Exhibit 4(c).18


 


Access and Indemnity Deed


 


	
  BETWEEN:

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

  
	
   

  	
   

  
	
  AND:

  	
  Elizabeth
  Bryan of Mosman NSW 2088

  



 

















 


ACCESS
AND INDEMNITY DEED


 


	
  BETWEEN:

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

  
	
   

  	
   

  
	
  AND:

  	
  Elizabeth Bryan of Mosman NSW
  2088

  (“Director”)

  



 


RECITALS


 


A.                                   The
Director is a director of the company.


 


B.                                     It
is a condition of the Director agreeing to act or to continue to act as a
director of the company that the company formally indemnify the Director and
grant the Director access to Board Papers and to provide other benefits on the
terms of this deed.


 


C.                                     The
company considers it reasonable in the circumstances and in the best interests
of the Company to so indemnify the Director and to grant the Director access to
Board Papers and to provide, as and when necessary, the other benefits under
this deed when the necessary conditions set out in this deed are satisfied.


 


OPERATIVE
PROVISIONS


 


1.                                      DEFINITIONS
AND INTERPRETATION


 


1.1                               Definitions


 


In this deed, unless a
contrary intention appears:


 


“Access
Period” means the period commencing on the date of this deed
and ending on the seventh anniversary of the date on which the Director ceases
to hold office as a director of the company.


 


“Act”
means any actual or alleged act, error, statement, misstatement, misleading
statement, omission, neglect or breach of duty made, committed or attempted by
the Director (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
Director as a director of the company [or any Related Body Corporate of the
company].


 


“Board
Papers” means all information in tangible form provided to
the Director during the Director’s period in office including board papers,
submissions, minutes, letters, memoranda, board committee and sub-committee
papers and other documents, or copies thereof, provided to the Director that are
referred to in any of those documents during the time that the Director is a
director of the 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.


 


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“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 Director
apprehending that any such proceedings, investigation or inquiry might be
initiated.


 


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


 


“Director’s
Adviser” means a person or firm engaged by the Director to
give legal advice to the Director.


 


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


 


“Permitted
Purposes” means:


 


(a)                                  use
in relation to a Claim:


 


(i)                                     to
which the Director is subject or a party; or


 


(ii)                                  that
the Director proposes in good faith to bring; or


 


(iii)                               that
the Director has reason to believe will be brought against the Director (but
not necessarily solely against the Director); or


 


(b)                                 such
other purpose determined by the board of directors of the company in their
discretion as being in the best interests of the company.


 


“Privileged
Documents” means any Board Papers in respect of which legal
professional privilege applies solely in favour of the company, jointly in
favour of the company and the Director or, as the case may be, jointly in
favour of the Director and one or more other directors of the company.


 


“Regulatory
Authority” means the Australian Securities and Investments
Commission, 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.


 


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


 


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;


 


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(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;


 


(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 Law
of New South Wales 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 the Director ceasing to hold office shall be construed as not
including any retirement of the Director if, being eligible and offering
himself or herself for re-election, the Director is re-elected at the annual
general meeting at which the Director retired in accordance with the
Constitution.


 


2.                                     ACCESS
UNDERTAKING


 


2.1                                 The
company agrees that:


 


(a)                                  it
will maintain, at the registered office of the company or at such other place
as may be notified in writing to the Director, a copy of a complete set of
Board Papers in chronological order, on behalf of all present and future
directors of the company, in suitable secure custody;


 


(b)                                 subject
to this deed, the Director or any Director’s Adviser will, during Business
Hours, be entitled to access the Board Papers upon request by the Director and


 


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there will be made
available to the Director upon request, a copy of any of those Board Papers;


 


(c)                                  if
any Board Paper to which the Director requires access or a copy is a Privileged
Document, the company will notify the Director that the privilege exists and of
the general nature of acts or omissions that could cause that privilege to be
waived, extinguished or otherwise lost;


 


(d)                                 if,
before the end of the Access Period, a Regulatory Authority or External
Administrator commences any investigation or inquiry into events that occurred
in relation to the company [or any Related Body Corporate of the company]
whilst the Director held office, the company agrees to retain the Board Papers
until:


 


(i)                                     the
end of the Access Period;


 


(ii)                                  the
company becomes aware or is notified by the Regulatory Authority or External
Administrator that the investigation or inquiry has been concluded;


 


(iii)                               if
there is any Claim following, or otherwise relating to, the investigation or
inquiry or any subject matter of the investigation, the company is aware or
notified of the adjudication, settlement or compromise of that Claim,


 


whichever
is the latest to occur;


 


(e)                                  subject
to this deed, the Director will be entitled, upon request, to:


 


(i)            access the Board Papers kept in
accordance with this clause 2; and


 


(ii)                                  have
made available to him or her, at no cost, a copy of any such Board Papers;


 


(f)                                    if:


 


(i)                                     the
Director requests in writing, giving reasons for the request, that the company
retain the Board Papers for a specified period in excess of the Access
Period;  and


 


(ii)                                  the
company’s board of directors considers, having regard to the reasons given by
the Director, that the request is reasonable and in the best interests of the
company to do so,


 


The company will retain
the Board Papers for an additional period in excess of the Access Period (which
additional period will be determined by the board of directors of the company
in its absolute discretion), whether or not the Director is still a director of
the company at the time the request is made;


 


(g)                                 subject
to this deed, if the company accedes to a request under paragraph (f), the
Director will be entitled to access the Board Papers retained in accordance
with that paragraph upon request and there will be made available to the
Director upon request, at no cost, a copy of any of those Board Papers;


 


(h)                                 the
entitlements of the Director referred to in paragraphs (b), (e), (f) and (g):


 


(i)                                     will
exist even if at the time of the request, the Director is no longer a director
of the company, but will cease upon expiry of the later of:


 


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(A)                              the
last day of the Access Period; or


 


(B)                                the
last day of the additional period determined in accordance with paragraph (f);
and


 


(ii)                                  are
subject to the access and provision of copies to the Director being (or being
in the opinion of the board of directors of the company) for Permitted
Purposes.


 


2.2                                Nothing
in clause 2.1 limits or restricts any other right the Director may have of
access to Board Papers or other books and records of the company.


 


3.                                     DIRECTOR’S
UNDERTAKING


 


The Director covenants
with the company:


 


(a)                                   to
observe at all times the same duties of confidentiality to the company in
relation to the Board Papers as if the Director remained a director of the
company except that the Director may disclose:


 


(i)                                     Board
Papers to any Director’s Adviser; and


 


(ii)                                  subject
to paragraph (b), Board Papers or those parts of Board Papers relating to or
connected with any Claim (including by the company) to third parties connected
with or involved with such Claim.


 


(b)                                  in
respect of any Board Papers which are Privileged Documents, that the Director
will not waive the privilege or do any act or thing or omit to do any act or
thing which will cause or result in that privilege being waived, extinguished
or otherwise lost without the prior written consent of the company.


 


4.                                     INDEMNITY


 


4.1                                 Subject
to clause 4.6, the company covenants with the Director to indemnify the
Director, to the fullest extent permitted by law in accordance in all respects
with article 19 of the Constitution (or the equivalent articles in force from
time to time) as if the Director remained at all times a director of the
company (whether or not this be the case).


 


4.2                                 Subject
to clause 5.7, if the Director becomes liable to pay any amount for which the
Director is or is entitled to be indemnified under this deed, the company must
indemnify the Director by paying that amount to the person to which that amount
is due within 30 days of the date on which the Director provides evidence
satisfactory to the company that the Director is liable to pay that amount and
is entitled to be indemnified under this deed.


 


4.3                                 It
is not necessary for the Director to incur any expense or make any payment
before enforcing the right of indemnity under clause 4.1.


 


4.4                                 Subject
to this deed, the indemnification provided under clause 4.1:


 


(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;


 


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(ii)                                  is
irrevocable;


 


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


 


(iv)                              continues
in full force and effect  in relation to
any Act occurring or arising during the Director’s period in office even if the
Director has ceased to be a director of the company before a claim is made by
the Director under this deed.


 


4.5                                 If
the Director is insured or entitled to the benefit of any contract of insurance
in respect of any liability, costs or expenses for which the Director is entitled
to indemnification under this deed, the Director must make and pursue a claim
under that insurance and, if the company 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 Director must, forthwith upon receipt, pay or
direct payment to the company of the proceeds of that insurance.


 


4.6                                 Nothing
in this clause 4 gives rise to an agreement to indemnify the Director in
respect of any liability arising out of conduct involving a lack of good faith
on the part of the Director or any other Act in respect of which
indemnification is proscribed by law.


 


5.                                      PROCEEDINGS


 


5.1                                 The
company may, by written notice to the Director, 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 5.6, retain lawyers to act on behalf of both the Director and the
company in relation to the Claim,


 


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


 


5.2                                 In
undertaking any of the things permitted under clause 5.1, the company must,
subject to any contrary direction from or requirement of its insurers, have
regard to the principle that the reputation of the Director should not
unnecessarily be injured.


 


5.3                                 The
Director must:


 


(i)                                     give
notice to the company promptly upon becoming aware of any Claim against the
Director that may give rise to a right to be indemnified under this deed;


 


(ii)                                  take
such action as the company 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 the company;


 


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(iv)                              upon
request by the company, render all reasonable assistance and co-operation to the
company in the conduct of any Claim including, without limitation, providing the
company 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 Director acting reasonably and
in good faith, lawful, true and not misleading; and


 


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


 


5.4                                The
Director is entitled to be reimbursed by the company for actual costs and
expenses reasonably incurred by the Director in taking action pursuant to
clause 5.3(ii) or providing assistance pursuant to clause 5.3 (iv) and (v).


 


5.5                                 Before
compromising or settling any Claim, the company must give written notice to the
Director 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 Director objects to the proposed terms and states that the Director
wishes to contest or continue the Claim, the company shall immediately
relinquish to the Director conduct of the Claim and the company’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 the company to the Director, on those proposed terms, inclusive of
costs and expenses actually incurred up to that time.


 


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


 


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


 


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


 


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


 


5.7                                 If
the Director fails to perform an obligation referred to in clause 5.3 to the
material prejudice of the company in relation to that Claim, the company is
relieved from each and every obligation under this deed in respect of that
Claim.


 


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


 


6.1                                 Subject
to clause 5.7, the company will at the request of the Director pay, or
reimburse, the Director for all costs and expenses incurred by the Director 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 Director is not entitled to be indemnified
under clause 4.1 in respect of those costs and expenses, the Director must,
within 30 days of being so notified by the company, pay to the company all
amounts previously paid or reimbursed by the company 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.


 


6.2                                 Once
it has been determined under clause 6.1 that the Director is not entitled to be
indemnified under clause 4.1, the company shall have no further obligation to
pay, or reimburse, the Director for any further costs, expenses or other
liabilities in respect of that Claim, whether or not incurred prior to that
determination being made.


 


7.                                      SEVERANCE


 


7.1                                 The
parties agree that a construction of this deed that results in all provisions
being enforceable is to be preferred to a construction that does not so result.


 


7.2                                 If,
despite the application of clause 7.1, a provision of this deed is invalid,
illegal or unenforceable:


 


(a)                                  if
the provision would not be invalid, illegal or unenforceable if a word or words
were omitted, that word or those words are severed; and


 


(b)                                 in
any other case, the whole provision is severed,


 


and
the remainder of this deed continues in force.


 


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


 


8.                                     NOTICES


 


8.1                                A
party giving notice or other communication under this deed must do so in
writing:


 


(a)                                   directed
to the recipient’s address specified in this clause, as varied from time to
time by notice from one party to the other; and


 


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


 


The
parties’ initial addresses and facsimile numbers are:


 


	
  The
  company:

  	
  Richard Willcock

  
	
   

  	
  Group Secretary &
  General Counsel

  
	
   

  	
  Westpac Banking
  Corporation

  
	
   

  	
  Level 21, 275 Kent
  Street

  
	
   

  	
  Sydney NSW 2000

  
	
   

  	
  Ph:

  	
  (02) 8253 3546

  
	
   

  	
  Fax:

  	
  (02) 8253 3550

  



 


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  Director:

  	
  Elizabeth Bryan

  
	
   

  	
   

  
	
   

  	
  Mosman NSW 2088

  



 


8.2                                 A
notice given in accordance with clause 8.1 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.


 


9.                                     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


 


	
  SIGNED SEALED AND DELIVERED

  	
   

  
	
  for and on behalf of
  Elizabeth Bryan

  	
   

  
	
   

  	
   

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ GRAEME SHAW

  	
   

  	
  /s/ ELIZABETH BRYAN

  	
   

  
	
  Witness (signature)

  	
   

  	
  Director Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Graeme Shaw

  	
   

  	
  Elizabeth Bryan

  	
   

  
	
  Name of witness (print)

  	
   

  	
  Director Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE COMMON SEAL of

  	
   

  	
   

  	
   

  
	
  WESTPAC BANKING CORPORATION

  	
   

  	
   

  	
   

  
	
  was hereunto affixed by
  the authority of

  	
   

  	
   

  	
   

  
	
  the Board of Directors
  and in the presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ DAVID MORGAN

  	
   

  	
  /s/ RICHARD WILLCOCK

  	
   

  
	
  Signature of Director

  	
   

  	
  Signature of
  Director/Secretary

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  David Morgan

  	
   

  	
  Richard Willcock

  	
   

  
	
  Name

  	
   

  	
  Name

  	
   

  



 


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