#10189917v14 Exchange Deed for Iceman MMWS …...Exchange Deed Allen Allen & Hemsley mmws S0110189917v14 201300871 15.04.2005 Page 2 any day on which the stock exchange of ASX or NZSE

Exchange Deed

Westpac Banking Corporation (Westpac)

Allen Allen & Hemsley The Chifley Tower 2 Chifley Square Sydney NSW 2000 Australia Tel 61 2 9230 4000 Fax 61 2 9230 5333

Exchange Deed Allen Allen & Hemsley

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Table of Contents

1. Definitions 1

2. Interpretation 7 2.1 General 7 2.2 Rights Issues 7 2.3 Opinions and determinations 8

3. Adjustments to the exchange fraction 8 3.1 Agreed Adjustments 8 3.2 Certification and notification of adjusted Exchange Fraction 11 3.3 Expert 11 3.4 Matching Event 11 3.5 Unpaid Dividend 11 3.6 Entitlement between Exchange Event and Allotment 12

4. Exchange event 12 4.1 Allotment on Exchange Event 12 4.2 Adjustment for retained Issuer Distribution 13 4.3 Westpac liquidation Exchange Event 13 4.4 Ranking of allotted shares 13 4.5 Uncertificated holding 14 4.6 Regulatory Approval 14 4.7 Fractions 14 4.8 Indemnity 14 4.9 Partial exchange 15 4.10 New Zealand Income Tax Act 15 4.11 Issue of partly paid Westpac Shares 15

5. Subordination of liquidation distribution 16 5.1 In favour of Ordinary Creditors 16 5.2 Evidence 17 5.3 No set off 17


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6. Notifications 17 6.1 Westpac's notice 17 6.2 Notice of Part C Exchange Events 17 6.3 Information to Shareholders 18

7. Manner of notification 18 7.1 Written and posted 18 7.2 Deemed receipt 18

8. Termination or amendment of Westpac's obligations 19 8.1 Termination 19 8.2 Amendment 19

9. Westpac warranties 19

10. Shareholder not a Westpac member 20

11. Governing law 20

12. Jurisdiction 20

Schedule 22 Exchange Events 22


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Date 3 September 1999

Parties Deed Poll by:

Westpac Banking Corporation (ARBN 007 457 141) incorporated in New South Wales of 60 Martin Place, Sydney (Westpac) in favour of each Shareholder from time to time.

Recitals

Westpac executes this Deed Poll to record the terms on which it will issue Westpac Ordinary Shares in exchange for NZ Class Shares on the occurrence of an Exchange Event.

IT IS DECLARED as follows.

1. Definitions The following definitions apply, unless the context requires otherwise.

Applicable A$ - NZ$ Exchange Rate means that amount in NZ$ as can be purchased with A$ when applying the average of the buy and sell rates on the date two Business Days before the following relevant date:

(a) if clause 3.5, 4.2, or 4.8(a) or paragraph (a) of Part C of the Schedule applies, the date specified in that clause;

(b) if clause 4.3 applies, the date of payment by the liquidator; or

(c) if clause 4.11 applies, the Exchange Date,

(as shown in the Australian Financial Review, or such other point of reference as the chairman of Westpac determines), or such other spot Australian dollar-New Zealand dollar exchange rate or average Australian dollar-New Zealand dollar exchange rate as at such other date (or over such period) before the relevant date as the chairman of Westpac determines.

ASX means Australian Stock Exchange Limited (ACN 008 624 691) or any successor to that body.

Board of Westpac means the board of directors of Westpac (or a duly appointed committee of that board) from time to time, or if the Australian Prudential Regulation Authority appoints an ADI statutory manager to Westpac under the Banking Act 1959, that ADI statutory manager.

Board of Issuer means the board of directors of Issuer (or a duly appointed committee of that board) from time to time.

Business Day means a day on which banks are ordinarily open for business in Auckland, Wellington and Sydney, excluding Saturdays and Sundays and


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any day on which the stock exchange of ASX or NZSE is not open for trading.

Controls, in relation to an entity, has the meaning given to it by section 259E of the Corporations Law.

Deed of Settlement means the indenture made 23 August 1850 and entitled Deed of Settlement and which is the constitution of Westpac, as amended or substituted from time to time.

Entitled, in relation to Relevant Shares, has the meaning given to it by section 609 of the Corporations Law but if the Corporations Law changes such that “entitled” is no longer used in the Chapter dealing with takeovers then the term “Entitled” shall have the same meaning as “relevant interest” under the Corporations Law.

Exchange Date means:

(a) 5 Business Days after the occurrence of an Exchange Event under paragraph (c), (d) or (e) of Part A of the Schedule;

(b) 23 Business Days after notification by Westpac of any occurrence described in paragraphs (a) to (e) of Part C of the Schedule if a Shareholder gives notice under clause 6.2 in respect of that occurrence; and

(c) 10 Business Days after the occurrence of any other Exchange Event.

Exchange Event means any of the events described in the Schedule and, for the avoidance of doubt, an event under Part B or Part C of the Schedule does not become an Exchange Event unless and until the Board of Westpac (under Part B) or a Shareholder (under Part C) gives the notice referred to in that Part.

Exchange Fraction means the fraction (which is 1/1 on the date of this Deed and where the numerator is the element relating to the NZ Class Shares and the denominator is the element relating to the Westpac Ordinary Shares), which shall be subject to adjustment in accordance with clause 3.

Exempted Placement means any Placement which:

(a) does not require the prior approval of the shareholders of either Westpac or Issuer, as the case may be; and

(b) will not involve a preferential right of participation in the Placement being given to all shareholders in either Westpac or Issuer, as the case may be.

Exempted Share Buy-Back means any of:

(a) A buy-back of Westpac Ordinary Shares made by Westpac on the following basis:

(i) buying under the buy-back is in the ordinary course of trading on the ASX or on a stock market of a body corporate that:

(A) operates a securities market outside Australia; and


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(B) the Australian Securities and Investments Commission declares in writing to be an approved overseas securities exchange for the purposes of the legislation relating to on-market buy backs,

and an offer to buy-back shares is also made on a stock market of a securities exchange in Australia at the same time;

(ii) the buy-back complies with Australian law and the Listing Rules of the ASX; and

(iii) the buy-back is not preceded by any arrangement or understanding between Westpac and the relevant seller to buy Westpac Ordinary Shares only from that seller and no other sellers or to pay that seller more than other sellers;

(b) a buy-back of NZ Class Shares made by Issuer on the following basis:

(i) the buy-back is made in accordance with the Companies Act 1993;

(ii) NZ Class Shares are bought back without paying any more than the market price of NZ Class Shares in Issuer at the time of the relevant purchase; and

(iii) the buy-back of NZ Class Shares is not preceded by any arrangement or understanding between Issuer and the relevant seller to buy the NZ Class Shares only from that seller and no other sellers or to pay that seller more than other sellers; or

(c) a buy-back by Issuer of its ordinary shares.

Expert means such suitably qualified and independent lawyer, valuer, banker, broker, accountant or other expert as the chairman of Westpac determines.

Issuer means WestpacTrust Investments Limited, a company incorporated in New Zealand whose registered office is at 318 Lambton Quay, Wellington.

Issuer Distribution means any amount received by a Shareholder (other than Westpac or any entity it Controls) as a distribution on its total holding of NZ Class Shares on the liquidation of Issuer and which amount has not been transferred to Westpac.

Liquidation Distribution means that sum which would be payable to a Shareholder as the distribution due to it if:

(a) there occurs the commencement of a liquidation of Westpac in Australia; and

(b) on the date immediately prior to the commencement of that liquidation of Westpac, a Mandatory Exchange Event had occurred and Westpac had allotted to the Shareholder on that date the number of fully paid Westpac Ordinary Shares to which the Shareholder would have been entitled on the occurrence of that Mandatory Exchange Event.


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Mandatory Exchange Event means any of the Exchange Events described in Parts A and B of the Schedule.

Market Value means, subject to paragraph (b):

(a) (i) in respect of a Relevant Share referred to under clause 3.1(a) or (b), the weighted average market price per share (expressed in terms of cents and with fractions rounded to the nearest full cent) of all Relevant Shares sold on ASX (in the case of Westpac) and on NZSE (in the case of Issuer) for or by reference to the period of 5 consecutive trading days ending on the trading day immediately preceding the date on which the Relevant Shares are first traded ex-rights or, if no trading in the Relevant Shares occurred on one or more trading days in that period, ending on the next earlier date on which such trading occurred; or

(ii) in respect of a Relevant Share in Issuer or Westpac on a particular date and where paragraph (a) does not apply, the weighted average market price per share (expressed in terms of cents and with fractions rounded to the nearest full cent) of all Relevant Shares sold on ASX (in the case of Westpac) and on NZSE (in the case of Issuer) for or by reference to the period of 5 consecutive trading days ending on the trading day immediately preceding that date or, if no trading in the Relevant Shares occurred on one or more trading days in that period, ending on the next earlier date on which such trading occurred.

(b) (i) If a Relevant Share goes ex-dividend during the period referred to in paragraph (a), the period shall be the 5 consecutive trading days (or, if paragraph (a) applies and the Relevant Shares are not cum-rights throughout the 5 consecutive trading days, the shorter period when they are cum-rights) ending on the trading day immediately preceding the date it goes ex-dividend.

(ii) The weighted average market price per Westpac Ordinary Share will be determined by the Board of Westpac from information obtained from ASX and the weighted average market price per NZ Class Share will be determined by the Board of Westpac from information obtained from NZSE.

(iii) If the chairman of Westpac in good faith determines that the period of 5 consecutive trading days ending on a particular trading day referred to above would result in a calculation of Market Value that would be inequitable as between the holders of NZ Class Shares and the holders of Westpac Ordinary Shares, the chairman may use a different period in order to determine Market Value in a manner which maintains equity between holders of NZ Class Shares and the holders of Westpac Ordinary Shares.


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Matching Event means:

(a) offers on substantially the same terms by way of rights by:

(i) both Issuer and Westpac to their respective holders of Relevant Shares;

(ii) Issuer on its own to both the holders of NZ Class Shares and the holders of Westpac Ordinary Shares; or

(iii) Westpac on its own to both the holders of NZ Class Shares and the holders of Westpac Ordinary Shares; and

(b) any of the events of the type described in clause 3.1(c), (d) and (f) applying to both Issuer and Westpac,

which, so far as is practicable, take place contemporaneously and which the Expert has certified do not Materially Disadvantage Holders.

Materially Disadvantage Holders means materially disadvantage the holders of NZ Class Shares as a class in comparison with the holders of Westpac Ordinary Shares as a class and vice versa, ignoring any difference in the respective market values of the Relevant Shares at the time immediately prior to the offer or event (as the case may be) when compared with the values indicated by application of the Exchange Fraction under clause 4.1 at that time.

New Relevant Shares means:

(a) in relation to Issuer:

(i) while the date for the final payment of the issue price of the NZ Class Shares then on issue (Existing Shares) has not occurred, NZ Class Shares paid, or to be paid, on or before the time for allotment and issue to the same extent as Existing Shares are paid, with the date or dates for payment of the balance of the issue price being the same as the date or dates for payment of the balance of the issue price on the Existing Shares; and

(ii) except where paragraph (i) applies, NZ Class Shares; and

(b) in relation to Westpac, Westpac Ordinary Shares,

in either case, that are issued after the initial issue of NZ Class Shares in the circumstances contemplated in clause 3.1(a) or (d).

NZ Class Shares means the shares in Issuer classified as NZ Class Shares as may be consolidated, divided or reclassified from time to time.

NZSE means New Zealand Stock Exchange or any successor to that body.

Ordinary Creditors means all present or future creditors of Westpac (other than the Shareholders) whose claims are admitted in the liquidation of Westpac and persons who hold or are entitled to hold any class of shares in Westpac that rank ahead of Westpac Ordinary Shares on a liquidation of Westpac.


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Placement means any issue of Westpac Ordinary Shares or NZ Class Shares, as the case may be, other than a rights or bonus issue.

Registrar means the share registrar of Westpac or Issuer or any other person, as chosen by SPC from time to time to assist SPC with the collation of votes under the Voting Deed.

Relevant Shareholder means:

(a) in the case of a Mandatory Exchange Event, each Shareholder; and

(b) in the case of any Exchange Event of the type described in Part C of the Schedule and in respect of which a Shareholder has given notice under clause 6.2, that Shareholder,

other than Westpac or any Subsidiary of Westpac.

Relevant Shares means, in relation to Issuer, the NZ Class Shares and, in relation to Westpac, the Westpac Ordinary Shares.

Shareholder means the holder of a NZ Class Share, but does not include Westpac, any Subsidiary of Westpac or any person that Westpac Controls.

Special Resolution means a resolution:

(a) of which at least 28 days' notice has been given setting out an intention to propose the resolution and stating the resolution; and

(b) that has been passed by at least 75% of the votes cast by the Shareholders, whether at a meeting or by a postal vote, but excluding any votes cast by Westpac or any entity that it Controls.

SPC means the person bound by the Voting Deed from time to time, being at the date of this Deed Namotu Pty Limited (ACN 089 175 511).

Subsidiary has the meaning given to the term "subsidiary" in Section 9 of the Corporations Law and when used in reference to a body corporate shall mean any subsidiary of that body corporate from time to time.

Support Deed means the deed poll so entitled entered into by and binding on Westpac dated the date of this Deed under which Westpac ensures the solvency of Issuer at the time of Issuer's dividend payments, and any deed poll duly substituted for it in accordance with its terms.

Voting Deed means the deed poll so entitled entered into by and binding on SPC dated the date of this Deed (including any amendments duly made after that date) relating to the Westpac Ordinary Shares granted additional voting rights by the directors of Westpac by way of amendment to the terms of issue of those shares in accordance with clause 12(3) of the Deed of Settlement of Westpac, and any deed poll duly substituted for it in accordance with its terms.

Westpac Ordinary Shares means:

(a) except for the purpose referred to in paragraph (b) below, fully paid ordinary shares in Westpac; and

(b) except for the purposes of determining the Liquidation Distribution, if an Exchange Date occurs in relation to NZ Class Shares before the


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final payment of the issue price for those NZ Class Shares is due for payment, ordinary shares in Westpac having an unpaid amount payable in respect of them as specified in clause 4.11(b),

in each case as may be consolidated, divided or reclassified from time to time.

2. Interpretation

2.1 General Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise.

(a) The singular includes the plural and conversely.

(b) A gender includes all genders.

(c) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(d) A reference to a person includes a body corporate, an unincorporated body or other entity and conversely.

(e) A reference to a clause or Schedule is to a clause of or schedule to this Deed.

(f) A reference to any party to this Deed or any other agreement or document includes the party's successors and permitted assigns.

(g) References in this Deed to A$ are to Australian dollars and cents and to NZ$ are to New Zealand dollars and cents or to such other currencies for the time being of Australia and New Zealand respectively.

(h) A reference to conduct includes, without limitation, any omission, representation, statement or undertaking, whether or not in writing.

(i) A reference to any legislation includes any amendment, re-enactment or replacement of that legislation.

(j) Mentioning anything after "include", "includes" or "including" does not limit anything else which might be included.

2.2 Rights Issues References to offers by way of rights include offers which are subject to such exclusions or other arrangements as the Board of Issuer or the Board of Westpac, as the case may be, may deem necessary or expedient in relation to fractional entitlements or legal or practical problems under the laws of, or the requirements of any recognised regulatory body or any stock exchange in, any territory.


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2.3 Opinions and determinations

For the purposes of:

(a) determining an adjustment under clause 3.1(e) or (f), clause 3.5, clause 3.6 or clause 4.2, or any other matter which falls to the chairman of Westpac to determine under this Deed, the chairman may act on the opinion or advice or information obtained from any relevant Expert retained by Westpac;

(b) determining whether an adjustment or amendment Materially Disadvantages Holders under clause 3.1(e) or (f), clause 3.5, clause 3.6, or clause 4.2, neither the chairman nor the Expert shall have regard to the tax effect on any of the holders of the Relevant Shares; and

(c) determining the Market Value of a Relevant Share in Issuer or Westpac, Westpac may act upon information from the ASX as to the average market price of Westpac Ordinary Shares, information from the NZSE as to the average market price of NZ Class Shares, or the opinion or advice of any relevant Expert for determining any relevant weighted average market price.

3. Adjustments to the exchange fraction

3.1 Agreed Adjustments Subject to clause 3.4, the Exchange Fraction will be adjusted as follows.

(a) Rights Issues of Relevant Shares

If either Issuer or Westpac offers its New Relevant Shares to the holders of its Relevant Shares as a class by way of rights, the Exchange Fraction shall be adjusted by multiplying the element of the Exchange Fraction relating to the Relevant Shares of the issuing company by the following fraction:

X + Z

X + Y

where:

X is the number of Relevant Shares of the issuing company which rank for the relevant offer;

Y is the number of New Relevant Shares being offered to the holders of Relevant Shares of the issuing company; and

Z is the number of Relevant Shares of the issuing company which the aggregate amount (if any) payable on or before allotment and issue as subscription price for the New Relevant Shares would purchase at the Market Value.


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Such adjustment shall become effective from the time at which the Relevant Shares of the issuing company are first traded ex-rights.

(b) Rights Issues of other securities

If either Issuer or Westpac offers any securities (other than an offer falling within clause 3.1(a)) to the holders of its Relevant Shares, or to the holders of the Relevant Shares of the other, as a class by way of rights or grants to such holders of Relevant Shares, as a class by way of rights, any options, warrants or other rights to subscribe for or purchase any securities (but not to sell or have redeemed any securities), the Exchange Fraction shall be adjusted by multiplying the element of the Exchange Fraction relating to the Relevant Shares of the company the shareholders of which are to receive such offer or grant (the Relevant Company) by the following fraction:

X - Y

X

where:

X is the Market Value of one Relevant Share of the Relevant Company; and

Y is the average fair market value of the portion of the rights attributable to one Relevant Share of the Relevant Company over the five trading days last preceding the date on which such shares are first traded ex-rights (or such other period as the chairman in good faith determines to be a period which will give rise to a fair market value of the ex-rights price of such portion) as determined by a merchant bank or investment bank of international repute appointed by the chairman of Westpac.

Such adjustment shall become effective from the time at which the Relevant Shares of the Relevant Company are first traded ex-rights.

(c) Subdivisions and Consolidations of Shares

If there is an alteration to the number of the Relevant Shares on issue of either Issuer or Westpac as a result of a subdivision or consolidation, the Exchange Fraction shall be adjusted by multiplying the element of the Exchange Fraction relating to the Relevant Shares of the company making such alteration to the number of the issued Relevant Shares (the Relevant Company) by the following fraction:

X

Y

where:

X is the number of Relevant Shares of the Relevant Company on issue immediately before such alteration; and


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Y is the number of Relevant Shares of the Relevant Company on issue immediately after such alteration.

Such adjustment shall become effective immediately after the alteration takes effect.

(d) Bonus Issues

If either Issuer or Westpac issues any New Relevant Shares credited as fully paid (and, if the Issuer is the issuing company, at or after a time when all payments of the issue price for its Relevant Shares then on issue are due and payable) to the holders of its Relevant Shares by way of capitalisation of profits or reserves (including any capital redemption reserve) or some other manner not involving payment of any consideration by those holders (other than by way of a dividend reinvestment plan or other form of scrip dividend), the Exchange Fraction shall be adjusted by multiplying the element of the Exchange Fraction relating to the Relevant Shares of the issuing company by the following fraction:

X

Y

where:

X is the number of the Relevant Shares on issue of the issuing company immediately before the issue; and

Y is the number of the Relevant Shares on issue of the issuing company immediately after such issue.

Such adjustment shall become effective from the time of issue of such New Relevant Shares.

(e) Alternative adjustment

If the chairman of Westpac in good faith determines that an adjustment in accordance with any of clauses 3.1(a) to (d), or clause 3.5 or clause 4.2, or that the operation of the formula in clause 3.5, would be inequitable as between the holders of NZ Class Shares and the holders of Westpac Ordinary Shares, the chairman may calculate the adjustment on some other basis which he or she determines to be appropriate (including the effective date of the adjustment) in order to maintain equity between the holders of NZ Class Shares and the holders of Westpac Ordinary Shares. In these circumstances the adjustment so determined shall be conditional on the Expert certifying that the adjustment so determined will not Materially Disadvantage Holders.

(f) Other capital reorganisation

If:

(i) any of the following occurs in Westpac or Issuer, or both, other than as described in clause 3.1(a) to (d) above:


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(A) any form of capital reorganisation;

(B) a distribution in specie;

(C) any share buy-back other than an Exempted Share Buy-Back; or

(D) any Placement other than an Exempted Placement; and

(ii) the chairman of Westpac in good faith determines that it will Materially Disadvantage Holders,

the chairman shall also determine an appropriate adjustment to the Exchange Fraction (including the effective date of the adjustment), in order to maintain equity between the holders of NZ Class Shares and the holders of Westpac Ordinary Shares. In these circumstances the adjustment so determined shall be conditional on the Expert certifying that the adjustment so determined will not Materially Disadvantage Holders.

3.2 Certification and notification of adjusted Exchange Fraction Westpac shall:

(a) ensure that the Expert shall certify the arithmetical adjustment to be made to the Exchange Fraction in the circumstances set out in clause 3.1; and

(b) promptly notify the Registrar, SPC and NZSE of each certified adjustment made to the, and the resulting, Exchange Fraction and the effective date of the adjustment.

3.3 Expert In making any determination or certification under clause 3, the merchant bank, investment bank or Expert concerned shall act as experts and not as arbitrators and, in the absence of manifest error, its determination or certification shall be final and binding on the Shareholders and on all others affected by it.

3.4 Matching Event No adjustment will be made to the Exchange Fraction if the issue or other event described in clause 3.1 is, or is part of, a Matching Event.

3.5 Unpaid Dividend If the Exchange Event as described in paragraph (a) of Part C of the Schedule occurs, the Relevant Shareholder's entitlement to Westpac Ordinary Shares under clause 4.1 will be increased by the number of Westpac Ordinary Shares represented by:

X Y

where:


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X is the aggregate amount of dividend which the Issuer is unable or fails to pay on the total holding of the NZ Class Shares of that Relevant Shareholder; and

Y is the Market Value of a Westpac Ordinary Share on the Business Day prior to the Exchange Date, converted to NZ dollars by applying the Applicable A$ - NZ$ Exchange Rate on that Business Day.

If the Shareholder does not give notice under clause 6.2 determining that the event in such paragraph (a) is an Exchange Event, the chairman of Westpac shall determine on an appropriate adjustment of the Exchange Fraction (including the effective date of the adjustment). In these circumstances the determination shall be conditional on the Expert certifying that the adjustment so determined will not Materially Disadvantage Holders.

3.6 Entitlement between Exchange Event and Allotment If in the time between the occurrence of an Exchange Event and the date of allotment to a Relevant Shareholder of its entitlement to Westpac Ordinary Shares there occurs a record date for determining an entitlement of the holder of a Westpac Ordinary Share to a distribution, right to participate in a bonus or rights issue or other benefit, being a benefit not available to a Shareholder having regard to clauses 4.1 and 4.4, the chairman of Westpac shall determine an appropriate adjustment of the Exchange Fraction (including the effective date of the adjustment). In these circumstances the adjustment so determined shall be conditional on the Expert certifying that the adjustment so determined will not Materially Disadvantage Holders.

4. Exchange event

4.1 Allotment on Exchange Event Subject to the other provisions of this clause 4 and to clause 3.5, if an Exchange Event occurs, Westpac shall on or before the Exchange Date allot and issue to each Relevant Shareholder, in exchange for the transfer to Westpac of the holding of the NZ Class Shares of that Shareholder, the number of Westpac Ordinary Shares determined by multiplying the holding of the NZ Class Shares of that Shareholder by the Exchange Fraction. Pending the transfer to Westpac being registered in the share register of Issuer and the obtaining of authorisations and satisfaction of requirements under clause 4.6:

(a) the beneficial ownership of the NZ Class Shares of the Relevant Shareholder shall vest in Westpac automatically on the occurrence of the Exchange Event; and

(b) all the rights of the NZ Class Shares held by the Relevant Shareholder shall be transferred to, and be exercisable by, Westpac and all distributions and the payment of surplus assets referable to the NZ Class Shares of the Relevant Shareholder on the liquidation or other dissolution of the Issuer shall be paid directly to Westpac.


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If an Issuer Distribution is received by a Relevant Shareholder after the allotment to it of the Westpac Ordinary Shares and/or other payment to it under clause 4, that Issuer Distribution will be held by the Relevant Shareholder in trust for and to the order of Westpac.

4.2 Adjustment for retained Issuer Distribution If any Relevant Shareholder retains an Issuer Distribution, then its entitlement to Westpac Ordinary Shares under clause 4.1 will be reduced by the number of Westpac Ordinary Shares represented by:

X

Y

where:

X is the Issuer Distribution; and

Y is the Market Value of a Westpac Ordinary Share on the Business Day prior to the Exchange Date, converted to NZ dollars by applying the Applicable A$ - NZ$ Exchange Rate on that Business Day.

Any such Issuer Distribution retained by the Relevant Shareholder shall not be subject to the trust referred to in clause 4.1.

4.3 Westpac liquidation Exchange Event If following the commencement of its liquidation in Australia Westpac is prevented by law from issuing, or does not issue, to the Relevant Shareholder its entitlement (either in whole or in part) to the Westpac Ordinary Shares under clause 4.1, Westpac shall pay to the Relevant Shareholder, in place of any obligation it may otherwise have had under clause 4.1 in respect of the Westpac Ordinary Shares not allotted and in exchange for the transfer to Westpac of the holding of the NZ Class Shares of that Shareholder, a cash payment equal to:

(a) the Liquidation Distribution converted to NZ$ by applying the Applicable A$ - NZ$ Exchange Rate; less

(b) any Issuer Distribution; less

(c) if the NZ Class Shares held by the Relevant Shareholder are not fully paid at the Exchange Date, the aggregate amount of the issue price payable but unpaid in respect of the NZ Class Shares held by the Relevant Shareholder.

Any payment due under this clause will be effected at the same rate per share and on the same date or dates as the liquidator makes payment to the holders of Westpac Ordinary Shares.

4.4 Ranking of allotted shares Westpac Ordinary Shares allotted under clause 4.1 will rank equally in all respects and form one class with the other Westpac Ordinary Shares on issue at the Exchange Date, except to the extent that clause 4.11 applies.


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4.5 Uncertificated holding If Westpac and the Shareholder participate in any computerised or electronic system for market settlement, securities transfer and registration conducted in accordance with the Corporations Law, the ASX Listing Rules and the SCH Business Rules, Westpac shall effect an allotment of Westpac Ordinary Shares to which the Shareholder is entitled free of charge and in a manner required or permitted by the ASX Listing Rules and the SCH Business Rules applying in relation to that system.

4.6 Regulatory Approval If:

(a) the Foreign Acquisitions and Takeovers Act 1975;

(b) the Financial Sector (Shareholdings) Act 1998;

(c) Chapter 6 of the Corporations Law; or

(d) Clause 25 of the Deed of Settlement,

or similar legislation or regulatory policy applies to the acquisition by a Shareholder of Westpac Ordinary Shares, then, despite anything to the contrary contained in or implied by this Deed, it is a condition precedent to any right of the Shareholder to obtain Westpac Ordinary Shares or receive any payment that all necessary authorisations (if any) and any other statutory requirements which may then be in existence are obtained by and satisfied at the cost of (unless Westpac determines otherwise) the Shareholder.

4.7 Fractions If the number of Westpac Ordinary Shares to be allotted and issued to a Shareholder under clause 4.1 (as that number may be varied by application of clause 3.5 or 4.2) would involve a fraction, that fraction shall be rounded to the nearest share (with a fraction of 1/2 being rounded upwards).

4.8 Indemnity If, other than following the commencement of its liquidation in Australia, Westpac is prevented by law (or the Deed of Settlement), except for a reason contemplated by clause 4.6, from issuing, and does not issue, to the Relevant Shareholder its entitlement (either in whole or in part) to Westpac Ordinary Shares under clause 4.1:

(a) Westpac shall indemnify each Relevant Shareholder for its loss, provided that the maximum amount that Westpac can become obliged to pay the Relevant Shareholder under this clause is a cash amount equal to:

(i) the Market Value of a Westpac Ordinary Share on the Business Day prior to the Exchange Date multiplied by the number of Westpac Ordinary Shares to which the Shareholder is or (but for the legal impediment) would have been entitled but which is not allotted, less any Issuer Distribution,


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converted to NZ$ by applying the Applicable A$ - NZ$ Exchange Rate at the date payment is made; less

(ii) if the NZ Class Shares held by the Relevant Shareholder are not fully paid at the Exchange Date, the aggregate amount of the issue price payable but unpaid by the Relevant Shareholder; and

(b) upon making such a payment, Westpac shall be absolutely released from any obligation it may otherwise have had under clause 4.1 in respect of the Westpac Ordinary Shares not allotted but in all other respects clause 4.1 continues to apply,

provided that any payment that would otherwise be due under this clause is payable only if the payment has been approved by the Australian Prudential Regulation Authority and at the time of such payment, and immediately after such payment, Westpac is solvent. Any such Issuer Distribution shall be retained by the Relevant Shareholder and shall not be subject to the trust referred to in clause 4.1.

4.9 Partial exchange The provisions of clauses 3.5 and 4 assume that an Exchange Event applies to all NZ Class Shares held by a Relevant Shareholder. If an Exchange Event of a type described in Part C of the Schedule applies to a specified number of such shares (being less than the entire holding) as notified by a Relevant Shareholder under clause 6.2, clauses 3.5 and 4 shall be read and construed as referring to that number of shares rather than the entire holding of that Relevant Shareholder.

4.10 New Zealand Income Tax Act For the purposes of determining the consideration in section EH 48 of the New Zealand Income Tax Act 1994, the parties agree that on any exchange of NZ Class Shares for Westpac Ordinary Shares the market value of the shares to be exchanged is the "lowest price" for the shares on the basis of payment in full at the time at which the first right in the shares is to be transferred.

4.11 Issue of partly paid Westpac Shares (a) If the NZ Class Shares of a Shareholder are not fully paid at the time

an Exchange Event occurs, but the final payment of the issue price is in fact paid on or before the Exchange Date that Shareholder shall be entitled to have allotted to it fully paid Westpac Ordinary Shares in accordance with and subject to this Deed.

(b) If the NZ Class Shares of a Shareholder are not fully paid at the Exchange Date, that Shareholder shall be entitled to have allotted to it Westpac Ordinary Shares, in accordance with and subject to this Deed and the Deed of Settlement, that are:

(i) credited as partly paid in an amount equal to the A$ equivalent of value of the partly paid NZ Class Shares at the


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Exchange Date where the A$ equivalent is calculated at the Applicable A$-NZ$ Exchange Rate, (subject to appropriate adjustment if the Exchange Fraction is not 1/1); and

(ii) issued and allotted on the condition that:

(A) there is attached to each such Westpac Ordinary Share an obligation to pay an amount:

(1) in A$ to Westpac which is equal to the A$ equivalent of the NZ$ amount of the unpaid issue price on each NZ Class Share (subject to appropriate adjustment if the Exchange Fraction is not 1/1) where the A$ equivalent is calculated at the Applicable A$-NZ$ Exchange Rate at the Exchange Date; and

(2) which amount is payable on the date that the final payment would have been payable to the Issuer but for the exchange;

(B) the obligation to pay the A$ amount per Westpac Ordinary Share referred to in paragraph (A) must be satisfied by paying to Westpac an amount in NZ$ equal to the NZ$ amount of the unpaid issue price on each NZ Class Shares which would have been payable to the Issuer but for the exchange (subject to an appropriate adjustment to the NZ$ amount if the Exchange Fraction is not 1/1);

(C) Westpac shall exchange the amount in NZ$ paid under the obligation referred to in paragraph (B) into the amount payable under the obligation referred to in paragraph (A); and

(D) upon the payment referred to in paragraph (B) being made to Westpac (and by virtue of the operation of paragraph (C)) the relevant Westpac Ordinary Shares will be fully paid; and

(iii) entitled from the Exchange Date to the same dividend rights as fully paid Westpac Ordinary Shares, but, for so long as they are not fully paid, entitled to voting rights in proportion to the amount paid up on the relevant NZ Class Shares.

5. Subordination of liquidation distribution

5.1 In favour of Ordinary Creditors On the liquidation of Westpac in Australia the rights of each Shareholder against Westpac in respect of the Liquidation Distribution will be postponed to the claims of the Ordinary Creditors and no amount will be payable to the Shareholders in respect of the Liquidation Distribution until the claims of the Ordinary Creditors have been satisfied in full. Each Shareholder is deemed


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to have waived to the fullest extent permitted by law any right to prove in a winding up of Westpac as a creditor ranking for payment in respect of the Shareholder’s rights under this Deed in any manner other than as specified in this clause 5.1.

5.2 Evidence A certificate from the liquidator of Westpac as to the amounts of the claims of the Ordinary Creditors and the satisfaction (in whole or in part) of those claims will be conclusive and binding on the Shareholders.

5.3 No set off For so long as any such liability of Westpac to Ordinary Creditors remains outstanding a Shareholder will not set off or attempt to set off any part of the Liquidation Distribution against any moneys which may at any time be due from the Shareholder to Westpac.

6. Notifications

6.1 Westpac's notice Westpac must notify:

(a) the Shareholders, Issuer, Issuer's share registrar and SPC of the occurrence of any Exchange Event under Part A of the Schedule promptly after becoming aware of that occurrence;

(b) the Issuer, the Issuer's share registrar and SPC of the occurrence of any Exchange Event under Part B or Part C of the Schedule, promptly after the occurrence; and

(c) the Issuer, the Issuer's share registrar and SPC of any amendment duly made to this Deed, promptly after the amendment.

6.2 Notice of Part C Exchange Events Westpac shall notify the Shareholders of any occurrence described in paragraphs (a) to (f) of Part C of the Schedule, promptly after becoming aware of such occurrence, and, in respect of the occurrence in paragraph (e), give reasonable details of the adverse effect. For an event to become an Exchange Event under Part C of the Schedule in respect of a Shareholder, that Shareholder must give notice to Westpac at its registered office within 15 Business Days after the date of receipt or deemed receipt of the notification from Westpac of any occurrence described in paragraphs (a) to (f) of Part C:

(a) to the effect that the Shareholder determines that such event is an Exchange Event; and

(b) specifying the number of NZ Class Shares to which the Exchange Event applies (being in multiples of 100 or as to the entire holding).


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Any notice given by Westpac under this clause shall describe the requirements to be satisfied by the Shareholder to make the relevant occurrence an Exchange Event.

6.3 Information to Shareholders Westpac will ensure that:

(a) Westpac’s full annual reports and/or concise reports issued after the date of this Deed are sent to the registered holders of NZ Class Shares if and to the extent required by New Zealand law or any condition attaching to any applicable exemption or waiver from the New Zealand Securities Commission or the NZSE;

(b) other than the concise report and the full annual report, all reports, communications and other materials sent to registered holders of Westpac Ordinary Shares, including all financial information required to be provided to registered holders of Westpac Ordinary Shares under Australian law (excluding voting proxy forms and any similar material referable to voting matters), are sent to all registered holders of NZ Class Shares no later than one Business Day after the date on which they are sent to the registered holders of Westpac Ordinary Shares;

(c) all information which is to be released to the public and is required to be disclosed to the Australian Stock Exchange, is released to the NZSE no later than 1 business day after it is disclosed to the Australian Stock Exchange; and

(d) Westpac’s most recent audited financial statements will be provided to registered holders of NZ Class Shares at any time upon request within 10 Business Days of a request being made and registered holders of NZ Class Shares will be informed on an annual basis in one or more of the documents referred to above of their right to request these financial statements.

7. Manner of notification

7.1 Written and posted Except to the extent clause 77 of the Deed of Settlement of Westpac applies (which relates to convening meetings on short notice in case of emergency and urgency), a notice given to a Shareholder under a provision of this Deed must be in writing and may be given to a Shareholder by being delivered, or posted by prepaid envelope at a post office or post office letter box and addressed, to the Shareholder's registered address in the Issuer's share register.

7.2 Deemed receipt Where a notice is sent by post, it will be deemed to have been given on the first Business Day following the day on which it was posted.


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8. Termination or amendment of Westpac's obligations

8.1 Termination If:

(a) the situation contemplated by Part D of the Schedule applies; or

(b) the Shareholders by Special Resolution approve,

the obligations of Westpac under this Deed shall forthwith terminate, without affecting any rights by then accrued.

8.2 Amendment If the Shareholders by Special Resolution approve, the terms of this Deed may be amended in the manner specified in the Special Resolution. Westpac may also amend this Deed if the amendment is:

(a) of a formal or technical nature; or

(b) made to correct a manifest error,

provided the Expert certifies that the amendment will not Materially Disadvantage Holders.

9. Westpac warranties Westpac warrants in favour of the Shareholders that:

(a) the issue and allotment of Westpac Ordinary Shares following an Exchange Event has been approved by all necessary corporate action;

(b) it will promptly use all reasonable endeavours and furnish all such documents as are reasonably necessary in connection with an application by Westpac, at its expense, for quotation by ASX and NZSE of all Westpac Ordinary Shares allotted to Relevant Shareholders following an Exchange Event;

(c) it will continue to observe any conditions:

(i) imposed by NZSE for the grant of the waivers obtained by letter from the NZSE dated 20 July 1999; and

(ii) set out in the Securities Act (WestpacTrust Investments Limited – NZ Class Shares) Exemption Notice (No. 2) 1999; and

(d) it or Issuer will apply for a renewal (including as relevant new rulings) of the rulings referred to in paragraph (a) or (b) of Part B of the Schedule on their expiry or ineffectiveness following a change of law, unless a qualified taxation adviser or senior counsel gives an opinion that such renewal will not be obtained or that the change of law has made a ruling unnecessary.


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10. Shareholder not a Westpac member Nothing in this Deed has, or is intended to have, the effect of making a Shareholder a member or shareholder of Westpac unless and until an Exchange Event occurs and the Shareholder becomes a registered holder of Westpac Ordinary Shares.

11. Governing law This Deed shall be governed by and construed in accordance with the law for the time being in force in the State of New South Wales, Australia.

12. Jurisdiction Westpac irrevocably agrees that the courts of New Zealand are to have non-exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Deed. Westpac irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that the proceedings have been brought in an inappropriate forum.


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EXECUTED by )[Peter Hill] WESTPAC BANKING CORPORATION

)Signature )

by being signed by an )Print name authorised attorney of that )Peter Hill Corporation in the presence of: )Office held: Senior Counsel [Michael Greig] Signature of witness Michael Greig Print name Partner, Allen Allen & Hemsley Office held


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Schedule

Exchange Events

Part A Compulsory exchange

The occurrence of any of the following:

(a) the commencement of a liquidation, statutory management or administration of Issuer;

(b) the commencement of a liquidation, statutory management or administration of Westpac in Australia;

(c) if a takeover offer for Westpac Ordinary Shares is announced (even a conditional takeover offer) and acceptance is recommended by the Board of Westpac, with such recommendation being or becoming unqualified except for any qualification which makes the recommendation subject to there being no higher offer from a third party or any other qualification approved by the Board of Westpac specifically for the purposes of this paragraph;

(d) if a scheme of arrangement in respect of Westpac Ordinary Shares is announced (even a conditional scheme) and recommended by the Board of Westpac, with such recommendation being or becoming unqualified except for any qualification which makes the recommendation subject to there being no higher offer from a third party or any other qualification approved by the Board of Westpac specifically for the purposes of this paragraph (subject to the exception in Part D below);

(e) if a person becomes Entitled to more than 50% of Westpac Ordinary Shares whether under a takeover scheme, a takeover announcement, a scheme of arrangement (subject to the exception in Part D below) or some other method and the takeover scheme, announcement, scheme of arrangement or method is (or becomes) unconditional;

(f) if Westpac ceases to Control Issuer.

Part B Exchange at option of Westpac

The occurrence of any of the following events where the Board of Westpac in its sole discretion (having regard solely to the interests of Westpac) by notice sent to the Shareholders determines that such event is an Exchange Event:


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(a) if:

(i) either or both of the New Zealand Inland Revenue Department rulings granted or to be granted in relation to the offer of NZ Class Shares and related arrangements (or any related ruling acquired subsequently by way of substitution or on expiry of an earlier ruling in a form satisfactory to Westpac) is or are no longer valid or binding;

(ii) either Issuer does not apply for, within a reasonable period (not being less than 60 Business Days) after becoming aware of the matter referred to in paragraph (i), or does so apply but does not obtain any related ruling, by way of substitution or on expiry of the earlier ruling, in a form satisfactory to Westpac;

(iii) as a result of the occurrence of a matter referred to in paragraph (i) and/or (ii) there is a material adverse effect on Westpac, the Issuer, the Shareholders as a class and/or the holders of Westpac Ordinary Shares as a class; and

(iv) such effect is confirmed by an opinion of a qualified taxation adviser in New Zealand;

(b) if:

(i) the ruling granted on 13 October 1998 (or any related ruling acquired subsequently by way of substitution or on expiry of an earlier ruling in a form satisfactory to Westpac) by the Australian Taxation Office is no longer valid or binding;

(ii) either Westpac does not apply for, within a reasonable period (not being less than 60 Business Days) after becoming aware of the matter referred to in paragraph (i), or does so apply but does not obtain any related ruling, by way of substitution or on expiry of the earlier ruling, in a form satisfactory to Westpac;

(iii) as a result of the occurrence of a matter referred to in paragraph (i) and/or (ii) there is a material adverse effect on Westpac, the Shareholders as a class and/or the holders of Westpac Ordinary Shares as a class; and

(iv) such effect is confirmed by an opinion of a qualified senior counsel in Australia;

(c) if a change of law or regulatory policy (including its interpretation) adversely affects Westpac, the Issuer or the Shareholders as a class, or any of their rights, under these arrangements (including if the Australian Prudential Regulation Authority ceases to accept that the NZ Class Shares are Tier 1 capital);

(d) if any event specified below (being an event which may precede liquidation, statutory management or any other relevant insolvency regime of either Westpac or Issuer) occurs:

(i) the issue of a notice calling a meeting of shareholders or directors of Issuer or Westpac for the purpose of passing a resolution to place Issuer in liquidation on the grounds that it is insolvent;


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(ii) the issue of proceedings against Issuer or Westpac to have that company placed in liquidation;

(iii) the appointment of a person by the Registrar of Companies to carry out an investigation of the affairs of Issuer pursuant to section 19 of the Corporations (Investigation and Management Act) 1989;

(iv) the giving of notice by the Registrar of Companies to Issuer pursuant to section 30 of the Corporations (Investigation and Management) Act 1989 that Issuer or Westpac is considered to be a corporation at risk;

(v) if the Securities Commission recommends or a Minister of the Crown gives advice to the Governor-General that Issuer or Westpac should be placed in statutory management pursuant to section 38 of the Corporations (Investigation and Management) Act 1989;

(vi) the appointment of a person by the Reserve Bank of New Zealand to carry out an investigation of the affairs of Issuer or Westpac pursuant to section 101 of the Reserve Bank of New Zealand Act 1989;

(vii) the giving of notice by the Reserve Bank of New Zealand to require Issuer or Westpac to consult with the Reserve Bank of New Zealand pursuant to section 111 of the Reserve Bank of New Zealand Act 1989;

(viii) if the Reserve Bank of New Zealand recommends or a Minister of the Crown gives advice to the Governor-General that Issuer or Westpac should be placed in statutory management pursuant to section 117 of the Reserve Bank of New Zealand Act 1989;

(ix) if the Australian Securities and Investment Commission (the ASIC) decides to carry out an investigation of Westpac pursuant to section 13 of the Australian Securities and Investment Commission Act 1989 (ASIC Act);

(x) the Minister directs the ASIC in writing to investigate Westpac pursuant to section 14 of the ASIC Act;

(xi) if the ASIC forms the opinion that Westpac has committed a serious contravention of the law or that an interim report about Westpac should be prepared pursuant to section 16(1)(a) or 16(1)(b) of the ASIC Act;

(xii) if the ASIC causes a prosecution of Westpac to begin pursuant to section 49(2) of the ASIC Act;

(xiii) if the Australian Prudential Regulation Authority appoints a person pursuant to sections 13A, 13B or section 61(1) of the Banking Act 1959; and

(xiv) if the Federal Court of Australia authorises the Australian Prudential Regulation Authority to assume control of and to carry on the business of Westpac pursuant to section 65(2) of the Banking Act 1959;


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(e) if the number of NZ Class Shares held by the Shareholders, other than shares held by Westpac or any entity it Controls, falls below 15% of the total number of NZ Class Shares on issue from time to time;

(f) the commencement of a liquidation, statutory management or administration of Westpac in any country other than Australia; and

(g) a receiver is appointed to all or a substantial part of the property of Issuer.

Part C Exchange at option of Shareholder

The occurrence of any of the following:

(a) the Issuer is unable or fails to pay a dividend on each NZ Class Share equivalent to the Westpac dividend on each Westpac Ordinary Share multiplied by the Exchange Fraction (converted to NZ$ by applying the Applicable A$ - NZ$ Exchange Rate on the record date in respect of the dividend payable on the Westpac Ordinary Shares) and such inability or failure continues for 2 Business Days after the corresponding dividend has been paid on each of the Westpac Ordinary Shares;

(b) the Voting Deed ceases to be effective (including if the Deed of Settlement of Westpac is amended to remove or limit in any way the Enhanced Voting Rights referred to in the Voting Deed), other than as contemplated by its clause 5;

(c) the Support Deed ceases to be effective, other than as contemplated by its clause 3;

(d) the Issuer’s listing on the NZSE is cancelled for more than 5 consecutive Business Days or suspended for more than 14 consecutive Business Days;

(e) the occurrence of either event described in paragraph (a) or (b) of Part B of the Schedule if that event has a material adverse effect on the Shareholders as a class; and

(f) if a person becomes Entitled to more than 30% of Westpac Ordinary Shares whether under a takeover scheme, a takeover announcement, a scheme of arrangement (subject to the exception in Part D below) or some other method, even if the takeover scheme, announcement, scheme of arrangement or method is conditional,

and the Shareholder by notice to Westpac under clause 6.2 determines that such event is an Exchange Event.

Part D

Exception for certain schemes

If a scheme of arrangement is announced by Westpac under which Westpac Ordinary Shares will be cancelled in return for the issue (to the former holder of those shares) of shares by a new holding company of Westpac, such scheme will not constitute an Exchange Event if:

(a) the holding company enters into an exchange deed poll comparable to this deed and conferring substantially the same rights on the Shareholders;


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(b) the Board of Westpac determines that the shares in the holding company being offered to the Shareholders in place of Westpac Ordinary Shares are equivalent in value to the Westpac Ordinary Shares;

(c) the holding company enters into a support deed comparable to, and in substitution for, the Support Deed;

(d) new voting arrangements in the holding company are put in place by the holding company to achieve the substantially same result as is achieved by, and in substitution for, the Voting Deed; and

(e) the approval of the NZSE to the above is obtained.

Documents

#10189917v14 Exchange Deed for Iceman MMWS …...Exchange Deed Allen Allen & Hemsley mmws S0110189917v14 201300871 15.04.2005 Page 2 any day on which the stock exchange of ASX or NZSE