Exhibit 4(c).4


 


Indemnity Deed Poll


 


 


Dated:       10
September 2009


 


 


WESTPAC
BANKING CORPORATION ABN 33 007 457 141 of 275 Kent Street, Sydney NSW 2000 (“Westpac”)


 

















 


INDEMNITY DEED POLL


 


DATED:


 


DEED POLL
BY:     WESTPAC BANKING CORPORATION  ABN 33 007 457
141 of 275 Kent Street, Sydney NSW 2000  (“Westpac”)


 


IN FAVOUR
OF:     Each:


 


(a)  person who is
(or has been) a director of Westpac (each a “Westpac
Director”)


 


(b)  person who is
(or has been) a statutory officer of Westpac (including each secretary,
responsible officer and responsible manager of Westpac), excluding each Westpac
Director, (each a “Westpac Beneficiary”);


 


(c)  person who is
(or has been) a director or other statutory officer (including each secretary,
responsible officer and responsible manager) of a Subsidiary Company (each a “Subsidiary  Beneficiary”);
and


 


(d)  Nominated
Beneficiary.


 


RECITALS


 


A.            Westpac wishes to indemnify the directors and other statutory
officers of the companies in the Westpac group in certain circumstances.  Westpac has entered into separate Deeds of
Indemnity and Access with Westpac Director. 
Under this Deed, Westpac provides an indemnity in favour of Westpac
Beneficiaries, Subsidiary Beneficiaries and Nominated Beneficiaries.


 


B.            Westpac wishes to, under this deed, agree to provide
Directors’ and Officers’ Insurance to the Westpac Directors and Subsidiary
Directors.


 


C.            The entry by Westpac into this deed will assist
Westpac, the Subsidiary Companies and Nominated Companies to recruit and retain
directors and officers of an appropriate standard.


 


D.            Westpac considers it reasonable in the circumstances
and in the best interests of Westpac to so indemnify the Westpac Beneficiaries,
Subsidiary Beneficiaries and Nominated Beneficiaries and to agree to provide
Directors’ and Officers’ Insurance to Westpac Directors and Subsidiary Directors
and to provide, as and when necessary, the other benefits under this deed when
the necessary conditions set out in this deed are satisfied.


 


E.             This deed is intended to give effect to the terms of
clause 19 (Indemnity and Insurance) of the Constitution.


 


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OPERATIVE
PROVISIONS


 


1.             DEFINITIONS AND INTERPRETATION


 


1.1          Definitions


 


In this deed, unless a
contrary intention appears:


 


“Act” means any actual or alleged act, error,
statement, misstatement, misleading statement, omission, neglect or breach of
duty made, committed or attempted by an Indemnified Beneficiary (either alone
or jointly with one or more other persons) relating to, involving, arising out
of or in any way connected to the conduct of the Indemnified Beneficiary as a
director or other statutory officer of a Company.


 


“Appointment
Period” means the period during which the Westpac Director or the Subsidiary
Director (as relevant) holds office as a director of Westpac or a Subsidiary Company.


 


“Business
Day” means any
day other than Saturday, Sunday or public holiday on which Australian banks are
open for business in Sydney, New South Wales.


 


“Business
Hours” means the
hours between 9.00am and 5.00pm, on a Business Day.


 


“Claim” means any legal proceedings (whether
civil or criminal), any administrative proceedings, any arbitral proceedings,
any mediation or other form of alternative dispute resolution (whether or not
held in conjunction with any legal, administrative or arbitral proceedings) or
any investigation or inquiry by any Regulatory Authority or External
Administrator relating to, involving, arising out of or in any way connected
with any Act, or any written or oral threat, complaint or demand that might
reasonably result in the Indemnified Beneficiary apprehending that any such
proceedings, investigation or inquiry might be initiated.


 


“Company”
means Westpac, a
Subsidiary Company or a Nominated Company.


 


“Constitution”
means the
constitution of Westpac in force from time to time.


 


“D&O Policy” means an insurance
policy provided by and maintained with a reputable insurance company for the benefit of (amongst
others) each Westpac Director and each Subsidiary Director  which
insures the director against liability for acts or omissions of the director in
their capacity (or, following the Appointment Period, former capacity) as a
director of Westpac or a Subsidiary Company (as relevant).


 


“External
Administrator”
means a liquidator, provisional liquidator or controller or an administrator.


 


“Indemnified
Beneficiary”
means each Westpac Beneficiary, each Subsidiary Beneficiary and each Nominated
Beneficiary.


 


“Insurance
Period” means the
period commencing on the earlier of:


 


i)              the date the Westpac Director or the Subsidiary
Director became a director of Westpac or a Subsidiary Company (as relevant);
and


 


ii)             in the case of a Subsidiary Director, the date that Subsidiary
Company became a wholly owned Subsidiary of Westpac,


 


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and ending on the earlier
of:


 


iii)            the seventh anniversary of the date on which the director
ceases to hold office as a director of the relevant Company; and


 


iv)                                  in the case of a Subsidiary Director, the
date that the Subsidiary Company ceases to be a wholly owned Subsidiary of
Westpac.


 


“Nominated
Beneficiary”
means each person, who is (or has been) a director or other statutory officer
(including a secretary, responsible officer or responsible manager) of a
company that is not Westpac or a Subsidiary Company, who has received written
confirmation from a Nominated Westpac Officer that they are a Nominated
Beneficiary and that the terms of this deed, as they relate to Nominated
Beneficiaries, apply to them.


 


“Nominated
Company” a
company, that is not Westpac or a Subsidiary Company, in respect of which a
Nominated Beneficiary acts as a director or other statutory officer.


 


“Nominated
Westpac Officer” means
an officer of Westpac authorised under delegated authority or Westpac policy to
approve the entry by Westpac into a contractual indemnity.


 


“Regulatory
Authority” means
the Australian Securities and Investments Commission, the Australian Prudential
Regulation Authority, a department of any Australian government, a public
authority, or an instrumentality or agency of the Crown in right of the
Commonwealth, in right of a State or in right of a Territory or the equivalent
of any of them in any other jurisdiction.


 


“Subsidiary” has the meaning given to that expression
in section 9 of the Corporations Act 2001 (Cth).


 


“Subsidiary
Company” means any
company which is a wholly owned Subsidiary of Westpac (excluding those Subsidiary
companies, other than St. George Bank Limited, which are included in the
official list of a prescribed financial market, as that phrase is used in Part 1.2A
of the Corporations Act 2001 (Cth)).


 


“Subsidiary
Director” means
each person who is (or has been) a director of a Subsidiary Company.


 


1.2          Interpretation


 


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 and, in the case of a natural person, includes a
reference to that person’s personal representatives, executors, administrators
and successors;


 


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(e)           a reference to a clause, paragraph,
schedule or annexure is to
a clause of, a paragraph of, a schedule to or an annexure to, this deed and a
reference to this deed includes any schedules and annexures;


 


(f)            a reference to any agreement or document
is to that agreement or document as amended, novated, supplemented, varied or
replaced from time to time, except to the extent prohibited by this deed;


 


(g)           a reference to any legislation or
to any provision of any legislation includes any modification or re-enactment
of it, any legislative provision substituted for it and all regulations and
statutory instruments issued under it;


 


(h)           a reference to a specific time  for the performance of an obligation is a
reference to that time in the State, Territory or other place where that
obligation is to be performed;


 


(i)            a reference to writing  includes typewriting, printing, lithography,
photography and any other method of representing or reproducing words, figures
or symbols in a permanent and visible form;


 


(j)            mentioning anything after include,
includes or including does
not limit what else might be included;


 


(k)           where the day on or by which any sum is payable under
this deed or any act, matter or thing is to be done is a day other than a
Business Day such sum shall be paid and such act, matter or thing shall be done
on the next succeeding Business Day;


 


(l)            a word or phrase defined in the Corporations
Act 2001(Cth) has the same meaning when used in this deed;


 


(m)          a reference to an article of the
Constitution is a reference to that article as at the date of this
deed and includes any variation of or amendment to that article and any
provision in substitution of that article ; and


 


(n)           any reference to a director ceasing to hold office
shall be construed as not including any retirement of a director if, being
eligible and offering himself or herself for re-election, a director is
re-elected at the annual general meeting at which the director retired.


 


2.            INDEMNITY


 


2.1           Westpac indemnifies each Indemnified Beneficiary to
the fullest extent permitted by law with respect to all loss, cost and expense
(together called “Loss”) in
relation to:


 


i)              every liability incurred by the Indemnified
Beneficiary in its capacity as a director or other statutory officer of a
Company (except a liability for legal costs); and


 


ii)             all legal costs incurred in defending or resisting (or
otherwise in connection with) proceedings, whether civil or criminal or of an
administrative or investigatory nature, in which the Indemnified Beneficiary
becomes involved because of its capacity as a director or other statutory
officer of a Company,


 


subject to the provisions
in this Deed and in particular the exclusions in clause 2.6.


 


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2.2           Subject to clause 3.7, if an Indemnified Beneficiary
becomes liable to pay any amount for which the Indemnified Beneficiary is or is
entitled to be indemnified under this deed, Westpac must indemnify the
Indemnified Beneficiary by paying that amount to the person to which that
amount is due within 30 days of the date on which the Indemnified Beneficiary provides
evidence satisfactory to Westpac that the Indemnified Beneficiary is liable to
pay that amount and is entitled to be indemnified under this deed.


 


2.3           It is not necessary for an Indemnified Beneficiary to
incur any expense or make any payment before enforcing the right of indemnity
under clause 2.1.


 


2.4           Subject to this deed and in particular clauses 2.6 and
5, the indemnification provided under clause 2.1:


 


(i)            has effect in respect of Acts prior to the date of
this deed and in respect of any liability which has been incurred prior to the
date of this deed;


 


(ii)           continues in full force and effect irrespective of one
or more previous applications of the right to be indemnified; and


 


(iii)          continues in full force and effect in relation to any
Act occurring or arising during each Indemnified Beneficiary’s period in office
even if the Indemnified Beneficiary has ceased to be a director or other statutory
officer of a Company before a claim is made by the Indemnified Beneficiary under
this deed.


 


2.5           If an Indemnified Beneficiary is insured or entitled
to the benefit of any contract of insurance in respect of any liability, costs
or expenses for which the Indemnified Beneficiary is entitled to
indemnification under this deed, the Indemnified Beneficiary must make and
pursue a claim under that insurance and, if Westpac has already made a payment
under this deed in respect of that liability or those costs or expenses to
which that insurance will respond, the Indemnified Beneficiary must, forthwith
upon receipt, pay or direct payment to Westpac of the proceeds of that
insurance.


 


2.6           Nothing in this clause 2 gives rise to an agreement to
indemnify the Indemnified Beneficiary in respect of:


 


(i)            any Loss arising out of conduct involving a lack of
good faith on the part of the Indemnified Beneficiary;


 


(ii)           any Loss to the extent caused by or rising from an act
or omission of the Indemnified Beneficiary prior to:


 


A)                                  in the
case of a Subsidiary Beneficiary, the relevant Company becoming a wholly owned Subsidiary of
Westpac; or


 


B)            in the
case of a Nominated Beneficiary, the Nominated Beneficiary receiving
confirmation from a Nominated Westpac Officer that they are a Nominated
Beneficiary;


 


(iii)          any Loss to the extent indemnity in respect of that
Loss is prohibited or would be made void under the Corporations Act (or any
other law) from time to time (including section 199A of the Corporations Act)
or, to the extent applicable, under any later version of the Corporations Act
or other applicable law;


 


(iv)          any Loss to the extent indemnity in respect of that
Loss is prohibited by the Constitution;


 


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(v)           any Loss to the extent to which such Loss cannot be
indemnified without shareholder approval (if no such shareholder approval has
been obtained), such as any benefit given in connection with retirement under
section 200A of the Corporations Act;


 


(vi)          any Loss to the extent the it is indemnified by an
insurance policy which benefits the Indemnified Beneficiary and only to the
extent that the Indemnified Beneficiary recovers under that insurance policy;


 


(vii)         any Loss unless reasonable particulars of the relevant
act or omission (and of the amount of the Loss, to the extent known) are given
to Westpac in writing prior to midnight on the day which is the seventh
anniversary after the Indemnified Beneficiary last ceases to be a
director or other statutory officer of a Company; or


 


(viii)        any Loss to the extent it is caused by or arises from
acts or omissions of the Indemnified Beneficiary after the effective date of
revocation by Westpac, in accordance with this deed, of the benefit of this
deed from the Indemnified Beneficiary.


 


3.             PROCEEDINGS


 


3.1           Westpac may, by written notice to the Indemnified
Beneficiary, do any one or more of the following in relation to any Claim :


 


(i)            assume the conduct, or defence of the Claim;


 


(ii)           institute a crossclaim or counterclaim to the Claim;


 


(iii)          negotiate a settlement of the Claim;


 


(iv)          agree to any form of alternative dispute resolution
(including mediation) in relation to the Claim; or


 


(v)           subject to clause 3.6, retain lawyers to act on behalf
of both the Indemnified Beneficiary and Westpac in relation to the Claim,


 


and if Westpac does any
of the above, the conduct of the Claim will (to that extent) be under the
management and control of Westpac or its insurers.


 


3.2           In undertaking any of the things permitted under
clause 3.1, Westpac must, subject to any contrary direction from or requirement
of its insurers, have regard to the principle that the reputation of the
Indemnified Beneficiary should not unnecessarily be injured.


 


3.3           The Indemnified Beneficiary must:


 


(i)            give notice to Westpac promptly upon becoming aware of
any Claim, or circumstances which may give rise to a Claim, against the
Indemnified Beneficiary that may give rise to a right to be indemnified under
this deed;


 


(ii)           take such action as Westpac reasonably requests,
including action to avoid, dispute, resist, bring an appeal on, compromise or
defend any Claim or any adjudication of any Claim;


 


(iii)          not make any admission of liability in respect of or
settle any Claim without the prior written consent of Westpac;


 


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(iv)          upon request by Westpac, render all reasonable
assistance and co-operation to Westpac in the conduct of any Claim including,
without limitation, providing Westpac with any documents, authorities and
directions that Westpac may reasonably require for the prosecution or
advancement of any Claim, cross-claim or counterclaim that is, in the opinion
of the Indemnified Beneficiary acting reasonably and in good faith, lawful,
true and not misleading; and


 


(v)           upon request by Westpac, do anything reasonably
necessary or desirable to enable Westpac (so far as it is possible) to be
subrogated to and enjoy the benefits of the Indemnified Beneficiary’s rights in
relation to any Claims against any third party and render such assistance as
may be reasonably requested by Westpac for that purpose.


 


3.4           The Indemnified Beneficiary is entitled to be
reimbursed by Westpac for actual costs and expenses reasonably incurred by the
Indemnified Beneficiary in taking action pursuant to clause 3.3(ii) or
providing assistance pursuant to clause 3.3 (iv) and (v).


 


3.5           Before compromising or settling any Claim, Westpac
must give written notice to the Indemnified Beneficiary of its intention to do
so and of the proposed terms of that compromise or settlement and if, within
such reasonable time as is specified in that notice, the Indemnified
Beneficiary objects to the proposed terms and states that the Indemnified
Beneficiary wishes to contest or continue the Claim, Westpac shall immediately
relinquish to the Indemnified Beneficiary conduct of the Claim and Westpac’s
liability under this deed in respect of that Claim shall not exceed the amount
for which the Claim could have been compromised or settled, at the time the
notice was given by Westpac to the Indemnified Beneficiary, on those proposed
terms, inclusive of costs and expenses actually incurred up to that time.


 


3.6           Nothing in this deed prohibits the Indemnified
Beneficiary from engaging separate legal or other representation and
participating in any Claim but any expenses incurred by the Indemnified
Beneficiary in so doing shall be paid or reimbursed by Westpac only to the
extent that those expenses are:


 


(i)            incurred prior to Westpac assuming conduct of that
Claim;


 


(ii)           incurred with the prior written authority of Westpac;
or


 


(iii)          reasonable and are incurred in circumstances where Westpac
has refused to authorise separate representation or participation and there is
a reasonable likelihood that the interests of the Indemnified Beneficiary and
of Westpac would conflict were the same lawyers to act on behalf of both the
Indemnified Beneficiary and Westpac.


 


3.7           If the Indemnified Beneficiary fails to perform an
obligation referred to in clause 3.3 to the material prejudice of Westpac in
relation to that Claim, Westpac is relieved from each and every obligation
under this deed in respect of that Claim.


 


4.             PAYMENT OF COSTS BEFORE THE
OUTCOME OF PROCEEDINGS IS KNOWN


 


4.1           Subject to clause 3.7, Westpac will at the request of the
Indemnified Beneficiary pay, or reimburse, the Indemnified Beneficiary for all
costs and expenses incurred by the Indemnified Beneficiary in respect of any
Claim provided that if it is
determined (whether before or after the outcome of any proceedings (including
any appeal) is known and whether civil, administrative or criminal) in relation
to that Claim that the Indemnified Beneficiary is not entitled to be
indemnified under clause 2.1 in respect of those costs 


 


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and expenses, the
Indemnified Beneficiary must, within 30 days of being so notified by Westpac,
pay to Westpac all amounts previously paid or reimbursed by Westpac in respect
of that Claim. The amount to be paid shall be set out in the notice and, in the
absence of manifest error, shall be conclusive evidence of the amount to be
paid.


 


4.2           Once it has been determined under clause 4.1 that the
Indemnified Beneficiary is not entitled to be indemnified under clause 2.1, Westpac
shall have no further obligation to pay, or reimburse, the Indemnified
Beneficiary for any further costs, expenses or other liabilities in respect of
that Claim, whether or not incurred prior to that determination being made.


 


5.             REVOCATION


 


5.1           The benefit of this deed is automatically revoked in
relation to a Subsidiary Beneficiary on the date that the Subsidiary Company,
in respect of which that Subsidiary Beneficiary acts as a director or other statutory
officer, ceases to be a wholly owned Subsidiary of Westpac and such revocation
shall be effective with respect to any Loss to the extent caused by or arising
from acts or omissions occurring on or after the effective revocation date.


 


5.2           Westpac may revoke the benefit of this Deed in respect
of any Nominated Beneficiary by written notice to the last address given by
that Nominated Beneficiary and such revocation shall be effective with respect
to any Loss to the extent caused by or arising from acts or omissions occurring
on or after the effective revocation date specified in the notice (which date
must not be earlier than the date the notice is received at the address of the Nominated
Beneficiary).


 


6.             DIRECTORS’ AND OFFICERS’
INSURANCE


 


6.1           Subject to clause 6.4, Westpac must maintain a D&O
Policy during the Insurance Period in respect of each Westpac Director and each
Subsidiary Director.


 


6.2           During the Insurance Period, Westpac must use its best
endeavours to ensure that the terms of the D&O Policy, taken as a whole,
are not less favourable to each Westpac Director than:


 


(i)            the terms of the D&O Policy applicable to the
Westpac Director at the end of the Appointment Period; and


 


(ii)           the terms of the D&O Policy applicable to the
directors of the Westpac during the Insurance Period.


 


6.3           If requested by a Westpac Director or a Subsidiary
Director, Westpac must provide the director with a copy of each certificate of
currency in respect of the D&O Policy issued from time to time by the Westpac’s
insurance company.  Westpac must also
provide the director with a copy of the D&O Policy within 30 days of
any request from the director.


 


6.4           Westpac is not obliged to maintain the D&O Policy
where to do so would contravene any law, but Westpac must give reasonable
notice to each Westpac Director and each Subsidiary Director (as relevant) of
its intention to terminate the D&O Policy under this clause.


 


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7.             SEVERANCE


 


7.1           If any provisions of this deed are
determined by any statute or any court to be illegal, invalid, void or voidable
the legality or validity of the remainder of this deed shall not be affected
and the illegal, invalid, void or voidable provisions shall be deemed deleted
from this deed to the same extent and effect as if never incorporated in this
deed but the remainder of this deed shall continue in full force and effect.


 


7.2           Clause 7.1 shall not be construed as permitting
anything that would be contrary to public policy.


 


8.             AMENDMENT


 


This deed may be amended
only be another deed executed by all parties who may be affected by the
amendment.


 


9.             ASSIGNMENT


 


The rights and
obligations of the Westpac Directors, Westpac Beneficiaries, Subsidiary
Beneficiaries and Nominated Beneficiaries under this deed are personal.  They cannot be assigned, charged or otherwise
dealt with, and no Westpac Director, Westpac Beneficiary, Subsidiary
Beneficiary or Nominated Beneficiary may attempt or purport to do so, without
the prior written consent of Westpac.


 


10.          WAIVER


 


No failure to exercise
and no delay in exercising any right, power or remedy under this deed operate
as a waiver.  Nor will any single or
partial exercise of any right, power or remedy preclude any other or further exercise
of that or any other right, power or remedy.


 


11.          NOTICES


 


11.1         Any notice or other communication given under this
deed must be in writing:


 


(a)            directed to the intended recipient at the address last
notified by the intended recipient to the sender; and


 


(b)           hand delivered or sent by prepaid post or facsimile to
that address.


 


11.2         A notice given in accordance with clause 11.1 is taken
to be received:


 


(a)           if hand delivered, on delivery;


 


(b)           if sent by prepaid post, three Business Days after the
date of posting;


 


(c)                                  if sent by facsimile, when the sender’s
facsimile system generates a message confirming successful transmission of the
total number of pages of the notice unless, within eight (8) Business
Hours after that transmission, the recipient informs the sender that it has not
received the entire notice.


 


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12.          GOVERNING LAW


 


This deed shall be
governed by and construed in accordance with the law for the time being of New
South Wales and the parties hereby submit to the courts of that State (and of
all courts competent to hear appeals therefrom) in respect of all matters
arising under this deed or relating to it.


 


 


Executed as a Deed Poll


 


 


	
  This Deed was executed
  by Westpac Banking Corporation  by its
  undersigned attorneys who declare that they have not received any notice of
  revocation of the Power of Attorney registered in the Office of the
  Registrar-General (NSW) Book 4299 No. 332 under which the instrument was
  executed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michael Johnston

  	
   

  	
  /s/ Anna Sandham 

  
	
  Tier
  One Attorney

  	
   

  	
  Tier
  One Attorney

  
	
   

  	
   

  	
   

  
	
  Michael Johnston 

  	
   

  	
  Anna Sandham 

  
	
  Name
  of Tier One Attorney

  	
   

  	
  Name
  of Tier One Attorney

  



 


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