Exhibit 4.1.1


 


	
   

  	
  BLAKE DAWSON WALDRON

  
	
   

  	
  LAWYERS

  
			



 


 


Underwriting Agreement


 


 


Australia and New Zealand Banking Group
Limited


ABN 11 005 357 522


 


Morgan Stanley Dean Witter Australia
Securities Limited


ABN 55 078 652 276


 


Citigroup Global Markets Australia Pty
Limited


ABN 64 003 114 832


 


 


	
   

  	
   

  	
  PRIVILEGED AND CONFIDENTIAL

  
	
   

  	
   

  	
  24 October 2003

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Level 41, Grosvenor Place

  	
   

  	
   

  
	
  225 George Street

  	
   

  	
   

  
	
  Sydney NSW 2000

  	
   

  	
  Ref: SJD.BCM.03-1346-5969

  
	
  Telephone:  (02) 9258 6000

  	
   

  	
   

  
	
  Fax:  (02) 9258 6999

  	
   

  	
   

  



 


© Blake Dawson Waldron 2003


 

















 


CONTENTS


 


	
  1.

  	
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
  1.2

  	
  Rules for interpreting this agreement

  	
   

  
	
   

  	
  1.3

  	
  Business Days

  	
   

  
	
   

  	
  1.4

  	
  Valid Application

  	
   

  
	
   

  	
  1.5

  	
  Underwriters’ relationship

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Conditions Precedent to underwriting

  	
   

  
	
   

  	
  2.2

  	
  Additional Conditions Precedent to
  Allotment

  	
   

  
	
   

  	
  2.3

  	
  Obligation to satisfy conditions

  	
   

  
	
   

  	
  2.4

  	
  Waiver

  	
   

  
	
   

  	
  2.5

  	
  Notice

  	
   

  
	
   

  	
  2.6

  	
  Failure to fulfil condition precedent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  APPOINTMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Appointment

  	
   

  
	
   

  	
  3.2

  	
  Agreement to underwrite

  	
   

  
	
   

  	
  3.3

  	
  Agreement to manage

  	
   

  
	
   

  	
  3.4

  	
  Several obligations

  	
   

  
	
   

  	
  3.5

  	
  Sub Underwriting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Validity of agreement

  	
   

  
	
   

  	
  4.2

  	
  The Company

  	
   

  
	
   

  	
  4.3

  	
  The Underwriters

  	
   

  
	
   

  	
  4.4

  	
  Independent

  	
   

  
	
   

  	
  4.5

  	
  Reliance

  	
   

  
	
   

  	
  4.6

  	
  Notice of breach

  	
   

  
	
   

  	
  4.7

  	
  Repetition

  	
   

  
	
   

  	
  4.8

  	
  Undertakings of the Company

  	
   

  
	
   

  	
  4.9

  	
  Acknowledgement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  OFFER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Making of Offer

  	
   

  
	
   

  	
  5.2

  	
  Amendment

  	
   

  
	
   

  	
  5.3

  	
  Application for quotation

  	
   

  
	
   

  	
  5.4

  	
  Non Qualifying Foreign Security Holders

  	
   

  
	
   

  	
  5.5

  	
  Supplementary Offer Documents

  	
   

  
	
   

  	
  5.6

  	
  No other Supplementary Offer Document

  	
   

  
	
   

  	
  5.7

  	
  Additional Announcement

  	
   

  
	
   

  	
  5.8

  	
  Preliminary International Institutional
  Supplement

  	
   

  



 


i

















 


	
  6.

  	
  INDEMNITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Indemnity

  	
   

  
	
   

  	
  6.2

  	
  Extent of indemnity

  	
   

  
	
   

  	
  6.3

  	
  Notice

  	
   

  
	
   

  	
  6.4

  	
  Failure to notify

  	
   

  
	
   

  	
  6.5

  	
  Obligation to mitigate

  	
   

  
	
   

  	
  6.6

  	
  Benefits of indemnity

  	
   

  
	
   

  	
  6.7

  	
  Preservation of rights

  	
   

  
	
   

  	
  6.8

  	
  Company entitled to defend or institute
  proceedings

  	
   

  
	
   

  	
  6.9

  	
  Separate representation

  	
   

  
	
   

  	
  6.10

  	
  Obligations of Indemnified Parties

  	
   

  
	
   

  	
  6.11

  	
  Right to assume control of proceedings

  	
   

  
	
   

  	
  6.12

  	
  Conduct of Proceedings

  	
   

  
	
   

  	
  6.13

  	
  Release

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  APPLICATIONS AND ALLOTMENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Applications

  	
   

  
	
   

  	
  7.2

  	
  Notification of Applications

  	
   

  
	
   

  	
  7.3

  	
  Acceptance of Applications

  	
   

  
	
   

  	
  7.4

  	
  Allotment of Offer Securities

  	
   

  
	
   

  	
  7.5

  	
  Holding Statements

  	
   

  
	
   

  	
  7.6

  	
  Prompt Banking of Cheques

  	
   

  
	
   

  	
  7.7

  	
  Subscription Price

  	
   

  
	
   

  	
  7.8

  	
  Records

  	
   

  
	
   

  	
  7.9

  	
  Relief of Liability

  	
   

  
	
   

  	
  7.10

  	
  No Shortfall

  	
   

  
	
   

  	
  7.11

  	
  Return of Subscription Price and
  termination of obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  OBLIGATIONS OF THE UNDERWRITERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Notice of Shortfall Rights

  	
   

  
	
   

  	
  8.2

  	
  Certificate to Accompany Notice

  	
   

  
	
   

  	
  8.3

  	
  Certificate Representations and Warranties

  	
   

  
	
   

  	
  8.4

  	
  Bookbuild

  	
   

  
	
   

  	
  8.5

  	
  Payment of Shortfall Amount and Sale Amount

  	
   

  
	
   

  	
  8.6

  	
  Allotment of Shortfall

  	
   

  
	
   

  	
  8.7

  	
  Regulatory Impediment

  	
   

  
	
   

  	
  8.8

  	
  Liability Extinguished

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  FEES, COSTS AND EXPENSES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Payment of fees

  	
   

  
	
   

  	
  9.2

  	
  Costs and expenses

  	
   

  
	
   

  	
  9.3

  	
  Costs on termination

  	
   

  
	
   

  	
  9.4

  	
  Set off

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  EVENTS OF TERMINATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Right of termination

  	
   

  
	
   

  	
  10.2

  	
  Exercise of rights

  	
   

  
	
   

  	
  10.3

  	
  Banking Moratorium Event

  	
   

  



 


ii

















 


	
   

  	
  10.4

  	
  Claims

  	
   

  
	
   

  	
  10.5

  	
  Notification

  	
   

  
	
   

  	
  10.6

  	
  Effect of termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  ADVERTISING AND PUBLIC ANNOUNCEMENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Promotion of Offer

  	
   

  
	
   

  	
  11.2

  	
  Responsibility for promotion

  	
   

  
	
   

  	
  11.3

  	
  Disclosure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  ACCESS TO INFORMATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Access and information

  	
   

  
	
   

  	
  12.2

  	
  ASX
  and ASIC

  	
   

  
	
   

  	
  12.3

  	
  Due diligence materials

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  GST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Definitions

  	
   

  
	
   

  	
  13.2

  	
  GST payable in addition to fees

  	
   

  
	
   

  	
  13.3

  	
  GST on claims and expenses

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  How to give a notice

  	
   

  
	
   

  	
  14.2

  	
  When a notice is given

  	
   

  
	
   

  	
  14.3

  	
  Address for notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  AMENDMENT AND ASSIGNMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Amendment

  	
   

  
	
   

  	
  15.2

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  GENERAL

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  Governing
  law

  	
   

  
	
   

  	
  16.2

  	
  Giving effect to this agreement

  	
   

  
	
   

  	
  16.3

  	
  Waiver of rights

  	
   

  
	
   

  	
  16.4

  	
  Operation of this agreement

  	
   

  
	
   

  	
  16.5

  	
  Inconsistency with other documents

  	
   

  
	
   

  	
  16.6

  	
  Time is of the essence

  	
   

  
	
   

  	
  16.7

  	
  Counterparts

  	
   

  
	
   

  	
  16.8

  	
  Attorneys

  	
   

  
	
   

  	
  16.9

  	
  Operation of Indemnities

  	
   

  
	
   

  	
  16.10

  	
  Discretion in exercising rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  DISPUTE RESOLUTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Procedure for resolving disputes

  	
   

  
	
   

  	
  17.2

  	
  Mediation

  	
   

  
	
   

  	
  17.3

  	
  Notice

  	
   

  
	
   

  	
  17.4

  	
  Appointment of Mediator

  	
   

  
	
   

  	
  17.5

  	
  Confidentiality

  	
   

  
	
   

  	
  17.6

  	
  Privileged discussions

  	
   

  



 


iii

















 


	
   

  	
  17.7

  	
  Litigation

  	
   

  
	
   

  	
  17.8

  	
  Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1

  	
  CERTIFICATE

  	
   

  
	
   

  	
   

  	
   

  
	
  2

  	
  TIMETABLE

  	
   

  



 


iv

















 


UNDERWRITING
AGREEMENT


 


DATE      24
October 2003


 


PARTIES


 


Australia
and New Zealand Banking Group Limited ABN 11 005 357 522 (the Company)


 


Morgan
Stanley Dean Witter Australia Securities Limited ABN 55 078 652 276 (Morgan
Stanley)


 


Citigroup
Global Markets Australia Pty Limited ABN 64 003 114 832 (Citigroup)


 


 


(each an Underwriter and together the Underwriters)


 


RECITALS


 


A.                                   The
Company proposes to make the Rights Offer to raise the Offer Amount.


 


B.                                     The
Underwriters have agreed to underwrite severally the Rights Offer on the terms
and conditions set out in this agreement.


 


OPERATIVE PROVISIONS


 


1.                                       INTERPRETATION


 


1.1                                 Definitions


 


The following definitions apply in this agreement.


 


Acquisition means
the acquisition by ANZ Banking Group (New Zealand) Limited of all the shares in
NBNZ as contemplated by the Acquisition Agreement.


 


Acquisition Agreement means
the Share Sale Agreement relating to the sale by Lloyds Bank Subsidiaries
Limited of all of the shares in NBNZ to ANZ Banking Group (New Zealand)
Limited.


 


Affiliate has the
meaning given to that term in Rule 501(b) under the US Securities Act.


 


Application
means:


 


(a)                                  a duly completed and executed entitlement and
acceptance form to subscribe for Offer Securities in the form of the
entitlement and acceptance form accompanying the Offer Documents; or


 


(b)                                 an Institutional Acceptance.


 


ASIC
means the
Australian Securities and Investments Commission.


 


ASX
means
Australian Stock Exchange Limited ABN 98 008 624 691.


 

















 


Authorisation means:


 


(a)                                  an
authorisation, consent, declaration, approval, exemption, notarisation or
waiver, however it is described; and


 


(b)                                 in relation to
anything that could be prohibited or restricted by law if a Government Agency
acts in any way within a specified period, the expiry of that period without
that action being taken,


 


including any renewal or amendment.


 


Banking Moratorium Event means
an event referred to in clause 10.1(b)(xiii)(B).


 


Bookbuild Period means
the period from receipt of the Shortfall Notice by the Underwriters to 8.00am
on 28 November 2003.


 


Business Day has the
meaning given to that expression in the Listing Rules.


 


Certificate means a
certificate in the form of schedule 1 executed by 2 directors or a director and
secretary of the Company.


 


CHESS has the
meaning given to that expression in the Listing Rules.


 


Claim means, in
relation to any person, a claim, action, proceeding or demand made against the
person, however arising, and whether present or future, fixed or unascertained,
actual or contingent.


 


Closing Date means
the date specified in the Timetable as the closing date for the Rights Offer.


 


Company Warranty
means each Warranty set out in part 1 of schedule 3 given by the Company and
each Warranty set out in part 2 of schedule 3.


 


Corporations Act
means the Corporations Act 2001
(Cth).


 


Due Diligence Committee means
the Due Diligence Committee established to undertake due diligence
investigations and enquiries on behalf of the Company, its directors, the
Underwriters and others in connection with the Rights Offer and the preparation
of the Offer Documents.


 


Due Diligence Program means
the due diligence and verification procedures planned and reviewed by the Due
Diligence Committee in relation to the Rights Offer and the Offer Documents.


 


Due Diligence Report
means the report of the Due Diligence Committee to the directors of the Company
including all supporting documents and other work papers to which the
Underwriters are given access for the purposes of due diligence investigations
relating to the preparation of the Due Diligence Report.


 


Due Diligence Results
means the results of the investigations which make up the Due Diligence
Program.


 


Event of Termination means
an event listed in clause 10.1.


 


2

















 


First Allotment Date means the date means the date specified as
such in the Timetable.


 


Final Offer Documents
means a final version of the Preliminary International Institutional Supplement
updated as of the Closing Date, and any supplement or amendment to it,
including all documents attached thereto, or incorporated by reference therein,
including the Prospectus, any Supplementary Offer Document and the Annual
Report of the Company on Form 20-F for the year end September 30, 2002.


 


Government Agency
means:


 


(a)                                  a government or
government department or other body;


 


(b)                                 a governmental,
semi-governmental or judicial person; or


 


(c)                                  a person (whether
autonomous or not) who is charged with the administration of a law.


 


Hybrid Issue means a
potential issue of securities which would qualify as Tier 1 capital within the
meaning of the prudential standards of the Australian Prudential Regulatory
Authority not being ordinary equity.


 


Indemnified Claim
means any Claim made against, an Indemnified Party in respect of which that
Indemnified Party has claimed a right to be indemnified by the Company under
clause 6.1.


 


Indemnified Party
has the meaning given to that term in clause 6.1.


 


Institutional Acceptance
means a duly completed and executed application to subscribe for Offer
Securities in the form approved by the Company and the Underwriters for use by
Qualifying Foreign Institutional Security Holders, together with any required
accompanying documents.


 


Investor Representation Letter
means a letter in a form approved by the Underwriters, such approval not to be
unreasonably withheld or delayed, which must be signed by a QIB in the United
States or an institutional Security Holder in a jurisdiction outside Australia,
New Zealand and the United States which confirms their eligibility under
applicable law to participate in the Rights Offer.


 


Listing Rules means
the Listing Rules of ASX (including the SCH Business Rules) as waived or
modified by ASX in respect of the Company or the Rights Offer in any particular
case.


 


Lodgment Date means
the date specified in the Timetable as the lodgment date for the Prospectus.


 


Loss means, in
relation to a person, a damage, loss, cost, expense or liability incurred by
the person.


 


Non-Qualifying Foreign Security Holder means
a person who is registered as a holder of Shares on the Record Date whose
registered address is in a country other than Australia or New Zealand other
than a Qualifying Foreign Institutional Security Holder.


 


3

















 


NBNZ means NBNZ
Holdings Limited a company incorporated in New Zealand (Registered Number WN
421963).


 


NZSE means New
Zealand Stock Exchange Limited.


 


Offer  Amount means approximately $3597 million.


 


Offer Documents
means:


 


(a)                                  the
Prospectus; and


 


(b)                                 the
Preliminary International Institutional Supplement


 


and, for the
purposes of any Company Warranty relating to the Offer Documents repeated by
the giving of a Certificate shall include:


 


(c)                                  any
Supplementary Offer Document lodged prior to the giving of the Certificate; and


 


(d)                                 any
amendment or update to the Preliminary International Institutional Supplement
made or issued prior to the giving of the Certificate.


 


Offer Period means
the period commencing on the date of this agreement and ending on the First
Allotment Date.


 


Offer Securities
means approximately 276.7 million Shares which are offered for subscription
pursuant to the Rights Offer.


 


Opening Date means
the date specified in the Timetable as the opening date for the Rights Offer.


 


Planning Memorandum
means the memorandum describing the Due Diligence Program adopted by the Due
Diligence Committee in relation to the Rights Offer and the Offer Documents.


 


Preliminary International Institutional
Supplement means the supplement to the Prospectus to
be prepared by the Company in relation to the distribution of the Rights and
the offer of the Offer Securities by the Company through the Underwriters and
their respective Affiliates to Qualifying Foreign Institutional Security
Holders in transactions exempt from the registration requirements of the US
Securities Act, such supplement to be dated as at the Lodgment Date and in a
form approved by the Underwriters (such approval not to be unreasonably
withheld or delayed) and initialled for the purposes of identification by the
Company and the Underwriters.


 


Prescribed Occurrence
means, in relation to a person, the events set out in section 652C of the
Corporations Act but substituting that person for “target” and provided that
all references in section 652C to “or a subsidiary” are deleted and:


 


(a)                                  the
issue of ANZ Stapled Exchangeable Preferred Securities pursuant to the
prospectus dated 14 August 2003;


 


(b)                                 the
redemption of all or any TrUEPrS Preference Shares;


 


4

















 


(c)                                  the
Hybrid Issue;


 


(d)                                 the
issue of the Rights and the Offer Securities;


 


(e)                                  an
issue of securities by the Company pursuant to a dividend or distribution plan
or employee incentive scheme (as those terms are defined in the Listing Rules)
or, as a result of the conversion or exercise of any security issued pursuant
to such plan or scheme; or


 


(f)                                    the
conversion of any convertible securities (as that term is defined in the
Listing Rules) which are on issue as at the date of this document,


 


shall not
constitute a Prescribed Occurrence.


 


Prospectus means the
prospectus including any entitlement and acceptance form to be issued by the
Company in relation to the Rights Offer in a form approved by the Underwriters,
which approval shall not be unreasonably withheld or delayed, and initialled
for the purposes of identification by the Company and the Underwriters.


 


Prospectus Date
means the date of the Prospectus.


 


Publication means
any announcement, advertisement, publicity or roadshow presentation made or
published by the Company with its consent in relation to the Rights Offer or
the Acquisition.


 


QIB means a
“qualified institutional buyer” as defined in Rule 144A.


 


Qualifying Foreign Institutional Security
Holder means a QIB in the United States or an
institutional Security Holder in a jurisdiction other than the United States,
Australia and New Zealand who:


 


(a)                                  is
contacted by the Company or the Underwriters; and


 


(b)                                 confirms
their eligibility under applicable law to participate in the Rights Offer by
signing and returning to the Company or the Underwriters the Investor
Representation Letter.


 


Record Date means
the date specified as the record date for the Rights Offer in the Timetable.


 


Regulation S means
Regulation S promulgated under the US Securities Act.


 


Rights means the
renounceable rights to subscribe for Offer Securities granted by the Company to
each Security Holder.


 


Rights Offer means
the 2 for 11 renounceable rights offer of Offer Securities to raise the Offer
Amount.


 


Rule 144A means Rule
144A promulgated under the US Securities Act.


 


Sale Amount means
the amount which is the number of Sold Rights multiplied by the Sale Price.


 


5

















 


SCH Business Rules
means the SCH Business Rules as waived or modified by ASX in respect of the
Company or the Rights Offer in any particular case.


 


Second Allotment Date
means the date specified as such in the Timetable.


 


Security Holder
means a person registered as the holder of a Share at 5:00pm on the Record Date
and includes persons jointly registered but does not include a Non Qualifying
Foreign Security Holder.


 


Sale Price means the
sale price for the Shortfall Rights agreed by the Company and the Underwriters
under clause 8.3(c).


 


Share means an
issued ordinary share in the Company.


 


Shortfall Rights has
the meaning given to that term in clause 8.1.


 


Shortfall Amount
means the amount which is the number of Shortfall Shares multiplied by the
Subscription Price.


 


Shortfall Application Date
means the date specified as such in the Timetable.


 


Shortfall Notification Date
means the date specified as such in the Timetable.


 


Shortfall Notification Time
means 5.00pm on the Shortfall Notification Date.


 


Shortfall Notice has
the meaning given to that term in clause 8.1.


 


Shortfall Shares
means the number of Shares that would be issued on exercise of the Shortfall
Rights.


 


Sold Rights means
the number of Shortfall Rights which the Company and the Underwriters agree are
sold through the bookbuild described in clause 8.4.


 


Subscription Price
means, in respect of each Offer Security, $13.00.


 


Supplementary Offer Document
means any supplementary or replacement prospectus to the Prospectus lodged with
ASIC in connection with the Rights Offer.


 


Tax means a tax,
levy, duty, charge, deduction or withholding, however it is described, that is
imposed by a Government Agency, together with any related interest, penalty,
fine or other charge, other than one that is imposed on taxable income.


 


Timetable means the
timetable for the Rights Offer set out in schedule 2.


 


TrUEPrS Preference Shares
means fully paid non converting non cumulative preference shares in the share
capital of the Company issued for USD6.25 per share via Trust Securities issued
in 1998 as follows:


 


(a)                                  64,016,000
TrUEPrS Preference Shares on 23 September 1998; and


 


(b)                                 56,016,000
TrUEPrS Preference Shares on 19 November 1998.


 


6

















 


Trust Securities
means Trust Units (in ANZ Exchangeable Preference Trust) exchangeable for
TrUEPrS Preference Shares in ANZ.


 


Underwriter Warranty
means, in respect of an Underwriter, each Warranty set out in part 1 of
schedule 3 given by that Underwriter and each Warranty set out in part 3 of
schedule 3 given by that Underwriter.


 


US Person has the
meaning given to that term in Rule 902(k) under the US Securities Act.


 


US Securities Act
means the United States Securities Act of 1933 as amended.


 


United States has
the meaning given in Regulation S.


 


Valid Application
has the meaning given to that expression by clause 1.4.


 


Verification Material
means the contents of the file maintained by the Due Diligence Committee being
the documents and information provided in verification of statements made in
the Offer Documents.


 


Warranty means a
statement contained in schedule 3.


 


1.2                                 Rules for interpreting this agreement


 


Headings are
for convenience only, and do not affect interpretation.  The following rules also apply in
interpreting this agreement, except where the context makes it clear that a
rule is not intended to apply.


 


(a)                                  A
reference to:


 


(i)                                     legislation
(including subordinate legislation) is to that legislation as amended,
re-enacted or replaced, and includes any subordinate legislation issued under
it;


 


(ii)                                  a
document or agreement, or a provision of a document or agreement, is to that
document, agreement or provision as amended, supplemented, replaced or novated;


 


(iii)                               a
party to this agreement or to any other document or agreement includes a
permitted substitute or a permitted assign of that party;


 


(iv)                              a
person includes any type of entity or body of persons, whether or not it is
incorporated or has a separate legal identity, and any executor, administrator
or successor in law of the person;


 


(v)                                 anything
(including a right, obligation or concept) includes each part of it; and


 


(vi)                              a
date or time means to that date or time in Sydney.


 


(b)                                 A
singular word includes the plural, and vice versa.


 


(c)                                  A
word which suggests one gender includes the other genders.


 


7

















 


 


(d)                                 If a word is defined,
another part of speech has a corresponding meaning.


 


(e)                                  If an example is
given of anything (including a right, obligation or concept), such as by saying
it includes something else, the example does not limit the scope of that thing.


 


(f)                                    The word “agreement” includes an undertaking or
other binding arrangement or understanding, whether or not in writing.


 


(g)                                 The words “Court”, “subsidiary”, “holding company” and
“related body corporate” have the
same meanings as in the Corporations Act.


 


(h)                                 References to “applicable law” include all applicable
laws of jurisdictions within or outside Australia including New Zealand and
including the Listing Rules and policies, guidelines, official directives or
requests of or by any Government Agency, whether or not having the force of
law.


 


(i)                                     A reference to “$” is to the lawful currency of Australia.


 


1.3                                 Business Days


 


If the day on or by which a person must do something under this
agreement is not a Business Day:


 


(a)                                  if the act involves a
payment that is due on demand, the person must do it on or by the next Business
Day; and


 


(b)                                 in any other case, the
person must do it on or by the previous Business Day.


 


1.4                                 Valid Application


 


For the purposes of this agreement, an Application received by the
Company in respect of an Offer Security is a Valid Application if it is:


 


(a)                                  an Institutional
Acceptance; or


 


(b)                                 it is made in
accordance with the Offer Documents


 


and the Company receives the Subscription Price in cleared funds.


 


1.5                                 Underwriters’ relationship


 


(a)                                  An obligation of an Underwriter under this
agreement (including an obligation to pay) is several on a 50:50 basis and is
not joint or joint and several.


 


(b)                                 A right of an Underwriter under this
agreement is held by that Underwriter severally and each Underwriter may
exercise its rights, powers and benefits under this agreement individually.


 


(c)                                  Where the consent or approval of an
Underwriter is required under this agreement, that consent or approval must be
obtained from each Underwriter (other than an Underwriter which has given a
notice under clause 10 to terminate its obligations under this agreement).


 


8

















 


(d)                                 Nothing
contained or implied in this agreement constitutes an Underwriter, the partner,
agent, or representative of any other Underwriter for any purpose or creates
any partnership, agency or trust between the Underwriters, and none of the
Underwriters has any authority to bind any of the other Underwriters in any
way.


 


(e)                                  Any
reference to the Underwriter in this agreement is a reference to each
Underwriter separately, so that (for example) a representation, warranty or
undertaking is given by each of them separately.


 


2.                                       CONDITIONS PRECEDENT


 


2.1                                 Conditions Precedent to underwriting


 


The
obligations of the Underwriters to underwrite the Rights Offer under clause 3.2
of this agreement do not become binding unless each of the following conditions
is fulfilled (or waived under clause 2.4):


 


(a)                                  the
Company implementing and completing the Due Diligence Program to the reasonable
satisfaction of the Underwriters before the Lodgment Date (each Underwriter
shall be treated as being reasonably satisfied if that Underwriter signs the
Due Diligence Report);


 


(b)                                 the
Due Diligence Report being published by the Lodgment Date;


 


(c)                                  opinions
being delivered to the Due Diligence Committee by the Lodgment Date by:


 


(i)                                     Blake
Dawson Waldron in relation to the Prospectus and the adequacy of the Due
Diligence Program to the reasonable satisfaction of the Underwriters;


 


(ii)                                  Bell
Gully in relation to the Prospectus and the conduct of the Rights Offer in New
Zealand to the reasonable satisfaction of the Underwriters;


 


(iii)                               KPMG
in respect of the adequacy of the Due Diligence Program so far as it applies to
the historical and pro forma financial information relating to the Company
included in the Offer Documents to the reasonable satisfaction of the
Underwriters; and


 


(d)                                 Ernst
& Young delivering to the Due Diligence Committee by the Lodgment Date an
“Agreed Upon Procedures Report of Factual Findings” as contemplated by section
6.6(d)(ix) of the Planning Memorandum to the reasonable satisfaction of the
Underwriters;


 


(e)                                  the
Company obtaining by the Lodgment Date any:


 


(i)                                     waivers
of the Listing Rules; and


 


(ii)                                  any
declarations made, or modifications, by ASIC, under or of, the Corporations
Act,


 


which any
party reasonably believes is required to enable the Company to make the Rights
Offer;


 


9

















 


(f)                                    the
Company entering into the Acquisition Agreement by no later than 10.00am 24
October 2003 (or such later date as the Underwriters may agree in writing) and
that agreement not being terminated or terminable or no longer capable of being
performed or not valid, binding or enforceable against the parties to it, or a
condition precedent to it not being satisfied (or waived by the relevant party
or parties) within the time period specified in the agreement;


 


(g)                                 the
Company lodging the Prospectus with ASIC by the Lodgment Date;


 


(h)                                 Bell
Gully delivering to the Due Diligence Committee by the Lodgment Date a legal
due diligence report in respect of the Acquisition.


 


2.2                                 Additional Conditions Precedent to
Allotment


 


The
obligations of the Underwriters to subscribe for the Shortfall Shares under
this agreement do not become binding unless each of the following conditions is
fulfilled (or waived under clause 2.4):


 


(a)                                  Sullivan
& Cromwell delivering to the Underwriters on the Shortfall Notification
Date a legal opinion dated as at the Shortfall Notification Date to the
reasonable satisfaction of the Underwriters;


 


(b)                                 Sullivan
& Cromwell delivering to the Underwriters on the Shortfall Notification
Date a disclosure letter concerning the Final Offer Documents dated as at the
Shortfall Notification Date to the reasonable satisfaction of the Underwriters;


 


(c)                                  KPMG
delivering to the Underwriters by the Shortfall Notification Date a letter
containing statements and information of the type ordinarily included in
accountant’s “comfort letters” to the underwriters with respect to the
financial statements and certain financial information of the Company contained
in the Final Offer Documents dated as at a date no more than 3 Business Days
prior to the Shortfall Notification Date; and


 


(d)                                 Ernst
& Young delivering to the Underwriters on the Shortfall Notification Date
an agreed-upon procedures letter in respect of the financial statements, pro
forma financial statements and certain financial information of NBNZ contained
in the Final Offer Documents.


 


2.3                                 Obligation to satisfy conditions


 


The Company must use its reasonable endeavours to satisfy the
conditions referred to in clauses 2.1 and 2.2.


 


2.4                                 Waiver


 


The Underwriters alone may waive any or all of the conditions referred
to in clause 2.1 or 2.2 by giving notice in writing to the Company to that
effect. If one of the Underwriters does not waive fulfilment of a condition
under this clause 2.4, clause 10.6 will apply.


 


2.5                                 Notice


 


The Company must promptly notify the Underwriters when it has satisfied
any of the conditions referred to in clause 2.1.


 


10

















 


2.6                                 Failure to fulfil condition precedent


 


If any of the
conditions referred to in clause 2.1 or 2.2 are not fulfilled (or waived under
clause 2.4 by all the Underwriters) by the time specified in that condition (or
such later time as agreed by the Underwriters) then this agreement (other than
clauses 6, 9, 13, 14 and 16 (except 16.2)) is at an end as to its future
operation except for the enforcement of any right or claim which arises on or
has arisen before this agreement comes to an end.


 


3.                                       APPOINTMENT


 


3.1                                 Appointment


 


The Company
appoints the Underwriters as the underwriters and joint lead managers of the
Rights Offer on the terms and conditions of this agreement and the Underwriters
accept that appointment.


 


3.2                                 Agreement to underwrite


 


The Underwriters agree to severally underwrite subscriptions for Offer
Securities under the Rights Offer up to a maximum aggregate amount of the Offer
Amount on the terms and conditions of this agreement.


 


3.3                                 Agreement to manage


 


The Underwriters agree to jointly act as lead managers of the Rights
Offer and assist the Company in the successful conduct of the Rights Offer.


 


3.4                                 Several obligations


 


The obligations of each of the Underwriters to underwrite the Rights
Offer under clause 3.2 shall be several and not joint, with each Underwriter
being obliged to underwrite 50% of the Shortfall Amount.


 


3.5                                 Sub Underwriting


 


The Underwriters must consult with the Company with respect to the
appointment of sub underwriters and will not unreasonably withhold or delay its
consent to the appointment of a sub underwriter.


 


4.                                       REPRESENTATIONS AND WARRANTIES


 


4.1                                 Validity of agreement


 


Each party represents and warrants in respect of itself that each
Warranty set out in part 1 of schedule 3 is true, accurate and not misleading
as at the date of this agreement.


 


4.2                                 The Company


 


The Company represents and warrants to each Underwriter that each of
the Warranties set out in part 2 of schedule 3 is true, accurate and not
misleading as at the date of this agreement.


 


11

















 


4.3                                 The Underwriters


 


Each
Underwriter represents and warrants to the Company that each of the Warranties
set out in part 3 of schedule 3 is true, accurate and not misleading as at the
date of this agreement.


 


4.4                                 Independent


 


Each of the
Warranties shall be construed independently and no Warranty shall be limited by
implications arising from any other Warranty.


 


4.5                                 Reliance


 


Each party
acknowledges that the other parties are entering into this agreement in
reliance on each Warranty.


 


4.6                                 Notice of breach


 


(a)                                  The
Company undertakes to the Underwriters that it will notify each Underwriter
immediately if it becomes aware that:


 


(i)                                     a
Company Warranty was untrue, inaccurate or misleading at the time it was given;
or


 


(ii)                                  a
Company Warranty has ceased to be true and accurate or has become misleading in
any material respect in each case by reference to the facts and circumstances
then existing.


 


(b)                                 Each
of the Underwriters undertakes to the Company that it will notify the Company
immediately if it becomes aware that:


 


(i)                                   an
Underwriter Warranty given by it was untrue, inaccurate or misleading at the
time it was given; or


 


(ii)                                  an
Underwriter Warranty given by it has ceased to be true and accurate in any
material respect or has become misleading by reference in each case to facts
and circumstances then existing.


 


4.7                                 Repetition


 


(a)                                Each
Company Warranty is repeated by the Company when it gives a Certificate as if
made with respect to the facts and circumstances then existing provided that if
the Company has notified each Underwriter under clause 4.6 (Prior Notification) that:


 


(i)                                     a
Company Warranty was untrue, inaccurate or misleading at the time it was given;
or


 


(ii)                                  a
Company Warranty has ceased to be true and accurate or has become misleading in
any material respect in each case by reference to the facts and circumstances
then existing,


 


12

















 


and each
Underwriter has informed the Company in writing that it has decided to waive
its rights to terminate the agreement on the basis of the event notified, the
repetition of the relevant Company Warranty will be qualified by the disclosure
made in the Prior Notification.


 


(b)                                 Each
Underwriter Warranty is repeated by each Underwriter on the Shortfall
Application Date and on the First Allotment Date and the Second Allotment Date
as if made with respect to the facts and circumstances then existing.


 


4.8                                 Undertakings of the Company


 


The Company undertakes that :


 


(a)                                  (printed copies) as soon as practicable
after the Prospectus is lodged with ASIC, it will deliver to each of the
Underwriters the number of printed copies of the Prospectus and the Preliminary
International Institutional Supplement that the Underwriters have notified the
Company before the Prospectus Date (up to a maximum of 1000 copies);


 


(b)                                 (dispatch of Prospectus) it will dispatch
the Prospectus to each Security Holder no later than the date required by ASX;


 


(c)                                  (Prescribed Occurrence) during the period
commencing on the date of this agreement and ending 3 months after the expiry
of the Offer Period, no Prescribed Occurrence will occur in respect of the
Company (or any of its related bodies corporate) other than:


 


(i)                                     as
disclosed in the Offer Documents or to the Underwriters in writing as at the
date of this agreement; or


 


(ii)                                  an
issue of equity securities (as defined in the Listing Rules) or any securities
convertible into or exchangeable for any such equity securities which is
permitted under clause 4.8(d);


 


(d)                               (no further issues) during the period
commencing on the date of this agreement and ending on the day which is 3
months after the expiry of the Offer Period, neither the Company or any of its
subsidiaries shall make, agree to make or announce any issues of equity
securities (as defined in the Listing Rules) or any securities convertible into
or exchangeable for any such equity securities, without the prior written
consent of the Underwriters, which consent shall not be unreasonably withheld or
delayed, other than:


 


(i)                                     the
Hybrid Issue and any other issue of securities which are convertible or
exchangeable into Shares;


 


(ii)                                  the
issue of the Rights and the Offer Securities;


 


(iii)                               the
issue of any security for regulatory or prudential reasons;


 


(iv)                              an
issue of securities by the Company pursuant to a dividend or distribution plan
or employee incentive scheme (as those terms are defined


 


13

















 


in the Listing Rules) or, as a result of the
conversion or exercise of any securities issued pursuant to such a plan or
scheme; or


 


(v)                                 the
conversion of any convertible securities (as that term is defined in the
Listing Rules) which are on issue as of the date of this agreement;


 


For the avoidance of doubt nothing in this
clause is intended to constrain the Company from issuing securities in the
ordinary course of its business for an aggregate issue price of $250 million or
less.


 


(e)                                  (conduct of business) during the period
from the date of this agreement until 3 months after the expiry of the Offer
Period, it will carry on its business in the ordinary course and will not
except as disclosed in the Offer Documents:


 


(i)                                     dispose
or charge, agree to dispose of or charge, the whole or any substantial part of
its business (except in the ordinary course of business); or


 


(ii)                                  enter
into any agreement or commitment which is material in the context of the
Company or the Rights Offer,


 


without the prior written consent of the
Underwriters which shall not be unreasonably withheld or delayed;


 


(f)                                    (winding up) during the Offer Period, it
(or any of its related bodies corporate) shall not:


 


(i)                                     pass
any resolution that it be wound up;


 


(ii)                                  enter
into any scheme or composition with or for the benefit of its creditors;


 


(iii)                               be
placed under official management;


 


(iv)                              have
a receiver or manager appointed to the whole or any part of its assets or
undertakings;


 


(v)                                 permit
any breach or default whereby it is liable to be wound up; or


 


(vi)                              have
an administrator appointed to it,


 


if to do so would have a material effect on
the Company or an investment decision in relation to the Offer Securities;


 


(g)                                 it
will deliver to the Underwriters the Final Offer Documents on or before the
Shortfall Notification Date.


 


4.9                                 Acknowledgement


 


The Company acknowledges that the
Underwriters and their Affiliates have the right to sell any Offer Securities
the Underwriters are required to subscribe for or which are allotted to it
pursuant to this agreement on ASX in accordance with Regulation S under the US
Securities Act.


 


14

















 


5.                                       OFFER


 


5.1                                 Making of Offer


 


The Company must offer the Offer Securities
for subscription in accordance with the Offer Documents, this agreement, the
Timetable, the Listing Rules, the Corporations Act and all other applicable
laws.


 


5.2                                 Amendment


 


The Timetable may only be amended by the
Company with the consent of:


 


(a)                                  the
Underwriters; and


 


(b)                                 ASX,
if required by the Listing Rules or the Corporations Act.


 


5.3                                 Application for
quotation


 


The Company must within the time required by
the Corporations Act apply for the Offer Securities to be granted official
quotation on ASX, and thereafter use its best endeavours to procure that
official quotation is granted to the Offer Securities by ASX by the First
Allotment Date.


 


5.4                                 Non
Qualifying Foreign Security Holders


 


Offer Securities will not be offered to (and
Rights will not be issued to) Non-Qualifying Foreign Security Holders but
arrangements will be made in accordance with the Listing Rules under which
rights equivalent to the number which would otherwise have been issued to
Non-Qualifying Foreign Security Holders will be sold for the benefit of those
Non-Qualifying Foreign Security Holders.


 


5.5                                 Supplementary
Offer Documents


 


If before the Shortfall Notification Date:


 


(a)                                  there
is a misleading or deceptive statement in the Prospectus or any Supplementary
Offer Document; or


 


(b)                                 there
is an omission from the Prospectus or any Supplementary Offer Document of
material required by the Corporations Act to be included; or


 


(c)                                  there
is a new circumstance that:


 


(i)                                     has
arisen since the Prospectus or any Supplementary Offer Document was lodged; and


 


(ii)                                  would
have been required by the Corporations Act to be included in the Prospectus or
Supplementary Offer Document if it had arisen before the relevant document was
lodged,


 


that is materially adverse from the point of
view of an investor, the Company must immediately notify the Underwriters of
that statement, omission or circumstance and must lodge a Supplementary Offer
Document (in a form approved in writing by the


 


15

















 


Underwriters, such approval not to be
unreasonably withheld or delayed) in respect of that statement, omission or
circumstance as soon as practicable afterwards and otherwise comply with the
Corporations Act.  Following the
lodgment of any Supplementary Offer Document the Company must immediately take
all action in respect of the Supplementary Offer Document as may reasonably be
required by the Underwriter (including publication of the Supplementary Offer
Document in a national newspaper and dispatching copies of the Supplementary
Offer Document to all recipients of the Prospectus).


 


5.6                                 No
other Supplementary Offer Document


 


Other than pursuant to clause 5.5 the Company
must not lodge or reissue a Supplementary Offer Document without the prior
written consent of the Underwriters (such consent not to be unreasonably
withheld or delayed).


 


5.7                                 Additional
Announcement


 


If, before the Second Allotment Date, an
event occurs which the Company is required to announce under the Listing Rules
or Chapter 6CA of the Corporations Act or which, if not announced, may result
in the Underwriters contravening Division 3 of Part 7.10 of the Corporations
Act, the Company must:


 


(a)                                  inform
the Underwriters immediately; and


 


(b)                                 promptly
make an announcement to ASX in accordance with the Company’s obligations under
the Listing Rules or the Corporations Act or make generally available the
information which, if not made generally available, may otherwise result in the
Underwriters contravening Division 3 of Part 7.10 of the Corporations Act in a
form approved by the Underwriters, such approval not to be unreasonably
withheld or delayed.


 


5.8                                 Preliminary
International Institutional Supplement


 


If before the Closing Date in the reasonable
judgment of the Company it becomes necessary to amend or issue a supplement to
the Preliminary International Institutional Supplement, the Company must
immediately notify the Underwriters and must issue an amended Preliminary
International Institutional Supplement or a supplement to the Preliminary
International Institutional Supplement (in a form approved in writing by the
Underwriters, such approval not to be unreasonably withheld or delayed).


 


6.                                       INDEMNITY


 


6.1                                 Indemnity


 


Subject to clause 6.2, the Company agrees to
indemnify and keep indemnified each of the Underwriters and its related bodies
corporate, directors and officers (each an “Indemnified
Party” and collectively the “Indemnified
Parties”) from and against all Losses suffered by an Indemnified
Party as a result of:


 


(a)                                  (Offer Documents) the issue of the Offer
Documents, a Supplementary Offer Document or the Final Offer Documents or the
making, conduct, or settlement of the Rights Offer (including Losses arising
out of or in connection with the preparation for, or involvement in,
investigations conducted by ASIC or any other


 


16

















 


relevant body in relation to the issue of the
Offer Documents, a Supplementary Offer Document or the Final Offer Documents or
the Rights Offer);


 


(b)                                 (breach) the Company failing to perform or
observe any of its obligations or undertakings under this agreement in a
material respect;


 


(c)                                  (misrepresentation) any representation or
warranty given under this agreement proving to have been untrue or incorrect;


 


(d)                                 (authorised publications) any roadshow
presentation, announcement, advertisement or publicity made or distributed by
or on behalf of an Indemnified Party in relation to the Rights Offer with the
prior approval of the Company; and


 


(e)                                  (generally) any claim that an Indemnified
Party has any liability under the Corporations Act (including sections 1041H
and 1041I) or any other applicable law or regulation in relation to the Rights
Offer,


 


provided that:


 


(f)                                    where
the Loss is also a cost or expense (item)
covered by clause 9.2 and clause 9.2 requires that the item be reasonable in
order for it to be recoverable under that clause, then this indemnity shall
only extend to it to the extent that it is recoverable under that clause and
the maximum amount which may be recovered under this indemnity in respect of
those items shall be limited to $250,000;


 


(g)                                 the
Losses the subject of this indemnity shall not include:


 


(i)                                     sub
underwriting fees, brokerage and other costs and expenses in respect of the
Rights Offer that are the responsibility of the Underwriters;


 


(ii)                                  Loss
suffered simply as a result of an Underwriter being required to perform its
obligations under this agreement (including without limitation) its obligations
in respect of the Shortfall Rights and Shortfall Shares; or


 


(iii)                               Loss
suffered by reason of being required to compensate the Company for a breach by
an Underwriter of its obligations under this agreement.


 


Each of the paragraphs of this clause 6.1
shall be construed independently and no paragraph shall be limited by
implications arising from any other paragraph.


 


6.2                                 Extent of indemnity


 


The indemnity in clause 6.1 does not extend
to and shall not be deemed to be an indemnity against Losses incurred by an
Indemnified Party to the extent that those Losses result primarily from:


 


(a)                                  the
negligence or wilful misconduct or breach of any statutory provision or
fiduciary duty of that Indemnified Party;


 


(b)                                 any
penalty or fine which the Indemnified Party is required to pay for any
contravention by it of the Corporations Act;


 


17

















 


(c)                                  any
amount in respect of which the indemnity will be illegal, void or unenforceable
under any applicable law;


 


(d)                                 any
announcements, advertisements or publicity made or distributed by an
Indemnified Party in relation to the Rights Offer or the Acquisition without
the approval of the Company; or


 


(e)                                  a
material breach by an Underwriter of this agreement (except where that breach
is not wilful and occurs solely by reason of reliance on advice or information
provided by or on behalf of the Company).


 


6.3                                 Notice


 


If an Underwriter becomes aware of any matter
in respect of which an Indemnified Party wishes to claim for indemnification
under this clause 6, that Underwriter must promptly notify the Company of the
substance of that matter within 5 Business Days of having become aware of the
matter.


 


6.4                                 Failure to notify


 


The failure of an Underwriter to notify the
Company pursuant to clause 6.3 shall not release the Company from any
obligation or liability which it may have pursuant to this agreement except
that such liability shall be reduced to the extent to which:


 


(a)                                  the
Company has suffered material damage or material loss, or


 


(b)                                 the
amount the subject of the indemnity under clause 6.1 has increased,


 


as a result of
the failure to so notify.


 


6.5                                 Obligation to
mitigate


 


Each Indemnified Party must take reasonable
steps to mitigate any Losses in respect of which it may seek to be indemnified
under clause 6.1 from the time at which the Indemnified Party becomes aware
that it may be entitled to be indemnified under clause 6.1.


 


6.6                                 Benefits of
indemnity


 


Each Indemnified Party, whether or not a
party to this agreement, shall be entitled to the benefit of this clause 6 and
this clause 6 may be enforced on that Indemnified Party’s behalf by the
Underwriters.


 


6.7                                 Preservation of
rights


 


Subject to clause 6.2, the rights of an
Indemnified Party under this agreement shall not in any way be prejudiced or
affected by:


 


(a)                                  any
approval given by that party in relation to the Offer Documents, a
Supplementary Offer Document or the Final Offer Documents or any roadshow presentation,
announcement, advertisement or publicity made or distributed in relation to the
Rights Offer (whether before or after the Prospectus Date) (collectively the “Offer Material”);


 


18

















 


(b)                                 any
consent to be named in the Offer Material;


 


(c)                                  termination
of this agreement under clause 2 or any lawful termination by an Underwriter of
its obligations to underwrite the Rights Offer under clause 10; or


 


(d)                                 any
inaccuracy in any representation or warranty made or deemed to have been made
by the Company under this agreement.


 


6.8                                 Company
entitled to defend or institute proceedings


 


Subject to clause 6.11, the Company may
defend or institute in the name of an Indemnified Party legal or other
proceedings concerning an Indemnified Claim and conduct the same under the sole
management and control of the Company with absolute discretion as to the
conduct of those proceedings including any decision to settle, compromise or
consent to the entry of any judgement in relation to the Indemnified Claim the
subject of those proceedings provided that:


 


(a)                                  the
Company must consult with and keep the relevant Indemnified Party informed
concerning the progress of that defence or of those legal or other proceedings
and must take account of the views of the relevant Indemnified Party so far as
is reasonably practicable and must not take any steps which it would be
reasonable to expect would damage the reputation of the relevant Indemnified
Party without the prior written consent of the relevant Indemnified Party (such
consent not to be unreasonably withheld or delayed);


 


(b)                                 no
admission of liability on the part of the Indemnified Party in connection with
the Indemnified Claim may take place without the appropriate Indemnified Party’s
prior written consent; and


 


(c)                                  the
appropriate Indemnified Party has:


 


(i)                                     the
right at any time to; and


 


(ii)                                  must,
if it refuses to give its prior written consent under clause 6.8(a) or 6.8(b);


 


re-assume the defence of any Indemnified
Claim assumed by the Company or any other legal or other proceedings instituted
by the Company in the name of the Indemnified Party in respect of an
Indemnified Claim.


 


6.9                                 Separate
representation


 


Notwithstanding clause 6.8, where the Company
has conduct of the proceedings relating to an Indemnified Claim in the name of
an Indemnified Party, that Indemnified Party may engage its own legal counsel
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless:


 


(a)                                  the
Company and the Indemnified Party mutually agree to the contrary;


 


(b)                                 the
Indemnified Party reasonably concludes that there are significant legal
defences available to it that are different from, or in addition to, those
available to the Company; or


 


19

















 


(c)                                  the
named parties in any such proceeding (including any impleaded parties) include
both the Company and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual differing interests
between them.


 


6.10                           Obligations
of Indemnified Parties


 


The Indemnified Parties must:


 


(a)                                  take
such reasonable action as the Company requests to avoid, dispute, resist,
appeal, compromise or defend any Indemnified Claim in respect of it;


 


(b)                                 not
settle or compromise any Indemnified Claim without the prior written consent of
the Company;


 


(c)                                  render
all reasonable assistance and co-operation to the Company in the conduct of any
legal or other proceedings relating to the Indemnified Claim including giving
the Company any documents in its possession or within its control and signing
all documents, authorities and directions and making available its employees at
such time and for such periods as the Company may reasonably require in relation
to that proceeding; and


 


(d)                                 do
anything reasonably necessary or desirable to ensure that the Company is
subrogated to and enjoys the benefit of the rights of the Indemnified Parties
in relation to an Indemnified Claim including signing documents to assign
choses in action.


 


6.11                           Right
to assume control of proceedings


 


If an Indemnified Party re-assumes the
defence of an Indemnified Claim or any other legal or other proceedings
instituted by the Company in the name of the Indemnified Party in respect of an
Indemnified Claim under clause 6.8(c):


 


(a)                                  it
will have the right to conduct the same under its sole management and control
and will have absolute discretion with regards to the conduct of those
proceedings including any decision to settle, compromise or consent to the
entry of any judgement in relation to any Claims that are the subject of those
proceedings, but in doing so it will consult with and take account of the views
of the Company so far as is reasonably possible; and


 


(b)                                 the
Company will not be bound by the terms of any settlement or compromise and any
indemnity given by the Company under clause 6.1 shall not apply in respect of
any Claims that are the subject of those proceedings.


 


6.12                           Conduct of
Proceedings


 


An Indemnified Party is under no obligation
under clause 6.10 unless at the time the Company requests that Indemnified
Party to take any action, the Company agrees to indemnify that Indemnified
Party against all costs, expenses and charged incurred by or awarded against
that Indemnified Party in taking the action required, as and when they fall
due, including legal costs and disbursements of its lawyers on a full indemnity
basis.


 


20

















 


6.13                           Release


 


The Company agrees that no Claim may be made by
it against an Indemnified Party, and the Company unconditionally and
irrevocably releases each Indemnified Party from any Claim that it may have
against an Indemnified Party arising as a result of the participation of that
Indemnified Party in the preparation of the Offer Documents, a Supplementary
Offer Document or the Final Offer Documents or in relation to the making of the
Rights Offer, except where:


 


(a)                                  the
Indemnified Party has been negligent or there has been wilful misconduct or a
breach of any statutory provision or fiduciary duty;


 


(b)                                 the
Indemnified Party has made or distributed any announcements, advertisements or
publicity in relation to the Rights Offer or the Acquisition without the
approval of the Company; or


 


(c)                                  an
Underwriter is in breach of this agreement.


 


If:


 


(d)                                 the
Company makes a Claim against an Underwriter in respect of a breach by it of
this agreement (the “Relevant Breach”);
and


 


(e)                                  that
Underwriter has suffered Loss by reason of the Relevant Breach otherwise than
by reason of the Company making the Claim against it; and


 


(f)                                    that
Underwriter has recovered that Loss from the Company under the indemnity in
clause 6.1,


 


the Company
agrees it will not be entitled to recover from the Underwriter as damages in
respect of the Relevant Breach any amount which the Underwriter has recovered
under the indemnity in clause 6.1.


 


7.                                       APPLICATIONS
AND ALLOTMENTS


 


7.1                                 Applications


 


Each application for Offer Securities
pursuant to the Rights Offer must be made on an entitlement and application
form accompanying the Offer Documents and in accordance with the Offer
Documents or be an Institutional Acceptance.


 


7.2                                 Notification
of Applications


 


The Company must whenever reasonably
requested by the Underwriters during the period beginning on the Opening Date
and ending on the Closing Date notify the Underwriter of:


 


(a)                                  the
number of Applications received;


 


(b)                                 the
number of Applications received which are not Valid Applications and the
grounds on which the Company believes the Application is not valid; and


 


21

















 


(c)                                  the
number of Offer Securities in respect of which Valid Applications have been
received.


 


The Underwriters have the right to review the
Applications which are not Valid Applications.


 


7.3                                 Acceptance of
Applications


 


The Company must accept each Application for
Offer Securities which is lodged on or before 6:00pm on the Closing Date which
becomes a Valid Application by 4.00pm on the Shortfall Notification Date.


 


7.4                                 Allotment of
Offer Securities


 


The Company must allot and issue the Offer
Securities in respect of which Valid Applications have been accepted on the
First Allotment Date in accordance with the allotment procedure described in
the Offer Documents.  Those Offer
Securities will be allotted ex the final dividend for the financial year ending
September 30, 2003.


 


7.5                                 Holding Statements


 


The Company must dispatch a new holding
statement in respect of the Offer Securities issued pursuant to the Rights
Offer in accordance with the Corporations Act and the Listing Rules as soon as
practicable after the First Allotment Date.


 


7.6                                 Prompt Banking of
Cheques


 


The Company must promptly bank for collection
all cheques accompanying Applications received by it.  The Company must at its cost arrange for payments to be cleared
by the relevant financial institutions on which the payment is drawn.


 


7.7                                 Subscription Price


 


The Company must comply with section 722
of the Corporations Act in respect of the Subscription Price in respect of an
Offer Security received by it.


 


7.8                                 Records


 


The Company must maintain (and permit the
Underwriters to inspect at any reasonable time) accurate records of the receipt
of Applications, the banking of the Subscription Price in respect of each Offer
Security applied for, the processing of Applications and the dispatch of
holding statements in respect of the Offer Securities issued pursuant to the
Rights Offer.


 


7.9                                 Relief of Liability


 


All Valid Applications which are accepted
will go towards relieving the liability of the Underwriters under this
agreement to underwrite subscriptions for Offer Securities up to an aggregate
maximum amount of the Offer Amount.


 


22

















 


7.10                           No Shortfall


 


If by 3:00pm on the Shortfall Notification Date,
Valid Applications are accepted in respect of all of the Offer Securities the
Underwriters’ liability under this agreement to apply for Offer Securities is
extinguished.


 


7.11                           Return
of Subscription Price and termination of obligations


 


If all the Offer Securities in respect of
which Valid Applications are accepted have not been allotted to applicants by
the later of 2 Business Days after the First Allotment Date (or such later date
as the Underwriters may agree in writing in its absolute discretion):


 


(a)                                  the
Company must immediately refund all application moneys received to all
applicants including the Underwriters; and


 


(b)                                 all
of the Underwriters’ obligations under this agreement will immediately
terminate.


 


8.                                       OBLIGATIONS
OF THE UNDERWRITERS


 


8.1                                 Notice of
Shortfall Rights


 


If, as at 4.00pm on the Shortfall
Notification Date, the Company has not received Valid Applications in respect
of all the Offer Securities, the Company must by 5:00pm on the Shortfall
Notification Date (or such longer period agreed in writing by the
Underwriters), give a written notice to the Underwriters (the “Shortfall Notice”) specifying the number of
the Offer Securities in respect of which Valid Applications have not been
accepted and therefore the number of Rights which have not been exercised (the
number of Rights so specified being the Shortfall
Rights).


 


8.2                                 Certificate
to Accompany Notice


 


The Shortfall Notice given pursuant to clause
8.1 must be accompanied by a Certificate.


 


8.3                                 Certificate
Representations and Warranties


 


The Company:


 


(a)                                  represents
and warrants in giving the Certificate under clause 8.2 that the Shortfall
Notice specifying the number of Offer Securities in respect of which Valid
Applications have not been accepted and therefore the number of Shortfall
Rights is true and accurate as at the date of the Shortfall Notice; and


 


(b)                                 undertakes
to notify the Underwriters of any change in a material respect in any of the
matters set out in the Certificate as soon as practicable after such change
becomes known to the Company if such change occurs before the extinguishment of
the Underwriters’ liability under this agreement.


 


8.4                                 Bookbuild


 


(a)                                  On
receipt of the Shortfall Notice the Underwriters will, during the Bookbuild
Period, offer the Shortfall Rights for sale via a bookbuild process to
determine demand for the Shortfall Rights at various possible sale prices.


 


23

















 


(b)                                 The
Underwriters must offer each Shortfall Right for sale on condition that a
purchaser of that Shortfall Right must exercise that Shortfall Right and pay
the Company the Subscription Price in respect of that Shortfall Right on the
Second Allotment Date.


 


(c)                                  The
Underwriters will advise the Company of the outcome of the bookbuild process
referred to in clause 8.4(a) by 8.00am on the First Allotment Date.  Having regard to the outcome of the
bookbuild, the Sale Price and the number of Shortfall Rights sold will be
agreed by the Company and the Underwriters having regard to the level of demand
at different prices at which purchasers have bid for the Shortfall Rights, the
quality of those bids and what price will enable the Underwriters to clear the
book.


 


(d)                                 The
Company and the Underwriters will use their best endeavours to agree the
persons, to whom the Shortfall Rights will be allocated for sale.  If the Underwriters and the Company fail to
so agree, the Underwriters may determine to whom the Shortfall Rights will be
allocated for sale.


 


(e)                                  The
Underwriters will be entitled to charge a commission of .25% of the Sale
Amount.


 


8.5                                 Payment
of Shortfall Amount and Sale Amount


 


Unless:


 


(a)                                  this
document has been rescinded or terminated under clause 2 or in accordance with
clause 10 on or before the Shortfall Notification Time;


 


(b)                                 the
Company has not complied with its obligations under clause 8.2,


 


each
Underwriter must pay or procure payment to:


 


(a)                                  the
Company of 50% of the Shortfall Amount in cleared funds (less any amounts which
that Underwriter is entitled to be paid or deduct under clause 9.4);


 


(b)                                 to
the Company of 50% of the Sale Amount (less the commission referred to in
clause 8.4(e)) in cleared funds,


 


on or before
10.00am on the Second Allotment Date.


 


For the
avoidance of doubt, the parties acknowledge that it is not intended that the Underwriters
will acquire any beneficial ownership in the Shortfall Rights.


 


8.6                                 Allotment of
Shortfall


 


On receipt of
the Shortfall Amount (less any amounts which an Underwriter is entitled is
entitled to be paid or deduct under clause 9.4), the Company must allot and
issue the Shortfall Shares and dispatch new holding statements in respect of
the Shortfall Shares in accordance with the Corporations Act and the Listing
Rules as soon as practicable after the Second Allotment Date.


 


24

















 


8.7                                 Regulatory
Impediment


 


Each
Underwriter must ensure that it does not acquire Shares in breach of the
Financial Sector (Shareholdings) Act or any other applicable law in fulfilling
its obligations under this agreement and must, if necessary, procure other
subscribers for the Shortfall Shares if an acquisition by it would breach those
laws.


 


8.8                                 Liability
Extinguished


 


Upon clause
8.5 being complied with by an Underwriter, the liability of that Underwriter
under this agreement with respect to underwriting the Rights Offer shall cease
and be extinguished.


 


9.                                       FEES, COSTS AND EXPENSES


 


9.1                                 Payment of fees


 


Subject to
clause 9.3, the Company must pay to each of the Underwriters on the Second
Allotment Date in immediately available funds:


 


(a)                                  an
underwriting fee of 0.30% of the Offer Amount; and


 


(b)                                 a
management fee of 0.075% of the Offer Amount.


 


9.2                                 Costs and expenses


 


(a)                                  Subject
to paragraph (b), in addition to the fees referred to in clause 9.1, the
Company must on receipt of notice from an Underwriter, pay or procure the
payment to that Underwriter (or as it directs) of all reasonable travel and
out-of-pocket expenses and reasonable legal costs and disbursements incurred by
that Underwriter in relation to the preparation and execution of this
agreement.


 


(b)                                 The
maximum amount payable by the Company to all the Underwriters under paragraph
(a) is limited to $250,000.


 


9.3                                 Costs on termination


 


In the event
that:


 


(a)                                  the
obligations of an Underwriter under this agreement is terminated pursuant to
clause 2 or 10:


 


(i)                                     the Company shall
not be obliged to pay to that Underwriter the fee referred to in clause 9.1;
and


 


(ii)                                  the Company shall be
obliged to pay to that Underwriter within five Business Days of termination of
the obligations of that Underwriter (to the extent that it has not already done
so) the costs, expenses and disbursements referred to in clause 9.2;


 


25

















 


(b)                                 the
Rights Offer does not proceed or is not completed for any reason:


 


(i)                                     the Company shall
not be obliged to pay the fee referred to in clause 9.1; and


 


(ii)                                  the Company shall be
obliged to pay within 5 Business Days of the Rights Offer not proceeding or
completing (to the extent it has not already done so) the costs, expenses and
disbursements referred to in clause 9.2.


 


9.4                                 Set off


 


An Underwriter
may at any time on or after the Second Allotment Date apply any payment in
respect of an Offer Security received by an Underwriter, or a related body
corporate of an Underwriter, by reason of delivery versus payment occurring
through CHESS in respect of that Offer Security on the Second Allotment Date in
satisfaction of the obligations of the Company under clauses 9.1 or 9.2.  To the extent the obligations of the Company
under those clauses are not fully satisfied by such application, the Company
will not be relieved of its obligations under those clauses.  An Underwriter must promptly give written
notice to the Company of any amounts set off by that Underwriter pursuant to
this clause 9.4.


 


10.                                 EVENTS OF
TERMINATION


 


10.1                           Right of termination


 


Subject to
clause 10.2 and 10.3, if any one or more of the following events occurs at any
time in the period from (and including) the date of this agreement to the
Shortfall Notification Time (or, in the case of a paragraph which specifies a
particular period, from (and including) the date of this agreement to (and
including) the date or period referred to in the relevant paragraph), then at
any time on or before the Shortfall Notification Time (or the particular period
specified) either Underwriters may, terminate any of its obligations under this
agreement which have not been performed at that time (without cost or liability
to themselves) by notice in writing to the Company (with a copy to the other
Underwriter) specifying the relevant event:


 


(a)                                  (i)          (ASX approval) unconditional approval (or
conditional approval, provided such condition would not, in the reasonable
opinion of the Underwriters, have a material adverse effect on the success or
settlement of the Rights Offer) by the ASX for official quotation of the Offer
Securities is refused, or is not granted before the Shortfall Application Date
(or such later date agreed in writing by the Underwriters in their absolute discretion)
or is withdrawn on or before the Shortfall Application Date;


 


(ii)                                  (withdrawal) the Company withdraws the
Offer Documents or the Rights Offer;


 


(iii)                               (trading of Offer Securities) the Company
is removed from the official list of ASX or the Shares cease to be quoted on
ASX;


 


(iv)                              (Timetable) any event specified in the
Timetable is delayed for more than 5 Business Days without the prior approval
of the Underwriters; or


 


26

















 


(b)                                 (i)                                     (Offer Documents) an Offer Document, a
Supplementary Offer Document or the Final Offer Document omits any material
required by the Corporations Act or any applicable law or contains a statement
which is misleading or deceptive or otherwise fails to comply with the
Corporations Act or any other applicable law;


 


(ii)                                  (unauthorised alterations) the Company
alters its share capital or its constitution in any material respect;


 


(iii)                               (trading in Shares) trading in Shares on
ASX is suspended (which for the avoidance of doubt does not include a trading
halt) for more than 3 consecutive Business Days;


 


(iv)                              (material contracts) the Acquisition
Agreement is terminated (whether by breach or otherwise), rescinded, altered or
amended in a material respect or any such contract is found to be void or
voidable;


 


(v)                                 (compliance) a contravention by the Company
of any provision of its constitution, the Corporations Act or any requirement
of the ASX or any other applicable law (except to the extent that compliance
with any applicable law has been waived, or an exemption granted, by a
Government Agency having authority to do so);


 


(vi)                              (change of law) there is introduced into
the Parliament of the Commonwealth of Australia or any State or Territory of
Australia or the Federal or any State Congress in the United States or any new
regulation is made under any law or a Government Agency adopts a policy, or
there is an official announcement on behalf of the Government of the
Commonwealth of Australia or any State or Territory of Australia or the Federal
or any State Congress in the United States or a Government Agency that such a
law or regulation will be introduced or policy adopted (as the case may be)
(other than a law or regulation or policy which has been announced before the
date of this agreement); or


 


(vii)                           (consent) if any person whose consent to
the issue of the Prospectus is required by the Corporations Act refuses to give
their consent prior to lodgment of the Prospectus with ASIC or withdraws their
consent after lodgment of the Prospectus with ASIC;


 


(viii)                        (breach) the Company fails to perform or
observe any of its obligations under this agreement;


 


(ix)                                (misrepresentation) a Company Warranty is
or becomes untrue or incorrect;


 


(x)                                   (late lodgment) the Company fails to lodge
the Prospectus with ASIC on or before the Lodgment Date (or such later date
agreed in writing by the Underwriters);


 


27

















 


(xi)                                (ASIC)


 


(A)                              ASIC
gives notice of an intention to hold a hearing or issues an order under
section 739(1) of the Corporations Act or an interim order under
section 739(3) of the Corporations Act;


 


(B)                                an
application is made by ASIC for an order under Part 9.5 in relation to the
Prospectus or ASIC commences any investigation or hearing under Part 3 of the Australian
Securities and Investments Commission Act 1989 (Cwlth) in relation to the
Prospectus;


 


(xii)                             (certificate) any Certificate which must be
given by the Company under this agreement is not given when required or a
statement in that Certificate is untrue or incorrect in respect of events and
circumstances applicable as at the date the Certificate is given;


 


(xiii)                          (market or trading disruption) there is:


 


(A)                              a
suspension or material limitation in trading in securities generally on ASX; or


 


(B)                                a
general moratorium on commercial banking activities in Australia, the United
States or the United Kingdom is declared by the relevant authorities, or there
is a material disruption in commercial banking or securities settlement or
clearance services in those places;


 


(xiv)                         (material adverse change) there is a
material adverse change in the financial position, results of operations or
prospects of ANZ or of NBNZ from that reflected in the Offer Documents.


 


10.2                           Exercise of rights


 


No event
specified in clause 10.1(b) shall entitle an Underwriter to exercise its rights
to terminate its obligations under this agreement pursuant to clause 10.1 or
otherwise unless, in the reasonable opinion of that Underwriter, the event:


 


(a)                                  has,
or is likely to have, a material adverse effect on the success or settlement of
the Rights Offer; or


 


(b)                                 leads,
or is likely to lead:


 


(i)                                     to
a contravention by the Underwriter of, or the Underwriter being involved in a
contravention of, the Corporations Act or any other applicable law; or


 


(ii)                                  to
a liability for the Underwriter under the Corporations Act or any other
applicable law.


 


28

















 


10.3                           Banking
Moratorium Event


 


If a Banking
Moratorium Event occurs at any time during the period from the date of this
agreement to the Shortfall Notification Time and as a direct or indirect result
of the occurrence of the Banking Moratorium Event:


 


(a)                                  the
Company is prevented from, or delayed in, performing its obligations under
clause 7.6;


 


(b)                                 payments
which the Company has arranged with the relevant financial institutions to
clear under clause 7.6 are not cleared;


 


(c)                                  delivery
versus payment is prevented from occurring through CHESS on the Second
Allotment Date; or


 


(d)                                 the
Underwriters are prevented from, or delayed in, performing their obligations
under clause 8.5,


 


then:


 


(e)                                  the
obligations of the parties under this agreement are suspended to the extent to
which they are effected by the relevant Banking Moratorium Event as long as the
Banking Moratorium Event continues; and


 


(f)                                    in
addition to the requirements of clause 10.2, an Underwriter may not terminate
its obligations under this agreement, unless the Banking Moratorium Event
continues for more than 5 Business Days.


 


10.4                           Claims


 


Nothing contained
in this clause 10 shall prejudice or nullify any claim for damages or other
right which the Underwriters or any other Indemnified Party (as defined in
clause 6.1) may have against the Company, or which the Company may have against
the Underwriters, for or arising out of any breach of covenant, warranty or
representation or failure to observe or perform an obligation under this
agreement.


 


10.5                           Notification


 


The Company
must notify the Underwriters in writing immediately after becoming aware that
an Event of Termination has occurred.


 


10.6                           Effect of
termination


 


(a)                                  In
the event that:


 


(i)                                     an
Underwriter terminates its obligations under this agreement pursuant to clause
10.1 (the Terminating Underwriter);
or


 


29

















 


(ii)                                  an
Underwriter refuses to waive fulfilment of a condition under clause 2.4 (a Non-waiving Underwriter)


 


the
Terminating Underwriter or the Non-waiving Underwriter shall thereupon be
relieved of its obligations under this agreement and shall be entitled to
reimbursement in accordance with clause 9.3.


 


(b)                                 The
exercise by the Terminating Underwriter of its rights upon the happening of an
event specified in clause 10.1 or the refusal of a Non-waiving Underwriter to
waive a condition under clause 2.4 does not automatically terminate the
obligations of the other Underwriter (the Remaining
Underwriter).


 


(c)                                  If
the Terminating Underwriter gives notice to the Remaining Underwriter of its
intention to terminate its obligations under this agreement upon the happening
of an event specified in clause 10.1, the Remaining Underwriter must elect by
notice in writing to the Terminating Underwriter and the Company within 2
Business Days of receipt of such notice to:


 


(i)                                     also
terminate its obligations under this agreement as a result of the happening of
that event; or


 


(ii)                                  assume
the obligations of the Terminating Underwriter under this agreement.


 


If the
Remaining Underwriter fails to give notice under this clause 10.5(c) it shall
be treated as having also terminated its obligations under this agreement.


 


(d)                                 If
the Non-waiving Underwriter gives notice of its intention to refuse to waive
fulfilment of a condition under clause 2.4, the Remaining Underwriter must
elect by notice in writing to the Non-waiving Underwriter and the Company
within 2 Business Days of receipt of such notice:


 


(i)                                     to
also terminate its obligations under this agreement as a result of the failure
to fulfil that condition; or


 


(ii)                                  to
assume the obligations of the Non-waiving Underwriter under this agreement.


 


If the
Remaining Underwriter fails to give notice under this clause 10.6(d) it shall
be treated as having also terminated its obligations under this agreement.


 


(e)                                  Termination
of this agreement by the Terminating Underwriter but not by the Remaining
Underwriter will not affect the rights or obligations of the Remaining
Underwriter under this agreement except that if the Remaining Underwriter gives
notice under paragraph (c) that it will assume the obligations of the
Terminating Underwriter under this agreement the Remaining Underwriter will be
entitled to the fee under clause 9.1 which would have been payable to the
Terminating Underwriter.


 


(f)                                    The
refusal to waive the fulfilment of a condition under clause 2.4 by a
Non-waiving Underwriter but not by the Remaining Underwriter will not affect
the rights or obligations of the Remaining Underwriter under this agreement
except


 


30

















 


that if the
Remaining Underwriter gives notice under paragraph (d) that it will assume the
obligations of the Non-waiving Underwriter under this agreement the Remaining
Underwriter will be entitled to the fee under clause 9.1 which would have been
payable to the Non-waiving Underwriter.


 


11.                                 ADVERTISING
AND PUBLIC ANNOUNCEMENTS


 


11.1                           Promotion of Offer


 


The Company
must at its own cost provide such assistance in connection with the promotion,
advertising and marketing of the Rights Offer as is reasonably required by the
Underwriters from time to time.  The
content and other details of any Publication must be agreed between the Company
and the Underwriters prior to any statement or release.


 


11.2                           Responsibility
for promotion


 


The Company is
fully responsible for:


 


(a)                                  the
contents of any promotional material relating to the Rights Offer except where
the content of that promotional material has not been agreed under clause 11.1;
and


 


(b)                                 all
announcements and disclosures in respect of the Rights Offer which have been
agreed between the Company and the Underwriters.


 


11.3                           Disclosure


 


The Company
agrees that subject to any disclosure required by the Corporations Act or the
Listing Rules or any other applicable law it must not make any public or media
announcement or disclosure in relation to the Rights Offer or the Acquisition,
its progress or the results of the Rights Offer without the prior approval of
the Underwriters which must not be unreasonably withheld or delayed.


 


12.                                 ACCESS TO
INFORMATION


 


12.1                           Access and
information


 


Subject to
entering into any appropriate confidentiality undertakings, the Company agrees
to allow the Underwriters and their appropriate officers reasonable access to
its books and records at all reasonable times upon reasonable notice:


 


(a)                                  before
the Second Allotment Date;


 


(b)                                 during
any regulatory inquiry or litigation proceedings in relation to the Rights
Offer


 


to enable the
Underwriters to obtain any information which the Underwriters reasonably
require in relation to the Rights Offer.


 


12.2                           ASX and ASIC


 


Without
limiting the generality of clause 12.1, the Company must promptly give the
Underwriters copies of notifications to and approvals of ASX, NZSE and ASIC or
any


 


31

















 


other
regulatory body relating to the Offer Documents, evidence of any lodging of the
Prospectus and any other similar material relating to the Rights Offer.


 


12.3                           Due diligence
materials


 


The Company
must provide the Underwriters with full and free access to, and on request,
copies of, the Due Diligence Report, the Verification Materials and all
materials and documents used or created in connection with the preparation of
the Due Diligence Report and the Verification Materials and must maintain those
materials and documents for at least six years from the Second Allotment Date
for that purpose.


 


13.                                 GST


 


13.1                           Definitions


 


Words defined
in the A New Tax System (Goods and Services
Tax) Act 1999 (Cth) have the same meaning in this clause.


 


13.2                           GST payable
in addition to fees


 


In addition to
paying the fees, costs, expenses and disbursements referred to in clauses 9.1
and 9.2 (which are exclusive of GST) and in addition to any other amounts, the
Company must:


 


(a)                                  pay to an Underwriter
an amount equal to any GST payable on any supply by that Underwriter under or
in connection with this agreement, without deduction or set-off of any other
amount; and


 


(b)                                 make that payment:


 


(i)                                     as and when the
fees, costs, expenses and disbursements referred to in clauses 9.1 and 9.2 or
other consideration or part of it must be paid or provided; and


 


(ii)                                  if later, such later
time being not more than 5 Business Days after a tax invoice has been issued by
an Underwriter


 


provided that
before that payment is due to be made that Underwriter has given a tax invoice
to the Company in respect of the GST so payable.


 


13.3                           GST on claims and
expenses


 


Without
limiting the operation of clause 13.2:


 


(a)                                  if a payment to
satisfy a claim or a right to claim under or in connection with this agreement
(for example, for misleading or deceptive conduct or for misrepresentation or
for a breach of any warranty or for indemnity or for reimbursement of any cost
or expense) or any other payment made under or in connection with this
agreement which is not covered by clause 13.2 gives rise to a liability to pay
GST, the payer must pay, and indemnify the payee against the amount of that
GST; and


 


32

















 


(b)                                 if a party has a claim under or in
connection with this agreement for a cost or expense on which that party must
pay GST, the claim is for the cost or expense plus all GST except any GST for
which that party is entitled to an input tax credit.


 


14.                                 NOTICES


 


14.1                           How to give a notice


 


A notice, consent or other communication under this document is only
effective if it is:


 


(a)                                  in writing, signed by or on behalf of the
person giving it;


 


(b)                                 addressed to the person to whom it is to be
given; and


 


(c)                                  either:


 


(i)                                     delivered or sent by pre-paid mail (by
airmail, if the addressee is overseas) to that person’s address; or


 


(ii)                                  sent by fax to that person’s fax number and
the machine from which it is sent produces a report that states that it was
sent in full.


 


14.2                           When a notice is given


 


A notice, consent or other communication that complies with this clause
is regarded as given and received:


 


(a)                                  if it is delivered or sent by fax:


 


(i)                                     by 5:00pm (local time in the place of
receipt) on a Business Day - on that day; or


 


(ii)                                  after 5:00pm (local time in the place of
receipt) on a Business Day, or on a day that is not a Business Day - on the
next Business Day; and


 


(b)                                 if it is sent by mail - on actual receipt.


 


14.3                           Address for notices


 


A person’s address and fax number are those set out below, or as the
person notifies the sender:


 


	
  Company

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Level 6, 100 Queen Street, Melbourne, Victoria, 3000

  
	
  Fax number:

  	
   

  	
  (03) 9273 1203

  
	
  Attention:

  	
   

  	
  Mike Dontschuk, Group Treasurer

  
	
   

  	
   

  	
   

  
	
  Morgan Stanley Dean Witter Australia
  Securities Limited

  
	
  Address:

  	
   

  	
  Level 38, The Chifley Tower, 2 Chifley Square, Sydney NSW 2000,
  Australia

  
	
  Fax number:

  	
   

  	
  +61 2 9770 1129

  
	
  Attention:

  	
   

  	
  Rick Ball/Matt Hanning

  



 


 


33

















 


	
  Citigroup Global Markets Australia Pty
  Limited

  
	
  Address:

  	
   

  	
  Citigroup Centre, 2 Park Street, Sydney NSW 2000, Australia

  
	
  Fax Number:

  	
   

  	
  61 2 8225 5410

  
	
  Attention:

  	
   

  	
  Chris Scougall/Mark Bartels

  



 


15.                                 AMENDMENT AND ASSIGNMENT


 


15.1                           Amendment


 


This agreement can only be
amended, supplemented, replaced or novated by another agreement signed by the
parties.


 


15.2                           Assignment


 


A party may only dispose of,
declare a trust over or otherwise create an interest in its rights under this
agreement with the consent of the other parties.


 


16.                                 GENERAL


 


16.1                           Governing
law


 


(a)                                  This agreement is governed by the law in
force in Victoria.


 


(b)                                 Each party submits to the non-exclusive
jurisdiction of the courts exercising jurisdiction in Victoria, and any court
that may hear appeals from any of those courts, for any proceedings in
connection with this agreement, and waives any right it might have to claim
that those courts are an inconvenient forum.


 


16.2                           Giving effect to this agreement


 


Each party must do anything
(including execute any document), and must ensure that its employees and agents
do anything (including execute any document), that the other party may
reasonably require to give full effect to this agreement.


 


16.3                           Waiver
of rights


 


A right may only be waived in
writing, signed by the party giving the waiver, and:


 


(a)                                  no other conduct of a party (including a
failure to exercise, or delay in exercising, the right) operates as a waiver of
the right or otherwise prevents the exercise of the right;


 


(b)                                 a waiver of a right on one or more occasions
does not operate as a waiver of that right if it arises again; and


 


(c)                               the exercise of a right does not prevent any
further exercise of that right or of any other right.


 


16.4                           Operation of this agreement


 


(a)                                  This agreement contains the entire agreement
between the parties about its subject matter. 
Any previous understanding, agreement, representation or warranty


 


34

















 


relating to
that subject matter is replaced by this agreement and has no further effect.


 


(b)                                 Any right that a
person may have under this agreement is in addition to, and does not replace or
limit, any other right that the person may have (including, for the avoidance
of doubt, in the case of Morgan Stanley any right it may have to be indemnified
by the Company in respect of its role as financial adviser in connection with a
possible acquisition, merger or other business combination with NBNZ under its
mandate letter dated 16 October 2003 and the indemnity from the Company dated
30 July 2003.).  For the avoidance of
doubt Morgan Stanley’s right to be indemnified in respect of its roles as underwriter
and joint lead manager of the Rights Offer is governed entirely by this
agreement.


 


(c)                                  Any provision of this
agreement which is unenforceable or partly unenforceable is, where possible, to
be severed to the extent necessary to make this agreement enforceable, unless
this would materially change the intended effect of this agreement.


 


16.5                           Inconsistency
with other documents


 


If this
agreement is inconsistent with any other document or agreement between the
parties, this agreement prevails to the extent of the inconsistency.


 


16.6                           Time is of the
essence


 


Time is of the
essence of this agreement.


 


16.7                           Counterparts


 


This agreement
may be executed in counterparts.


 


16.8                           Attorneys


 


Each person
who executes this agreement on behalf of a party under a power of attorney
declares that he or she is not aware of any fact or circumstance that might
affect his or her authority to do so under that power of attorney.


 


16.9                           Operation of
Indemnities


 


(a)                                  Each
indemnity in this agreement survives the expiry or termination of this
agreement.


 


(b)                                 A party may recover a
payment under an indemnity in this agreement before it makes the payment in
respect of which the indemnity is given.


 


16.10                     Discretion
in exercising rights


 


A party may
exercise a right or remedy or give or refuse its consent in any way it considers
appropriate (including by imposing conditions) unless this agreement expressly
states otherwise.


 


35

















 


17.                                 DISPUTE RESOLUTION


 


17.1                           Procedure
for resolving disputes


 


(a)                                  The Company and the
Underwriters agree that all disputes between any of them or all of them
relating to or arising out of this agreement (Disputes)
shall be resolved in accordance with this clause 17.


 


(b)                                 It is a condition
precedent to the referral of a Dispute to litigation under clause 17.7 that the
parties to the Dispute first refer the Dispute to mediation in accordance with
this clause 17.


 


17.2                           Mediation


 


The expression mediation means a process in which a person (a mediator) independent of the parties facilitates a
negotiation between the parties with the aim of reaching a binding agreement as
a solution to the Dispute.


 


17.3                           Notice


 


If a Dispute
arises then any party to the Dispute may give notice to the other parties to
the Dispute which notice must:


 


(a)                                  be in writing;


 


(b)                                 state that it is a
notice under this clause 17.3; and


 


(c)                                  include or be
accompanied by reasonable particulars of the Dispute.


 


17.4                           Appointment of
Mediator


 


(a)                                  If a notice is given
under clause 17.3, then the parties which either gave or received a notice must
together appoint a mediator within 5 Business Days of the giving of a mediation
notice under clause 17.3. If they do not agree within that time as to the
person to be appointed they must apply to the Chairman (or his or her delegate)
for the time being of the Victorian Bar Council (or its successor body).  The mediation must be conducted in
accordance with the Victorian Bar Dispute Resolution Scheme.


 


(b)                                 The parties to the
mediation must pay the appointment fee fixed by the Victorian Bar Council,
promptly sign whatever reasonable terms of engagement the mediator requires and
use reasonable endeavours acting in good faith to resolve the dispute.


 


17.5                           Confidentiality


 


The parties
must at all times maintain confidentiality about any matter arising in the mediation,
except to the extent that the matter is already public, or to the extent agreed
between the parties, or as required by law.


 


36

















 


17.6                           Privileged
discussions


 


(a)                                  All discussions and
negotiations during the mediation are on a privileged, “without prejudice”
basis except to the extent that the parties waive privilege in whole or in part
by written agreement.


 


(b)                                 A party to the
mediation must not:


 


(i)                                     refer in any
subsequent proceedings to any such privileged discussions and negotiations;


 


(ii)                                  require the mediator
to do so;


 


(iii)                               have access to any of
the mediator’s notes; or


 


(iv)                              call the mediator as a
witness in any proceedings.


 


17.7                           Litigation


 


If a Dispute
is not resolved within 30 Business Days after the date on which the notice
under clause 17.3 is received (or such later date as the parties to the Dispute
may agree), any party to the Dispute may commence proceedings for the
resolution of the Dispute.


 


17.8                           Costs


 


(a)                                  Each party to a
mediation must bear its own costs in connection with the mediation proceedings.


 


(b)                                 The costs of the
mediator must be borne equally between the parties to the mediation, unless
otherwise agreed.


 


37

















 


SCHEDULE
1


 


CERTIFICATE


 


 


	
  To:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Morgan
  Stanley

  
	
   

  	
   

  	
  Citigroup

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Rick
  Ball/Matt Hanning

  
	
   

  	
   

  	
  Chris
  Scougall/Mark Bartels

  



 


We hereby
certify on behalf of Australia and New Zealand Banking Group Limited (the Company) that the following statements are,
to the best of our knowledge having made due inquiries of all of the directors
and the Chief Financial Officer of the Company, true and not misleading or
deceptive:


 


(a)                                  each of the
conditions set out in clause 2.1 has been satisfied or otherwise waived by the
Underwriters;


 


(b)                                 the Company has
complied with all of its obligations in respect of the Rights Offer whether
arising under the Underwriting Agreement, the Corporations Act, the Listing
Rules, the Offer Documents or the Timetable;


 


(c)                                  the Company Warranties
are true and correct as at the date of this certificate in respect of the facts
and circumstances existing as at that date except to the extent previously
notified to the Underwriters under clause 4.6(a); and


 


(d)                                 no event has occurred
which the Company is required to announce under the Listing Rules or Chapter
6CA of the Corporations Act which if not made generally available may result in
any person contravening Division 3 of Part 7.10 of the Corporations Act;


 


(e)                                  no Event of
Termination has occurred.


 


For the
purposes of this Certificate:


 


(a)                                  “Underwriting Agreement” means the
underwriting agreement for the issue of Offer Securities dated on or about 24
October 2003 between Morgan Stanley and Citigroup and the Company; and


 


(b)                                 words and expressions
used shall have the meanings ascribed to them in the Underwriting Agreement.


 


38

















 


SCHEDULE
2


 


TIMETABLE


 


	
  Event

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
  Announcement
  of Rights Issue

  Commence Trading Halt

  Lodge Appendix 3B

  	
   

  	
  24 October 2003

  
	
   

  	
   

  	
   

  
	
  Lodgment
  Date

  	
   

  	
  24 October 2003

  
	
   

  	
   

  	
   

  
	
  First day of
  trading after trading halt

  	
   

  	
  28 October 2003

  
	
   

  	
   

  	
   

  
	
  Ex trading
  commences

  Rights trading commences

  	
   

  	
  29 October 2003

  
	
   

  	
   

  	
   

  
	
  Record Date
  (7.00pm)

  	
   

  	
  31 October 2003

  
	
   

  	
   

  	
   

  
	
  Dispatch of
  Prospectus with Entitlement and Acceptance Forms

  	
   

  	
  3 November 2003

  
	
   

  	
   

  	
   

  
	
  Opening Date
  for the Rights Offer

  	
   

  	
  3 November 2003

  
	
   

  	
   

  	
   

  
	
  Rights
  Trading ends

  	
   

  	
  17 November 2003

  
	
   

  	
   

  	
   

  
	
  Deferred
  Settlement Trading commences

  	
   

  	
  18 November 2003

  
	
   

  	
   

  	
   

  
	
  Closing Date
  for the Rights Offer

  	
   

  	
  24 November 2003

  
	
   

  	
   

  	
   

  
	
  Shortfall
  Notification Date – Shortfall Notice and Certificate to be given

  	
   

  	
  27 November 2003

  
	
   

  	
   

  	
   

  
	
  First
  Allotment Date

  	
   

  	
  28 November 2003

  
	
   

  	
   

  	
   

  
	
  Shortfall
  Application Date

  	
   

  	
  3 December 2003

  
	
   

  	
   

  	
   

  
	
  Second
  Allotment Date

  	
   

  	
  3 December 2003

  



 


39

















 


 


SCHEDULE 3


 


WARRANTIES


 


Part 1: The Parties


 


1.                                       Capacity


 


1.1                                 (status) It is a company limited by shares
under the Corporations Act.


 


1.2                                 (capacity) It has full legal capacity and
power to enter into this agreement and to carry out the transactions that this
agreement contemplates.


 


1.3                                 (corporate authority) It has taken all
corporate action that is necessary or desirable to authorise its entry into
this agreement and its carrying out the transactions that this agreement
contemplates.


 


1.4                                 (Authorisation) It holds each Authorisation
that is necessary to:


 


(i)                                     execute this
agreement and to carry out the transactions that this agreement contemplates;


 


(ii)                                  ensure that this
agreement is legal, valid, binding and admissible in evidence; and


 


(iii)                               enable it to properly
carry on its business,


 


and it is complying with any conditions to which any of these
Authorisations is subject except, in the case of the Company, as may be
required under U.S state securities (or Blue Sky) laws in connection with the
distribution of the Rights or the distribution or purchase of the Offer
Securities by the Underwriters.


 


1.5                                 (agreement effective) This agreement
constitutes its legal, valid and binding obligations, enforceable against it in
accordance with its terms subject to any necessary stamping or registration.


 


1.6                                 (no contravention) Neither its execution of
this agreement nor the carrying out by it of the transactions that this
agreement contemplates, does or will:


 


(a)                                  contravene any law to
which it is subject or any order of any Government Agency that is binding on
it;


 


(b)                                 contravene any
Authorisation;


 


(c)                                  contravene any
undertaking or instrument binding on it; or


 


(d)                                 contravene its
constitution


 


except, in the case of the Company, as may be required under U.S state
securities (or Blue Sky) laws in connection with the distribution of the Rights
or the distribution or purchase of the Offer Securities by the Underwriters.


 


40

















 


Part 2: Company


 


1.                                       Rights Offer


 


1.1                                 (Offer Documents) The Offer Documents:


 


(a)                                  comply with all
applicable laws, including the Corporations Act (as varied by any modification
of, or any exemption from, the Corporations Act given by ASIC pursuant to the
Corporations Act);


 


(b)                                 unless the
Underwriters otherwise consent in writing, will be issued in the form
initialled by the Company and the Underwriters (and in no other form);


 


(c)                                  will not contain a
statement which is misleading or deceptive and will not be one from which there
is an omission of information required by the Corporations Act or any other
applicable law;


 


(d)                                 will not be misleading
or deceptive and will not be likely to mislead or deceive.


 


1.2                                 (conduct) It has not engaged in, and will
not engage in, conduct that is misleading or deceptive or which is likely to
mislead or deceive in connection with the issue of the Offer Documents or the
making of the Rights Offer.


 


1.3                                 (publicity) At the time of publication, a
Publication shall:


 


(a)                                  not be misleading or
deceptive or be likely to mislead or deceive; and


 


(b)                                 comply with all
applicable laws.


 


1.4                                 (Certificate) The contents of each
Certificate given under this agreement will be true and correct as at the date
the Certificate is given.


 


1.5                                 (Offer Securities) The Offer Securities
will be validly issued and allotted free from all liens, charges and other
encumbrances.


 


1.6                                 (continuously quoted securities) The Offer
Securities are “continuously quoted securities” for the purposes of
section 713(1)(a) of the Corporations Act and no determination has been
made by ASIC under section 713(6) of the Corporations Act so as to entitle
the Company to issue a prospectus that complies with section 713 of the
Corporations Act.


 


2.                                       Due Diligence


 


2.1                                 (due diligence) The Due Diligence Program
will be properly implemented and fully carried out in accordance with the
Planning Memorandum, statements contained in the Offer Documents will be
verified by appropriately qualified persons, the Due Diligence Results will be
the results of the investigations described in the Planning Memorandum and the
Verification Material will contain the material collected to verify the
statements made in the Offer Documents (and will be accurate in all material
respects).


 


41

















 


2.2                                 (ongoing due diligence) It will continue
throughout the Offer Period to conduct the Due Diligence Program substantially
in accordance with the Planning Memorandum.


 


3.                                       Compliance


 


3.1                                 (no contravention of disclosure obligations)
It is not in breach of, and will not during the Offer Period breach, Chapter
6CA of the Corporations Act or any provision of Chapter 3 of the Listing Rules.


 


3.2                                 (no contravention) It (or any of its
related bodies corporate) has not contravened, and before the expiry of the
Offer Period will not contravene, in any material respect, any provision of its
constitution, the Corporations Act (as varied by any modification of, or
exemption from, Corporations Act given by ASIC pursuant to section 741 of the
Corporations Act) and any other applicable law (except, in the case of a
Listing Rule, where compliance with that Listing Rule has been waived in
writing by ASX or any agreement binding on it).


 


4.                                       US Warranties


 


4.1                                 (no general solicitation) None of it or, any
of its Affiliates, or any person acting on its or any of its Affiliates behalf
(other than the Underwriters or any of their Affiliates or any person acting on
behalf of any of them, as to whom the Company makes no representation) has
offered or sold (or will offer or sell) any Rights or Offer Securities in the
United States using any form of general solicitation or general advertisement
within the meaning of Rule 502(c) under the US Securities Act.


 


4.2                                 (no directed selling efforts) With respect
to those Rights or Offer Securities sold in reliance on Regulation S under the
US Securities Act, none of it, any of its Affiliates or any person acting on
its or any of its Affiliates behalf (other than the Underwriters or any of
their Affiliates or any person acting on behalf of any of them, as to whom the
Company makes no representation) has engaged nor will it engage in any directed
selling efforts within the meaning of Rule 902(c) under the US Securities Act.


 


4.3                                 (no integration) It has not solicited any
offer to buy or offered to sell, and will not solicit any offer to buy or offer
to sell, in the United States or to any U.S. person, any security which is or
would be integrated with the distribution of the Rights or the sale of the
Offer Securities in a manner that would require the Offer Securities to be
registered under the US Securities Act.


 


4.4                                 (no registration) Subject to compliance by
the Underwriters with their obligations under this agreement, it is not
necessary in connection with the initial offer, sale and delivery of the Rights
or Offer Securities in the manner contemplated by this agreement to register
the Offer Securities under the US Securities Act.


 


4.5                                 (investment company) It is not, and upon
the allotment of the Offer Securities and the application of the net proceeds
from the allotment of the Offer Securities will not be, required to register as
an “investment company” under the US Investment Company Act of 1940, as
amended.


 


42

















 


4.6                                 (independent accountants) The accountants
who certified the financial statements and supporting schedules included in the
Offer Documents are independent certified public accountants with respect to
ANZ and its Related Corporations under Australian Statement of Auditing
Practice AUP 32 “Audit Independence” and The Institute of Chartered Accountants
in Australia’s Code of Professional Conduct.


 


Part 3: The Underwriters


 


1.                                       United States


 


1.1                                 (QIB) It is a QIB or it is not a US Person.


 


1.2                                 (general solicitation) It and each of its
Affiliates and each person acting on behalf of it or its Affiliates has not
offered, sold, or solicited offers for or offered to sell, and will not offer,
sell, solicit offers for or offer to sell, the Rights or the Offer Securities
in the United States or to, or for the account or benefit of, US Persons using
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the US Securities Act.


 


1.3                                 (Broker-dealer) All offers and sales of
Rights or Offer Securities in the United States by it and any of its Affiliates
and each person acting on behalf of it or its Affiliates will be effected only
in accordance with all applicable U.S. broker-dealer requirements.


 


1.4                                 (non-registration) It understands that the
Rights and the Offer Securities have not been, and will not be, registered
under the US Securities Act and may not be offered or sold in the United States
to, or for the account or benefit of, US Persons (except in transactions exempt
from the registration requirements of the US Securities Act and the laws of any
state or other jurisdiction in the United States).


 


1.5                                 (directed selling efforts) With respect to
Rights or Offer Securities to be offered and sold outside the United States in
reliance on Regulation S, it, its Affiliates and each person acting on behalf
of it or its Affiliates has not engaged, and will not engage, in any “directed
selling efforts” within the meaning of Rule 902(c) under the US Securities Act.


 


1.6                                 (Restrictions on Offers):


 


(a)                                  with respect to
offers and sales of Rights or Offer Securities within the United States, it,
and its Affiliates and any person acting on its behalf, will offer and sell
such Rights or Offer Securities in the United States only to a limited number
of persons that it reasonably believes to be QIBs and will deliver to each such
QIB the Final Offer Documents, as amended or supplemented, and an Institutional
Acceptance, in which QIBs confirm the representations and warranties set forth
under the section “Transfer Restrictions – U.S. Purchasers” in the
Preliminary International Institutional Supplement and it will not sell Offer
Securities to any U.S. person who has not executed an Investor Representation
Letter or an Institutional Acceptance;


 


43

















 


(b)                                 with respect to offers
and sales outside the United States, such Underwriter and its Affiliates has
offered the Rights and the Offer Securities, and will offer and sell the Rights
and the Offer Securities, to non-U.S. persons only in compliance with
Regulation S and only to persons that have signed and delivered to the
Underwriters an Application in accordance with the Prospectus.  With respect to those Rights and Offer
Securities sold in reliance on Regulation S, none of the Underwriter and its
Affiliates or any person acting on any of their behalf has engaged or will
engage in any directed selling efforts within the meaning of Regulation S.


 


1.7                                 (restrictions on resale) It, its Affiliates
and any person acting on its behalf, at or prior to confirmation of sales of
the Offer Securities will have sent to each non-US Person that is a
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Offer Securities from it from the date of this
agreement until 40 days after the Second Allotment Date, a confirmation or
notice to substantially the following effect:


 


“The Shares covered hereby have not been registered under the US
Securities Act of 1933 (“US Securities Act”) and may not be offered and sold
within the United States or to, or for the account or benefit of, any US Person
(i) as part of their distribution at any time or ii) otherwise until 40 days
after the Second Allotment Date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the US Securities Act.


 


Terms used above have the meaning given to them by Regulation S under
the US Securities Act.”; and


 


1.8                                 (Sales in US) It and its Affiliates will
not offer or sell in the United States any Offer Securities it is required to
subscribe for or which are allotted to it pursuant to this agreement.


 


2.                                       General


 


2.1                                 (Compliance) The distribution of Rights and
each offer and sale of Offer Securities by it and its Affiliates and any person
acting on its or their behalf shall be made only in accordance with the
directions of the Company with respect to the applicable legal and other
requirements of the jurisdiction in which the offer or sale is made.


 


2.2                                 (Licences) Each Underwriter holds a
securities dealers licence issued by ASIC.


 


44

















 


EXECUTED as an
agreement.


 


	
  EXECUTED by AUSTRALIA AND NEW

  ZEALAND BANKING GROUP

  LIMITED under power of attorney in the

  presence of:

  	
   

  
	
   

  	
   

  
	
  /s/ S. Dulhunty

  	
   

  	
  /s/ D. Valentine

  	
   

  
	
  Signature of Witness

  	
  Signature of attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
  Sarah Dulhunty

  	
   

  	
  David Valentine

  	
   

  
	
  Name

  	
  Name

  
	
   

  	
  23 October 2003

  	
   

  
	
   

  	
  Date of power of attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED by MORGAN STANLEY

  DEAN WITTER AUSTRALIA

  SECURITIES LIMITED under power of

  attorney in the presence of:

  	
   

  
	
   

  	
  Signature of attorney

  
	
   

  	
   

  
	
  /s/ K. Evans Cullen

  	
   

  	
  /s/ M. Hanning

  	
   

  
	
  Signature of witness

  	
  Name

  
	
   

  	
   

  
	
  Karen Evans Cullen

  	
   

  	
  21
  October 2003

  	
   

  
	
  Name

  	
  Date of power of attorney

  



 


45

















 


	
  SIGNED for CITIGROUP GLOBAL

  MARKETS AUSTRALIA PTY LIMITED

  under power of attorney in the presence of:

  	
  /s/ Philip Holt

  	
   

  
	
   

  	
  Signature of attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ S. Dulhunty

  	
   

  	
  PHILIP HOLT

  	
   

  
	
  Signature of witness

  	
  Name

  
	
   

  	
   

  
	
  Sarah Dulhunty

  	
   

  	
  23
  OCTOBER 2003

  	
   

  
	
  Name

  	
  Date of power of attorney

  



 


46