securities will
be used as the Comparable Treasury Issue, and the Adjusted Treasury Rate
will be interpolated or extrapolated on a straight-line basis, rounding to
the nearest month, using such securities.
"Comparable Treasury Price" means, with respect to any Cash
Dissolution Event or Partial Cash Distribution Event, (a) the average of
five Reference Treasury Dealer
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<PAGE>
Quotations for the date on which such event is consummated, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (b) if the Paying Agent obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Contract Commitment" initially means the Firm Contract Commitment
and shall be increased by each Option Contract Commitment as provided in
Section 2.1(b) hereof.
"Contract Consideration" means (i) in the case of a Closing under
Section 2.1 hereof, the aggregate number or amount of each type of
Reference Security and other property constituting part of the Reference
Property deliverable by the Seller on the Settlement Date as provided in
Section 2.1, and, to the extent that AMP has elected to exercise the Cash
Settlement Option or is required to deliver cash pursuant to Section
2.5(b) in lieu of Reference Property or in lieu of fractional interests in
Bank Ordinary Shares, cash (ii) in the case of a Closing under Section 9.1
hereof, the aggregate number or amount of each type of Reference Security
and other property constituting part of the Reference Property deliverable
by the Seller on the Acceleration Date as provided in Section 9.1 hereof;
(iii) in the case of a Closing under Section 9.2 hereof, the aggregate
number or amount of each type of Reference Security and other property
constituting part of the Reference Property deliverable by the Seller on
the Early Settlement Date as provided in Sections 2.3 and 9.2 hereof and
(iv) in the case of a Partial Cash Distribution Event, the amount as
provided in Section 3.2.
"Corporations Law" means the Corporations Laws of Australia.
"Custodian" means the financial institution identified as such in
the first paragraph of this Agreement, or any successor thereto.
"Date of Delivery" has the meaning specified in Section 2.1(b)
hereof.
"delivery" means (i) with respect to Reference Securities located on
an uncertificated CHESS subregister, transfer of such Reference Securities
to the Purchaser as contemplated in Section 2.3(c); (ii) the delivery of
cash, securities or other property, free and clear of all liens (other
than a lien created or permitted by this Agreement or a Lien created by
the Trust) (A) to the Seller at such location in Sydney, New South Wales,
Australia or The City of New York as it shall direct, in suitable form for
delivery and transfer, accompanied by duly executed instruments of
transfer or assignment in blank and accompanied by any required transfer
tax stamps or (B) to an account of the Seller in a clearing system (or
with a securities intermediary) acceptable to the Seller or (iii) with
respect to the delivery of Reference Securities located on an
uncertificated CHESS subregister, a transfer allowed or required to be
made to the Seller (if any) as a result of the operation of Section 3.1 of
this Agreement. The term "deliver" used as a verb has a corresponding
meaning.
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"Dissolution Event" means (i) an Exchange Property Event of Default,
(ii) an AMP or Seller Event of Default, (iii) a Reference Security Issuer
Dissolution Event, or (iv) any consolidation, merger or acquisition of an
issuer of a Reference Security with, into or by another entity in
connection with which all the Reference Securities constituting the
Reference Property immediately prior to the consolidation, merger or
acquisition are or are to be exchanged for consideration (such event being
a "Cash Dissolution Event") that consists solely of cash and no other
property.
"Distributed Assets" has the meaning specified in Section 3.1(c)
hereof.
"Eligible Exchange Property" means (i) the Bank Ordinary Shares
and/or cash, securities and other property constituting part of the
Reference Property, and (ii) Government Securities, provided, in each
case, that the Seller has good and marketable title thereto, free of all
Liens (other than the Liens created by this Agreement or the Nominee Trust
Agreement) and Transfer Restrictions and provided further that to the
extent the number or amount of any type of Reference Security or other
property constituting part of the Reference Property designated by AMP
hereunder exceeds at any time the Maximum Contract Commitment, such excess
number or amount thereof shall not be Eligible Exchange Property.
"Escrow Account" has the meaning specified in Section 2.2(e).
"Escrow Agent" means National Australia Bank Limited or any
successors thereto.
"Escrow Agreement" means the Escrow Agreement to be dated as of
September , 1997 between the Escrow Agent, AMP, the Seller and the
Purchaser.
"Escrow Amount" means U.S.$1,000,000.
"Event of Default" means either an Exchange Property Event of
Default or an AMP or Seller Event of Default or both.
"Exchange Agent" means, The Bank of New York in its capacity as
exchanger of foreign currency amounts received under this Agreement into
U.S. Dollars and as calculator of any U.S. Dollar Equivalent.
"Exchange Amount" means the number or amount of each type of
Reference Security and other property constituting part of the Reference
Property determined as of 10:00 A.M. (New York City time) on the second
Business Day preceding the Exchange Date as follows: (a) if the Reference
Property Value is greater than or equal to the Threshold Appreciation
Price, ____% of the number or amount of each type of Reference Property,
(b) if the Reference Property Value is less than the Threshold
Appreciation Price but is greater than the Initial Price, a percentage of
the number or amount of each type of Reference Property, allocated as
proportionately as practicable, so that the aggregate value
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<PAGE>
thereof is equal to the Initial Price, and (c) if the Reference Property
Value is less than or equal to the Initial Price, 100% of the number or
amount of each type of Reference Property.
"Exchange Date" has the meaning specified in the first recital in
this Agreement.
"Exchange Property" means all the cash, securities and other
property delivered to the Seller hereunder in respect of the Exchange
Amount and held by the Seller, including, without limitation, any
substitute Exchange Property delivered by AMP pursuant to Section 7.3,
cash, securities or other property purchased with cash delivered by AMP
pursuant to Section 7.9 or otherwise obtained by the Seller in respect of
the foregoing.
"Exchange Property Event of Default" means, at any time, (A) if no
Government Securities shall be held in substitution for Reference Property
at such time, failure of the assets held by the Seller to consist of at
least the Maximum Contract Consideration under this Agreement and (B) if
any Government Securities shall be owned by the Seller as substitute
assets for Reference Property at such time, failure of such Government
Securities to have an aggregate Market Value at such time equal to at
least 105% of the difference between (x) the Maximum Contract
Consideration and (y) the aggregate Market Value of the number or amount
of each type of Reference Security and other property constituting part of
the Reference Property held by the Seller at such time.
"Exchange Property Requirement" means, as of any date and with
respect to: (i) any Reference Security constituting part of the Reference
Property, 100%; and (ii) any Government Securities and other property,
150%, of the U.S. Dollar Equivalent provided that upon and after any
failure to cure an Insufficiency Determination by 4:00 P.M., New York City
time, on the third Business Day following telephonic notice of such
Insufficiency Determination as described in Section 7.6, which
insufficiency shall be continuing on such third Business Day, the Exchange
Property Requirement relating to any Government Securities shall be 200%
of the U.S. Dollar Equivalent.
"Extraordinary Cash Dividend" means, with respect to any consecutive
12-month period, the amount, if any, by which the aggregate amount of all
cash dividends or any other distribution made by the issuer of a Reference
Security or made pursuant to a Scheme of Arrangement effecting a
distribution of distributable profits or reserves (other than a bonus
issue), whether in cash or in specie, on any Reference Security consisting
of capital stock occurring in such 12-month period (or, if such Reference
Security was not outstanding at the commencement of such 12-month period
or was not then a part of the Reference Property, occurring in such
shorter period during which such Reference Security was outstanding and
was part of the Reference Property) exceeds on a per share basis 12% of
the average of the Closing Prices per share of such Reference Security
over such 12-month period (or such shorter period during which such
Reference Security was outstanding and was part of the Reference
Property); provided that, for purposes of the
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<PAGE>
foregoing definition, the amount of cash dividends paid on a per share
basis shall be appropriately adjusted to reflect the occurrence during
such period of any stock dividend or distribution of shares of capital
stock of the issuer of such Reference Security or any subdivision, split,
combination or reclassification of shares of such Reference Security.
"Firm Consideration Amount" has the meaning specified in Section
2.2(a) hereof.
"Firm Contract Commitment" has the meaning specified in Section
2.1(a) hereof.
"Firm Payment Date" has the meaning specified in Section 2.2(a)
hereof.
"Government Securities" includes only Australian Government
Securities and U.S. Government Securities.
"Indebtedness" means, without duplication, (i) indebtedness for
borrowed money, (ii) obligations evidenced by bonds, debentures, notes or
other similar instruments, (iii) obligations to pay the deferred purchase
price of property or services, (iv) obligations as lessee under leases
which shall have been or should be in accordance with generally accepted
accounting principles, recorded as capital leases, and (v) obligations
under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise
to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (iv)
above.
"Independent Dealers" has the meaning specified in Section 9.1
hereof.
"Ineligible Exchange Property" means Exchange Property that does not
constitute "Eligible Exchange Property."
"Initial Amount" means the amount specified in Section 2.2(a)
hereof.
"Initial Price" means initially $__________, provided that,
following the distribution of cash constituting Reference Property as a
result of a Partial Cash Distribution Event, the Initial Price will be the
product of the Initial Price in effect immediately prior to such
distribution and the fraction obtained by dividing (i) the result of
subtracting the aggregate Cash Reorganization Price for the Reference
Securities included in the Reference Property that were disposed of in
connection with such Partial Cash Distribution Event from the Reference
Property Value (computed as of the related Partial Cash Distribution Date
assuming such distribution had occurred), by (ii) the Reference Property
Value (computed as aforesaid), with such product being rounded to the
nearest cent.
"Initial STRYPES" has the meaning specified in the second recital in
this Agreement.
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"Insufficiency Determination" has the meaning specified in Section
7.6(a) hereof.
"Lien" means any lien, mortgage, security interest, pledge, charge,
encumbrance, claims or equity of any kind.
"Market Value" means, as of any date the U.S. Dollar Equivalent of
(a) with respect to any Reference Property consisting of cash, the amount
of such cash on such date; (b) with respect to any Reference Property
consisting of property other than cash or Reference Securities, the fair
market value (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Custodian) as of
such date; (c) with respect to any Reference Property consisting of a
Reference Security, an amount equal to the Closing Price of a unit of such
Reference Security on such date multiplied by the number of units of such
Reference Security then being valued; and (d) with respect to any
Government Security, the product of (x)(i) the average unit bid price for
such security as published on the Trading Day prior to such date in the
New York edition of The Wall Street Journal or The New York Times or, if
not so published, (ii) the lower bid price quoted (which quotation shall
be evidenced in writing) on the Trading Day prior to such date by either
of two nationally recognized dealers making a market in such security
which are members of the National Association of Securities Dealers, Inc.
and (y) the number of such units comprising the outstanding principal
amount of such security; provided that the "Market Value" of any
Ineligible Exchange Property shall be zero.
"Maximum Contract Commitment" has the meaning specified in Section
2.1(b) hereof.
"Maximum Contract Consideration" has the meaning specified in
Section 6.1 hereof.
"Maximum Deliverable Number" means, with respect to any date and
with respect to any type of Reference Security or other property
constituting part of the Reference Property, the maximum number or amount
of such type of Reference Security or other property constituting part of
the Reference Property that may be required to be delivered by the Seller
at the Closing pursuant to Section 2.1 hereof.
"Nominee Trust Agreement" has the meaning specified in the sixth
recital in this Agreement.
"NYSE" means the New York Stock Exchange, Inc.
"Option Consideration Amount" has the meaning specified in Section
2.2(b) hereof.
"Option Contract Commitment" has the meaning specified in Section
2.1(b) hereof.
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<PAGE>
"Option STRYPES" has the meaning specified in the second recital in
this Agreement.
"Partial Cash Distribution Date" has the meaning specified in
Section 3.2 hereof.
"Partial Cash Distribution Event" has the meaning specified in
Section 3.2 hereof.
"Person" means an individual, partnership, corporation, limited
liability company, joint stock company, trust (including a business
trust), unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency or instrumentality
thereof.
"Prior Exchange Property" has the meaning specified in Section
7.3(a) hereof.
"Purchase Agreement" has the meaning specified in the second recital
in this Agreement.
"Purchaser" has the meaning specified in the introductory paragraph
of this Agreement.
"Purchaser Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of Indebtedness (or
any Person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
Indebtedness by the Purchaser.
"Quotation Agent" means the Reference Treasury Dealer, which will be
appointed by the Administrator.
"Reference Date" means the date of any distribution following a
Dissolution Event.
"Reference Property" means initially five Bank Ordinary Shares and
shall be subject to adjustment or replacement from time to time prior to
the Business Day immediately preceding the Closing Date to reflect the
adjustment, replacement or distribution of any cash, securities and/or
other property resulting from the application of the provisions of Section
3.1 hereof.
"Reference Property Value" means, subject to the provisions of
Section 3.1(b), the sum, determined as of 10:00 A.M. (New York City time)
on the second Business Day preceding the Exchange Date, any Partial Cash
Distribution Date or any Reference Date, as the case may be, of the U.S.
Dollar Equivalent of (i) for any portion of the Reference Property
consisting of cash, the amount of such cash, (ii) for any portion of the
Reference Property consisting of property other than cash or Reference
Securities, the fair market value of such property (as determined by a
nationally recognized independent investment banking firm retained for
this purpose by the Administrator) as of 10:00 A.M. (New York
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<PAGE>
City time) on the third Business Day preceding the Reference Date, and
(iii) for any portion of the Reference Property consisting of a Reference
Security, an amount equal to the average Closing Price per unit of such
Reference Security for the 20 Trading Days immediately prior to, but not
including, the second Trading Day preceding the Reference Date, multiplied
by the number of units of such Reference Security constituting part of the
Reference Property.
"Reference Security" means, at any time, any security (as defined in
Section 2(1) of the Securities Act) then constituting part of the
Reference Property.
"Reference Security Issuer Dissolution Event" means any of the
following in connection with any issuer of a Reference Security:
(i) such issuer shall commence a voluntary action or other
proceeding seeking a liquidation, reorganization or other relief with
respect to itself or its debts under the bankruptcy, insolvency or other
similar law now or hereafter applicable to such issuer, or seeking the
appointment of a trustee, receiver, liquidator, administrator, custodian,
judicial manager or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary action or
other proceeding commenced against it, or shall take any corporate action
to authorize any of the foregoing except for the purposes of any
Reorganization Event; or
(ii) an involuntary action or other proceeding shall be commenced
against such issuer seeking liquidation, reorganization or other relief
with respect to it or its debts under the bankruptcy, insolvency or other
similar law now or hereafter in effect applicable to such issuer, or
seeking the appointment of a trustee, receiver, liquidator, administrator,
custodian, judicial manager or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall; or such issuer's assets shall become subject to the
jurisdiction of a bankruptcy court or similar forum; or an order for
relief or similar decree shall be entered against such issuer under
bankruptcy, insolvency or similar law now or hereafter in effect, except
in each case for such actions or other proceedings that are being
contested in good faith, other than, in any case, in connection with the
consolidation, merger or acquisition of such issuer with, into or by
another entity; provided that such involuntary action or proceeding shall
be disregarded where the relevant issuer has applied to a Court of
competent jurisdiction within two Business Days of the commencement of
such action to strike out the action or other proceeding and where that
Court has within five Business Days of the commencement of such action or
other proceeding struck out that action or other proceeding for the reason
that it was frivolous or vexatious, and in such circumstances the
provisions of section 2.7 shall be deemed never to have operated.
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"Reference Treasury Dealer" means a Primary U.S. Government
Securities or Australian Government Securities dealer in New York City
appointed by the Administrator.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as
determined by the Administrator, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Administrator by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business
Day preceding the date on which the Cash Dissolution Event or Partial Cash
Distribution Event, as the case may be, is consummated.
"Remaining Life" means, with respect to any Cash Dissolution Event
or Partial Cash Distribution Event the period from the Third Business Day
following the date of payment of the Cash Reorganization Price to holders
of the applicable Reference Securities to and including the Exchange Date.
"Reorganization Event" has the meaning specified in Section 3.1(d)
hereof.
"Responsible Officer" means, when used with respect to the Seller,
any employee of the Seller whose title includes the words "Manager" or
"Managing Director".
"Scheme of Arrangement" means, (A) with respect to any Australian
entity, any compromise or arrangement under Part 5.1 of the Corporations
Law which has been approved by the members of an issuer of a Reference
Security, whether or not it has been approved by the court, and which, if
implemented, would result in (i) any person entitled to less than 50% of
the voting shares in the Bank becoming entitled to more than 50% of the
voting shares in that issuer of Reference Security (as those terms are
defined in the Corporations Law); or (ii) the disposal by that issuer of
Reference Security of its main undertaking or the disposal by the group of
companies of which the Bank is the holding company, of assets comprising
50% or more of the aggregate value of the assets of that group as
disclosed in the most recent consolidated accounts of that group and (B)
with respect to any other party, a comparable compromise or arrangement.
"Securities Account" means the account of the Seller identified as
such to the Purchaser and AMP by notice from the Seller.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" has the meaning specified in the introductory paragraph of
this Agreement and includes any successor trustee appointed under the
Nominee Trust Agreement as contemplated by Section 10.11 hereof.
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"Seller Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of Indebtedness (or
any Person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
Indebtedness by the Seller.
"Settlement Date" has the meaning specified in Section 2.3 hereof.
"Sponsoring Broker" means (i) Merrill Lynch Equities (Australia) Pty
Ltd; or (ii) any of the following brokers nominated by the Seller: SBC
Warburg Ltd., First Pacific Limited, BT Securities Limited, DMG Securities
Australia Limited, County NatWest Securities Australia Limited; or (iii)
another broker who is a member of the ASX nominated by the Seller and
approved by the Purchaser (with such approval not to be unreasonably
withheld).
"Sponsorship Agreement" means an agreement dated ___________ __,
1997 between Merrill Lynch Equities (Australia) Pty Limited and the Seller
or any other agreement that amends, varies or replaces that agreement.
"STRYPES" has the meaning specified in the first recital in this
Agreement.
"STRYPES Trustee" or "Trustee" means the trustee or trustees of the
Purchaser and include any successor appointed in accordance with the Trust
Agreement.
"Tax" means all income tax, recoupment tax, land tax, sales tax,
payroll tax, fringe benefits tax, group tax, profit tax, interest tax,
property tax, undistributed profits tax, withholding tax, municipal rates,
stamp duties and other charges and levies assessed or charged or
assessable or chargeable by or payable to any national, federal, state or
municipal taxation or excise authority, including any interest, penalty,
charge, fee or other amount imposed or made on or in respect of the
failure to file a return in respect of or to pay any such tax, rates,
duties, charges or levies.
"Threshold Appreciation Price" means $__________, provided that,
following the distribution of cash constituting Reference Property as a
result of a Partial Cash Distribution Event, the Threshold Appreciation
Price will be the product of the Threshold Appreciation Price in effect
immediately prior to such distribution and the fraction obtained by
dividing (i) the result of subtracting the aggregate Cash Reorganization
Price for the Reference Securities included in the Reference Property that
were disposed of in connection with such Partial Cash Distribution Event
from the Reference Property Value (computed as of the related Partial Cash
Payment Date, assuming such distribution had occurred) by (ii) the
Reference Property Value (computed as aforesaid), with such product being
rounded to the nearest cent.
"Trading Day" means, with respect to any Reference Security the
Closing Price of which is being determined, a day on which such Reference
Security (i) is not suspended
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from trading on any securities exchange or association or over-the-counter
market at the close of business and (ii) has traded at least once on the
securities exchange or association or over-the-counter market that is the
primary market for the trading of such Reference Security.
"Transfer Restriction" means, with respect to any item of Exchange
Property, any condition to or restriction on the ability of the holder
thereof to sell, assign or otherwise transfer such item of Exchange
Property or to enforce the provisions thereof or of any document related
thereto whether set forth in such item of Exchange Property itself or in
any document related thereto, including, without limitation, (i) any
requirement that any sale, assignment or other transfer or enforcement of
such item of Exchange Property be consented to or approved by any Person,
including, without limitation, the issuer thereof or any other obligor
thereon, (ii) any limitations on the type or status, financial or
otherwise, of any purchaser, pledgee, assignee or transferee of such item
of Exchange Property, (iii) any requirement of the delivery of any
certificate, consent, agreement, opinion of counsel, notice or any other
document of any Person to the issuer of, any other obligor on or any
registrar or transfer agent for, such item of Exchange Property, prior to
the sale, pledge, assignment or other transfer or enforcement of such item
of Exchange Property and (iv) any registration or qualification
requirement for such item of Exchange Property pursuant to any federal or
state securities law; provided that (x) the required delivery of any
assignment from the seller, pledgor, assignor or transferor of such item
of Exchange Property, together with any evidence of the corporate or other
authority of such Person, or (y) any registration or qualification
requirement for such item of Exchange Property pursuant to any applicable
law or stock exchange requirement which is generally applicable to all
holders of such item of Exchange Property, shall not constitute a
"Transfer Restriction."
"Trust Agreement" has the meaning specified in the third recital in
this Agreement.
"Trustees" means, Donald J. Puglisi, William R. Latham III and James
B. O'Neill in their capacity as trustees of the WBK STRYPES Trust.
"Underwriter" has the meaning specified in the second recital in
this Agreement.
"U.S. Government Securities" means direct obligations of the United
States of America that mature on a date that is 90 days or less from the
date such obligations are acquired by the Seller hereunder, but in any
event prior to the date of Closing.
"U.S. Dollar Equivalent" with respect to the value of any asset or
liability means (i) if such asset or liability is denominated or valued in
U.S. dollars, such U.S. dollar amount; (ii) if such asset or liability
(other than cash) is denominated or valued in other than in U.S. dollars,
the product of the value of such asset or liability and (x) the U.S.
dollar noon buying rate in New York City for cable transfers (the "Noon
Buying Rate") of the currency in which the asset or liability is
denominated or valued as certified by the
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Federal Reserve Bank of New York on the date on or as of which the value
of the asset or liability is being determined or (y) if the Noon Buying
Rate for such currency is not available on such date, a rate of exchange
determined by the Exchange Agent; and (iii) if such asset or liability is
cash, the U.S. dollar amount that the Exchange Agent would deliver in
exchange for such cash pursuant to the Administration Agreement assuming
such exchange occurs on or as of the date of payment or distribution date
in respect of which the value of such asset or liability is being
determined and the rate of exchange is comparable to that afforded to the
Exchange Agent's best customers for comparable volume.
II.
Contract Consideration or Cash Settlement
2.1. Sale and Purchase. (a) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth (including the payment to the Seller of the Firm Consideration Amount
pursuant to Section 2.2), the Seller agrees to sell, assign, transfer, convey
and deliver to the Purchaser on the Settlement Date, and the Purchaser agrees to
acquire from the Seller on the Settlement Date, the aggregate number or amount
of each type of Reference Property equal to the product of the Exchange Amount
and 25,000,000, subject to the Seller's Cash Settlement Option (the "Firm
Contract Commitment").
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth (including
the payment to the Seller of Option Consideration Amount pursuant to Section
2.2), the Seller hereby grants an option to the Purchaser to purchase on the
Settlement Date up to an additional number or amount of each type of the
Reference Property equal to the product of the Exchange Amount and 3,750,000,
subject to the Seller's Cash Settlement Option. The option granted hereby will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time for the sole purpose of obtaining the aggregate number or
amount of each type of Reference Security and other property constituting part
of the Reference Property that would be required to be delivered by the
Purchaser upon exchange of any Option STRYPES issued by the Purchaser upon
exercise by the Underwriter of the option described in Section 2(b) of the
Purchase Agreement. The Purchaser may exercise the option granted hereby by
delivering to the Seller, upon receipt by the Purchaser of notice that the
Underwriter is exercising its option to purchase Option STRYPES, prompt notice
of such exercise by the Underwriter, stating the number of Option STRYPES as to
which the Underwriter is then exercising the option and the time and date of
payment and delivery for such Option STRYPES (any such time and date of
delivery, a "Date of Delivery"). Upon delivery of any such notice as aforesaid,
the Seller's Contract Commitment shall be increased automatically by a number
(an "Option Contract Commitment", together with Firm Contract Commitment, the
"Maximum Contract Commitment") equal to the total number of Option STRYPES then
being purchased by the Underwriter.
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2.2. Consideration. (a) The consideration to be paid by the Purchaser for
the Seller's obligation hereunder to deliver (or cause to be delivered) the
Contract Consideration in respect of the Seller's Firm Contract Commitment shall
be an amount in cash (the "Firm Consideration Amount") equal to $______________.
Upon the terms and subject to the conditions of this Agreement, the Purchaser
shall deliver an amount (the "Initial Amount") equal to the Firm Consideration
Amount less the Escrow Amount to the Seller at the offices of Brown & Wood LLP,
One World Trade Center, New York, New York 10048, or at such other place as
shall be agreed upon by the Purchaser and the Seller, at 9:00 A.M. (New York
City time) on the third (fourth, if the pricing of the STRYPES offering occurs
after 4:30 P.M. (New York City time) on any given day) Business Day after the
date hereof, or such other time not later than ten Business Days after such date
as shall be agreed upon by the Purchaser and the Seller (such time and date of
payment being herein called the "Firm Payment Date"). The Purchaser shall
deliver the Escrow Amount to the Escrow Agent at the same time as delivery of
the Initial Amount to the Seller under this Section 2.2(a) to be held by the
Escrow Agent and applied as the final installment of the Firm Consideration
Amount in accordance with this Agreement. The Escrow Agent will deal with the
Escrow Amount in accordance with Sections 2.2(d) and 2.2(e).
(b) The consideration to be paid by the Purchaser for the Seller's
obligation hereunder to deliver (or cause to be delivered) the Contract
Consideration in respect of any Option Contract Commitment shall be an amount in
cash (the "Option Consideration Amount") equal to the product of such Option
Contract Commitment and the Option Unit Consideration set forth in an Option
Unit Pricing Agreement substantially in the form of Exhibit A hereto. The Option
Unit Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication among the Purchaser and the Seller. From and after the
date of execution and delivery of any Option Unit Pricing Agreement, this
Agreement shall be deemed to incorporate such Option Unit Pricing Agreement.
Upon the terms and subject to the conditions of this Agreement, the Purchaser
shall deliver the Option Consideration Amount to the Seller on the related Date
of Delivery at the offices of Brown & Wood LLP, One World Trade Center, New
York, New York 10048, or at such other place as shall be agreed upon by the
Purchaser and the Seller.
(c) Payment of the Firm Consideration Amount and any Option Consideration
Amount to the Seller shall be made by Fedwire transfer of immediately available
funds to a bank account to be nominated by the Seller, or such other form of
payment specified by the Seller, against the acknowledgement by the Seller that
it is the legal owner of the number of Bank Ordinary Shares necessary to comply
with its obligations under Section 6.1 hereof and in consideration of the
agreements of AMP and the Seller herein.
(d) (i) If the Closing occurs in accordance with Section 2.3(a)(i) of this
Agreement or if AMP exercises its Cash Settlement Option or is required to pay
cash pursuant to Section 2.5(b), then on the second Business Day prior to the
Settlement Date the Purchaser shall by notice direct the Escrow Agent to, and
upon receipt of such notice the Escrow Agent shall, release the Escrow Amount
and all interest earned on the Escrow Amount under Section 2.2(e) hereof to the
Seller; and (ii) the Purchaser hereby irrevocably directs the Escrow Agent that,
upon the occurrence of
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a Dissolution Event, the Escrow Agent shall release the Escrow Amount and all
interest earned on the Escrow Amount to and for the benefit of the Seller
absolutely and the Purchaser will be taken to have paid the Firm Consideration
Amount thereupon in full.
(e) Upon receipt of the Escrow Amount from the Purchaser, the Escrow Agent
shall deposit such amount in an interest bearing account ("Escrow Account") to
be held by the Escrow Agent for the purposes of this Agreement and to be held in
accordance with Section 2.2(d) of this Agreement. Prior to the earlier of the
Settlement Date, the Acceleration Date and the Early Settlement Date, the Escrow
Agent shall hold all interest earned on the Escrow Account for the benefit of
Seller absolutely and pay it to the Seller in accordance with provisions of
Section 2.2(d) of this Agreement.
2.3. Delivery of Contract Consideration. (a) Subject to Sections 2.4, 2.5
and 3.2, consummation of the acquisition, sale and delivery of the Contract
Consideration to be sold, assigned, transferred, conveyed and delivered by the
Seller, and acquired by the Purchaser, pursuant to this Agreement (the
"Closing") and subject to receipt by the Seller of the Escrow Amount shall take
place (i) in the case of an acquisition, sale and delivery pursuant to Section
2.1 hereof, on the Business Day immediately preceding the Exchange Date (the
"Settlement Date"), (ii) in the case of an acquisition, sale and delivery
pursuant to Section 9.1 hereof, on the Acceleration Date or as soon as possible
thereafter and (iii) in the case of an acquisition, sale and delivery pursuant
to Section 9.2 hereof, on the Early Settlement Date. Subject to Section 2.3(c),
delivery of the Contract Consideration shall be made at the offices of the
Administrator at 101 Barclay Street, 12th Floor East, New York, New York 10286,
or at such other place as shall be agreed upon by the Purchaser and the Seller.
Certificates representing Reference Securities in registered form that are part
of the Contract Consideration shall be registered in the Purchaser's name or in
the name of a depositary or a nominee of a depositary or a holder of STRYPES as
requested by the Purchaser, unless such Reference Securities are represented by
one or more global certificates registered in the name of a depositary or a
nominee of a depositary or are book entry securities, in which event the
Purchaser's interest in such securities shall be noted in a manner reasonably
satisfactory to the Purchaser and its counsel. Other property that is a part of
the Contract Consideration delivered to the Purchaser shall be transferable by
the Purchaser, following receipt from the Seller, without any restrictions not
generally applicable to all holders of such other property (other than
restrictions created by the Purchaser or the Custodian hereunder).
(b) On any Closing Date, upon receipt of notice from the Escrow Agent that
it holds the Escrow Amount for the benefit of the Seller, the Seller shall (i)
deliver and is irrevocably and unconditionally directed by each party to this
Agreement to deliver the full legal and beneficial title and interest in the
Contract Consideration to be delivered to the Purchaser or the Purchaser's
nominee or nominees on such Closing Date free and clear of any Lien and (ii) in
the case of a Closing referred to in clauses (i), (ii) and (iii) of Section
2.3(a), shall dispose of the remaining Exchange Property as instructed by AMP.
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(c) With respect to Reference Securities located on an uncertificated
CHESS subregister, the Seller shall instruct the Sponsoring Broker on or before
delivery of the Firm Consideration Amount on the Firm Payment Date to transfer
on the Closing Date those Reference Securities listed on the ASX to the extent
required to comply with the Seller's obligation under Section 2.3(b) to deliver
the Contract Consideration to the Purchaser or the Purchaser's nominee or
nominees. The Seller and the Purchaser will cause the Sponsoring Broker to
release the sub-positions in respect of such Reference Securities under the
Sponsorship Agreement to enable the Seller to deliver them to the Purchaser or
its nominees as aforesaid. The Seller must also provide its CHESS identification
details to the Purchaser before delivery of the Firm Consideration Amount on the
Firm Payment Date.
2.4. No Fractional Interests. No fractional units of any Reference
Security shall be delivered to holders of STRYPES on the Settlement Date.
Instead of any fractional unit of any such Reference Security which would
otherwise be deliverable by the Seller on the Settlement Date, the Seller and
AMP severally shall be obligated to make a cash payment in respect of such
fractional unit in an amount equal to the value of such fractional unit based
upon the average Closing Price per unit of such Reference Security on the 20
Trading Days immediately prior to, but not including, the second Trading Day
preceding the Exchange Date. To the extent practicable, the Seller will deliver
fractional interests of any Reference Property other than cash or a Reference
Security on the Settlement Date. If such delivery is not practicable, in lieu of
any fractional interest of any Reference Property other than cash or a Reference
Security which would otherwise be deliverable on the Settlement Date, the Seller
and AMP severally shall be obligated to make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional interest
based on the fair market value (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator) as of 10:00 A.M. (New York City time) on the third Business Day
preceding the Settlement Date of such Reference Property other than cash or a
Reference Security. Provided that, prior to the Closing or upon a Dissolution
Event, the Administrator must notify the Seller and AMP of any fractional units
or fractional interest to which the holders of STRYPES (in respect of their
aggregate holdings of STRYPES) would otherwise be absolutely entitled under the
Trust Agreement and the obligations of the Seller and AMP in this Section 2.4
will extend to any such fractional units or fractional interests.
2.5. Cash Settlement Option. (a) Notwithstanding the provisions of
Sections 2.1, 2.2, 2.3 and 2.4 hereof but subject to the provisions of Section
9.1 hereof, it is a condition of this Agreement that AMP shall have the option,
exercisable in its sole discretion by notice given to the Purchaser, to settle
the Seller's obligations contained herein, in whole or in part, through a cash
payment on the Settlement Date, in lieu of delivery of the Contract
Consideration (the "Cash Settlement Option"). The amount of such cash settlement
payment (the "Cash Payment Amount") to be made by the Seller shall be equal to
the sum, determined as of 10:00 A.M. (New York City time) on the Settlement
Date, of (i) for any portion of the Contract Consideration otherwise deliverable
on the Settlement Date consisting of cash, the U.S. Dollar Equivalent of the
amount of such cash, without interest thereon, (ii) for any portion of the
Contract Consideration otherwise deliverable on the Settlement Date consisting
of property other than cash or Reference Securities,
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in lieu of which the Cash Settlement Option is being exercised, the U.S. Dollar
Equivalent of the fair market value of such property (as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Administrator) as of 10:00 A.M. (New York City time) on the third
Business Day preceding the Exchange Date, and (iii) for any portion of the
Contract Consideration otherwise deliverable on the Settlement Date, consisting
of a Reference Security (including Bank Ordinary Shares) (except as provided in
Section 3.1(b)), in lieu of which the Cash Settlement Option is being exercised,
an amount equal to the U.S. Dollar Equivalent of the average Closing Price per
unit of such Reference Security on the 20 Trading Days immediately prior to, but
not including, the second Trading Day preceding the Exchange Date, multiplied by
the number of units of such Reference Security constituting part of the Contract
Consideration otherwise deliverable on the Settlement Date. The Cash Payment
Amount shall be calculated to the nearest 1/100th of a dollar or, if there is
not a nearest 1/100th of a dollar, then to the next higher 1/100th of a dollar.
Notice of the Seller's election to exercise its Cash Settlement Option shall be
irrevocable and shall be given to the Purchaser not less than 26 Business Days
prior to the Settlement Date.
(b) If the Contract Consideration otherwise deliverable on the Settlement
Date includes securities and/or other property other than Bank Ordinary Shares,
the Seller's right to deliver (or cause to be delivered) to the Purchaser
hereunder such securities and/or other property shall be conditioned upon such
securities and/or other property to be so delivered being transferable by the
Purchaser, following receipt from the Seller, without any restrictions not
generally applicable to all holders of such securities and/or other property
(other than restrictions created by the Purchaser or the Seller hereunder). If
the condition set forth in the preceding sentence shall not be satisfied with
respect to any securities and/or other property to be delivered by the Seller,
then, notwithstanding any other provisions hereof, the Seller's obligations
contained in Sections 2.1, 2.2, 2.3 and 2.4 hereof shall be settled, with
respect to such securities and/or other property, through a cash payment by AMP
on the Settlement Date as provided in Section 2.5(a), in lieu of delivery of the
Contract Consideration.
(c) Payment of the Cash Payment Amount or cash payable pursuant to Section
2.5(b) or any other cash payments required under this Agreement to the Purchaser
shall be made by Fedwire transfer of immediately available funds to a bank
account to be nominated by the Purchaser, or such other form of payment
specified by the Purchaser.
2.6. Conditions to Purchaser's Obligations. (a) The Purchaser's obligation
to deliver the Firm Consideration Amount on the Firm Payment Date is conditioned
upon (w) the purchase and sale of the related STRYPES referred to in Section
2.1(a) pursuant to the Purchase Agreement having been consummated as
contemplated therein, (x) the representations and warranties of the Seller, AMP
and the National Australia Trustees contained in Article IV hereof being true
and correct in all material respects as of the Firm Payment Date and on any
other date that the representation and warranty is expressed to be made, (y) the
Nominee Trust Agreement, the Sponsorship Agreement and the Escrow Agreement
having been executed by the parties thereto and the delivery of the Exchange
Property thereunder having been made and (z) the Purchaser
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having received the legal opinion of Minter Ellison, counsel for the Seller and
AMP, in form and substance satisfactory to the Purchaser, dated the Firm Payment
Date.
(b) The Purchaser's obligation to deliver any Option Consideration Amount
on any Date of Delivery is conditioned upon (x) the purchase and sale of the
related Option STRYPES pursuant to the Purchase Agreement having been
consummated as contemplated therein, (y) the representations and warranties of
the Seller, AMP and the National Australia Trustees contained in Article IV
hereof being true and correct in all material respects as of such Date of
Delivery and (z) the Nominee Trust Agreement, the Sponsoring Agreement and
Escrow Agreement having been executed by the parties thereto and the delivery of
the Exchange Property thereunder having been made.
(c) If any condition specified in this Section 2.6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or in the case
of any condition to the delivery of any Option Consideration Amount on a Date of
Delivery which is after the Firm Payment Date, the obligation of the Purchaser
to deliver such Option Consideration Amount on such Date of Delivery (and
obligations of the Purchaser and the Seller with respect to the future
acquisition, sale and delivery of the aggregate number or amount of each type of
Reference Security and other Reference Property in respect of the related Option
Contract Commitment), may be terminated by the Purchaser by notice to the Seller
at any time at or prior to the Firm Payment Date or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party, except that Sections 11.7 and 11.8 shall survive any such
termination and remain in full force and effect.
2.7. The Seller. (a) As assurance for the prompt and complete payment and
performance of this Agreement by the Seller, AMP, as the beneficiary absolutely
entitled under the Nominee Trust Agreement to all property held on trust under
the Nominee Trust Agreement, hereby irrevocably and unconditionally directs the
Seller (i) to enter into and perform this Agreement; (ii) to hold the Exchange
Property on trust absolutely for the benefit and at the direction of the
Purchaser upon the occurrence of a Dissolution Event and (iii) upon the
occurrence of a Dissolution Event to act solely in accordance with the direction
of the Custodian and for the benefit of the Purchaser in accordance with the
terms hereof.
(b) The Seller shall, at AMP's expense and in such manner and form as the
Purchaser may reasonably require, give, execute and deliver any notice,
instrument or document and shall take all other action that may be necessary or
desirable in order to create, perfect or validate the interest in the Exchange
Property granted pursuant to this clause or to enable the Seller to exercise and
perform its rights and obligations pursuant to this Agreement.
(c) The Seller and AMP agree that, in the event of any inconsistency
between the provisions of this Agreement and any provision of the Nominee Trust
Agreement, the provisions of this Agreement shall prevail and shall operate as
an irrevocable direction that the Seller administer all of the Exchange Property
held by it in accordance with the provisions of this
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Agreement for the purposes of the Nominee Trust Agreement provided that nothing
herein shall prejudice the Seller's protections and indemnities under the
Nominee Trust Agreement.
(d) If, as of the date of vesting of the Exchange Property in the
Purchaser pursuant to this Section 2.7, the Exchange Property includes any asset
not required or necessary to permit the Seller to comply with all its
obligations to the Purchaser under this Agreement:
(i) the Administrator shall forthwith calculate and identify the assets
of the Australian Trust which are not required or necessary for the
Seller to comply with its obligations to the Purchaser to deliver
the Contract Consideration under this Agreement and shall cause and
direct all necessary acts for that purpose;
(ii) prior to such identification of those assets which are not required
and necessary to comply with the Seller's obligations to the
Purchaser under this Agreement, the Seller shall hold all the assets
constituting the Exchange Property on behalf of Purchaser in
accordance with Section 2.7(a), subject to the contingent
entitlement of the AMP to hold any assets which are subsequently
identified as not required to satisfy the Seller's obligation to the
Purchaser to deliver the Contract Consideration under this Agreement
("Surplus Assets"), and AMP shall be absolutely entitled to Surplus
Assets when all the Seller's obligations to the Purchaser have been
duly and properly discharged.
III.
Reference Property Adjustments
3.1. (a) Adjustment for Subdivisions, Splits, Combinations or
Reclassifications. If an issuer of a Reference Security shall:
(A) pay a stock dividend or make a distribution with respect
to such Reference Security in Reference Securities;
(B) subdivide or split the outstanding units of such Reference
Security into a greater number of units;
(C) combine the outstanding units of such Reference Security
into a smaller number of units; or
(D) issue by reclassification of units of such Reference
Security any units of another security of such issuer;
then, in any such event, the Reference Property shall be adjusted to include the
number of units of such Reference Security and/or other security of such issuer
which a holder of units of such Reference Security would have owned or been
entitled to receive immediately following any such
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event had such holder held, immediately prior to such event, the number of units
of such Reference Security constituting part of the Reference Property
immediately prior to such event. Each such adjustment shall become effective at
the opening of business on the Business Day next following the record date for
determination of holders of such Reference Security entitled to receive such
dividend or distribution in the case of a dividend or distribution and shall
become effective immediately after the effective date in the case of a
subdivision, split, combination or reclassification, as the case may be. Each
such adjustment shall be made successively.
(b) Adjustment for Issuance of Certain Rights or Warrants. If an issuer of
a Reference Security shall, after the date hereof, issue rights or warrants to
all holders of such Reference Security entitling them to subscribe for or
purchase any of its securities or other property (other than rights to purchase
units of such Reference Security pursuant to a plan for the reinvestment of
dividends or interest), at a price per Reference Security less than the then
current market price for such Reference Securities, then in each such case, the
Reference Property shall be adjusted multiplying the number of such Reference
Securities constituting Reference Property immediately prior to the date of
issuance of the rights or warrants referred to herein by a fraction, the
numerator of which shall be the number of such Reference Securities outstanding
on the date of issuance of such rights or warrants, immediately prior to such
issuance, plus the number of additional such Reference Securities offered for
subscription or purchase pursuant to such rights or warrants, and the
denominator of which shall be the number of such Reference Securities
outstanding on the date of issuance of such rights or warrants, immediately
prior to such issuance, plus the number of additional such Reference Securities
which the aggregate offering price of the total number of Reference Shares so
offered for subscription or purchase pursuant to such rights or warrants would
purchase at the current market price, which shall be determined by multiplying
such total number of Reference Securities by the exercise price of such rights
or warrants and dividing the product so obtained by such current market price.
Such adjustment shall become effective at the opening of business on the
Business Day next following the record date for the determination of
stockholders entitled to receive such rights or warrants. To the extent that
Reference Securities are not delivered after the expiration of such rights or
warrants, or if such rights or warrants are not issued, the Reference Property
shall be readjusted to the Reference Property which would then be in effect had
such adjustments for the issuance of such rights or warrants been made upon the
basis of delivery of only the number of Reference Securities actually delivered.
Each such adjustment shall be made successively. For purposes of this Section
3.1(b), (i) the term "current market price" shall mean the average Closing Price
per Reference Security for the 20 Trading Days immediately prior to the date
such rights or warrants are issued; provided, however, if any event that would
result in another adjustment of the Reference Property pursuant to this Section
3.1 occurs during such 20-day period, the current market price as determined
pursuant to the foregoing shall be appropriately adjusted to reflect the
occurrence of such event and (ii) any Reference Securities issuable in payment
of a dividend shall be deemed to have been issued immediately prior to the close
of business on the record date for such dividend for purposes of calculating the
number of outstanding Reference Securities.
(c) Adjustment for Distributions. If an issuer of a Reference Security
shall, after the date hereof, pay a dividend or make a distribution to all
holders of such Reference Security of
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cash, securities or other property (excluding any cash dividend on any Reference
Security consisting of capital stock that does not constitute an Extraordinary
Cash Dividend, excluding any payment of interest on such Reference Security
consisting of an evidence of Indebtedness and excluding any dividend or
distribution described in subsection (a) or (b) above) or issue to all holders
of such Reference Security rights or warrants to subscribe for or purchase any
of its securities or other property (other than rights to purchase units of such
Reference Security pursuant to a plan for the reinvestment of dividends or
interest and any rights and warrants referred to in 3.1(b) above) (any of the
foregoing cash, securities or other property or rights or warrants being
referred to herein as "Distributed Assets"), then in each such case, the
Reference Property shall be adjusted to include, from and after such dividend,
distribution or issuance, (x) in respect of that portion, if any, of the
Distributed Assets consisting of cash, the amount of such Distributed Assets
consisting of cash received for each unit of such Reference Security multiplied
by the number of units of such Reference Security constituting part of the
Reference Property on the date of such dividend, distribution or issuance,
immediately prior to such dividend, distribution or issuance, without interest
thereon, plus (y) in respect of that portion, if any, of the Distributed Assets
which are other than cash, the number or amount of each type of Distributed
Assets other than cash received with respect to each unit of such Reference
Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property on the date of such dividend,
distribution or issuance, immediately prior to such dividend, distribution or
issuance.
(d) Adjustment for Consolidation, Merger or Other Reorganization Event. In
the event of (i) any consolidation or merger of an issuer of a Reference
Security with or into another entity (other than a consolidation or merger in
which such issuer is the continuing corporation and in which the Reference
Security outstanding immediately prior to the consolidation or merger is not
exchanged for cash, securities or other property of such issuer or another
entity), or acquisition of an issuer of a Reference Security by another entity,
(ii) any sale, transfer, lease or conveyance to another corporation of the
property of an issuer of a Reference Security as an entirety or substantially as
an entirety, (iii) any statutory exchange of securities of an issuer of a
Reference Security with another entity, (iv) any scheme of arrangement, or (v)
any liquidation, dissolution, winding up or bankruptcy of an issuer of a
Reference Security including the Bank as such (excluding any distribution in
such event referred to in subsection (c) above) (any such event described in
clause (i), (ii), (iii), (iv) or (v), a "Reorganization Event"), the Reference
Property shall be adjusted to include, from and after the effective date for
such Reorganization Event, in lieu of the number of units of such Reference
Security constituting part of the Reference Property immediately prior to the
effective date for such Reorganization Event, the amount or number of any cash,
securities and/or other property owned or received in such Reorganization Event
with respect to each unit of such Reference Security multiplied by the number of
units of such Reference Security constituting part of the Reference Property
immediately prior to the effective date for such Reorganization Event.
3.2. Cash Distribution Events. Upon the occurrence of (a) a Cash
Dissolution Event or (b) any consolidation, merger or acquisition of an issuer
of a Reference Security with, into or by another entity in which some but less
than all of the consideration for the Reference Securities
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constituting the Reference Property immediately prior to such consolidation,
merger or acquisition is cash (a "Partial Cash Distribution Event"), the Seller
will pay to the Purchaser pursuant to this Agreement out of the cash paid to
holders of such Reference Security in connection with such event (the amount of
cash paid per unit of such Reference Security is called the "Cash Reorganization
Price") an amount of cash equal to the product of (i) the number of STRYPES
outstanding, (ii) the number of units of such Reference Securities constituting
Reference Property immediately prior to such Cash Dissolution Event or Partial
Cash Distribution Event and (iii) the Adjusted Present Value of the Cash
Reorganization Amount. The term "Cash Reorganization Amount" with respect to any
Cash Reorganization Price means an amount equal to (i) if the Reference Property
Value is greater than or equal to the Threshold Appreciation Price, % of the
Cash Reorganization Price, (ii) if the Reference Property Value is less than the
Threshold Appreciation Price but greater than the Initial Price, the product of
the Initial Price and the percentage of the Reference Property Value that
represents the Cash Reorganization Price, and (iii) if the Reference Property
Value is less than or equal to the Initial Price, the Cash Reorganization Price.
The "Adjusted Present Value" of any Cash Reorganization Amount is the U.S.
Dollar Equivalent of the Cash Reorganization Amount, discounted on a semi-annual
basis (assuming a 360-day year of twelve 30-day months) at the Adjusted Treasury
Rate from the Exchange Date to the date on which the Cash Reorganization Price
is paid to holders of the applicable Reference Security in connection with such
Cash Dissolution Event or Partial Cash Distribution Event.
The Trust will not dissolve upon the occurrence of a partial Cash
Distribution Event. However, on the third Business Day following payment of any
Cash Reorganization Price to holders of a Reference Security in connection with
a partial Cash Distribution Event (a "Partial Cash Distribution Date"), the
Seller will pay the Purchaser an amount equal to the product of (i) the number
of STRYPES, (ii) the number of units of such Reference Securities constituting
Reference Property immediately prior to such Partial Cash Distribution Event and
(iii) the Adjusted Present Value of the Cash Reorganization Amount. The Trustee
will distribute such amount pro rata to the holders of STRYPES as soon as
practicable thereafter. The Seller will pay any remaining Cash Reorganization
Price to AMP. Following such distributions, the Reference Property will include
in lieu of the Reference Securities involved in such Partial Cash Distribution
Event, the securities or other non-cash property retained by or distributed to
holders of such Reference Securities as a result of such Partial Cash
Distribution Event, as well as any other cash, securities and other property
constituting Reference Property prior to such event.
Upon the occurrence of a Partial Cash Distribution Event, the Seller shall
act only in accordance with the instructions of the Custodian with respect to
the portion of the aggregate Cash Reorganization Price required to be
distributed to the Purchaser pursuant to this Agreement, with the beneficial
interest in any remaining aggregate Cash Reorganization Price thereafter being
held for AMP until distributed to AMP at AMP's direction.
IV.
Representations and Warranties of the Seller, AMP
and National Australia Trustees
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(a) Representations and Warranties of the Seller and AMP. The Seller, to
its best knowledge without making any independent investigation, and AMP
represent and warrant to and agree with the Purchaser as of the date hereof, as
of the Firm Payment Date, as of each Date of Delivery (if any), as of any
Partial Cash Distribution Date, and as of the Closing Date (except as otherwise
specified herein) as follows:
(i) The Seller has the full corporate right, power and authority to
enter into and perform its obligations under this Agreement, the Nominee Trust
Agreement, the Escrow Agreement and the Sponsorship Agreement, including,
without limitation, to hold, deliver and transfer the Bank Ordinary Shares
and/or cash, securities and other property to be held, delivered and transferred
by the Seller pursuant to this Agreement and the Nominee Trust Agreement, and to
sell, transfer and deliver the Contract Consideration to be sold by the Seller
pursuant to this Agreement.
(ii) This Agreement, the Nominee Trust Agreement, the Escrow
Agreement and the Sponsorship Agreement have been duly authorized, executed and
delivered by the Seller and (assuming the due authorization, execution and
delivery by the other parties thereto) constitute valid and binding agreements
of the Seller, enforceable against the Seller in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement hereof and
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(iii) (a) At the date hereof, the Seller is the registered owner of
the Bank Ordinary Shares and such Bank Ordinary Shares held under the terms of
the Nominee Trust Agreement and subject to this Agreement, free and clear of any
Lien other than arising under the Nominee Trust Agreement and (b) to the extent
the Seller elects to deliver the Contract Consideration at any Closing, upon
delivery of such Contract Consideration against payment therefor pursuant to
this Agreement, assuming the Purchaser purchased legal title for value in good
faith and without notice of any adverse claim, the Purchaser will have acquired
all rights in and to such Contract Consideration, free and clear of any Lien
(except for any Lien created by the Purchaser or the Custodian pursuant hereto).
The sale, transfer and delivery of the Contract Consideration by the Seller as
contemplated by this Agreement is not, and at the time of delivery of such
Contract Consideration will not be, subject to any right of first refusal or
similar rights of any person pursuant to any contract to which the Seller is a
party or by which it is bound.
(iv) No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the execution,
delivery or performance by the Seller of this Agreement or the Nominee Trust
Agreement or the consummation by the Seller of the transactions contemplated
herein and therein, except such as have been already obtained under the
Securities Act or the rules and regulations promulgated thereunder or state
securities laws.
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(v) The execution, delivery and performance by the Seller of this
Agreement, the Escrow Agreement and the Nominee Trust Agreement and the
consummation by the Seller of the transactions contemplated herein and therein
and compliance by the Seller with its obligations hereunder and thereunder do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Seller
Repayment Event under, or result in the creation or imposition of any Lien other
than arising under the Nominee Trust Agreement upon any property or assets of
the Seller pursuant to, any other contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument to
which the Seller is a party or by which it or any of them is bound, or to which
any of the property or assets of the Seller is subject (except for such
conflicts, breaches or defaults or Liens that would not, singly or in the
aggregate, materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement or the Nominee Trust Agreement), nor will
such action result in any violation of the provisions of any applicable law,
statute, rule or regulation of any government or government instrumentality
having jurisdiction over the Seller or any of its assets, properties or
operations (other than any state securities or "blue sky" law, statute, rule or
regulation, as to which no representation and warranty is made), or any
applicable judgment, order, writ or decree of any government, government
instrumentality or domestic court having jurisdiction over the Seller or any of
its assets, properties or operations (except in all cases for violations that
would not, singly or in the aggregate, materially and adversely affect the
ability of the Seller to perform its obligations under this Agreement or the
Nominee Trust Agreement).
(vi) No Transfer Restrictions (other than Transfer Restrictions
created by the Seller or the Trust pursuant to this Agreement) exist with
respect to or otherwise apply to the assignment of, or transfer by AMP of
possession of, any items of Exchange Property to the Seller, or the subsequent
sale or transfer of such items of Exchange Property by the Seller pursuant to
the terms hereof.
(vii) Except for the rights of AMP under this Agreement and the
Nominee Trust Agreement, the Seller has good and marketable title to the
Exchange Property held by it under the Nominee Trust Agreement, free and clear
of all Liens (other than the Lien created by or pursuant to the Nominee Trust
Agreement) and Transfer Restrictions (other than Transfer Restrictions created
by or pursuant to this Agreement or the Nominee Trust Agreement) and has the
right to deal with such Exchange Property as provided in this Agreement.
(viii) The Seller is not in default under any instrument or
agreement by which it or the Exchange Property may be bound and no litigation,
arbitration, tax claim, dispute or administrative proceeding of which the Seller
has received notice or service of process is pending, which default, litigation,
arbitration, tax claim, dispute or administrative proceeding would have a
material adverse effect on its ability to perform its obligations hereunder or
on the Exchange Property or the transactions contemplated hereby.
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(ix) None of the Exchange Property is or shall be pledged by the
Seller as collateral for any purposes.
(x) The Seller is presently solvent and able to pay, and paying, its
debts as they come due, and anticipates that it will continue to be able to pay
its debts as they come due for the foreseeable future.
(b) Representations and Warranties of AMP. AMP represents and warrants to
and agrees with the Purchaser and the Seller as of the date hereof, as of the
Firm Payment Date, as of each Date of Delivery (if any), as of any Partial Cash
Distribution Date, and as of the Closing Date (except as otherwise specified
herein) as follows:
(i) AMP is a validly constituted and existing entity under the Australian
Mutual Provident Society's Act 1910 of NSW, Australia, and shall be such at all
times until it is demutualized and reconstructed as a company limited by shares
and subject to the Corporations Law (as a result of its satisfaction of the
procedural requirements set out in Division 2 of part 2 of the Australian Mutual
Provident Society (Demutualization and Reconstruction) Act 1997 of NSW,
Australia), on and after which it shall be validly existing under the laws of
the place of its incorporation.
(ii) AMP has the full right, power and authority to enter into and perform
its obligations under this Agreement and the Nominee Trust Agreement.
(iii) This Agreement and the Nominee Trust Agreement have been duly
authorized, executed and delivered by AMP and (assuming the due authorization,
execution and delivery by the other parties thereto) constitute valid and
binding agreements of AMP enforceable against AMP in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement hereof and
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law). Neither the Firm
Consideration Amount received by Seller and paid to AMP on the Firm Payment Date
nor any Option Consideration Amount received by Seller and paid to AMP on any
Date of Delivery will be used by AMP for the purpose, whether immediate,
incidental or ultimate, of buying or carrying a margin stock, as such terms are
defined in Regulation G promulgated by the Board of Governors of the Federal
Reserve System.
(iv) At the date hereof, AMP is the sole beneficial owner of the Bank
Ordinary Shares, free and clear of any Lien (other than those arising under the
Nominee Trust Agreement). The sole transfer and delivery of the Contract
Consideration by the Seller, as contemplated by this Agreement, is not, and at
the time of delivery of such Contract Consideration will not be, subject to any
right of first refusal or similar rights of any person pursuant to any contract
to which AMP or any of its subsidiaries is subject or by which any of them is
bound. At or prior to the Firm Payment Date and any Date of Delivery, AMP shall
have delivered to the Seller through CHESS
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the number of Bank Ordinary Shares at least equal to the respective Maximum
Contract Consideration on such dates.
(v) No declaration or filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the execution,
delivery or performance by AMP of this Agreement or the Nominee Trust Agreement
or the consummation by AMP of the transactions contemplated herein and therein,
except such as have been already obtained under the Securities Act or the rules
and regulations promulgated thereunder or state securities laws.
(vi) The execution, delivery and performance by AMP of this Agreement and
the Nominee Trust Agreement and the consummation by AMP of the transactions
contemplated herein and therein and compliance by AMP with its obligations
hereunder and thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default or AMP Repayment Event under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of AMP or any
subsidiary thereof pursuant to any other contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument to which AMP or any subsidiary thereof is a party or by which it or
any of them is bound, or to which any of the property or assets of AMP or any
subsidiary thereof is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not, singly or in the aggregate,
materially and adversely affect the ability of AMP to perform its obligations
under this Agreement or the Nominee Trust Agreement), nor will such action
result in any violation of the provisions of any applicable law, statute, rule
or regulation of any government or government instrumentality having
jurisdiction over AMP or any subsidiary thereof or any of their assets,
properties or operations (other than any state securities or "blue sky" law,
statute, rule or regulation, as to which no representation and warranty is
made), or any applicable judgment, order, writ or decree of any government,
government instrumentality or domestic court having jurisdiction over AMP or any
subsidiary thereof or any of their assets, properties or operations (except in
all cases for violations that would not, singly or in the aggregate, materially
and adversely affect the ability of AMP to perform its obligations under this
Agreement or the Nominee Trust Agreement or on the Exchange Property).
(vii) The execution and performance by AMP of this Agreement, the Nominee
Trust Agreement and each transaction contemplated under those documents has not
violated and will not violate in any respect a provision of:
(1) the Life Insurance Act 1995;
(2) the by-laws, memorandum or articles of association or other
constituent documents of AMP;
(3) a law or treaty or a judgment, ruling, order or decree of a
Governmental Agency binding on the Exchange Property; or
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(4) any other document or agreement which is binding on the Exchange
Property.
(viii) Neither AMP nor the Australian Trust is "an investment company"
within the meaning of the Investment Company Act of 1940, as amended, required
to the registered thereunder.
(ix) At any Closing Date, AMP will be the sole beneficial owner of the
Exchange Property; and the Exchange Property will be free and clear of any Lien
(other than those arising under the Nominee Trust Agreement).
(x) Neither AMP nor any subsidiary thereof is in default under any
instrument or agreement of which it or the Exchange Property may be bound and no
litigation, arbitration, tax claim, dispute or administrative proceeding of
which AMP has received notice or service of process is pending which default,
litigation, arbitration, tax claim, dispute or administrative proceeding would
have a material adverse effect on AMP's ability to perform its obligations
hereunder or on the Exchange Property or the transactions contemplated hereby.
(xi) AMP has complied with all laws binding on it where breach may have a
material adverse effect on AMP's ability to perform its obligations hereunder or
on the Exchange Property.
(xii) No Transfer Restrictions (other than Transfer Restrictions created
by the Seller or the Purchaser pursuant to this Agreement) exist with respect to
or otherwise apply to the assignment of, or transfer by AMP of possession of,
any items of Exchange Property to the Seller hereunder, or the subsequent sale
or transfer of such items of Exchange Property by the Seller to the Purchaser
pursuant to the terms hereof.
(xiii) None of the Exchange Property is or shall be pledged by AMP as
collateral for any purpose.
(xiv) AMP is presently solvent and able to pay, and paying, its debts as
they come due, and anticipates that it will continue to be able to pay its debts
as they come due for the foreseeable future.
(c) Representations and Warranties of National Australia Trustees.
National Australia Trustees represents and warrants to and agrees with the
Purchaser as of the date hereof, as of the Firm Payment Date, as of each Date of
Delivery (if any), as of any Partial Cash Distribution Date, and as of the
Closing Date as follows:
(i) National Australia Trustees is a financial institution, duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to enter
into, and perform its obligations under, this Agreement and the Nominee Trust
Agreement.
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(ii) The execution, delivery and performance by National Australia
Trustees of this Agreement and the Nominee Trust Agreement have been duly
authorized by all necessary corporate action on the part of National Australia
Trustees (no action by the shareholders of National Australia Trustees being
required) and do not and will not violate, contravene or constitute a default
under any provision of applicable law or regulation or of the memorandum or
articles of association of National Australia Trustees or of any material
agreement, judgment, injunction, order, decree or other instrument binding upon
the National Australia Trustees.
(iii) This Agreement and the Nominee Trust Agreement have been duly
authorized, executed and delivered by National Australia Trustees (assuming the
due authorization, execution and delivery by the other parties thereto)
constitute valid and binding agreements of the National Australia Trustees
enforceable against National Australia Trustees in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium, or similar laws affecting
enforcement of creditors' rights generally and except as enforcement hereof and
thereof is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iv) It is the sole trustee of the Australian Trust.
(v) No property of the Australian Trust has been re-settled or set aside
or transferred to any other trust.
(vi) The Australian Trust has not been terminated, nor to the best of its
knowledge without any independent verification, has any event for the vesting in
possession of the assets of the Australian Trust occurred.
(vii) To its knowledge without any independent investigation its right of
indemnity out of, and lien over, the assets of the Australian Trust have only
been limited in the manner set out in this Agreement and the Nominee Trust
Agreement.
(viii) It will not, without the prior written consent of the Purchaser
(which consent shall not to be unreasonably withheld or delayed):
(a) transfer, distribute or advance the Bank Ordinary Shares or
any other Exchange Property held by the Seller to any
beneficiary of the Australian Trust except in accordance with
this Agreement; or
(b) unless required by law, vary, add to or delete any term of the
Nominee Trust Agreement.
(ix) To its knowledge without any independent investigation, it is an
eligible "foreign custodian" for purposes of Section 17(f) of the Investment
Company Act of 1940, as amended.
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V.
Representations and Warranties of Purchaser
The Purchaser represents and warrants to the Seller, AMP and National
Australia Trustees as of the date hereof, as of the Firm Payment Date, as of
each Date of Delivery (if any) and, as of the Closing Date, as follows:
(i) The Purchaser has been duly created and is validly existing as a
business trust in good standing under the laws of the State of Delaware with
power and authority to enter into and perform its obligations under this
Agreement. Through the date hereof, the Purchaser's activities have been limited
to (a) registering the Purchaser under the Investment Company Act of 1940, as
amended, (b) registering the offer and sale of the STRYPES under the Securities
Act and (c) such other activities that are necessarily incident to, or connected
with, or necessary to accomplish, the foregoing and the offer and sale of the
STRYPES and the operation of the Purchaser as described in the Purchaser's
Prospectus dated ___________, 1997, relating to the STRYPES.
(ii) This Agreement and the Escrow Agreement has been duly
authorized, executed and delivered by the Purchaser and (assuming the due
authorization, execution and delivery by the other parties thereto) constitute
valid and binding agreements of the Purchaser, enforceable against the Purchaser
in accordance with their respective terms, except as the enforcement hereof and
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement hereof and thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(iii) No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the execution,
delivery or performance by the Purchaser of this Agreement or the consummation
by the Purchaser of the transactions contemplated herein and therein, except
such as have been already obtained or as may be required under the Securities
Act or the rules and regulations promulgated thereunder or state securities
laws.
(iv) The execution, delivery and performance by the Purchaser of
this Agreement and the consummation by the Purchaser of the transactions
contemplated herein and therein and compliance by the Purchaser with its
obligations hereunder and thereunder do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Purchaser Repayment Event under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Purchaser pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument to which the Purchaser is a party or by which the
Purchaser is bound, or to which any of the property or assets of the Purchaser
is subject (except for such
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conflicts, breaches or defaults or liens, charges or encumbrances that would
not, singly or in the aggregate, materially and adversely affect the ability of
the Purchaser to perform its obligations under this Agreement), nor will such
action result in any violation of the provisions of the Trust Agreement or,
assuming the correctness of the Seller's, AMP's and National Australia Trustee's
representations and warranties in Section IV, any applicable law, statute, rule,
or regulation of any government or government instrumentality having
jurisdiction over the Purchaser or any of its assets or properties (other than
any state securities or "blue sky" law, statute, rule or regulation, as to which
no representation and warranty is made), or any applicable judgment, order, writ
or decree of any government, government instrumentality or domestic court having
jurisdiction over the Purchaser or any of its assets, properties or operations
(except in all cases for violations that would not, singly or in the aggregate,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement).
VI.
Covenants
6.1. Exchange Property. AMP hereby covenants to ensure that the Seller
shall hold at all times during the term of this Agreement an aggregate number or
amount of Bank Ordinary Shares and/or cash, securities and/or other property at
least equal to the maximum number or amount of each type of Reference Security
and other property constituting part of the Reference Property that may be
required to be delivered by the Seller on the Settlement Date pursuant to
Section 2.1 hereof, assuming that AMP has not elected to exercise the Cash
Settlement Option or is not required to pay cash pursuant to Section 2.5(b)
hereof (such aggregate number of Bank Ordinary Shares and/or cash, securities
and/or other property being referred to herein as the "Maximum Contract
Consideration"), subject to AMP's right to deliver to the Seller Eligible
Exchange Property in substitution for all or any portion of such Reference
Property as hereinafter provided.
6.2. Affirmative Covenants. During the term of this Agreement, each of the
Seller and AMP covenants and agrees that it will;
(a) Furnish to the Purchaser as soon as possible and in any event within
twenty calendar days after such party shall become aware of the occurrence of
any failure by such party to comply with or perform any agreement or obligation
contained in Sections 6.1, 6.2, 6.3, 6.4 or 7.8 of this Agreement, continuing on
the date of such statement, a statement describing such failure and setting
forth details of such failure and the action which the Seller has taken and
proposes to take with respect thereto.
(b) Comply in all material respects with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments and governmental
charges imposed upon it or upon its property, including the Exchange Property
held by the Seller, except to the extent contested in good faith.
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(c) Preserve and maintain its existence, rights (contractual and
statutory), powers, franchises and qualifications, other than those the
termination of which does not have a material adverse effect on its ability to
perform its obligations hereunder or under the Nominee Trust Agreement.
(d) At any reasonable time and from time to time, upon reasonable notice,
prior to the occurrence of a Dissolution Event with respect to such party, and
upon any notice after the occurrence of a Dissolution Event, permit the
Purchaser or representatives thereof to visit the offices of, such party, and to
discuss the affairs, finances and accounts of such party with any of the
officers or directors of such party.
(e) In relation to the Exchange Property, keep proper books of record and
account, in which full and correct entries shall be made of all financial
transactions, in accordance with appropriate accounting principles consistently
applied.
6.3. Negative Covenants. (a) During the term of this Agreement, each of
the Seller and AMP covenants and agrees that it will not:
(i) Except for the transactions contemplated by this Agreement, sell,
assign, transfer, exchange or otherwise dispose of, or grant any option with
respect to, any of the Exchange Property, nor will it create, incur or permit to
exist any Lien (other than arising under the Nominee Trustee Agreement) on or
with respect to any of the Exchange Property, any interest therein, or any
proceeds thereof.
(ii) Without the consent of the Purchaser create or suffer to exist any
Indebtedness of the Seller, or amend the Nominee Trust Agreement or this
Agreement or permit or cause the Seller to hold any property other than Exchange
Property except as provided herein.
(b) AMP covenants and agrees that it will not give a direction to the
Seller that the Seller use the Firm Consideration Amount received by the Seller
on the Firm Payment Date nor any Option Consideration Amount received by the
Seller on any Date of Delivery for the purpose, whether immediate, incidental or
ultimate, of buying or carrying a margin stock, as such terms are defined in
Regulation G promulgated by the Board of Governors of Federal Reserve System.
6.4. Taxes. AMP shall pay or reimburse the Seller and the Purchaser for
any and all present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings now or hereinafter imposed,
levied, collected, withheld or assessed with respect to or arising out of the
Exchange Property, the execution and delivery by AMP and the Seller of this
Agreement and the performance by AMP, the Seller and the Purchaser of their
respective obligations hereunder and the exercise of their respective rights
hereunder, including without limitation, the transfer and delivery by AMP of the
Exchange Property and other property to the Seller, transactions between the
Seller and AMP involving Exchange Property and the transfer and delivery by the
Seller of the Contract Consideration pursuant hereto; provided, however, that
AMP's obligations under this Section 6.4 shall not extend to the payment or
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reimbursement of (i) any Australian income tax on gains made by the holders of
STRYPES upon the sale, disposal or other transactions concerning the STRYPES or
Exchange Property by such holders (ii) any United States federal, state or local
income tax or similar United States tax imposed upon holders of STRYPES solely
by reason of their ownership of STRYPES or (iii) any other income taxes arising
after (but not as a result of the delivery of) a Dissolution Event or after
delivery of (but not as a result of) the Exchange Property under this Agreement.
AMP shall indemnify the Seller or the Purchaser on demand against any liability
for any such amounts incurred or payable by the Seller or the Purchaser, as the
case may be (including fines and penalties). If the Seller is to make a payment,
including payment of the Contract Consideration, to the Purchaser pursuant to
this Agreement and is compelled by law to make a deduction from that payment in
respect of withholding tax, AMP shall pay such amount to the Seller to ensure
that the payment made by the Seller, after withholding the amount so required,
is equal to the amount which the Purchaser would have been entitled to receive
had no such withholding been made or required to be made and the Seller shall
pay the full amount of such withholding tax to the appropriate governmental
authority within the time allowed for such payment under applicable law.
6.5. Tax Treatment. The Purchaser, AMP and the Seller hereby agree to
treat, for United States Federal, state and local tax purposes, this Agreement
as a pre-paid forward contract, which does not constitute, in whole or in part,
indebtedness, pursuant to which the Purchaser is obligated to purchase at any
Closing the Contract Consideration which the Seller is obligated to deliver at
that time (subject to AMP's right to deliver cash in lieu of the Contract
Consideration as provided in Section 2.5 hereof). Notwithstanding the forgoing,
as used in this Section 6.5, the term "forward contract" does not mean a
"forward contract" as referred to in either Section 101(49)(B)(iii) of the
Bankruptcy Code or Section 1259(d)(1) of the Internal Revenue Code of 1986, as
amended.
6.6. Certain Notices. (a) In case at any time while any of the STRYPES are
outstanding the Seller or AMP receives written notice in its capacity as a
holder or beneficial owner of any Reference Security that:
(i) an issuer of a Reference Security shall declare a dividend
(or any other distribution) on or in respect of such Reference Security to
which Section 3.1(c) hereof shall apply (other than any cash dividends, if
any, paid from time to time by the issuer of such Reference Security that
do not constitute Extraordinary Cash Dividends);
(ii) an issuer of a Reference Security shall authorize the
issuance to all holders of such Reference Security of rights or warrants
to subscribe for or purchase units of such Reference Security or of any
other subscription rights or warrants;
(iii) there shall occur any conversion or reclassification of
any Reference Security (other than a subdivision or combination of
outstanding units of such Reference Security) or any consolidation, merger
or reorganization to which an issuer of a Reference Security is a party
and for which approval of any unitholders of such issuer is required,
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or the sale or transfer of all or substantially all of the assets of an
issuer of a Reference Security; or
(iv) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of an issuer of a Reference
Security or any issuer of a Reference Security shall commence or have
commenced against it a case under the applicable law;
then the Seller or AMP, as the case may be, shall promptly notify the Purchaser
and the Administrator of such fact and of (x) the date, if known by the Seller
or AMP, as the case may be, on which a record is to be taken for the purpose of
such dividend, distribution or grant of rights or warrants, or, if a record is
not to be taken, the date as of which the holders of such Reference Security of
record to be entitled to such dividend, distribution or grant of rights or
warrants are to be determined, or (y) the date, if known by the Seller or AMP,
as the case may be, on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up has become, or is expected to
become, effective or on which such bankruptcy case was commenced.
(b) Immediately upon the occurrence of any Dissolution Event, the Seller
or AMP, as the case may be, shall promptly notify the Purchaser of such
occurrence and of all facts relating to such occurrence of which the Seller or
AMP, as the case may be, is aware.
6.7. Limitations on Trading During Certain Days. Each of the Seller, AMP
and the Purchaser hereby agrees that it will not, and it will cause each of its
subsidiaries not to, deal in those Bank Ordinary Shares (or, if applicable other
Reference Securities) that the Seller is obligated to deliver on the Exchange
Date or any Early Settlement Date during the 20 Trading Days immediately prior
to the second Trading Day preceding the Exchange Date or any Early Settlement
Date. AMP and its subsidiaries shall be entitled to deal in any other Bank
Ordinary Shares (or other Reference Security), whether held by AMP its Statutory
Fund No. 1 or otherwise in accordance with applicable law and whatever trading
practices, policies or strategies of AMP (or any of its subsidiaries) may then
be in effect.
6.8. Further Assurances. From time to time on and after the date hereof
through the Closing Date, each of the Purchaser, the Seller and AMP shall use
its reasonable best efforts to take, or cause to be taken, all action and to do,
or cause to be done, all things necessary, proper and advisable to consummate
and make effective as promptly as practicable the transactions contemplated by
this Agreement in accordance with the terms and conditions hereof, including (i)
using reasonable best efforts to remove any legal impediment to the consummation
of such transactions and (ii) the execution and delivery of all such deeds,
agreements, assignments and further instruments of transfer and conveyance
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement in accordance with the terms and conditions
hereof.
6.9. The Bank (Shareholdings) Act 1972. AMP warrants and undertakes that,
by reason of the execution and performance of this Agreement, all necessary
approvals in respect of
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the acquisition of the Exchange Property will be obtained and maintained and no
circumstances will exist by reason of which any person may require the Seller or
any person acquiring any interests in the Exchange Property held by the Seller
by reason of this Agreement, any transaction contemplated or arising from this
Agreement, being or becoming subject to any order or instruction or notice
requiring the disposal or divestiture of any of the Exchange Property held or to
be acquired by the Seller in performance of this Agreement.
For the purposes of giving this warranty and undertaking, AMP and the
Seller are absolutely entitled to assume that no person other than AMP, the
Seller or the Purchaser (either alone or with any "associate" as such term is
defined in the Banks (Shareholding) Act 1972 as amended from time to time)
acquiring interests in Bank Ordinary Shares by reason of holding STRYPES has or
will have an interest (as defined in the Banks (Shareholdings) Act 1972 (as
amended from time to time)) ("BSA Interest") in, or owns (for the purposes of
clause 25 of the Deed of Settlement dated 23 August 1850 establishing the Bank
(as amended from time to time)) ("DOS Ownership"), a Bank Ordinary Share, other
than the interest acquired by reason of holding STRYPES.
To the extent that a person acquiring such interests in Bank Ordinary
Shares under this Agreement has or acquires now or in the future other than the
interest acquired by reason of holding STRYPES (either alone or with any
"associate" as such term is defined in the Banks (Shareholding) Act 1972 (as
amended from time to time)) a BSA Interest or DOS Ownership, both AMP and the
Seller will not, and will be taken not to, have breached this warranty or
undertaking.
Neither AMP nor the Seller are under any obligation now or in the future
to inquire as to whether a person acquiring interests in Bank Ordinary Shares
under this Agreement has or will have a BSA Interest or DOS Ownership.
VII.
Administration of Exchange Property
7.1. [Intentionally Deleted]
7.2. Valuation of Exchange Property. From and after any substitution by
AMP of Government Securities for Reference Property constituting Exchange
Property pursuant to Section 7.3 hereof, the Custodian shall determine on each
Business Day whether the aggregate Asset Value of the Exchange Property held by
the Seller is at least equal to the Asset Value Requirement and whether an
Insufficiency Determination or Exchange Property Event of Default shall have
occurred, and shall provide written notice to the Seller and AMP of the Asset
Value of the Exchange Property held by the Seller including notice of any
Insufficiency Determination for the purposes hereof.
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7.3. Substitution of Exchange Property. AMP may substitute Exchange
Property held by the Seller in accordance with the following provisions:
(a) Unless an Event of Default or a failure by AMP to meet any of its
obligations hereunder or under the Nomineee Trust Agreement has occurred and is
continuing, AMP shall have the right at any time and from time to time to
deliver Eligible Exchange Property to the Seller in substitution for securities,
obligations or other property previously delivered to the Seller as Exchange
Property hereunder ("Prior Exchange Property").
(b) If AMP wishes to deliver Eligible Exchange Property to the Seller in
substitution for Prior Exchange Property, it shall (i) give written notice to
the Seller and the Administrator identifying such Prior Exchange Property, (ii)
deliver to the Seller and the Administrator concurrently with such Eligible
Exchange Property a certificate of an authorized officer of AMP substantially in
the form of Exhibit B hereto and dated the date of such delivery, (A)
identifying the items of Eligible Exchange Property being substituted for such
Prior Exchange Property and such Prior Exchange Property and (B) certifying that
the representations and warranties contained in such Exhibit B are true and
correct on and as of the date thereof and (iii) deliver to the Seller and the
Custodian concurrently with such Eligible Exchange Property an opinion (dated
the date of such delivery) of counsel (who may be an employee of AMP) addressed
to the Seller and the Custodian confirming the representations contained in the
second sentence of paragraph 3(b) of Exhibit B hereto. In connection with any
delivery of Eligible Exchange Property in substitution for Prior Exchange
Property, AMP hereby covenants and agrees to take all actions necessary to
transfer legal title to such Eligible Exchange Property to the Seller, and the
Seller covenants and agrees to take all actions necessary to transfer legal
title in such Prior Exchange Property to AMP.
(c) No such substitution shall be made unless and until the Administrator
shall have determined that the Asset Value of the Exchange Property held by the
Seller at the time of such proposed substitution, after giving effect to the
proposed substitution, shall at least equal the aggregate Asset Value of all the
Exchange Property at such time and after giving such effect shall at least equal
the Asset Value Requirement. The Administrator shall determine the Asset Value
of all such Exchange Property promptly and, promptly after the required
determination has been made, take all such steps as are necessary to effect
delivery of the Prior Exchange Property so identified to AMP, free and clear of
all Liens and Transfer Restrictions, to such account or place as AMP shall have
specified by notice to the Seller and otherwise in the manner contemplated for
such Prior Exchange Property in the definition of "delivery" herein.
7.4. Additional Exchange Property. AMP may deliver additional Exchange
Property to the Seller at any time. Concurrently with the transfer of legal
title to any additional Eligible Exchange Property to the Seller, AMP shall
deliver (i) a certificate of an authorized officer of AMP substantially in the
form of Exhibit C hereto and dated the date of such delivery, (A) identifying
the additional items of Eligible Exchange Property being delivered and (B)
certifying that with respect to such items of additional Eligible Exchange
Property the representations and warranties contained in such Exhibit C hereto
are true and correct on and as of the date thereof and (ii) an opinion, dated
the date of such delivery, of counsel (who may be an employee of AMP)
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addressed to the Seller confirming the representations contained in the second
sentence of paragraph 2(b) of Exhibit C hereto. AMP hereby covenants and agrees
to take all actions necessary to transfer legal title to such additional
Eligible Exchange Property to the Seller. AMP will give notice of the delivery
of additional Eligible Exchange Property to the Custodian.
7.5. Examination of Exchange Property. Upon transfer of the legal title to
any securities, obligations or other property by AMP to the Seller as Exchange
Property, the Seller and the Administrator shall examine such securities,
obligations or property and any opinions and certificates delivered pursuant to
Sections 7.3 or 7.4 or otherwise pursuant to the terms hereof in connection
therewith to determine that they comply as to form with the requirements for
Eligible Exchange Property.
7.6. Insufficiency Determination. (a) If on any Business Day the
Administrator determines that the aggregate Asset Value of the Exchange Property
designated by AMP is less than the Asset Value Requirement (any such
determination, an "Insufficiency Determination"), the Custodian shall promptly
notify the Seller and AMP of such determination by telephone call to an
appropriate authorized representative of the Seller and AMP followed by a
written confirmation of such call.
(b) If, by 4:00 P.M., Sydney time, on the third Business Day following the
day on which telephonic notice shall have been given pursuant to the preceding
Section 7.6(a), AMP shall have failed to transfer legal title to the Seller, in
the manner set forth in Section 7.4 of this Agreement, sufficient additional
Eligible Exchange Property so that, after giving effect to such transfer, the
aggregate Asset Value of the Exchange Property held by the Seller, as of such
third Business Day is at least equal to the Asset Value Requirement, then (x)
the Exchange Property Requirement with respect to any Government Securities
designated by AMP hereunder shall be increased from 150% to 200%, and (y) unless
an Exchange Property Event of Default shall have occurred and be continuing, the
Seller shall, to the extent practicable:
(i) commence sales, in the manner described in Section 7.6(c) below,
of such portion of the Exchange Property held by the Seller consisting of
Government Securities as may be required to be sold in order to generate
proceeds sufficient to purchase each type of Reference Security and other
property constituting part of the Reference Property, as described in the
following clause (ii); and
(ii) commence purchases, in the manner described in Section 7.6(c)
below, of each type of Reference Security and other property then
constituting part of the Reference Property, in such numbers or amounts as
are sufficient to cause the aggregate Asset Value of the Exchange Property
held by the Seller to be at least equal to the Asset Value Requirement.
Notwithstanding the foregoing, the Seller shall discontinue sales and purchases
pursuant to the preceding clauses (i) and (ii), respectively, if at any time an
Exchange Property Event of Default shall have occurred and be continuing. The
Custodian shall determine the Market Value and the
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Asset Value of the Exchange Property held by the Seller after each purchase of
Reference Property pursuant to the preceding clause (ii) in order to determine
whether the Asset Value Requirement is met and whether an Exchange Property
Event of Default has occurred. Any cash obtained from any such sale which cannot
be invested through any such purchase shall be held as, and deemed to be,
Exchange Property.
(c) Exchange Property sold and Reference Property purchased by the Seller
pursuant to the preceding Sections 7.6(b)(i) and 7.6(b)(ii) and excess Exchange
Property sold pursuant to Section 7.7 may be sold and purchased on any
securities exchange or in any over-the-counter market or in any private purchase
transaction, and at such price or prices, in each case as the Custodian may deem
satisfactory, in all cases consistent with commercial reasonableness. AMP
covenants and agrees that it will execute and deliver such documents and take
such other action as the Seller or the Custodian deems necessary or advisable in
order that any such sales and purchases may be made in compliance with law.
7.7. Transfer of Excess Exchange Property. If, and only if, on any
Business Day the Custodian determines that the aggregate Asset Value of the
Eligible Exchange Property held by the Seller exceeds the Asset Value
Requirement and no Event of Default or failure by AMP or the Seller to meet any
of its obligations under Articles II and IV hereof has occurred and is
continuing, the Seller may, at the direction of AMP, transfer legal title to any
Exchange Property held by the Seller, having an aggregate Asset Value on such
Business Day less than or equal to such excess, to AMP, upon delivery to the
Seller of a written notice from an authorized representative of AMP indicating
the items of Exchange Property to be transferred. Such Exchange Property shall
be transferred only after the Seller shall have determined that the aggregate
Asset Value of all of the Exchange Property held by the Seller remaining after
such transfer as determined on such Business Day is at least equal to the Asset
Value Requirement. The transfer of such Exchange Property shall be effected as
described in Section 7.3(c) in connection with substitutions and transfers of
Prior Exchange Property.
7.8. Maintenance of Exchange Property. The Exchange Property held by the
Seller shall be maintained by the Seller in a separate non-commingled account.
The Seller shall use reasonable care with respect to the custody, safe-keeping
and physical preservation of the Exchange Property in its possession and shall
accord the Exchange Property treatment substantially equal to that which it
accords its own property, it being understood that the Seller in its capacity as
such shall not, except as specifically set forth herein or contemplated hereby,
have any responsibility for (a) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities or other matters relative to any
Exchange Property, whether or not the Seller has or is deemed to have knowledge
of such matters, (b) taking any necessary steps to preserve rights against
parties with respect to any Exchange Property or (c) investing or reinvesting
any of the Exchange Property. Until the Seller satisfies its obligations
hereunder to deliver the Contract Consideration to the Purchaser, the Seller
shall have no right of offset against the Exchange Property with respect to any
amounts owed to the Seller, whether or not arising hereunder or under the
Nominee Trust Agreement, and the Seller hereby waives any such right of offset
that it may otherwise have. Except as specifically provided herein, the Seller
covenants
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and agrees that it will not sell, assign, transfer, exchange or otherwise
dispose of, or grant any option with respect to, any of the Exchange Property,
nor will it create, incur or permit to exist any Lien or Transfer Restriction on
or with respect to any of the Exchange Property, any interest therein, or any
proceeds thereof.
Any securities to be held by the Seller shall be held by the Seller as
delivered, or caused to be delivered, to it by AMP (endorsed in blank) or as
obtained by the Seller pursuant to Section 7.1 or 7.3, if applicable.
In the event of any adjustment to the Reference Property resulting from
the application of the provisions of Section 3.1 of this Agreement, the Seller
shall take all measures reasonably designed to assure that the Exchange Property
is maintained by the Seller as provided in this Agreement, including, without
limitation, transmitting certificates representing Reference Securities to the
issuer or its transfer agent for the preparation of new certificates to be
returned to the Seller and maintained by it as required hereby.
7.9. Investment of Cash Exchange Property. The Seller shall, with the
consent of the Custodian in accordance with the written instructions of AMP,
invest and reinvest all cash Exchange Property in Government Securities with
maturities of 90 days or less, but in any case maturing not later than the
second Business Day prior to the Exchange Date, and all such securities so
obtained and amounts obtained in respect thereof shall be held as Exchange
Property for all purposes hereof.
7.10. Delivery of Contract Consideration. (a) On the Settlement Date, the
Seller shall deliver to the Purchaser, in respect of Seller's obligations under
Section 2.1 of this Agreement, an aggregate number or amount of each type of
Reference Security and other property constituting part of the Reference
Property held by the Seller hereunder equal to the number or amount of each such
type of Reference Property then required to be delivered by AMP under Section
2.1 of this Agreement, except to the extent AMP has made a proper election,
pursuant to Section 2.5 hereof, to settle its obligations under Section 2.1
hereof through, is required pursuant to Section 2.4 or 2.5 to make a cash
payment. Upon such delivery, the Purchaser shall hold such Reference Property
free and clear of all Liens (other than Liens created by the Seller or the
Purchaser hereunder) and Transfer Restrictions (other than Transfer Restrictions
created by the Seller or the Purchaser hereunder).
(b) On the Early Settlement Date (if any), the Seller shall deliver to the
Purchaser, in respect of the Seller's obligations under Section 9.2 of this
Agreement, an aggregate number or amount of each type of Reference Security and
other property constituting part of the Reference Property then held by the
Seller hereunder equal to the number or amount of each such type of Reference
Property then required to be delivered by the Seller under Section 9.2 of this
Agreement. Upon such delivery, the Purchaser shall hold such Reference Property
free and clear of all Liens (other than Liens created by the Seller or the
Purchaser hereunder) and Transfer Restrictions (other than Transfer Restrictions
created by the Seller or the Purchaser hereunder).
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(c) If after effecting the delivery, if any, required by subsection (a) or
(b) of this Section 7.10, as applicable, all of the obligations of the Seller
and AMP under Articles II and VII of this Agreement (including any obligation to
pay the Cash Payment Amount pursuant to Section 2.5 hereof) have been discharged
or sufficient funds have been deposited with or set aside by the Administrator
for the discharge thereof, any remaining Reference Property then held by the
Seller shall be delivered to AMP or its nominee.
7.11. Other Provisions Regarding the Exchange Property.
Until all obligations of each party under this Agreement have been
performed in full, the parties hereto covenant and agree as follows:
(a) Further Protections. AMP will pay in a timely fashion all taxes,
assessments, fees or charges of any nature that are imposed in respect of the
Exchange Property (other than where the imposition of such taxes, assessments,
fees or charges is disputed in good faith by AMP) as a result of AMP's ownership
thereof or any action or omission on the part of AMP. AMP will give written
notice to the Seller of, and defend the Exchange Property against, any suit,
action or proceeding against the Exchange Property or which could adversely
affect the security interests granted hereunder.
(b) Delay in Enforcement; No Waiver. To the extent consistent with the
applicable law, the Seller can choose to delay or not to enforce any of its
rights under the Nominee Trust Agreement without losing such rights. If the
Seller chooses not to exercise or enforce any of its rights, AMP agrees that the
Seller is not waiving the right to enforce such rights at a later time or any of
its other rights. Any waiver of the Seller's rights under the Nominee Trust
Agreement must be in writing.
(c) Actions by Seller. Prior to the occurrence of a Dissolution Event, any
discretionary action taken by the Seller under this Article VII shall be taken
by the Seller under this Article VII upon the instructions of AMP with notice to
the Administrator.
VIII.
Distributions and other Matters in Respect of Exchange Property.
(a) AMP shall be entitled to receive all dividends, interest,
distributions and other payments relating to all of the Exchange Property,
unless (a) a Dissolution Event has occurred, (b) such dividends, interest,
principal or other payments constitute part of the Reference Property or (c) the
payment of such amount to AMP would cause the assets of the Seller to become
insufficient under the Nominee Trust Agreement and this Agreement. The Seller
agrees to remit to AMP on the Business Day received or as soon as practicable
thereafter all such payments received by it. At any time when the Seller is not
entitled to receive any such payments hereunder, the Seller shall retain such
payments (and any such payments which are received by the Seller shall be
received in trust for the benefit of the Purchaser and shall be segregated from
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other funds of the Seller), and the Seller shall hold all such payments so
retained by, or paid over to, the Seller as Exchange Property hereunder.
(b) Unless an Event of Default has occurred and is continuing, until
delivery pursuant to Section 7.10 hereof, AMP shall have the right, from time to
time, to vote and to give consents, ratifications and waivers with respect to
the Exchange Property held by the Seller, and the Seller shall, upon receiving a
written request from AMP, deliver to AMP or as specified in such request such
proxies, powers of attorney, consents, ratifications and waivers in respect of
any of the Exchange Property which is registered in the name of the Seller or
its nominee as shall be specified in such request and be in form and substance
reasonably satisfactory to the Seller.
If an Event of Default shall have occurred and be continuing, until
delivery pursuant to Section 9.1 hereof, the Seller may, and at the direction of
the Custodian shall, to the extent permitted by law (and AMP shall take all such
action as may be necessary or appropriate to give effect to such right), vote
and give consents, ratifications and waivers, and take any other action with
respect to any or all of the Exchange Property in accordance with the
instructions of the Custodian with the same force and effect as if the Seller
were the absolute and sole owner thereof.
IX.
Acceleration of Delivery
9.1. Liquidation of Agreement Upon Event of Default. If an Event of
Default shall occur, then (i) an Acceleration Date shall be deemed to have
occurred simultaneously with the occurrence of such Event of Default, (ii) AMP's
right under Section 2.5(a) shall terminate immediately and (iii) there shall
become immediately deliverable and payable by the Seller to the Purchaser a
number or amount of each type of Reference Security and other property
constituting part of the Reference Property, allocated as proportionately as
practicable (the "Acceleration Amount"), having an aggregate value (determined
in the manner provided in Section 2.5(a) hereof for the Cash Payment Amount)
equal to the Aggregate Acceleration Value. The "Aggregate Acceleration Value"
means the product obtained by multiplying: (i) the quotient obtained by dividing
(A) the Acceleration Value by (B) 1,000 by (ii) the Contract Commitment; except
that, if no quotations for the determination of the Acceleration Value are
obtained as described below, the Aggregate Acceleration Value shall be the value
of the aggregate number or amount of each type of Reference Security and other
property constituting part of the Reference Property that would be required to
be delivered by the Seller on such date under this Agreement if the Exchange
Date were redefined for all purposes of this Agreement (including, without
limitation, for purposes of Section 2.4 hereof) to be the Acceleration Date.
The "Acceleration Value" means an amount determined on the basis of
quotations from four of the nationally recognized independent investment banking
firms listed on Schedule 9.1 hereto selected by the Administrator (the
"Independent Dealers") as follows. Each quotation will
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be for the amount that would be paid to the relevant Independent Dealer in
consideration of an agreement between the Purchaser and such Independent Dealer
that would have the effect of preserving the Purchaser's right to receive the
payments and deliveries that the Purchaser would, but for the occurrence of the
Event of Default, have been entitled to receive after the Acceleration Date
under Article II hereof (taking into account any Reference Property adjustments
that may have been effected on or prior to the Acceleration Date), provided
that, for purposes of determining the payments and deliveries to which the
Purchaser is entitled under Article II hereof, the Contract Commitment shall be
deemed to equal 1,000. On or as soon as reasonably practicable following the
Acceleration Date, the Administrator will request each Independent Dealer to
provide its quotation as soon as reasonably practicable, but in any event within
two Business Days. The Administrator shall compute the Acceleration Value upon
receipt of each Independent Dealer's quotation, provided that if, at the close
of business on the fourth Business Day following the Acceleration Date, the
Administrator shall have received quotations from fewer than four of the
Independent Dealers, the Administrator shall compute the Acceleration Value
using the quotations, if any, it shall have received at or prior to such time.
If four quotations are provided, the Acceleration Value shall be the arithmetic
mean of the two quotations remaining after disregarding the highest and lowest
quotations. (For this purpose, if more than one quotation has the same highest
or lowest value, then one of such quotations shall be disregarded.) If two or
three quotations are provided, the Acceleration Value shall be the arithmetic
mean of such quotations. If one quotation is provided, the Acceleration Value
shall be equal to such quotation. If no quotations are provided, the
Acceleration Value will not be determined and the Aggregate Acceleration Value
shall be determined as provided above.
As promptly as reasonably practicable after receipt of the quotations on
which the Acceleration Value is based (or, as the case may be, after failure to
receive any such quotations within the time period prescribed above) the
Purchaser shall deliver to the Seller and AMP a notice (the "Acceleration Amount
Notice") specifying the Acceleration Amount required to be delivered by the
Seller. The Purchaser and the Seller agree that the Purchaser will not be
entitled to recover any amounts not expressly provided for herein as a
consequence of an Event of Default.
9.2. Cash Dissolution Event or Reference Security Issuer Dissolution
Event; Delivery. Notwithstanding the provisions of Sections 2.1, 2.3 and 2.5
hereof, if a Cash Dissolution Event or a Reference Security Issuer Dissolution
Event shall occur, the Seller's obligations under Section 2.1 hereof shall be
automatically accelerated and the Seller shall deliver to but only upon notice
of such event from the Purchaser, on the earliest practicable Business Day
following (but in no event later than the tenth Business Day following) (i) the
date of payment to holders of the applicable Reference Securities of the
applicable Cash Reorganization Price, in the case of a Cash Dissolution Event or
(ii) in all other cases, the effective date of such event (in each case, the
"Early Settlement Date"), the Contract Consideration that would be required to
be delivered by the Seller under this Agreement if the Exchange Date were
redefined for all purposes of this Agreement (including, without limitation, for
purposes of Section 2.4 hereof) to be the Early Settlement Date.
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X.
Seller
10.1. Duties of Seller. The Seller undertakes to perform only such duties
as are expressly set forth herein and under the Nominee Trust Agreement. The
duties and responsibilities of the Seller hereunder and under the Nominee Trust
Agreement shall be determined solely by the express provisions hereof and of the
Nominee Trust Agreement, and no other or further duties or responsibilities
shall be implied.
10.2. Reliance. Subject to the limitations, covenants and provisions
hereof, the Seller may rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon the face of any note,
notice, resolution, consent, certificate, affidavit, letter, telegram,
statement, order or other document furnished to it hereunder by the Purchaser or
the Seller and believed by it to be genuine and to have been signed or presented
by the proper party or parties, and shall have no responsibility for determining
the accuracy thereof.
10.3. Liability of Seller. Neither the Seller nor any of its directors,
officers or employees shall be liable for any action taken or omitted by it
hereunder except in the case of its gross negligence, fraud, willful misconduct
or its failure to use reasonable care with respect to the custody, safekeeping
and physical preservation of the Exchange Property in its possession. The Seller
may consult with counsel of its own choice, including in-house counsel, and
shall have full and complete authorization and protection for any action taken
or omitted by it hereunder in good faith and in accordance with the opinion of
such counsel. The Seller shall not be liable with respect to any action taken,
suffered or omitted by it in good faith (i) reasonably believed by it to be
authorized or within the discretion or rights or powers conferred on it by the
Nominee Trust Agreement or (ii) in accordance with any direction or request of
the Trustees. In no event shall the Seller be personally liable for any taxes or
other governmental charges imposed upon or in respect of (i) the Exchange
Property or (ii) the income or other distributions thereon. Except as
specifically provided herein, the Seller shall not be responsible for the
validity, sufficiency, collectibility or marketability of any Exchange Property
delivered to or held by it hereunder or for the validity or sufficiency of this
Agreement or the Lien (or the priority thereof) on the Exchange Property
purported to be created hereby. In no event shall the Seller be liable for
punitive, exemplary, indirect or consequential damages. Except as specifically
set forth herein or contemplated hereby, the Seller shall have no duty (a) to
see to any recording, filing or depositing of the Nominee Trust Agreement or any
agreement referred to herein or therein or any financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any rerecording,
refiling or redepositing of any thereof, (b) to see to any insurance or (c) to
see to the payment or discharge of any tax, assessment, or other governmental
charge or any lien or encumbrance of any kind owing with respect to, assessed or
levied against, any part of the Exchange Property. The Seller shall not be
accountable for the use or application by the Seller of any of the proceeds of
the Exchange Property.
46
<PAGE>
10.4. Risk of Funds. No provision of this Agreement or the Nominee Trust
Agreement shall require the Seller to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
10.5. Use of Sub-Agents or Attorneys. The Seller may perform any duties
hereunder either directly or by or through agents or attorneys, provided that
the Seller shall remain liable to fulfill all of such duties to the same extent,
and with the same protections, as if the Seller was performing them itself. In
furtherance thereof, any subsidiary owned or controlled by the Seller, or its
successors, as agent for the Seller, may perform any or all of the duties of the
Seller relating to the valuation of securities and other instruments and
property constituting Exchange Property hereunder.
10.6. Recitals and Statements. The Seller shall not be responsible for the
correctness of the recitals and statements herein which are made by the
Purchaser and the Seller or for any statement or certificate delivered by the
Seller pursuant hereto.
10.7. Knowledge. The Seller shall not be deemed to have knowledge of any
Event of Default (except an Exchange Property Event of Default) or a Dissolution
Event, unless and until a Responsible Officer of the Seller shall have actual
knowledge thereof or shall have received written notice thereof (on which the
Seller shall be entitled to conclusively rely).
10.8. Merger. Any corporation or association into which the Seller may be
converted or merged, or with which it may be consolidated, or to which it may
sell or transfer its agency business and assets as a whole or substantially as a
whole, or any corporation or association resulting from any such conversion,
sale, merger, consolidation or transfer to which it is a party, anything herein
to the contrary notwithstanding, shall be and become a successor Seller
hereunder and vested with all of the title to the Exchange Property and all of
the powers, discretions, immunities, privileges and other matters as was its
predecessor without, the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto.
10.9. Resignation of Seller. The Seller may resign and be discharged from
its duties or obligations hereunder and under the Nominee Trust Agreement by
giving thirty (30) days prior notice in writing of such resignation to the
Purchaser. Such resignation shall take effect upon the appointment of a
successor Seller by the Purchaser. If, within 30 days after notice by the Seller
to the Purchaser and the Seller of the Seller's resignation, no successor Seller
shall have been appointed and accepted the duties of the Seller as provided
herein, the Seller may apply to a court of competent jurisdiction for the
appointment of a successor Seller.
10.10. Removal. The Seller may be removed at any time by an instrument or
concurrent instruments in writing delivered to the Seller and signed by AMP with
the consent of the Administrator. The Seller will also be removed in the event
that AMP and the Seller receive a
47
<PAGE>
notice from the Administrator that the Seller no longer satisfies the
requirements of Section 17(f) of the Investment Company Act of 1940, as amended,
and the rules and regulation thereunder.
10.11. Release of Seller. Upon effective resignation or removal, the
Seller will be released from all further obligations under this Agreement and
under the Nominee Trust Agreement. No release under this Section 10.11 shall
extend to any existing or antecedent fraud, wilful misconduct, gross negligence
or failure to use reasonable care with respect to the custody, safekeeping and
physical preservation of the Exchange Property in the possession of the Seller.
10.12. Appointment of Successor.
If the Seller hereunder shall resign or be removed, or be dissolved or
shall be in the course of dissolution or liquidation or otherwise become
incapable of action hereunder, or if it shall be taken under the control of any
public officer or officers or of a receiver appointed by a court, a successor
may be appointed by AMP with the consent of the Administrator by an instrument
or concurrent instruments in writing signed by AMP with the consent of the
Administrator or by its attorneys in fact fully authorized. A copy of such
instrument or concurrent instruments shall be sent by registered mail to the
Seller.
10.13. Acceptance by Successor. Every temporary or permanent successor
Seller appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Seller an instrument in writing accepting such
appointment hereunder, whereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, duties and obligations of its predecessors. Such predecessor
shall, nevertheless, on the written request of its successor or the Seller,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Seller shall deliver all Exchange Property held by it as the Seller
hereunder to its successor. Should any instrument in writing from the Seller be
required by a successor Seller for more fully and certainly vesting in such
successor the estates, properties, rights, powers, duties and obligations hereby
vested or intended to be vested in the predecessor, any and all such instruments
in writing shall, at the request of the temporary or permanent successor Seller,
be forthwith executed, acknowledged and delivered by the Seller.
10.14. Limitation of Liability. Except for any liability or other
obligation incurred by the Seller fraudulently, dishonestly, with gross
negligence, wilful misconduct, or by failure to use reasonable care, the Seller
is only liable in its capacity as trustee and to the extent of the Seller's
rights in the Exchange Property and the parties to this Agreement other than the
Seller may not sue the Seller in any other capacity than as trustee, including
seeking appointment of a liquidator, administrator or any similar person to
National Australia Trustees. AMP shall promptly compensate the Purchaser for any
losses incurred by the Purchaser including any shortfall in the Contract
Consideration, directly or indirectly arising from this provision.
48
<PAGE>
XI.
Miscellaneous
11.1. Adjustments to Reference Property; Selection of Independent Firm.
The Purchaser shall be responsible for the effectuation and calculation of any
adjustment to the Reference Property and any amount deliverable pursuant to
Sections 2.1, 2.4, 2.5 hereof and Articles VII and IX hereof. The Purchaser
shall provide the Seller reasonable opportunity to review the calculations
pertaining to any adjustment of the Reference Property. As soon as practicable,
but in no event later than 11:30 A.M. (New York City time) on the Business Day
immediately preceding the Closing Date, the Purchaser shall provide the Seller
with a statement showing the Purchaser's calculation of the Reference Property
Value, the Exchange Amount and, assuming no subsequent adjustments to the
Reference Property shall be required pursuant to Article III hereof, the
Contract Consideration or Cash Payment Amount, as applicable. As soon as
practicable, but in no event later than 10:00 A.M. (New York City time) on the
Closing Date, the Purchaser shall provide the Seller with a statement showing
the Purchaser's final calculations of the amounts deliverable pursuant to
Sections 2.1, 2.4, 2.5 hereof and Articles VII and IX hereof. If the Seller
disagrees with any such calculation or determination, an independent accounting
or investment banking firm agreed upon by the Seller and the Purchaser shall be
retained to make such calculation, which shall be binding upon the Purchaser and
the Seller. The fees and expenses of such firm shall be borne by the Seller. If,
pursuant to the terms and conditions of this Agreement, the Administrator shall
be required to retain a nationally recognized independent investment banking
firm for any purpose provided herein (other than for purposes of determining the
Acceleration Value pursuant to Section 9.1 hereof), such nationally recognized
independent investment banking firm shall be selected and retained by the
Administrator only after giving the Seller 30 days prior notice (or such shorter
notice as may be reasonably practicable) of the identity of such firm and after
consultation with the Seller, and the Administrator shall not select any firm
that is not reasonably acceptable to the Seller. The fees and expenses of any
such nationally recognized independent investment banking firm retained by the
Administrator shall be borne by the Seller.
11.2. Notices. All notices and other communications shall be directed as
follows (or to such other address for a particular party as shall be specified
by such party in a like notice given pursuant to this Section 11.2): notices to
the Purchaser shall be directed to it in care of the Administrator at 101
Barclay Street, 12th Floor East, New York, New York 10286, telecopy number (212)
815-7157, attention of Betty Cocozza; notices to AMP shall be directed to it at
________________________________, telecopy number _______________, attention of
_________________; notices to the Seller shall be directed to it at 23 Hunter
Street, Sydney, New South Wales 2000, telecopy number _________________,
attention of ____________________ with a copy to AMP. Except as otherwise
specifically provided herein, all notices and other communications provided for
hereunder shall be in writing and shall be deemed to have been duly given if
either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery) to the offices specified in the preceding sentence, in
which case they shall be deemed received on the first Business Day by which
delivery shall
49
<PAGE>
have been made to said offices; (ii) transmitted by any standard form of
telecommunication to the offices set forth in the preceding sentence, in which
case they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested, to the offices set forth in the
preceding sentence, in which case they shall be deemed received when receipted
for unless acknowledgment of receipt is refused (in which case delivery shall be
deemed to have been received on the first Business Day on which such
acknowledgment is refused).
11.3. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process.
(a) Consent to Jurisdiction. The Seller and AMP (with each such party
being referred to in this Section 11.3 as the "Appointing Party") each
irrevocably consents and agrees that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter
arising out of or in connection with this Agreement may be brought in any United
States federal or state court in the State of New York, County of New York.
(b) Appointment of Service Agent. The Appointing Party designates,
appoints, and empowers CT Corporation System with offices currently at 1633
Broadway, New York, New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and its properties, assets and
revenues, service of any and all legal process, summons, notices and documents
that may be served in any action, suit or proceeding brought against the
Appointing Party in any such United States federal or state court with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement and that may be made on such designee, appointee
and agent in accordance with legal procedures prescribed for such courts. If for
any reason such designee, appointee and agent hereunder shall cease to be
available to act as such, the Appointing Party agrees to designate a new
designee, appointee and agent in The City of New York on the terms and for the
purposes of this Section 11 satisfactory to the Purchaser. The Appointing Party
further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any such action, suit or
proceeding against the Appointing Party, by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 11 (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) with a copy to the
Appointing Party as provided in this Section 11. The Appointing Party agrees
that the failure of any such designee, appointee and agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the Purchaser
and any person acting on the Purchaser's behalf to serve any such legal process,
summons, notices and documents in any other manner permitted by applicable law
or to obtain jurisdiction over the Appointing Party, or bring actions, suits or
proceedings against it in such other jurisdictions, and in such manner, as may
be permitted by applicable law. The Appointing Party irrevocably and
unconditionally waives, to the fullest extent permitted by law,
50
<PAGE>
any objection that it may now or hereafter have to the laying of venue of any of
the aforesaid actions, suits or proceedings arising out of or in connection with
this Agreement brought in the federal courts located in The City of New York or
the courts of the State of New York located in The City of New York and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
11.4. Survival. The provisions of this Section 11 shall survive any
termination of this Agreement, in whole or in part.
11.5. Waiver of Immunities. To the extent that the Seller, AMP or any of
their respective properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Seller and AMP hereby irrevocably and unconditionally waive
and agree not to plead or claim, any such immunity and consent to such relief
and enforcement.
11.6. Judgment Currency. The Seller and AMP, severally agree to indemnify
the Purchaser against any loss incurred by the Purchaser as a result of any
judgment or order being given or made for any amount due hereunder and such
judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order,
and (ii) the rate of exchange at which the Purchaser is able to purchase United
States dollars, at the business day nearest the date of judgment, with the
amount of the Judgment Currency actually received by the Purchaser. The
foregoing indemnity shall constitute separate and independent obligations of the
Seller and AMP, and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs or exchange payable in connection with the purchase of,
or conversion into, the relevant currency.
11.7. Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
11.8. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM,
51
<PAGE>
DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR
THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO
ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY EACH OTHER PARTY HERETO THAT THE
PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH SUCH
OTHER PARTY HERETO HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THIS
AGREEMENT AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF ANY OTHER PARTY HERETO TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
11.9. Headings; Entire Agreement. The paragraph headings and table of
contents have been inserted as a reference only and are not a part of this
Agreement and shall not affect the meaning or construction of any provisions
hereof. Except as expressly set forth herein, this Agreement and the Nominee
Trust Agreement constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior agreements, understandings
and negotiations, both written and oral, among the parties with respect to the
subject matter hereof.
11.10. Amendments; Waivers. Any provision of this Agreement may be amended
or waived prior to the Closing if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Purchaser and the Seller
or, in the case of a waiver, by the party against whom the waiver is to be
effective. No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
11.11. Termination. Notwithstanding anything to the contrary contained in
this Agreement, if the purchase and sale of the Initial STRYPES pursuant to the
Purchase Agreement is not consummated as contemplated therein, this Agreement
shall automatically terminate, and such termination shall be without liability
of any party to any other party, except that Sections 8.3 and 8.4 shall survive
any such termination and remain in full force and effect.
11.12. Successors, Assigns. The provisions of this Agreement shall be
binding upon and accrue to the benefit of the parties hereto and their
respective successors and permitted assigns. Notwithstanding the foregoing,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any party hereto without
the prior written consent of the other parties hereto.
11.13. No Third Party Rights. This Agreement is not intended and shall not
be construed to create any rights in any person other than the Seller, AMP, the
Purchaser and the holders of STRYPES and no person shall assert any rights as
third party beneficiary hereunder.
52
<PAGE>
11.14. Application of Bankruptcy Code. The parties hereto acknowledge and
agree that (i) the Seller is a "financial institution" for purposes of Sections
555 and 101(22) of Title 11 of the Bankruptcy Code. Upon the occurrence of a
Dissolution Event, the Seller will hold the Reference Property on trust
absolutely for the Purchaser and AMP shall cease to have any interest in the
Reference Property subject to Section 2.7(d). Thereafter the Seller shall act
solely in accordance with the directions of the Custodian and shall pursuant to
this Agreement distribute to the Purchaser, for distribution pro rata to the
holders of STRYPES, the Aggregate Acceleration Value in the form of Reference
Property.
11.15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11.16. Trustees. By executing this Agreement, none of the Trustees assumes
any personal liability hereunder except for their fraud, gross negligence or
wilful misconduct or recklessness.
53
<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
and year first above written.
Purchaser: Seller:
WBK STRYPES TRUST SIGNED SEALED AND DELIVERED
on behalf of NATIONAL AUSTRALIA
TRUSTEES LIMITED (ACN 007 350
405) by its duly appointed attorney
under power of attorney
dated 28 May 1997
By: By:
----------------------------- --------------------------------------
Name: Donald J. Puglisi, Name:
as Managing Trustee Title:
Custodian: AMP:
THE BANK OF NEW YORK, AUSTRALIAN MUTUAL
as Custodian PROVIDENT SOCIETY
under sub-power of attorney dated [ ]
pursuant to power of attorney dated
October 23, 1996 who confirms that in
signing, the attorney has received no
notice of the revocation or amendments
to the power of attorney
By: By:
----------------------------- --------------------------------------
Name: Name:
Title: Title:
Administrator:
THE BANK OF NEW YORK,
as Administrator
By:
-----------------------------
Name:
Title:
54
<PAGE>
Exhibit A
WBK STRYPES TRUST
(a Delaware business trust)
Option Unit Pricing Agreement
____________, 1997
Ladies and Gentlemen:
Reference is made to the Forward Purchase Contract, dated as of September
__, 1997 (the "Forward Purchase Contract"), among WBK STRYPES Trust (the
"Purchaser"), The Bank of New York, as agent and custodian for and on behalf of
the Purchaser, Australian Mutual Provident Society ("AMP") and you (the
"Seller"), relating to the future purchase by the Purchaser of the Contract
Consideration from the Seller. The Underwriter has exercised its option,
pursuant to Section 2(b) of the Purchase Agreement, to purchase an aggregate of
__________ Option STRYPES. In connection with such exercise, the Purchaser has
agreed to issue and sell to the Underwriter, ______________ Option STRYPES.
Payment for and delivery of such Option STRYPES will be made at ______ on _____,
1997 (the "Date of Delivery").
Pursuant to subsection (b) of Section 2.1 of the Forward Purchase
Contract, the Purchaser, AMP and the Seller hereby agree that the Option Unit
Consideration to be used in calculating the Option Consideration Amount payable
by the Purchaser to the Seller on the Date of Delivery as consideration for the
Seller's obligation to deliver (or cause to be delivered) the Contract
Consideration in respect of the Option Contract Commitment created hereby shall
be $___________.*
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Forward Purchase Contract.
- --------
* The Option Unit Consideration shall be an amount equal to the initial
public offering price per Option STRYPES, net of (1) the underwriting
discount per Option STRYPES and (2) the cost per Option STRYPES of the
zero-coupon U.S. Government securities to be purchased by the Purchaser to
provide for the quarterly distributions on the Option STRYPES to which
this Option Unit Pricing Agreement relates. The selection of the
zero-coupon U.S. Government securities to be purchased in respect of any
Option STRYPES shall be made in a manner and on a basis consistent with
the selection of the zero-coupon U.S. Government securities purchased in
respect of the Initial STRYPES.
Ex A-1
<PAGE>
If the foregoing is in accordance with our agreement, please sign and
return to Purchaser a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement between the Purchaser, AMP and
the Seller in accordance with its terms.
Very truly yours,
WBK STRYPES TRUST
By:
--------------------------------------
Name: Donald J. Puglisi,
as Managing Trustee
CONFIRMED AND ACCEPTED, as of the
date first above written:
NATIONAL AUSTRALIA TRUSTEES LIMITED
By:
--------------------------------
Name:
Title:
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
By:
--------------------------------
Name:
Title:
Ex A-2
<PAGE>
EXHIBIT B
CERTIFICATE FOR SUBSTITUTED EXCHANGE PROPERTY
The undersigned, ______________, [title] of Australian Mutual Provident
Society ("AMP"), hereby certifies, pursuant to Section 7.3 of the Forward
Purchase Contract, dated as of __________ __, 1997 among AMP, the Bank of New
York, as Custodian, National Australian Trustees Limited, as Seller, and WBK
STRYPES Trust (the "Agreement"; terms defined in the Agreement being used herein
as defined therein), that:
1. AMP is delivering the following securities to the Seller to be held by
the Seller as substituted Exchange Property (the "Substituted Exchange
Property"):
[Specify Substituted Exchange Property]
2. AMP requests that the Seller transfer to AMP the following Prior
Exchange Property, pursuant to Section 7.3 of the Agreement:
[Specify Prior Exchange Property]
3. AMP hereby represents and warrants to the Seller and the Trust that:
(a) Consents to Transfer. No Transfer Restrictions exist with respect to
or otherwise apply to the assignment of, or transfer by AMP of possession of,
any items of Substituted Exchange Property to the Seller under the Agreement, or
the subsequent sale or transfer of such items of Substituted Exchange Property
by the Seller pursuant to the terms of the Agreement.
(b) Title to Exchange Property. AMP has good and marketable title to the
Substituted Exchange Property, free of all Liens (other than the Lien created by
the Nominee Trust Agreement) and Transfer Restrictions. Upon delivery of the
Substituted Exchange Property to the Seller, the Seller will obtain title to
such Substituted Exchange Property.
This Certificate may be relied upon by the Trust as fully and to the same
extent as if this Certificate had been specifically addressed to the Trust.
Ex B-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate this ___
day of ____________, 199__.
---------------------------------
Name:
Title:
Ex B-2
<PAGE>
EXHIBIT C
CERTIFICATE FOR ADDITIONAL EXCHANGE PROPERTY
The undersigned, ______________, [title] of Australian Mutual Provident
Society ("AMP"), hereby certifies, pursuant to Section 7.4 of the Forward
Purchase Contract, dated as of __________ ___, 1997, among AMP, The Bank of New
York, as Custodian, National Australian Trustees Limited (the "Seller"), and WBK
STRYPES Trust (the "Agreement"; terms defined in the Agreement being used herein
as defined therein), that:
1. AMP is delivering the following securities, obligations or other
property to the Seller to be held by the Seller as additional Exchange Property
(the "Additional Exchange Property"):
[Specify Additional Exchange Property]
2. AMP hereby represents and warrants to the Seller that:
(a) Consents to Transfer. No Transfer Restrictions exist with respect to
or otherwise apply to the assignment of, or transfer by AMP of possession of,
any items of Additional Exchange Property to the Seller under the Agreement, or
the subsequent sale or transfer of such items of Additional Exchange Property by
the Seller pursuant to the terms of the Agreement.
(b) Title to Exchange Property. AMP has good and marketable title to the
Additional Exchange Property, free of all Liens (other than the Lien created by
the Nominee Trust Agreement) and Transfer Restrictions. Upon delivery of the
Additional Exchange Property to the Seller, the Seller will obtain title to such
Additional Exchange Property.
This Certificate may be relied upon by the Trust as fully and to the same
extent as if this Certificate had been specifically addressed to the Trust.
Ex C-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate this ___
day of ____________, 199__.
------------------------------
Name:
Title:
Ex C-2
<PAGE>
Exhibit (k)(4)
WBK STRYPES TRUST
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
NATIONAL AUSTRALIA BANK LIMITED
NATIONAL AUSTRALIA TRUSTEES LIMITED
ESCROW AGREEMENT
MINTER ELLISON
Lawyers
Minter Ellison Building
44 Martin Place
SYDNEY NSW 2000
DX 117 Sydney
Telephone (02) 9210 4444
Facsimile (02) 9235 2711
GMC 10642104
<PAGE>
Exhibit (k)(4)
ESCROW AGREEMENT
AGREEMENT dated 1997
BETWEEN WBK STRYPES TRUST, a business trust organised pursuant to the
Business Trust Act of the state of Delaware in the United States of
America ('STRYPES Trust')
AND NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 ('Escrow
Agent')
AND AUSTRALIAN MUTUAL PROVIDENT SOCIETY ARBN 008 387 371
('AMP')
AND NATIONAL AUSTRALIA TRUSTEES LIMITED ACN 007 350 405 in its
capacity as trustee of the Platypus Trust ('Australian Trustee')
AND [FPC ADMINISTRATOR]
RECITALS
A. The STRYPES Trust, AMP, the Australian Trustee [and [ ]] are or are to be
parties to the Forward Purchase Contract.
B. Clause 2.2 of the Forward Purchase Contract contemplates that the Escrow
Amount is to be held in the Escrow Account pending the occurrence of
certain events specified in clauses 2.2(d) and (e) of the Forward Purchase
Contract.
C. The STRYPES Trust and AMP have requested the Escrow Agent to act as the
escrow agent for the purposes of the Forward Purchase Contract and the
Escrow Agent has agreed to do so on the terms and conditions set out in
this document.
AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
2
<PAGE>
Exhibit (k)(4)
'Authorised Representative' means in respect of [STRYPES
Trust/Administrator] the following persons: [Details to be provided as to
officers who are to sign the Delivery Notice.]
'Escrow Account' means an interest bearing [call] account in the name of
the Escrow Agent held with [insert name of bank] account no. [insert
account no.] at [branch details and location].
'Delivery Notice' means a notice in the form of Schedule A signed by an
[Authorised Representative] on behalf of the [STRYPES
Trust/Administrator?] addressed to the Escrow Agent.
'Escrow Amount' means US$1,000,000.
'Forward Purchase Contract' means the document so entitled between the
Australian Trustee, AMP and the STRYPES Trustee dated on or about the date
of this document.
'Platypus Trust' means the trust constituted by a document entitled
'Nominee Trust Agreement' between AMP as beneficiary and the Australian
Trustee as trustee dated on or about the date of this document.
1.2 Other expressions
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) a reference to a party to this document includes that party's
successors and permitted assigns;
(d) a reference to a document or agreement includes that document or
agreement as novated, altered or replaced; and
(e) words implying natural persons include partnerships, bodies
corporate, associations and public authorities.
2. ESCROW AGENT AND IRREVOCABLE DIRECTION
2.1 The STRYPES Trust irrevocably directs the Escrow Agent as follows:
3
<PAGE>
Exhibit (k)(4)
(a) if the Escrow Agent receives the Escrow Amount from the STRYPES
Trust, the Escrow Agent must hold the Escrow Amount in the Escrow
Account and deal with the Escrow Amount only on the terms and
conditions of this document; and
(b) if the Escrow Agent receives a Delivery Notice signed by an
Authorised Representative of the [STRYPES Trust/Administrator] [or
by AMP on its behalf?], the Escrow Agent must release the Escrow
Amount and all interest earned on the Escrow Amount to the
Australian Trustee or at its direction; and
(c) upon the occurrence of a Dissolution Event the Escrow Agent:
(i) will hold the Escrow Amount and all interest earned on the
Escrow Amount for the Australian Trustee absolutely; and
(ii) must upon receipt of a Delivery Notice signed by or on behalf
of the [STRYPES Trust/Administrator] release the Escrow Amount
and all interest earned on the Escrow Amount to and for the
benefit of the Australian Trustee or at its direction.
2.2 The Escrow Agent may only deal with the Escrow Amount in accordance with
the terms of this document.
3. TERMS OF ESCROW ACCOUNT
3.1 The Escrow Agent agrees that interest will accrue on the daily credit
balance of the Escrow Account at the rate of [to be discussed]
3.2 In consideration for the Escrow Agent entering into this document. AMP
agrees to pay a fee of [A$ ] per annum to the Escrow Agent. The fee is
payable when the Escrow Agent releases the Escrow Amount and interest in
the manner contemplated by clause 2.1(b) or 2.1(c) (as the case may be)
and may be deducted by the Escrow Agent from the Escrow Amount.
3.3 AMP indemnifies the Escrow Agent against any loss, cost, damage or
liability (including, but not limited to legal costs on a full indemnity
basis) suffered or incurred by the Escrow Agent in the performance of its
obligations under this document unless caused as a result of the gross
negligence, wilful misconduct or fraud on the part of the Escrow Agent.
4. TRUSTEE LIMITATION OF LIABILITY
[to be inserted]
4
<PAGE>
Exhibit (k)(4)
5. MISCELLANEOUS
5.1 The Escrow Agent is not liable to any other party in respect of:
(a) any falsity or forgery of or in any Delivery Notice which on its
face is given in accordance with this document;
(b) the impossibility or illegality of performance of any of the Escrow
Agent's obligations under this document.
5.2 The Escrow Agent has no duties or responsibilities to any of the parties
except as are expressly set out in this document.
5.3 Each party may rely, and act on, any notice signed, or purportedly signed,
by an Authorised Representative of any party.
5.4 The Escrow Agent may only retire:
(a) on the giving of at least 60 days' prior written notice to the
STRYPES Trust; and
(b) if, upon retirement, another entity signs an escrow agreement on
terms substantially the same as this document.
5.5 Each party gives the following representations in respect of itself to
each other party:
(a) it has the power to enter into this document and to carry out any
obligation contemplated by it; and
(b) all necessary action has been taken by it to make this document
valid and binding on it and to enable it to carry out its respective
transactions or obligations contemplated by this document.
5.6 No party may assign, dispose or deal with any interest it has under this
document.
5.7 This document is governed by the laws in force in the State of New South
Wales and the parties submit to the non-exclusive jurisdiction of the
courts of that State.
5.8 This document may be executed in a number of counterparts and the
counterparts taken together constitute one and the same instrument.
[nb consideration to be given as to mechanics of giving notices]
5
<PAGE>
Exhibit (k)(4)
SCHEDULE
DELIVERY NOTICE
To: [insert name of Escrow Agent] of [insert address]
From: [WBK STRYPES TRUST, a business trust organised pursuant to the Business
Trust Act of the state of Delaware in the United States of
America./(Administrator(?))]
Date: [insert]
Escrow Agreement dated [ ] 1997 between
WBK STRYPES Trust and [insert name of Escrow Agent] ('Escrow Agreement')
Escrow Account no. [insert]
This is a Delivery Notice for the purposes of clause 2.1 of the Escrow
Agreement.
Accordingly, you are irrevocably directed to immediately pay the Escrow Amount
and all interest earned on the Escrow Amount to the Australian Trustee or at its
direction.
Terms used in this notice have the same meaning, unless otherwise defined, as in
the Escrow Agreement.
Signed for and on behalf of
[ ]
by an Authorised Representative
- ------------------------
Name:
Title:
6
<PAGE>
Exhibit (k)(4)
EXECUTED as an agreement.
SIGNED for and on behalf of WBK )
STRYPES TRUST )
- -------------------------------- ----------------------------
Signature of witness
- --------------------------------
Name of witness (print)
SIGNED for and on behalf of )
AUSTRALIAN MUTUAL PROVIDENT )
SOCIETY )
- -------------------------------- ----------------------------
Signature of witness
- --------------------------------
Name of witness (print)
SIGNED for and on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
- -------------------------------- ----------------------------
Signature of witness
- -------------------------------- ----------------------------
Name of witness (print)
7
<PAGE>
Exhibit (k)(4)
SIGNED for and on behalf of NATIONAL )
AUSTRALIA TRUSTEES LIMITED )
- -------------------------------- ----------------------------
Signature of witness
- --------------------------------
Name of witness (print)
8
<PAGE>
Exhibit (k)(5)
FUND EXPENSE AGREEMENT
This Agreement dated as of _________ __, 1997 among Australian Mutual
Provident Society, ("AMP"), Merrill Lynch & Co., Inc. ("Merrill Lynch") and The
Bank of New York (the "Service Provider"), in its capacities as administrator
and custodian for WBK STRYPES Trust (the "Trust").
WHEREAS, the Trust is a business trust organized pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), under and by virtue of a Trust Agreement
dated as of March 14, 1996, as amended and restated as of _____ __, 1997 (the
"Trust Agreement"); and
WHEREAS, AMP and Merrill Lynch desire to make provisions for the payment
of certain initial and on-going expenses of the Trust;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement and other valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. (a) Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Trust Agreement.
(b) The following terms shall have the following meanings:
"ADR Expenses" means any reasonable expenses of the Trust incurred in
connection with depositing Bank Ordinary Shares with the Depositary in
accordance with Section 3.5 of the Trust Agreement.
"Additional Expense" means the Ordinary Expense the incurring of which
will require the Service Provider to provide the Additional Expense Notice
pursuant to Section 3(a) hereof and any Ordinary Expense incurred thereafter.
"Additional Expense Notice" means the notice required to be given by the
Service Provider to Merrill Lynch pursuant to Section 3(a) hereof.
"Closing Time" shall have the meaning ascribed thereto in the Purchase
Agreement.
<PAGE>
Exhibit (k)(5)
"Offering Expense Amount" means the amount set forth as such on Schedule I
hereto as the fees and expenses of the Trust incurred in connection with the
offering of the STRYPES.
"Ordinary Expense" of the Trust means any expense of the Trust other than
ADR Expenses and any expense of the Trust arising under Sections 2.2(g) and 6.6
of the Administration Agreement, Section 15 of the Custodian Agreement, Section
5.4(b) of the Paying Agent Agreement and Section 7.6 of the Trust Agreement.
"Organizational Expense Amount" means the amount set forth as such on
Schedule II hereto as the fees and expenses of the Trust incurred in connection
with the organization of the Trust.
"Up-front Fee Amount" means the amount set forth as such on Schedule III
hereto payable as a one-time payment to the Service Provider in respect of its
collective services as Administrator, Custodian and Paying Agent for the entire
term of the Trust.
"Up-front Expense Amount" means the amount set forth as such on Schedule
IV hereto payable as a one-time payment to the Service Provider in respect of
Ordinary Expenses anticipated to be incurred by the Administrator on behalf of
the Trust, pursuant to the Administration Agreement, during the term of the
Trust.
2. AGREEMENT TO PAY UP-FRONT FEES AND OFFERING, ORGANIZATIONAL AND
UP-FRONT EXPENSES. The Up-front Fee Amount, the Offering Expense Amount, the
Organizational Expense Amount and the Up-Front Expense Amount shall be deducted
by the Trust and paid from the proceeds of the offering of the STRYPES.
3. AGREEMENT TO PAY ADDITIONAL EXPENSES. (a) Prior to incurring any
Ordinary Expense on behalf of the Trust that, together with all prior Ordinary
Expenses incurred by the Administrator on behalf of the Trust and all Ordinary
Expenses set forth on Schedule IV hereto which are anticipated but have not yet
been incurred by the Administrator on behalf of the Trust, would cause the
aggregate amount of Ordinary Expenses of the Trust to exceed the Up-front
Expense Amount, the Administrator shall provide to Merrill Lynch and AMP (i)
prompt written notice to the effect that the aggregate amount of Ordinary
Expenses of the Trust will exceed the Up-front Expense Amount, and (ii) an
accounting, in such detail as shall be reasonably acceptable to Merrill Lynch
and AMP, of all Ordinary Expenses incurred on behalf of the Trust through the
date of the Additional Expense Notice.
(b) From and after the date of the Additional Expense Notice, the Service
Provider agrees that it will not, without the prior written consent of Merrill
Lynch and AMP, incur on behalf of the Trust (i) any single expense in excess of
$2,500 or (ii) in any calendar
2
<PAGE>
Exhibit (k)(5)
quarter expenses aggregating in excess of $5,000. Subject to the foregoing, the
Service Provider shall give notice to Merrill Lynch and AMP in writing promptly
following the incurring of any Additional Expense. Such notice to Merrill Lynch
shall be accompanied by any demand, bill, invoice or other similar document in
respect of such Additional Expense.
(c) Subject to the first sentence of paragraph (b) of this Section 3,
Merrill Lynch agrees to pay to the Service Provider from time to time the amount
of any Additional Expense. Payment by Merrill Lynch of any Additional Expense
shall be made in New York Clearing House (next-day) funds by the later of (i)
five Business Days after the receipt by Merrill Lynch from the Service Provider
of notice of the incurring thereof or (ii) two Business Days prior to the due
date for the payment of such Additional Expense.
(d) The Service Provider agrees to notify Merrill Lynch of the ADR
Expenses, if any, which notice shall be delivered to Merrill Lynch at least five
Business Days prior to the Exchange Date or earlier date of distribution of the
Bank Ordinary Shares in exchange for the STRYPES. Payment by Merrill Lynch of
any ADR Expenses shall be made in New York Clearing House (next-day) funds by
noon on the second Business Day prior to such date.
(e) AMP agrees to reimburse Merrill Lynch from time to time for the amount
of any Additional Expense and any ADR expenses paid by Merrill Lynch pursuant to
paragraph (c) or (d), as the case may be, of this Section 3. Merrill Lynch shall
be reimbursed for any such Additional Expense or ADR expenses in New York
Clearing House (next-day) funds by the later of (i) five Business Days after the
receipt by AMP from the Service Provider of notice of the incurring thereof or
(ii) two Business Days prior to the due date for the payment of such Additional
Expense.
(f) Merrill Lynch or AMP may contest in good faith the reasonableness of
any Additional Expenses or ADR Expense and the parties shall attempt to resolve
amicably the disagreement; provided that if the parties cannot resolve the
dispute by the due date hereunder with respect to such Additional Expense or ADR
Expenses, subject to the first sentence of paragraph (b) of this Section 3,
Merrill Lynch shall pay the amount of such Additional Expense or ADR Expenses,
and AMP shall reimburse Merrill Lynch for the amount so paid, subject to later
adjustment and credit if such dispute is resolved in favor of Merrill Lynch or
AMP, as the case may be.
4. CONDITION TO PAYMENT. The obligations of AMP under Sections 2 and 3
hereof and the obligations of Merrill Lynch under Section 3 hereof shall be
subject to the condition that the Structured Yield Product Exchangeable for
Stock(SM) (the "STRYPES") issued by the Trust shall have been issued and paid
for at the Closing Time.
- --------
(SM) Service mark of Merrill Lynch & Co., Inc.
3
<PAGE>
Exhibit (k)(5)
5. TRUST DISSOLUTION; REFUND OF UNUSED EXPENSE FUNDS. If at the
dissolution of the Trust in accordance with Section 8.3 of the Trust Agreement
the aggregate amount of Ordinary Expenses incurred by the Service Provider on
behalf of the Trust through the date of dissolution shall be less than the
Up-front Expense Amount plus any interest earned thereupon, the Service Provider
shall, promptly following the date of such dissolution, pay to AMP in New York
Clearing House (next-day) funds the amount of such excess.
6. TERMINATION OF ADMINISTRATION AGREEMENT. In the event of the
termination of the Administration Agreement in accordance with Section 4.1
thereof, the Service Provider shall promptly pay to AMP in New York Clearing
House (next-day) funds (i) the portion of the Service Provider's Up-front Fee
Amount ratable for the period from the date of the termination of the
Administration Agreement to the Exchange Date and (ii) any unexpended portion of
the Up-front Expense Amount plus any interest earned thereupon.
7. STATEMENTS AND REPORTS. The Service Provider shall collect and safekeep
all demands, bills, invoices or other written communications received from third
parties in connection with any Ordinary Expenses, Additional Expenses and ADR
Expenses and shall prepare and maintain (or cause to be prepared and maintained)
adequate books and records showing all receipts and disbursements of funds in
connection therewith. Merrill Lynch and AMP each shall have the right to inspect
and to copy, at its expense, all such documents, books and records at all
reasonable times and from time to time during the term of this Agreement.
8. TERM OF CONTRACT. This Agreement shall continue in effect until the
dissolution of the Trust in accordance with Section 8.3 of the Trust Agreement.
9. NO ASSIGNMENT. No party to this Agreement may assign its rights or
delegate its duties hereunder without the prior written consent of the other
parties.
10. AMENDMENTS. The Service Provider agrees that it will not consent to
any amendment of the Administration Agreement, the Custodian Agreement, the
Paying Agent Agreement or the Nominee Trust Agreement without the prior written
consent of Merrill Lynch and AMP.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the matters contained herein and supersedes all
prior agreements or understandings. No amendment or modification of this
Agreement shall be valid unless the amendment or modification is in writing and
is signed by all the parties to this Agreement.
12. NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other
4
<PAGE>
Exhibit (k)(5)
address for a particular party as shall be specified by such party in a like
notice given pursuant to this Section 9):
The Service Provider: The Bank of New York
101 Barclay Street
12th Floor, East
New York, New York 10286
Telecopier: (212) 815-7157
Attention: Betty Cocozza
Merrill Lynch: Merrill Lynch & Co., Inc.
North Tower
New York, New York 10281-1329
Telecopier: (212) 449-3150
Attention: Douglas W. Squires
AMP: Australian Mutual Provident Society
AMP Building
33 Alfred Street
Circular Quay
Sydney, NSW 2000
Telecopier: ___________
Attention: ____________
A copy of any communication to Merrill Lynch shall be furnished to Merrill Lynch
& Co., Inc., World Financial Center, North Tower, New York, New York 10281-1334,
telecopier (212) 449-9813, Attention: Associate General Counsel, provided that
the failure to furnish such copy shall not affect the effectiveness of any such
communication. Except as otherwise specifically provided herein, all notices and
other communications provided for hereunder shall be in writing and shall be
deemed to have been duly given if either (i) personally delivered (including
delivery by courier service or by Federal Express or any other nationally
recognized overnight delivery service for next day delivery) to the offices set
forth above, in which case they shall be deemed received on the first Business
Day by which delivery shall have been made to said offices, (ii) transmitted by
any standard form of telecommunication to the offices set forth above, in which
case they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case
5
<PAGE>
Exhibit (k)(5)
delivery shall be deemed to have been received on the first Business Day on
which such acknowledgment is refused).
13. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
14. CONSENT TO JURISDICTION; APPOINTMENT OF TO ACCEPT SERVICE OF PROCESS.
(a) Consent to Jurisdiction. AMP (referred to in this Section 14 as the
"Appointing Party") irrevocably consents and agrees that any legal action, suit
or proceeding against it with respect to its obligations, liabilities or any
other matter arising out of or in connection with this Agreement may be brought
in any United States federal or state court in the State of New York, County of
New York.
(b) Appointment of Service Agent. The Appointing Party designates,
appoints, and empowers CT Corporation System with offices currently at 1633
Broadway, New York, New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and its properties, assets and
revenues, service of any and all legal process, summons, notices and documents
that may be served in any action, suit or proceeding brought against the
Appointing Party in any such United States federal or state court with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement and that may be made on such designee, appointee
and agent in accordance with legal procedures prescribed for such courts. If for
any reason such designee, appointee and agent hereunder shall cease to be
available to act as such, the Appointing Party agrees to designate a new
designee, appointee and agent in The City of New York on the terms and for the
purposes of this Section 14 satisfactory to Merrill Lynch. The Appointing Party
further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any such action, suit or
proceeding against the Appointing Party, by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 14 (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) with a copy to the
Appointing Party as provided in Section 12. The Appointing Party agrees that the
failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the holders of the
Securities, Merrill Lynch and the other persons referred to in Sections 7 and 8
in the Purchase Agreement to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Appointing Party, or bring actions, suits or proceedings
against it in such other jurisdictions, and in such manner, as may be permitted
by applicable law. The
6
<PAGE>
Exhibit (k)(5)
Appointing Party irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Agreement brought in the federal courts located in The
City of New York or the courts of the State of New York located in The City of
New York and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
(c) Survival. The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
15. FOREIGN TAXES. All payments by AMP to Merrill Lynch hereunder shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereinafter
imposed, levied, collected, withheld or assessed by Australia or any other
jurisdiction in which AMP has a branch or an office from which payment is made
or deemed to be made, excluding (i) any such tax imposed by reason of Merrill
Lynch having some connection with any such jurisdiction other than its
participation as Underwriter hereunder, and (ii) any income or franchise tax on
the overall net income of Merrill Lynch imposed by the United States of America
or by the State of New York or any political subdivision of the United States of
America or of the State of New York (all such non-excluded taxes, "Foreign
Taxes"). If AMP is prevented by operation of law or otherwise from paying,
causing to be paid or remitting that portion of amounts payable hereunder
represented by Foreign Taxes withheld or deducted, then amounts payable under
this Agreement by such party shall, to the extent permitted by law, be increased
to such amount as is necessary to yield and remit to Merrill Lynch an amount
which, after deduction of all Foreign Taxes (including all Foreign Taxes payable
on such increased payments) equals the amount that would have been payable if no
Foreign Taxes applied.
16. WAIVER OF IMMUNITIES. To the extent that AMP or any of its respective
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service or process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement or any of
the Fundamental Agreements, AMP hereby irrevocably and unconditionally waives
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
7
<PAGE>
Exhibit (k)(5)
17. JUDGMENT CURRENCY. AMP agrees to indemnify Merrill Lynch against any
loss incurred by Merrill Lynch as a result of any judgment or order being given
or made for any amount due hereunder and such judgment or order being expressed
and paid in a currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order, and (ii) the rate of exchange at
which Merrill Lynch is able to purchase United States dollars, at the business
day nearest the date of judgment, with the amount of the Judgment Currency
actually received by Merrill Lynch. The foregoing indemnity shall constitute a
separate and independent obligation of AMP, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs or exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
18. GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
19. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
8
<PAGE>
Exhibit (k)(5)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
By:__________________________________
Name:
Title:
MERRILL LYNCH & CO., INC.
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK
By:___________________________________
Name: Betty Cocozza
Title: Assistant Vice President
<PAGE>
Exhibit (k)(5)
SCHEDULE I
Item Amount
- ---- ------
SEC Registration Fees $294,092
NYSE Listing Fees 72,620
NASD Fees 30,500
Printing (other than STRYPES Certificates) 100,000
Legal Fees 80,000
Blue Sky Fees 2,000
Miscellaneous 10,000
--------
Total 589,212
<PAGE>
Exhibit (k)(5)
SCHEDULE II
Item Amount
- ---- ------
STRYPES Certificates $ 2,000
Fees and Expenses of Special Delaware
Counsel to the Trust 12,000
-------
Total 14,000
<PAGE>
Exhibit (k)(5)
SCHEDULE III
Item Amount
- ---- ------
Initial Acceptance Fee $ 10,000
Administrative Agent Fee 105,000
--------
Total 115,000
<PAGE>
Exhibit (k)(5)
SCHEDULE IV
Item Amount
- ---- ------
Ongoing NYSE Listing Fees $ 49,856
Administrative Agent's Accountants 56,000
Initial and Ongoing Auditor of the Trust 25,000
Mailing of Reports to Shareholders 45,000
Trustees Fees 36,000
Preparation and Filing of Annual Tax
Returns of the Trust 8,000
Initial Legal Review 85,000
Out of Pocket/Miscellaneous 15,000
--------
Total 319,856
<PAGE>
Exhibit (k)(5)
FUND EXPENSE AGREEMENT
This Agreement dated as of _________ __, 1997 among Australian Mutual
Provident Society, ("AMP"), Merrill Lynch & Co., Inc. ("Merrill Lynch") and The
Bank of New York (the "Service Provider"), in its capacities as administrator
and custodian for WBK STRYPES Trust (the "Trust").
WHEREAS, the Trust is a business trust organized pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), under and by virtue of a Trust Agreement
dated as of March 14, 1996, as amended and restated as of _____ __, 1997 (the
"Trust Agreement"); and
WHEREAS, AMP and Merrill Lynch desire to make provisions for the payment
of certain initial and on-going expenses of the Trust;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement and other valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. (a) Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Trust Agreement.
(b) The following terms shall have the following meanings:
"ADR Expenses" means any reasonable expenses of the Trust incurred in
connection with depositing Bank Ordinary Shares with the Depositary in
accordance with Section 3.5 of the Trust Agreement.
"Additional Expense" means the Ordinary Expense the incurring of which
will require the Service Provider to provide the Additional Expense Notice
pursuant to Section 3(a) hereof and any Ordinary Expense incurred thereafter.
"Additional Expense Notice" means the notice required to be given by the
Service Provider to Merrill Lynch pursuant to Section 3(a) hereof.
"Closing Time" shall have the meaning ascribed thereto in the Purchase
Agreement.
<PAGE>
Exhibit (k)(5)
"Offering Expense Amount" means the amount set forth as such on Schedule I
hereto as the fees and expenses of the Trust incurred in connection with the
offering of the STRYPES.
"Ordinary Expense" of the Trust means any expense of the Trust other than
ADR Expenses and any expense of the Trust arising under Sections 2.2(g) and 6.6
of the Administration Agreement, Section 15 of the Custodian Agreement, Section
5.4(b) of the Paying Agent Agreement and Section 7.6 of the Trust Agreement.
"Organizational Expense Amount" means the amount set forth as such on
Schedule II hereto as the fees and expenses of the Trust incurred in connection
with the organization of the Trust.
"Up-front Fee Amount" means the amount set forth as such on Schedule III
hereto payable as a one-time payment to the Service Provider in respect of its
collective services as Administrator, Custodian and Paying Agent for the entire
term of the Trust.
"Up-front Expense Amount" means the amount set forth as such on Schedule
IV hereto payable as a one-time payment to the Service Provider in respect of
Ordinary Expenses anticipated to be incurred by the Administrator on behalf of
the Trust, pursuant to the Administration Agreement, during the term of the
Trust.
2. AGREEMENT TO PAY UP-FRONT FEES AND OFFERING, ORGANIZATIONAL AND
UP-FRONT EXPENSES. The Up-front Fee Amount, the Offering Expense Amount, the
Organizational Expense Amount and the Up-Front Expense Amount shall be deducted
by the Trust and paid from the proceeds of the offering of the STRYPES.
3. AGREEMENT TO PAY ADDITIONAL EXPENSES. (a) Prior to incurring any
Ordinary Expense on behalf of the Trust that, together with all prior Ordinary
Expenses incurred by the Administrator on behalf of the Trust and all Ordinary
Expenses set forth on Schedule IV hereto which are anticipated but have not yet
been incurred by the Administrator on behalf of the Trust, would cause the
aggregate amount of Ordinary Expenses of the Trust to exceed the Up-front
Expense Amount, the Administrator shall provide to Merrill Lynch and AMP (i)
prompt written notice to the effect that the aggregate amount of Ordinary
Expenses of the Trust will exceed the Up-front Expense Amount, and (ii) an
accounting, in such detail as shall be reasonably acceptable to Merrill Lynch
and AMP, of all Ordinary Expenses incurred on behalf of the Trust through the
date of the Additional Expense Notice.
(b) From and after the date of the Additional Expense Notice, the Service
Provider agrees that it will not, without the prior written consent of Merrill
Lynch and AMP, incur on behalf of the Trust (i) any single expense in excess of
$2,500 or (ii) in any calendar
2
<PAGE>
Exhibit (k)(5)
quarter expenses aggregating in excess of $5,000. Subject to the foregoing, the
Service Provider shall give notice to Merrill Lynch and AMP in writing promptly
following the incurring of any Additional Expense. Such notice to Merrill Lynch
shall be accompanied by any demand, bill, invoice or other similar document in
respect of such Additional Expense.
(c) Subject to the first sentence of paragraph (b) of this Section 3,
Merrill Lynch agrees to pay to the Service Provider from time to time the amount
of any Additional Expense. Payment by Merrill Lynch of any Additional Expense
shall be made in New York Clearing House (next-day) funds by the later of (i)
five Business Days after the receipt by Merrill Lynch from the Service Provider
of notice of the incurring thereof or (ii) two Business Days prior to the due
date for the payment of such Additional Expense.
(d) The Service Provider agrees to notify Merrill Lynch of the ADR
Expenses, if any, which notice shall be delivered to Merrill Lynch at least five
Business Days prior to the Exchange Date or earlier date of distribution of the
Bank Ordinary Shares in exchange for the STRYPES. Payment by Merrill Lynch of
any ADR Expenses shall be made in New York Clearing House (next-day) funds by
noon on the second Business Day prior to such date.
(e) AMP agrees to reimburse Merrill Lynch from time to time for the amount
of any Additional Expense and any ADR expenses paid by Merrill Lynch pursuant to
paragraph (c) or (d), as the case may be, of this Section 3. Merrill Lynch shall
be reimbursed for any such Additional Expense or ADR expenses in New York
Clearing House (next-day) funds by the later of (i) five Business Days after the
receipt by AMP from the Service Provider of notice of the incurring thereof or
(ii) two Business Days prior to the due date for the payment of such Additional
Expense.
(f) Merrill Lynch or AMP may contest in good faith the reasonableness of
any Additional Expenses or ADR Expense and the parties shall attempt to resolve
amicably the disagreement; provided that if the parties cannot resolve the
dispute by the due date hereunder with respect to such Additional Expense or ADR
Expenses, subject to the first sentence of paragraph (b) of this Section 3,
Merrill Lynch shall pay the amount of such Additional Expense or ADR Expenses,
and AMP shall reimburse Merrill Lynch for the amount so paid, subject to later
adjustment and credit if such dispute is resolved in favor of Merrill Lynch or
AMP, as the case may be.
4. CONDITION TO PAYMENT. The obligations of AMP under Sections 2 and 3
hereof and the obligations of Merrill Lynch under Section 3 hereof shall be
subject to the condition that the Structured Yield Product Exchangeable for
Stock(SM) (the "STRYPES") issued by the Trust shall have been issued and paid
for at the Closing Time.
- --------
(SM) Service mark of Merrill Lynch & Co., Inc.
3
<PAGE>
Exhibit (k)(5)
5. TRUST DISSOLUTION; REFUND OF UNUSED EXPENSE FUNDS. If at the
dissolution of the Trust in accordance with Section 8.3 of the Trust Agreement
the aggregate amount of Ordinary Expenses incurred by the Service Provider on
behalf of the Trust through the date of dissolution shall be less than the
Up-front Expense Amount plus any interest earned thereupon, the Service Provider
shall, promptly following the date of such dissolution, pay to AMP in New York
Clearing House (next-day) funds the amount of such excess.
6. TERMINATION OF ADMINISTRATION AGREEMENT. In the event of the
termination of the Administration Agreement in accordance with Section 4.1
thereof, the Service Provider shall promptly pay to AMP in New York Clearing
House (next-day) funds (i) the portion of the Service Provider's Up-front Fee
Amount ratable for the period from the date of the termination of the
Administration Agreement to the Exchange Date and (ii) any unexpended portion of
the Up-front Expense Amount plus any interest earned thereupon.
7. STATEMENTS AND REPORTS. The Service Provider shall collect and safekeep
all demands, bills, invoices or other written communications received from third
parties in connection with any Ordinary Expenses, Additional Expenses and ADR
Expenses and shall prepare and maintain (or cause to be prepared and maintained)
adequate books and records showing all receipts and disbursements of funds in
connection therewith. Merrill Lynch and AMP each shall have the right to inspect
and to copy, at its expense, all such documents, books and records at all
reasonable times and from time to time during the term of this Agreement.
8. TERM OF CONTRACT. This Agreement shall continue in effect until the
dissolution of the Trust in accordance with Section 8.3 of the Trust Agreement.
9. NO ASSIGNMENT. No party to this Agreement may assign its rights or
delegate its duties hereunder without the prior written consent of the other
parties.
10. AMENDMENTS. The Service Provider agrees that it will not consent to
any amendment of the Administration Agreement, the Custodian Agreement, the
Paying Agent Agreement or the Nominee Trust Agreement without the prior written
consent of Merrill Lynch and AMP.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the matters contained herein and supersedes all
prior agreements or understandings. No amendment or modification of this
Agreement shall be valid unless the amendment or modification is in writing and
is signed by all the parties to this Agreement.
12. NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other
4
<PAGE>
Exhibit (k)(5)
address for a particular party as shall be specified by such party in a like
notice given pursuant to this Section 9):
The Service Provider: The Bank of New York
101 Barclay Street
12th Floor, East
New York, New York 10286
Telecopier: (212) 815-7157
Attention: Betty Cocozza
Merrill Lynch: Merrill Lynch & Co., Inc.
North Tower
New York, New York 10281-1329
Telecopier: (212) 449-3150
Attention: Douglas W. Squires
AMP: Australian Mutual Provident Society
AMP Building
33 Alfred Street
Circular Quay
Sydney, NSW 2000
Telecopier: ___________
Attention: ____________
A copy of any communication to Merrill Lynch shall be furnished to Merrill Lynch
& Co., Inc., World Financial Center, North Tower, New York, New York 10281-1334,
telecopier (212) 449-9813, Attention: Associate General Counsel, provided that
the failure to furnish such copy shall not affect the effectiveness of any such
communication. Except as otherwise specifically provided herein, all notices and
other communications provided for hereunder shall be in writing and shall be
deemed to have been duly given if either (i) personally delivered (including
delivery by courier service or by Federal Express or any other nationally
recognized overnight delivery service for next day delivery) to the offices set
forth above, in which case they shall be deemed received on the first Business
Day by which delivery shall have been made to said offices, (ii) transmitted by
any standard form of telecommunication to the offices set forth above, in which
case they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case
5
<PAGE>
Exhibit (k)(5)
delivery shall be deemed to have been received on the first Business Day on
which such acknowledgment is refused).
13. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
14. CONSENT TO JURISDICTION; APPOINTMENT OF TO ACCEPT SERVICE OF PROCESS.
(a) Consent to Jurisdiction. AMP (referred to in this Section 14 as the
"Appointing Party") irrevocably consents and agrees that any legal action, suit
or proceeding against it with respect to its obligations, liabilities or any
other matter arising out of or in connection with this Agreement may be brought
in any United States federal or state court in the State of New York, County of
New York.
(b) Appointment of Service Agent. The Appointing Party designates,
appoints, and empowers CT Corporation System with offices currently at 1633
Broadway, New York, New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and its properties, assets and
revenues, service of any and all legal process, summons, notices and documents
that may be served in any action, suit or proceeding brought against the
Appointing Party in any such United States federal or state court with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement and that may be made on such designee, appointee
and agent in accordance with legal procedures prescribed for such courts. If for
any reason such designee, appointee and agent hereunder shall cease to be
available to act as such, the Appointing Party agrees to designate a new
designee, appointee and agent in The City of New York on the terms and for the
purposes of this Section 14 satisfactory to Merrill Lynch. The Appointing Party
further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any such action, suit or
proceeding against the Appointing Party, by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 14 (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) with a copy to the
Appointing Party as provided in Section 12. The Appointing Party agrees that the
failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the holders of the
Securities, Merrill Lynch and the other persons referred to in Sections 7 and 8
in the Purchase Agreement to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Appointing Party, or bring actions, suits or proceedings
against it in such other jurisdictions, and in such manner, as may be permitted
by applicable law. The
6
<PAGE>
Exhibit (k)(5)
Appointing Party irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Agreement brought in the federal courts located in The
City of New York or the courts of the State of New York located in The City of
New York and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
(c) Survival. The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
15. FOREIGN TAXES. All payments by AMP to Merrill Lynch hereunder shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereinafter
imposed, levied, collected, withheld or assessed by Australia or any other
jurisdiction in which AMP has a branch or an office from which payment is made
or deemed to be made, excluding (i) any such tax imposed by reason of Merrill
Lynch having some connection with any such jurisdiction other than its
participation as Underwriter hereunder, and (ii) any income or franchise tax on
the overall net income of Merrill Lynch imposed by the United States of America
or by the State of New York or any political subdivision of the United States of
America or of the State of New York (all such non-excluded taxes, "Foreign
Taxes"). If AMP is prevented by operation of law or otherwise from paying,
causing to be paid or remitting that portion of amounts payable hereunder
represented by Foreign Taxes withheld or deducted, then amounts payable under
this Agreement by such party shall, to the extent permitted by law, be increased
to such amount as is necessary to yield and remit to Merrill Lynch an amount
which, after deduction of all Foreign Taxes (including all Foreign Taxes payable
on such increased payments) equals the amount that would have been payable if no
Foreign Taxes applied.
16. WAIVER OF IMMUNITIES. To the extent that AMP or any of its respective
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service or process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement or any of
the Fundamental Agreements, AMP hereby irrevocably and unconditionally waives
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
7
<PAGE>
Exhibit (k)(5)
17. JUDGMENT CURRENCY. AMP agrees to indemnify Merrill Lynch against any
loss incurred by Merrill Lynch as a result of any judgment or order being given
or made for any amount due hereunder and such judgment or order being expressed
and paid in a currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order, and (ii) the rate of exchange at
which Merrill Lynch is able to purchase United States dollars, at the business
day nearest the date of judgment, with the amount of the Judgment Currency
actually received by Merrill Lynch. The foregoing indemnity shall constitute a
separate and independent obligation of AMP, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs or exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
18. GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
19. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
8
<PAGE>
Exhibit (k)(5)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
By:__________________________________
Name:
Title:
MERRILL LYNCH & CO., INC.
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK
By:___________________________________
Name: Betty Cocozza
Title: Assistant Vice President
<PAGE>
Exhibit (k)(5)
SCHEDULE I
Item Amount
- ---- ------
SEC Registration Fees $294,092
NYSE Listing Fees 72,620
NASD Fees 30,500
Printing (other than STRYPES Certificates) 100,000
Legal Fees 80,000
Blue Sky Fees 2,000
Miscellaneous 10,000
--------
Total 589,212
<PAGE>
Exhibit (k)(5)
SCHEDULE II
Item Amount
- ---- ------
STRYPES Certificates $ 2,000
Fees and Expenses of Special Delaware
Counsel to the Trust 12,000
-------
Total 14,000
<PAGE>
Exhibit (k)(5)
SCHEDULE III
Item Amount
- ---- ------
Initial Acceptance Fee $ 10,000
Administrative Agent Fee 105,000
--------
Total 115,000
<PAGE>
Exhibit (k)(5)
SCHEDULE IV
Item Amount
- ---- ------
Ongoing NYSE Listing Fees $ 49,856
Administrative Agent's Accountants 56,000
Initial and Ongoing Auditor of the Trust 25,000
Mailing of Reports to Shareholders 45,000
Trustees Fees 36,000
Preparation and Filing of Annual Tax
Returns of the Trust 8,000
Initial Legal Review 85,000
Out of Pocket/Miscellaneous 15,000
--------
Total 319,856
<PAGE>
Exhibit (k)(7)
NATIONAL AUSTRALIA TRUSTEES LIMITED
(ACN 007 350 405)
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
(ARBN 008 387 371)
NOMINEE TRUST AGREEMENT
<PAGE>
Exhibit (k)(7)
TABLE OF CONTENTS
1. Interpretation....................................................... 1
2. Creation of Trust.................................................... 2
3. Transfer to Beneficiary.............................................. 3
4. Beneficiary Absolutely Entitled to Trust Fund........................ 3
5. Beneficiary Absolutely Entitled to Income............................ 3
6. Trustee's Powers..................................................... 3
7. Beneficiary's Directions............................................. 5
8. Trustee Indemnity.................................................... 6
9. Trustees's Liabilities............................................... 7
10. Governing Law........................................................ 8
11. Notices.............................................................. 8
12. Trustee Remuneration................................................. 8
<PAGE>
Exhibit (k)(7)
NOMINEE TRUST AGREEMENT
THIS AGREEMENT OF SETTLEMENT is made the 26th day of September 1997
BETWEEN AUSTRALIAN MUTUAL PROVIDENT SOCIETY ARBN 008 387 371
("Beneficiary")
AND NATIONAL AUSTRALIA TRUSTEES LIMITED ACN 007 350 405
having its principal office in New South Wales at Level 13, 23
Hunter Street, Sydney, NSW 2000 ("Trustee")
RECITALS
A. The Beneficiary has paid the Settlement Sum to the Trustee prior to the
execution of this Agreement to settle and constitute the Trust.
B. The Trustee has consented to be the trustee of the trust created by this
Agreement upon the trusts and within and subject to the powers and
provisions set out in this Agreement.
C. The parties agree that they are entering into this Agreement for valuable
consideration.
OPERATIVE
1. Interpretation
1.1 In this Agreement including the Recitals the following expressions have
the following meanings:
(a) "Beneficiary" means Australian Mutual Provident Society;
(b) "Settlement Sum" means the amount of $1,000;
(c) "Shares" means shares, stocks, options or rights in respect of
shares or stock in a company;
(d) "this Agreement" means this Agreement of Settlement as amended from
time to time;
<PAGE>
Exhibit (k)(7)
(e) "Trust" means the trust created by this Agreement originally
constituted or as amended from time to time;
(f) "Trust Fund" means:
(i) the Settlement Sum;
(ii) all monies investments and property paid or transferred to,
vested in, or accepted by the Trustee as additions to the
Trust Fund held by it pursuant to this Agreement or upon the
trusts declared in this Agreement;
(iii) all other additions or accretions to the Trust Fund howsoever
arising;
(iv) any accumulations of income for the time being in the hands of
the Trustee;
(v) the investments property and assets from time to time
representing the money investments property and accumulations
referred to in paragraphs (i) to (iv) of this definition;
(g) "Trustee" means the person named as the Trustee in this Agreement or
any other person or persons acting for the time being as trustee or
trustees of the Trust.
1.2 A reference to any party includes a reference to its successors.
1.3 A reference to a person includes a body corporate corporation, an
unincorporated body or other entity.
1.4 A reference to the singular includes the plural and vice versa.
2. Creation of Trust
2.1 The name of the Trust is The Platypus Trust.
2.2 The Trustee acknowledges receipt of the Settlement Sum. The Beneficiary
directs the Trustee to and the Trustee agrees that it will from the
execution of this Agreement hold the Trust Fund and the income produced by
the Trust Fund for the Beneficiary
2
<PAGE>
Exhibit (k)(7)
absolutely to deal with in accordance with the directions of the
Beneficiary and with and subject to the powers and provisions set out in
this Agreement.
3. Transfer to Beneficiary
The Trustee must at the direction of the Beneficiary transfer the Trust
Fund or any asset comprising the Trust Fund to the Beneficiary or as the
Beneficiary directs or otherwise deal with the Trust Fund and each asset
comprising the Trust Fund as the Beneficiary directs from time to time.
4. Beneficiary Absolutely Entitled to Trust Fund
The Trustee acknowledges that the Beneficiary is absolutely entitled as
against the Trustee to the Trust Fund and to each asset of the Trust Fund.
Nothing in this Agreement or any operation of law entitles the Trustee to
beneficial ownership of the Trust Fund or any asset of the Trust Fund or
to deprive the Beneficiary of the rights of absolute beneficial ownership
(including the right of possession) of the Trust Fund and each asset of
the Trust Fund.
5. Beneficiary Absolutely Entitled to Income
The Trustee will at all times hold the income produced by the Trust Fund
for the Beneficiary absolutely and at the direction of the Beneficiary
will pay to or apply the income for the benefit of the Beneficiary or
accumulate the income for re-investment as part of the Trust Fund as the
Beneficiary may direct.
6. Trustee's Powers
6.1 The Trust must acquire legal title to such assets as the Beneficiary from
time to time directs upon the Beneficiary providing funds immediately
available for completion of any such acquisition and upon the Beneficiary
doing all things needed on its part to complete the acquisition.
6.2 (a) The Trustee at the direction of the Beneficiary, and subject to
the Beneficiary providing sufficient funds immediately available for
completion of any transaction, and doing all things needed on its
part to complete the transaction, will deal in sell transpose
exchange or vary any or all of the investments and assets comprised
from time to time in the Trust Fund and reinvest the monies arising
from such dealing as directed by the Beneficiary.
3
<PAGE>
Exhibit (k)(7)
(b) The Trustee may perform any action or duty and exercise any power
under any agreement made pursuant to the direction of the
Beneficiary.
(c) If a direction is given to the Trustee by the Beneficiary, the
Trustee agrees to be bound to comply with that direction as if that
direction were embodied in this Agreement, and the Trustee shall not
act on or effect any subsequent direction of the Beneficiary which
is inconsistent with an agreement made by the Trustee in relation to
the Trust Fund at the direction of the Beneficiary, notwithstanding
anything to the contrary in this Agreement.
6.3 Without limiting the generality of the foregoing, the Trustee at the
direction of the Beneficiary may acquire Shares in any company whether in
Australia or elsewhere, and whether the Shares are fully or partly paid up
or involve liabilities or not. Any Shares may be acquired by original
subscription or by purchase or otherwise.
6.4 Where the Trust Fund at any time is comprised of any Shares the Trustee
must exercise all rights in respect of the Shares in accordance with the
directions of the Beneficiary. Without limiting the generality of the
foregoing the Trustee at the direction of the Beneficiary and upon such
terms as the Beneficiary directs will:
(a) attend meeting of shareholders;
(b) vote the Shares;
(c) appoint proxies;
(d) receive any distributions in respect of the Shares;
(e) execute any documents and deeds or do any acts or things as may be
necessary or desirable to exercise the rights attaching to the
Shares or for the better enjoyment of those rights;
(f) subscribe for Shares;
(g) pay any calls on Shares;
(h) cause the Shares to be registered in the name of the Trustee or a
nominee or custodian trustee;
(i) sell transfer or otherwise dispose of the Shares; and
4
<PAGE>
Exhibit (k)(7)
generally to do such other acts and things in relation to the Shares as
the Beneficiary may at any time direct.
6.5 Notwithstanding anything to the contrary in this Agreement, the Trustee is
not obliged to enter into any transaction or perform any act unless it is
satisfied that in the absence of its own fraud, gross negligence, wilful
misconduct or its failure to use reasonable care with respect to the
custody, safekeeping and physical preservation of the Trust Fund in its
possession, its personal liability is excluded or limited as required by
the Trustee.
7. Beneficiary's Directions
7.1 Unless required by law, or by court of competent jurisdiction, the Trustee
may not act in relation to or deal with the Trust Fund or any asset
comprising the Trust Fund except upon the express direction of the
Beneficiary.
7.2 The Trustee must not:
(a) vary or purport to vary the terms of this Agreement;
(b) retire or seek to retire as trustee or appoint or seek to appoint a
new or additional trustee.
except upon the express direction of the Beneficiary.
7.3 Reliance:
(a) The Trustee may rely on the directions of the Beneficiary in
relation to any act matter or thing the Beneficiary directs the
Trustee to do make or undertake under this Agreement, and need not:
(i) consider; or
(ii) make any inquiry as to
the legality or appropriateness or due execution of any act, matter
document or thing which it is directed to do, make, execute or
undertake by the Beneficiary.
5
<PAGE>
Exhibit (k)(7)
(b) The Beneficiary acknowledges that the Trustee has made no inquiries
before entering this Agreement and is not aware of any rights or
interests of any person other than the Beneficiary or any duties or
responsibilities the Trustee may have to any such person in entering
into and performing any action under this Agreement.
7.4 Directions:
(a) Any direction which is required to be given or which may be given by
the Beneficiary under this Agreement must be in writing, signed by
or on behalf of the Beneficiary.
(b) The Trustee may rely upon, and is not bound to inquire as to the due
execution or accuracy of, any written direction by the Beneficiary
to the Trustee, believed by the Trustee to be genuine, and
apparently signed by the Beneficiary under its common seal, or on
behalf of the Beneficiary by one of its duly authorised attorneys
under power of attorney, or by any employee of the Beneficiary whose
title includes the word "manager" or by the person for the time
being and from time to time holding the position of "general
counsel" or "chief legal counsel" of the Beneficiary.
8. Trustee Indemnity
8.1 The Beneficiary must indemnify and keep indemnified the Trustee at all
times from and against any loss damage or liability (including the
Trustee's internal administration costs and the cost of time and
attendance of its employees) which the Trustee may suffer or incur in
connection with the performance of its duties as Trustee of the Trust
(including any act performed at the direction of the Beneficiary) unless
the same has been committed, made or omitted by the Trustee through fraud,
willful misconduct, gross negligence or a failure to use reasonable care
with respect to the custody, safekeeping and physical preservation of the
Trust Fund in its possession.
8.2 (a) Subject to clause 8.2(b) of this Agreement, the Trustee is indemnified
out of the Trust Fund and out of the income of the Trust Fund against any
loss, damage or liability suffered or incurred by the Trustee in the
exercise or attempted exercise after the date of execution of this
Agreement of, or as a consequence of the failure to exercise after the
date of execution of this Agreement any of the trusts authorities, powers
and discretions conferred on it by this Agreement by virtue of being the
Trustee, except for any loss, damage or liability suffered or incurred by
the Trustee through its fraud, gross
6
<PAGE>
Exhibit (k)(7)
negligence, wilful misconduct or failure to use reasonable care with
respect to the custody, safekeeping and physical preservation of the Trust
Fund in its possession.
(b) Notwithstanding any provision of this Agreement or rule of law to
the contrary, the Trustee is not indemnified out of the Trust Fund
and hereby waives any indemnity out of the Trust Fund for:
(i) any remuneration payable to the Trustee under this Agreement
or otherwise;
(ii) any legal fees incurred or to be incurred by the Trustee in
performance of its obligation under this Agreement;
(iii) its internal administration costs and the cost of time and
attendance of its employees; or
(iv) any loss, damage or liability suffered or incurred by it in
respect of any act, matter or thing done or omitted to be done
by the Trustee at the direction of the Beneficiary prior to
the execution of this Agreement.
8.3 (a) A liability arising under or in connection with this Agreement may be
enforced against the Trustee only to the extent to which it can be
satisfied out of the property of the Trust out of which the Trustee is
actually indemnified for the liability. This limitation of liability
applies despite any provision of this Agreement (other than paragraph
8.3(c)) and extends to all liabilities and obligations of the Trustee in
any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement;
(b) The Beneficiary may not sue the Trustee in any capacity other than
as trustee of the Trust and may not seek the appointment of a
liquidator, administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangement of or
affecting the Trustee (except in relation to the Trust Fund);
(c) The provisions of this clause 8.3 do not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied
because under this Agreement there is a reduction in the extent of
the Trustee's indemnification out of the Trust Fund as a result of
the Trustee's fraud, gross negligence, wilful
7
<PAGE>
Exhibit (k)(7)
misconduct or failure to use reasonable care with respect to the
custody, safekeeping and physical preservation of the Trust Fund in
its possession;
(d) Nothing in this clause 8.3 derogates from the indemnity given to the
Trustee in clause 8.1 or clause 8.2 or is to be read as limiting in
any way the provisions for the benefit of the Trustee in clause 9.
9. Trustees's Liabilities
The Trustee is not responsible for:
(a) any loss or damage occasioned to the Trust Fund or any asset
comprising the Trust Fund or to any person by the exercise of any
discretion or power under this Agreement (or under any other
agreement made pursuant to a direction of the Beneficiary) or by law
conferred on the Trustee or by any alleged failure to exercise any
such discretion or power; or
(b) any breach of duty whatsoever;
unless the same is proved to have been committed, made or omitted by the
Trustee through fraud, wilful misconduct, gross negligence or the
Trustee's failure to use reasonable care with respect to the custody,
safekeeping and physical preservation of the Trust Fund in its possession.
All persons claiming any interest in the income or capital of the Trust
Fund are deemed to take with notice of and subject to the protection
conferred by this clause on the Trustee.
10. Governing Law
This Agreement and all questions arising under this Agreement shall be
governed and determined by the law of the State of New South Wales.
11. Notices
Any direction or notice which is required to be given or may be given
under this Agreement must be in writing signed by or on behalf of the
party giving the notice or direction.
12. Trustee Remuneration
8
<PAGE>
Exhibit (k)(7)
In consideration for the performance of its obligations under this
Agreement the AMP will pay the Trustee such remuneration as agreed by way
of side letter dated the date of this Agreement.
EXECUTED as an agreement.
SIGNED SEALED and DELIVERED ON )
behalf of NATIONAL AUSTRALIA )
TRUSTEES LIMITED (ACN 007 350 405) )
by its duly appointed attorney under power )
of attorney dated 28 May 1997 in the )
presence of )
BUSINESS MANAGER (NORTHERN REGION)
- ------------------------------- -------------------------------------
Signature of witness [ ]
- ------------------------------- -------------------------------------
Name of witness (print)
9
<PAGE>
Exhibit (k)(7)
SIGNED SEALED and DELIVERED by )
)
and by as )
attorneys for AUSTRALIAN MUTUAL )
PROVIDENT SOCIETY under power of )
attorney dated registered )
book number in the presence )
of )
- ------------------------------- -------------------------------------
Signature of witness [ ]
- ------------------------------- -------------------------------------
Name of witness (print)
10
<PAGE>
Exhibit (l)
Brown & Wood LLP
One World Trade Center
New York, New York 10048-0557
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
September 29, 1997
WBK STRYPES Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
Ladies and Gentlemen:
We have acted as counsel for WBK STRYPES Trust, a Delaware business
trust (the "Trust"), in connection with the registration of STRYPES (the
"STRYPES"), under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a registration statement on Form N-2, Securities Act File No.
333-1787 and Investment Company Act File No. 811-7565 (the "Registration
Statement").
As counsel for the Trust, we are familiar with the proceedings taken
by the Trust in connection with the authorization, issuance and sale of the
STRYPES. In addition, we have examined and are familiar with the Certificate of
Trust of the Trust, the Amended and Restated Trust Agreement of the Trust and
such other documents as we have deemed relevant to the matters referred to in
this opinion.
Based upon the foregoing, we are of the opinion that the STRYPES,
upon issuance and sale in the manner referred to in the Registration Statement,
will be legally issued, fully paid and non-assessable STRYPES of the Trust.
In rendering this opinion, we have relied as to matters of Delaware
law upon an opinion of Richards, Layton & Finger rendered to the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any registration statement filed pursuant to Rule
462(b) under the Securities Act and to the use of our name in the Prospectus
constituting a part thereof.
Very truly yours,
/s/ Brown & Wood LLP
<PAGE>
Exhibit (n)(1)
Brown & Wood LLP
One World Trade Center
New York, New York 10048-0557
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
September 29, 1997
WBK STRYPES Trust
c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Re: Registration Statement on Form N-2
Registration Nos. 333-1787 and 811-7565
Ladies and Gentlemen:
We have acted as tax counsel to the WBK STRYPES Trust (the "Trust") in
connection with the registration of its Structured Yield Product Exchangeable
for Stock (the "STRYPES"). In connection therewith, we have prepared the
discussion set forth under the caption "Certain United States Federal Income Tax
Considerations" (the "Discussion") in the Prospectus (the "Prospectus") that is
part of Amendment No. 9 to the Registration Statement on Form N-2 (Registration
Nos. 333-1787 and 811-7565) filed by the Trust with the Securities and Exchange
Commission on September 29, 1997.
We hereby confirm our opinion as set forth in the Discussion. In rendering
our opinion, we have examined (i) the Amended and Restated Trust Agreement
constituting WBK STRYPES Trust, (ii) the Contract and (iii) the Nominee Trust
Agreement, each in the form filed as an exhibit to the Registration Statement,
and have assumed that the obligations contemplated thereunder will be performed
in accordance with their terms.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Certain
United States Federal Income Tax Considerations" in the Prospectus and any
registration statement to be filed pursuant to Rule 462(b) relating thereto. The
issuance of such consent does not concede that we are an "expert" for the
purposes of the Securities Act of 1933.
Very truly yours,
/s/ Brown & Wood LLP
<PAGE>
Exhibit (n)(2)
COOPERS & LYBRAND
September 29, 1997
WBK STRYPES Trust
c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Re: Registration Statement on Form N-2
Registration Nos. 333-1787 and 811-7565
Ladies and Gentlemen:
We have acted as tax counsel to the WBK STRYPES Trust (the "Trust") in
connection with the registration of its Structured Yield Product Exchangeable
for Stock (the "STRYPES"). In connection therewith, we have prepared the
discussion set forth under the caption "Australian Taxation" (the "Discussion")
in the Prospectus (the "Prospectus") that is part of Amendment No. 9 to the
Registration Statement on Form N-2 (Registration Nos. 333- 1787 and 811-7565)
filed by the Trust with the Securities and Exchange Commission on September 29,
1997.
We hereby confirm our opinion as set forth in the Discussion. In rendering
our opinion, we have examined (i) the Amended and Restated Trust Agreement
constituting WBK STRYPES Trust, (ii) the Contract and (iii) the Nominee Trust
Agreement, each in the form filed as an exhibit to the Registration Statement,
and have assumed that the obligations contemplated thereunder will be performed
in accordance with their terms.
We hereby consent to the filing of this consent as an exhibit to the
Registration Statement and to the use of our name under the caption "Australian
Taxation" in the Prospectus and any registration statement to be filed pursuant
to Rule 462(b) relating thereto. The issuance of such consent does not concede
that we are an "expert" for the purposes of the Securities Act of 1933.
<PAGE>
Very truly yours,
/s/ Coopers & Lybrand
<PAGE>
Exhibit (n)(3)
INDEPENDENT AUDITORS' CONSENT
We consent to the inclusion in this Pre-Effective Amendment No. 9 to
Registration Statement Nos. 333-1787 and 811-7565 of WBK STRYPES Trust (the
"Trust") on Form N-2 of our report dated September 29, 1997 relating to the
audit of the statement of assets, liabilities and capital of the Trust and to
the reference to us under the heading "Experts" in the Prospectus, which is a
part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
New York, New York
September 29, 1997
<PAGE>
Exhibit (n)(4)
Allen Allen & Hemsley
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
September 29, 1997
WBK STRYPES Trust
c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Re: Registration Statement on Form N-2
Registration Nos. 333-1787 and 811-7565
Ladies and Gentlemen:
We have acted as Australian counsel to the WBK STRYPES Trust (the "Trust")
in connection with the registration of its Structured Yield Product Exchangeable
for Stock (the "STRYPES").
We hereby consent to the filing of this consent as an exhibit to the
Registration Statement and to the use of our name in the Prospectus and any
registration statement to be filed pursuant to Rule 462(b) relating thereto. The
issuance of such consent does not concede that we are an "expert" for the
purposes of the Securities Act of 1933.
Very truly yours,
/s/ Allen Allen & Hemsley
<PAGE>
Exhibit (p)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the 26th day of
September 1997, between the WBK STRYPES Trust, a business trust organized
pursuant to the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.))
(such trust and the trustees thereof acting in their capacity as such
being referred to herein as the "Trust"), and ML IBK Positions, Inc.
(the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE STRYPES
1.1 SALE AND ISSUANCE OF UNITS. Subject to the terms and conditions of
this Agreement, the Trust agrees to sell to the Purchaser and the Purchaser
agrees to purchase from the Trust, one Structured Yield Product Exchangeable for
Stock(sm), representing an undivided beneficial interest in the Trust (a
"STRYPES"), at a purchase price per STRYPES of $______.
1.2 CLOSING. The purchase and sale of the STRYPES shall take place at the
offices of Brown & Wood LLP, One World Trade Center, New York, New York 10048 at
9:00 a.m., New York City time, on September __, 1997, or at such other time
("Closing Date") and place as the Trust and the Purchaser mutually agree upon.
At or after the Closing, the Trust shall deliver to the Purchaser a certificate
representing the STRYPES purchased by the Purchaser, registered in the name of
the Purchaser or its nominee. Payment for the STRYPES shall be made on the
Closing Date by the Purchaser by bank wire transfer or by delivery of a
certified or official bank check, in either case in immediately available
Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH PURCHASER. The
Purchaser hereby represents and warrants to, and covenants for the benefit of,
the Trust that:
- ------------
(sm) Service Mark of Merrill Lynch & Co., Inc
<PAGE>
Exhibit (p)
2.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made by the Trust
with the Purchaser in reliance upon such Purchaser's representation to the
Trust, which by the Purchaser's execution of this Agreement such Purchaser
hereby confirms, that the STRYPES are being acquired for investment for the
Purchaser's own account, and not as a nominee or agent and not with a view to
the resale or distribution by the Purchaser of any of the STRYPES, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the STRYPES, in either case in violation of any
securities registration requirement under applicable law, but subject
nevertheless, to any requirement of law that the disposition of its property
shall at all times be within its control. By executing this Agreement, the
Purchaser further represents that the Purchaser does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
STRYPES.
2.2 INVESTMENT EXPERIENCE. The Purchaser acknowledges that it can bear the
economic risk of the investment for an indefinite period of time and has such
knowledge and experience in financial and business matters (and particularly in
the business in which the Trust operates) as to be capable of evaluating the
merits and risks of the investment in the STRYPES. The Purchaser is an
"accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the STRYPES are
characterized as "restricted securities" under the United States securities laws
inasmuch as they are being acquired from the Trust in a transaction not
involving a public offering and that under such laws and applicable regulations
such STRYPES may be resold without registration under the Securities
2
<PAGE>
Exhibit (p)
Act only in certain circumstances. In this connection, the Purchaser represents
that it understands the resale limitations imposed by the Securities Act and is
generally familiar with the existing resale limitations imposed by Rule 144.
2.4 FURTHER LIMITATIONS ON DISPOSITION. The Purchaser further agrees
not to make any disposition directly or indirectly of all or any portion
of the STRYPES unless and until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(b) The Purchaser shall have furnished the Trust with an opinion of
counsel, reasonably satisfactory to the Trust, that such disposition will
not require registration of such STRYPES under the Securities Act.
Notwithstanding the provisions of subsections (a) and (b) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
by the Purchaser to any affiliate of the Purchaser, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if it were the
original Purchaser hereunder.
2.5 LEGENDS. It is understood that the certificate evidencing the STRYPES
may bear either or both of the following legends:
(a) "These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold, offered for sale, pledged
or hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
reasonably satisfactory to the Trustees of WBK STRYPES Trust that such
registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
3
<PAGE>
Exhibit (p)
The Purchaser and the Trust agree that the legend contained in the
paragraph (a) above shall be removed at a holder's request when it is no longer
necessary to ensure compliance with federal securities laws.
2.6 SPLIT OF STRYPES. The Purchaser consents to the split of such
Purchaser's STRYPES. Subsequent to the determination of the public offering
price per STRYPES and related underwriting discount for the STRYPES to be sold
to the Underwriter (as defined in the Amended and Restated Trust Agreement of
the Trust dated as of _____ __, 1997, ML IBK Positions, Inc., as sponsor, and
the trustees named therein) but prior to the sale of the STRYPES to the
Underwriter, each STRYPES purchased hereby shall be split into a greater number
of STRYPES so that immediately following such split the value of each STRYPES
held by the Purchasers will equal the aforesaid public offering price per
STRYPES.
2.7 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
2.8 GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements and to be performed wholly within such state.
3
<PAGE>
Exhibit (p)
IN WITNESS WHEREOF, the parties have executed this Subscription Agreement
as of the date first above written.
WBK STRYPES TRUST
By
--------------------------------------
Donald J. Puglisi, as Managing Trustee
ML IBK POSITIONS, INC.
By
--------------------------------------
Name:
Title:
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 6
<CIK> 0001006194
<NAME> WBK STRIPES TRUST
<S> <C>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> SEP-24-1997
<PERIOD-END> SEP-24-1997
<INVESTMENTS-AT-COST> 0
<INVESTMENTS-AT-VALUE> 0
<RECEIVABLES> 100
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 100
<TOTAL-ASSETS> 0
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 0
<TOTAL-LIABILITIES> 0
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 100
<SHARES-COMMON-STOCK> 0
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 0
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 100
<NET-ASSETS> 0
<DIVIDEND-INCOME> 0
<INTEREST-INCOME> 0
<OTHER-INCOME> 0
<EXPENSES-NET> 0
<NET-INVESTMENT-INCOME> 0
<REALIZED-GAINS-CURRENT> 0
<APPREC-INCREASE-CURRENT> 0
<NET-CHANGE-FROM-OPS> 0
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 0
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 0
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 0
<AVERAGE-NET-ASSETS> 0
<PER-SHARE-NAV-BEGIN> 0
<PER-SHARE-NII> 0
<PER-SHARE-GAIN-APPREC> 0
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 0
<EXPENSE-RATIO> 0
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
