EXHIBIT 4.35


 


Deed of access, indemnity and insurance – Mr Ahmed Fahour


 





















 


Deed of Access,
Indemnity and Insurance


 


Date:                                                                                                                                                        20
October 2004


 


Parties:                                                                                                                                         NATIONAL
AUSTRALIA BANK LIMITED (ACN 004 044 937) having its registered office at
Level 24, 500 Bourke Street, Melbourne, Victoria, Australia (“Company”)


 


Ahmed
Fahour                                                                                            of
5/54 Mont Albert Road, Canterbury                                                        in
the State of Victoria                               (“Director”)


 


Recitals:


 


A.            The
Director has been appointed as a director of the Company.


 


B.             It is a
condition of the Director agreeing to continue to act as a director of the
Company that the Company allow the Director access to Board Paper Records,
indemnify the Director and maintain insurance on the terms of this Deed.


 


Operative provisions:


 


1              Definitions


 


1.1           In this Deed:


 


Board Papers means:


 


(a)            all communications in
writing or Documents provided from or on behalf of the Company or its related
body corporates to the Director during the Director’s Term including, without
limitation, board papers, submissions, minutes, letters, memoranda, board
committee or sub-committee papers whether for the purposes of board meetings,
meetings of committees or otherwise; and


 


(b)            all other Documents made
available to the Director or referred to in any of the abovementioned
Documents,


 


whether or not legal professional privilege
applies to such documents.


 


Board Paper Premises has the meaning given to that term in clause 2.1.


 


Board Paper Records means the Board Papers stored in paper form or such other form as
will permit ready access to, and reproduction of, such Board Papers by the
Director.


 


Claim means:


 


(a)            any writ, summons, cross-claim, counterclaim, application or other
originating legal or arbitral process against the


 





















 


Director as a director of the Company or a
related body corporate of the Company;


 


(b)            any hearing, complaint,
enquiry, investigation or proceeding however commenced or originating against
the Director as a director of the Company or a related body corporate of the
Company; or


 


(c)            any written or oral demand
or threat that might result in the Director reasonably believing that any such
writ, summons, cross-claim, counterclaim, application, other originating legal
or arbitral process, hearing, complaint, enquiry, investigation or proceeding
referred to in (a) or (b) above may be initiated.


 


Director’s Term means the period commencing on the earlier of the first day the
Director consents to act as a director of the Company and the first day the
Director begins to act as a Director of the Company and ends on the later of
the day on which the Director retires or resigns as a director of the Company
and the day on which the Director ceases to act as a director of the Company.


 


Document means any information in any form (whether visible or not) of
storage from which the information can be reproduced and any form in which
information is embodied or encoded and includes:


 


(a)            anything on which there is
writing;


 


(b)           a map, plan, drawing or
photograph; or


 


(c)            any material used in a
presentation to Directors.


 


Insurance Policy means an insurance policy or policies insuring against the
following liabilities incurred by the Director in the Director’s capacity as an
officer of the Company or a related body corporate of the Company:


 


(a)            a liability for costs and
expenses incurred by the Director in defending proceedings, whether civil or
criminal and whatever their outcome; and


 


(b)            a liability incurred by
the person as a director unless liability arises out of conduct involving:


 


(i)             a wilful breach of duty
in relation to the Company or related body corporate; or


 


(ii)            without
limiting (i), a contravention of section 182 or 183 of the Corporations
Law,


 


or, with the prior written consent of the
Director, such other liability as may be permitted under the Company’s
Constitution from time to time.


 


Period
means the period commencing on the earlier of the first day the Director
consents to act as a director of the Company and the


 





















 


first day the Director begins to act as a
Director of the Company and ends on the day seven years from the later of the
day on which the Director retires or resigns as a director of the Company and
the day on which the Director ceases to act as a director of the Company.


 


related body corporate has the meaning given to it by section 50 of the Corporations
Law.


 


1.2           In this Deed unless the
contrary intention appears:


 


(a)            a reference to this Deed
or another instrument includes any variation or replacement of either of them;


 


(b)            a reference to a statute,
ordinance, code or other law includes regulations and other instruments under
it and consolidations, amendments, re-enactments or replacements of any of
them;


 


(c)            the singular includes the
plural and vice versa;


 


(d)            the word person includes a
natural person, firm, a body corporate, an unincorporated association, trust,
joint venture, partnership or an authority;


 


(e)            a reference to a person
includes a reference to the person’s personal representatives, executors,
administrators and successors; and


 


(f)             a reference to a
liability incurred “as a director of the Company” includes a reference to a
liability incurred by a person who has ceased to be a director of the Company
to the extent the liability relates to an act or omission occurring while that
person was a director.


 


1.3           This Deed enures for the
benefit of the Director’s personal representatives, executors and
administrators.


 


2              Access to Board Papers


 


The Company’s Undertaking


2.1           The Company undertakes to
ensure that throughout the Period it will:


 


(a)            hold a complete set of
Board Paper Records in an orderly fashion on behalf of the Director securely
and safely at a suitable secure premises (“Board Paper Premises”);


 


(b)            promptly notify the
Director in writing upon request of the address of the Board Paper Premises;
and


 


(c)            allow the Director and the
Director’s representatives full and free access (at no cost to the Director) to
the Board Paper Records and the Board Paper Premises at all reasonable times
during the Period, including providing the information, assistance and
facilities (including photocopying facilities) that the Director reasonably
requires in order to examine


 





















 


and,
subject to clause 2.2, make and take away copies of the Board Paper Records or
any part of them.


 


Director’s Undertaking


2.2           The Director undertakes:


 


(a)            to observe the same duties
of confidentiality to the Company and any related body corporate of 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 the
Director’s representatives on a confidential basis and for proper purposes and
provided that such representatives agree in writing with the Company to observe
the undertakings under this clause 2.2, as if they were a Director; and


 


(ii)            those
parts of the Board Papers where disclosure is required as part of court
proceedings brought against the Director by any person (including the Company
or a related body corporate of the Company) to third parties connected with
such proceedings or as otherwise required by law; and


 


(b)            in respect of any Board
Papers to which legal professional privilege applies in favour of the Company
or a related body corporate of the Company ensure that unless with the consent
of the Company (such consent not to be unreasonably withheld), he or she does
not waive the privilege or knowingly do any act or thing which act or thing
could cause that privilege to be waived, extinguished or lost.


 


Extension of provisions if legal proceedings commence


2.3           If a Claim is made against
a Director during the Period, all of the rights and obligations created by this
clause 2 will continue to operate until final resolution of that claim
including any appeal proceedings.


 


3              Indemnity for liability as
Director


 


Indemnity


3.1           The Company indemnifies the
Director, to the relevant extent, against a liability (including a liability
for costs or expenses) incurred by the Director as a director to another
person, other than:


 


(a)            liability to the Company
or a related body corporate of the Company; or


 


(b)            liability arising out of
conduct involving a lack of good faith,


 


or, with the prior written consent of the Director,
such other liability as may be permitted under the Company’s Constitution from
time to time.


 





















 


3.2           The indemnity in clause 3.1
does not apply to a liability incurred before 15 April 1994.


 


3.3           It is not necessary for the
Director to incur expense or make payment before enforcing the Director’s right
of indemnity under this clause.


 


Costs and expenses


3.4           Without limiting clause
3.1, to the relevant extent, the Company indemnifies the Director against a
liability for costs or expenses incurred:


 


(a)            in defending any
proceedings relating to the Director’s position with the Company or a related
body corporate of the Company, whether civil or criminal, in which judgment is
given in the Director’s favour or in which the Director is acquitted; or


 


(b)            in connection with any
application, in relation to such proceedings, in which relief is granted to
that Director under the Corporations Law
by the court.


 


Payment


3.5           Subject to clause 3.9, if
the Director becomes liable to pay any amount in respect of which the Director
is indemnified, the Company must indemnify the Director by paying the Director
within 30 days from the date the Director provides satisfactory evidence to the
Company that the Director is liable to pay that amount.


 


Nature of indemnities


3.6           Subject to the other
provisions of this Deed, the indemnities provided by clauses 3.1 and 3.4:


 


(a)            have effect in respect of
acts or omissions prior to the date of this Deed and in respect of liabilities
which have been incurred prior to the date of this Deed;


 


(b)            are irrevocable;


 


(c)            continue irrespective of
one or more previous applications of the clause; and


 


(d)            continue in full force and
effect without limit in point of time in relation to any act, omission, matter
or event occurring or arising while the Director is a director of the Company,
or a related body corporate of the Company, and notwithstanding that the
Director has ceased to be a director of the Company, or a related body
corporate of the Company, before any claim is made under this Deed.


 


Undertakings


3.7           The Director undertakes to
advise the Company in writing immediately the Director becomes aware of any
circumstances which could be reasonably expected to give rise to a claim under
this Deed.


 





















 


3.8           The Director further
undertakes:


 


(a)            at the direction of the
Company, to take such action as the Company may reasonably require to avoid,
dispute, defend or appeal any proceeding connected with a possible claim under
this Deed;


 


(b)            to assist the Company, any
related body corporate of the Company and their insurers to the best of the
Director’s abilities in any action the Company, any related body corporate of
the Company or their insurers, takes to avoid, dispute, defend or appeal any
proceeding connected with a possible claim under this Deed;


 


(c)            not to admit any liability
for or settle any proceeding which may give rise to a claim under this Deed
without the prior consent of the Company, which consent must not be
unreasonably withheld;


 


(d)            upon request by the
Company, to render all reasonable assistance and co-operation to the Company,
and any related body corporate of the Company or their insurers in the conduct
of any Claim, including, without limitation, providing the Company, its related
body corporates or its insurers with any Documents, authorities and directions
that the Company, its related body corporates or its insurers may reasonably
require for the prosecution or advancement of any cross-claim or counterclaim;


 


(e)            upon request by the
Company or its insurers, to do everything necessary or desirable which the
Company reasonably requests to enable the Company or its insurers (so far as it
is possible) to be subrogated to and enjoy the benefits of the Director’s
rights in relation to any cross-claims or any claims against any third party
(including an insurer) and render such assistance as may be reasonably
requested by the Company or its insurers for that purpose;


 


(f)             to notify any Claim to an
insurer or any other person who may be liable to indemnify the Director in
respect of that Claim and promptly take all reasonable steps to enforce all the
Director’s rights against the insurer or other person;


 


(g)            to refund to the Company
all amounts incurred by the Company under this Deed in respect of a claim under
this Deed if it is established that the Director is not entitled to be
indemnified under clause 3.1 in respect of that claim, such refund to be made
within 30 days of the Company providing to the Director details of such
amounts; and


 


(h)            if the Company has
pursuant to this Deed paid an amount for costs and expenses incurred by a
Director and judgment is not subsequently given in favour of the Director, the
Director is not subsequently acquitted or the Court does not grant relief to
the Director under the Corporations Law, pay the Company an amount equal to the
amount so paid by the Company, the payment to be made within 30 days of the
Company providing to the 


 





















 


Director details of the amount and payment of it by
the Company.


 


Without
limiting paragraph (g), paragraph (h) does not apply to a payment made by the
Company pursuant to clause 3.1.


 


3.9           The indemnity under this
Deed given to a Director is in addition to any other indemnity given by the
Company to the Director whether by agreement, under the Constitution, by
statute or otherwise, but nothing in this Deed requires the Company to pay more
than once in respect of any claim.


 


3.10         If a
Director receives payment in respect of any liability, cost or expense from any
insurer of the Director or from a person (other than the Company) legally
obliged to make that payment, the Company is not required to indemnify the
Director under this Deed in respect of that liability, cost or expense to the
extent of that payment.


 


3.11         The
Company is entitled to do one or more of the following:


 


(a)            assume the conduct,
negotiation or defence of a Claim;


 


(b)            institute a cross-claim or
a counterclaim; and


 


(c)            retain lawyers in relation
to a Claim to act on behalf of both the Director and the Company,


 


and when it does so the conduct of the
claim will be under the management and control of the Company or its insurers.


 


3.12         In this
clause, “to the relevant extent” means to the extent and for the amount that
the Director:


 


(a)  is not
otherwise entitled to be indemnified; 
and


 


(b)  has not
actually been so indemnified.


 


4              Maintenance of insurance
coverage


 


4.1           Without limiting the
indemnity in clause 3, the Company undertakes to ensure that throughout the
Period it:


 


(a)            takes out and maintains an
Insurance Policy in an amount and on terms and conditions (including but not
limited to insuring clauses, exclusions and amounts) as are appropriate for a
reasonably prudent company in the Company’s circumstances;


 


(b)            pays the premium for the
Insurance Policy within the credit terms of the demand for payment and, on
request from the Director, produces receipts for the payment;


 


(c)            does not do or permit to
be done anything which prejudices, and immediately rectifies anything which
might prejudice, the Insurance Policy;


 





















 


(d)            on
request from the Director, provides the Director with a
copy of the Insurance Policy and any certificates of insurance connected with
it;


 


(e)            notifies the Director
immediately if, for any reason, the Insurance Policy is cancelled (such
notification shall not be taken to limit any other obligations of the Company
under this Deed).


 


4.2           Upon request by the
Company, a Director must take such steps as the Company may reasonably require
to enable it to take out and maintain the Insurance Policy.


 


5              Severability


 


5.1           If any provision of this
Deed is invalid or unenforceable, the invalidity or unenforceability of that
provision does not affect the validity, enforceability, operation, construction
or interpretation of any other provision of this Deed, with the intent that the
invalid or unenforceable provision shall be treated for all purposes as
severable from this Deed.


 


5.2           Clause 5.1 shall not be
construed as permitting anything which would be contrary to public policy.


 


6              Governing law and
jurisdiction


 


6.1           This Deed is governed by
the law in force in Victoria.


 


6.2           Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of
Victoria and courts of appeal from them.


 


EXECUTED as a deed


 


 


	
  SIGNED,
  SEALED AND DELIVERED

  	
   

  	
   

  
	
  by Ahmed Fahour

  	
   

  	
   

  
	
  in the presence
  of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Rosemary Mould

  	
   

  	
  [Original signed]

  	
   

  
	
  Signature of
  witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Original
  signed]

  	
   

  	
   

  
	
  Name of witness
  (block letters)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  C/- 35/500
  Bourke Street MELBOURNE

  	
   

  	
   

  
	
  Address of
  witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Assistant

  	
   

  	
   

  
	
  Occupation of
  witness

  	
   

  	
   

  



 





















 


	
  THE
  COMMON SEAL of NATIONAL

  AUSTRALIA BANK LIMITED is affixed

  in accordance with its constitution in the

  presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Original signed]

  	
   

  
	
  [Original
  signed]

  	
   

  	
  Signature of authorised person

  	
   

  
	
  Signature of
  authorised person

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CHAIRMAN

  	
   

  	
  Company
  Secretary

  	
   

  
	
  Office held

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  
	
  GRAHAM KRAEHE

  	
   

  	
  GARRY F NOLAN

  	
   

  
	
  Name of
  authorised person

  (block letters)

  	
   

  	
  Name of
  authorised person (block letters)