EXHIBIT 99(K)(10)
ADRs PURCHASE CONTRACT
This ADRs PURCHASE CONTRACT, dated this ____ day of November, 1998, between
ANZ Exchangeable Preferred Trust II, a Delaware business trust (such trust and
the trustees thereof acting in their capacities as such being referred to herein
as the "Trust"), and Aldobrandini (Investments) Limited, a special purpose
limited liability company incorporated under the laws of, and domiciled in,
Jersey, the Channel Islands (the "Jersey Subsidiary").
WHEREAS, the Trust is a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)) and governed by an Amended and Restated Trust
Agreement dated as of November 6, 1998 (the "Trust Agreement");
WHEREAS, the Trust has filed with the Securities and Exchange Commission a
registration statement on Form N-2 (File Nos. 333-65849 and 811-09069) and Pre-
Effective Amendment No. 1 thereto contemplating the offering (the "Offering") of
up to __________ of its Trust Units Exchangeable for Preference SharesSM
("TrUEPrSSM"), the terms of which contemplate that the Trust will distribute to
the Holders of TrUEPrS, upon the occurrence of an Exchange Event, either (i)
American Depositary Receipts ("ADRs") evidencing, for each TrUEPrS, one American
Depositary Share ("ADS") representing four fully paid preference shares,
liquidation preference US$6.25 per share (the "ANZ Preference Shares"), issued
by Australia and New Zealand Banking Group Limited ("ANZ") and designated as the
1998 Preference Shares (Series 2), or (ii) cash in the amount of US$25 per
TrUEPrS plus the accrued dividend distributions thereon for the current
quarterly period;
WHEREAS, upon the occurrence of an Exchange Event other than a Qualifying
Exchange Event (as defined herein), the Trust desires (a) to use the cash
proceeds payable upon redemption of the Jersey Preference Shares to purchase the
ADRs from the Jersey Subsidiary at a price equal to such cash proceeds and (b)
to discharge thereby the Jersey Subsidiary from its obligation under the Jersey
Preference Shares to pay such cash redemption proceeds to the Trust;
WHEREAS, upon the occurrence of an Exchange Event other than a Qualifying
Exchange Event, the Jersey Subsidiary desires to sell the ADRs to the Trust as
provided in the preceding recital; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained in this Agreement, the parties hereto agree as follows:
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/SM/ Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
1. DEFINITIONS. Capitalized terms used herein and not defined herein shall have
the meanings ascribed thereto in the Trust Agreement.
2. AGREEMENT FOR THE PURCHASE AND SALE OF ADRs.
2.1 Upon (A) the occurrence of an Exchange Event other than a Qualifying
Exchange Event, (B) the redemption of the Debt Securities and the acquisition of
the Jersey Preference Shares by the Trust and (C) the acquisition by the Jersey
Holding Company of the ordinary shares and nominal shares of the Jersey
Subsidiary held by the U.K. Company, the Trust hereby irrevocably and
unconditionally (i) directs the Jersey Subsidiary to apply on the Exchange Date
(the "Closing Date") the amount payable to the Trust upon the redemption of the
Jersey Preference Shares (the "Redemption Amount") to purchase ADRs evidencing
the ADSs representing ANZ Preference Shares with an aggregate stated liquidation
preference equal to the aggregate stated liquidation preference of the Jersey
Preference Shares so redeemed (the "Subject ADRs") and (ii) subject to such
application and receipt of the Subject ADRs, waives any right it would otherwise
have had to receive the Redemption Amount in cash pursuant to the terms of the
Jersey Preference Shares;
2.2 In consideration for the application by the Trust of the Redemption
Amount pursuant to Section 2.1 hereof, the Jersey Subsidiary irrevocably and
unconditionally agrees, upon the occurrence of an Exchange Event other than a
Qualifying Exchange Event, to deliver the Subject ADRs to the Trust on the
Closing Date; and
2.3 Upon the delivery by the Jersey Subsidiary of the Subject ADRs to the
Trust on the Closing Date, the Trust agrees that the Jersey Subsidiary shall be
automatically discharged from its obligation to pay the Redemption Amount to the
Trust.
3. REPRESENTATIONS AND WARRANTIES OF THE JERSEY SUBSIDIARY. The Jersey
Subsidiary represents and warrants to the Trust as of the date hereof, as of the
Exchange Date and as of the Closing Date, that:
3.1 The Jersey Subsidiary has been duly organized and is validly existing as
a special purpose limited liability company in good standing under the laws of
Jersey, the Channel Islands and has corporate power and authority to own, lease
and operate its properties and to conduct its business and to enter into and
perform its obligations under this Agreement and each of the Jersey Subsidiary
Preference Shares Subscription Agreement, dated November __, 1998, between the
U.K. Company and the Jersey Subsidiary, the Jersey Subsidiary Ordinary Share
Application, dated November __, 1998, from the U.K. Company to the Jersey
Subsidiary (the "Jersey Subsidiary 49% Ordinary Share Application"), the Jersey
Subsidiary Ordinary Share Application, dated November __, 1998, from the Jersey
Holding Company to the Jersey Subsidiary (the "Jersey Subsidiary 51% Ordinary
Share Application", and together with the Jersey Subsidiary 49% Ordinary Share
Application, the "Applications"), the ADSs Subscription Agreement, dated
November __, 1998, between the Jersey Subsidiary and ANZ, the Management,
Company Secretarial and General Administration Agreement, dated November __,
1998, between the Jersey Subsidiary and Volaw Trust and Corporate Services
Limited, the Undertaking Agreement, dated November __, 1998, between the Trust
and the Jersey Subsidiary, the Jersey Subsidiary Expense Agreement, dated
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November __, 1998, between the Jersey Subsidiary and the U.K. Company, the
Jersey Preference Shares Security and Pledge Agreement, the ADRs Security and
Pledge Agreement, the Expense and Indemnity Agreement and the other agreements
or instruments to which the Jersey Subsidiary is a party (the "Fundamental
Jersey Subsidiary Agreements"); and the Jersey Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business;
3.2 This Agreement has been duly and properly executed and delivered by the
Jersey Subsidiary and constitutes a legal, valid and binding agreement of the
Jersey Subsidiary enforceable against the Jersey Subsidiary in accordance with
its terms, except as the enforcement of rights and remedies may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights, and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
3.3 The Jersey Subsidiary is not in violation of its memorandum or articles
of association or other organizational document or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by which
it may be bound, or to which any of its property or assets is subject
(collectively, "Agreements and Instruments"); the execution, delivery and
performance of this Agreement and the Fundamental Jersey Subsidiary Agreements
and the consummation of the transactions contemplated herein and therein and
compliance by the Jersey Subsidiary with its obligations thereunder have been
duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or a Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Jersey Subsidiary
pursuant to the Agreements and Instruments; nor will such action result in any
violation of the provisions of the memorandum and articles of association,
charter, by-laws or other organizational documents of the Jersey Subsidiary, or
any applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality, stock exchange authority
or court, domestic or foreign, having jurisdiction over the Jersey Subsidiary or
any of its assets or properties (other than any state securities or "blue sky"
law, statute, rule or regulation, as to which no representation or warranty is
made); as used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Jersey
Subsidiary;
3.4 There is no action, suit, proceeding, inquiry or investigation before
or by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Jersey Subsidiary, threatened, against or
affecting the Jersey Subsidiary;
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3.5 No declaration or filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency or any stock exchange authority, domestic or
foreign, is necessary or required for the execution, delivery or performance by
the Jersey Subsidiary of this Agreement, the Fundamental Jersey Subsidiary
Agreements or the consummation by the Jersey Subsidiary of the transactions
contemplated herein and therein, except such as have been already obtained or as
may be required under the Securities Act of 1933, as amended (the "Securities
Act"), or the rules and regulations promulgated thereunder or state securities
laws;
3.6 The Jersey Subsidiary is not in violation of any law, ordinance,
governmental rule or regulation or administrative or court order or decree to
which the Jersey Subsidiary is subject; the Jersey Subsidiary possesses such
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and is in compliance with the terms and conditions of all such
Governmental Licenses; all of the Governmental Licenses are valid and in full
force and effect; and the Jersey Subsidiary has not received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses;
3.7 Except for the rights of the Trust, the Collateral Agent and the U.K.
Company under the ADRs Security and Pledge Agreement, the Jersey Subsidiary has
all right, title and interest in and to the Subject ADRs, free and clear of all
Liens (as defined in the ADRs Security and Pledge Agreement) (other than the
Lien created by such agreement and any Lien created by the Trust) and Transfer
Restrictions (as defined in the ADRs Security and Pledge Agreement) (other than
Transfer Restrictions created by such agreement and Transfer Restrictions
created by the Trust); and upon delivery of the Subject ADRs on the Closing Date
and payment of the Redemption Amount therefor as herein contemplated, the Trust
will have all right, title and interest in and to the Subject ADRs purchased by
it from the Jersey Subsidiary, free and clear of all Liens and Transfer
Restrictions (each as defined in the ADRs Security and Pledge Agreement);
3.8 No stamp duty or similar tax or duty is payable under applicable laws
or regulations of Jersey, the Channel Islands in connection with the sale,
transfer and delivery, of, the Subject ADRs, or with respect to the execution,
delivery and performance by the parties hereto of this Agreement;
3.9 (a) The choice of the laws of the State of New York as the governing
law of this Agreement and each of the Fundamental Jersey Subsidiary Agreements
(other than as set forth in the Jersey Preference Shares Security and Pledge
Agreement (to the extent necessary to ensure that the security interest created
thereunder is enforceable under Jersey law), the Applications and the Jersey
Subsidiary Management Agreement) and (b) the choice of the laws of Jersey, the
Channel Islands as the governing law of the Jersey Preference Shares Security
and Pledge Agreement, the Applications and the Jersey Subsidiary Management
Agreement, in each case, is a valid choice of law under the laws of Jersey, the
Channel Islands or any political subdivision thereof and courts of Jersey, the
Channel Islands should honor the applicable choice of law; the Jersey Subsidiary
has the power to submit and pursuant to this Agreement and the Fundamental
Jersey
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Subsidiary Agreements (other than the Jersey Subsidiary Management Agreement and
the Applications) has legally, validly, effectively and irrevocably submitted to
the non-exclusive personal jurisdiction of the State or Federal court in the
Borough of Manhattan, City and State of New York in any suit, action or
proceeding against it arising out of or related to any of such agreements or
with respect to its obligations, liabilities or any other matter arising out of
or in connection with the sale of the Subject ADRs by the Jersey Subsidiary to
the Trust under this Agreement and has validly and irrevocably waived any
objection to the venue of a proceeding in any such court; and has the power to
designate, appoint and empower and pursuant to Section 10 of this Agreement has
legally, validly, effectively and irrevocably designated, appointed and
empowered an agent for service of process in any suit or proceeding based on or
arising under this Agreement in any federal or state court in the State of New
York;
3.10 Any final judgment for a fixed or readily calculable sum of money
rendered by any court of the State of New York or of the United States located
in the State of New York having jurisdiction under its own domestic laws in
respect of any suit, action or proceeding against the Jersey Subsidiary based
upon any instruments or agreements entered into for the consummation of the
transactions contemplated herein would be declared enforceable against the
Jersey Subsidiary by the courts of Jersey, the Channel Islands without
reexamination, review of the merits of the cause of action in respect of which
the original judgment was given or relitigation of the matters adjudicated upon
or payment of any stamp, registration or similar tax or duty, provided that (A)
the judgment is consistent with public policy in Jersey, the Channel Islands and
any relevant political subdivision, (B) the judgment was not given or obtained
by fraud or in a manner contrary to natural justice, (C) the judgment was not
based on a clear mistake of law or fact, (D) the judgment was not directly or
indirectly for the payment of taxes or other charges of a like nature or of a
fine or other penalty, and (E) the judgment is for a fixed sum; and the Jersey
Subsidiary is not aware of any reason why the enforcement in Jersey, the Channel
Islands of such a judgment in respect of any of the instruments or agreements
executed for consummation of the transactions contemplated herein would be
contrary to public policy in Jersey, the Channel Islands or any political
subdivision thereof; and
3.11 It is not necessary under the laws of Jersey, the Channel Islands or
any political subdivision thereof or authority or agency therein in order to
enable the Trust to enforce its rights under this Agreement and each of the
Fundamental Jersey Subsidiary Agreements, as the case may be, that it should, as
a result solely of its holding of the ADRs, be licensed, qualified or otherwise
entitled to carry on business in Jersey, the Channel Islands or any political
subdivision thereof or authority or agency therein; this Agreement and each of
the Fundamental Jersey Subsidiary Agreements are in proper legal form under the
laws of Jersey, the Channel Islands and any political subdivision thereof or
authority or agency therein for the enforcement thereof against the Jersey
Subsidiary therein; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement and each of the
Fundamental Jersey Subsidiary Agreements in Jersey, the Channel Islands or any
political subdivision thereof or authority or agency therein that any of them be
filed or recorded or enrolled with any court, authority or agency in, or that
any stamp, registration or similar taxes or duties be
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paid to any court, authority or agency of Jersey, the Channel Islands or any
political subdivision thereof.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents and
warrants to the Jersey Subsidiary as of the date hereof, as of the Exchange Date
and as of the Closing Date, that:
4.1 The Trust is a validly existing business trust under the Delaware Act
and has full power and authority to execute and deliver this Agreement and to
perform and observe the provisions hereof, except as performance may be limited
by bankruptcy, insolvency, reorganization, moratorium, or other similar laws now
or hereafter in effect relating to creditors' rights, and general principles of
equity (regardless of whether the enforceability of such performance is
considered in a proceeding in equity or at law);
4.2 The execution, delivery and performance of this Agreement by the Trust
do not contravene any requirement of law or any material transactional
restriction or material agreement binding on or affecting the Trust or any of
its assets;
4.3 This Agreement has been duly and properly executed and delivered by the
Trust and constitutes a legal, valid and binding agreement of the Trust
enforceable against the Trust in accordance with its terms, except as the
enforcement of rights and remedies may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights, and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
4.4 No declaration or filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the execution,
delivery or performance by the Trust of this Agreement or the consummation by
the Trust of the transactions contemplated herein and therein, except such as
have been already obtained or as may be required under the Securities Act or the
rules and regulations promulgated thereunder or state securities laws; and
4.5 It is understood that the Subject ADRs evidencing the ADSs may bear
either or both of the following legends:
(a) Any legend required by DTC; and
(b) Any legend required by the laws of any other applicable jurisdiction.
5. TERMINATION. This Agreement shall continue in effect until the
dissolution of the Trust in accordance with Section 7.03 of the Trust Agreement.
6. NO ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. No party to this Agreement
may assign its rights or delegate its duties hereunder without the prior written
consent of the other party, except that the Trust may delegate any and all
duties hereunder to the Administrator to the extent permitted by law. Nothing
herein, expressed or implied, shall give to any person, other than the parties
hereto and their respective successors and permitted assigns, any benefit of any
legal or equitable right, remedy or claim hereunder.
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7. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. Modifications and amendments
of this Agreement may be made with the consent of the holders of not less than a
majority of the TrUEPrS; provided, however, that, no such modification or
amendment may, without the consent of 100% of the holders of the TrUEPrS,
modify, amend or otherwise affect the purchase price for or the number of ADRs
deliverable pursuant to this Agreement or otherwise adversely affect in any
material respect the rights of the holders of TrUEPrS or cause an Exchange Event
to occur. Modifications and amendments may be made without the consent of any
holder of the TrUEPrS to cure any ambiguity, defect or inconsistency in this
Agreement; provided that, such action will not adversely affect in any material
respect the rights of the holders of the TrUEPrS or cause an Exchange Event to
occur. No modification, alteration, amendment or supplement of this Agreement
shall be valid unless the modification, alteration, amendment or supplement is
in writing and is signed by all parties to this Agreement.
8. NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 8):
The Trust: ANZ Exchangeable Preferred Trust II
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
The Jersey Subsidiary: Aldobrandini (Investments) Limited
Xxxxxxx Xxxxx, Xxx Xxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery) to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which delivery shall have been made to said offices, (ii) transmitted by any
standard form of telecommunication to the offices set forth above, in which case
they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be
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deemed to have been received on the first Business Day on which such
acknowledgment is refused).
9. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
10. CONSENT TO JURISDICTION. The Jersey Subsidiary agrees that any legal
suit, action or proceeding brought by any party or by any person controlling a
party, arising out of or based upon this Agreement may be instituted in any
State or Federal court in the Borough of Manhattan, City and State of New York,
and, to the fullest extent permitted by law, waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the non-exclusive jurisdiction of such court in any suit,
action or proceeding. The Jersey Subsidiary has appointed CT Corporation System
("CT Corporation") as its authorized agent (the "Authorized Agent") upon which
process may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York by the Trust and expressly accepts the
jurisdiction of any such court in respect of such action. Such appointment shall
be irrevocable unless and until a successor authorized agent, located or with an
office in the Borough of Manhattan, City and State of New York, shall have been
appointed by the Jersey Subsidiary and such appointment shall have been accepted
by such successor authorized agent. The Jersey Subsidiary represents and
warrants that CT Corporation has agreed to act as said agent for service of
process, and agrees to take any and all action, including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Jersey Subsidiary
shall be deemed, in every respect, effective service of process upon the Jersey
Subsidiary.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
12. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
ANZ EXCHANGEABLE PREFERRED TRUST II
By: ______________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
ALDOBRANDINI (INVESTMENTS) LIMITED
By: ______________________________________
Name:
Title:
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