EXHIBIT
4.17


 


Deed of settlement and release
– Mr Peter A McKinnon


 





















 


Dated: 26 March 2004


 


 


Terms of
Settlement


And


Release
Agreement


 


 


Peter
McKinnon


(“Mr
McKinnon”)


 


 


and


 


 


National
Australia Bank Limited


ABN
12004044937


(“National”)


 





















 


TERMS of
SETTLEMENT and RELEASE AGREEMENT


 


Date:                            26
March 2004


 


Parties:                       NATIONAL
AUSTRALIA BANK LIMITED (ABN 12004044937) of 500 Bourke Street Melbourne
3000 (“the National”); and


 


Peter
McKinnon of 94 Drummond Street, Carlton, Victoria (“Mr
McKinnon”)


 


Recitals:


 


A.        Mr
McKinnon was appointed as Executive General Manager Human Resources on 23 August 1999.


 


B.         In
April 2004, Mr McKinnon is to transfer to the position of Executive
General Manager, Executive Support (the “new position”) prior to leaving the
organisation on 31 December 2004 (“the termination date”).


 


C.         Mr
McKinnon will remain in the new position through until the termination date.


 


D.         The
termination date may be varied by mutual agreement between the parties.


 


E.         The
contract of employment between the National and Mr McKinnon will end on the
termination date.


 


F.         The
National denies any liability to Mr McKinnon.


 


G.         In
order to avoid the time and costs of any possible proceedings, the parties have
agreed to settle all matters between them on the terms contained in this
agreement (“this Agreement”).


 


Governing Law:


 


This Agreement is governed by the law of the
State of Victoria


 


Operative Provisions:


 


1              Obligations
to be fulfilled by the National


 


1.1        Upon
exchange of this Agreement duly executed by the parties, in accordance with the
provisions of his Executive Service Agreement the National will, within 14 days
after the termination date, authorise payment to Mr McKinnon of a gross lump
sum retrenchment payment of $902,235.


 


1.2        This
amount shall be subject to applicable deductions of taxation as required by law


 


1.3        In
addition, Mr McKinnon will receive:


 


1.3.1        Accrued
statutory entitlements as at the date of termination;


 


1.3.2        Outplacement
services at the executive level;


 





















 


1.3.3        Payment
of his deferred incentive a total of $112,000 (gross)


 


1.3.4        Approval
to retain all Executive Options and Performance Rights granted to him under the
National Executive Options Programs in accordance with the terms and conditions
of their original offer (250,000 Options issues in 2001; 200,000 Options issues
in 2002; 100,000 Options and 25,000 Performance Rights issued in 2003; and
100,000 Options and 25,000 Performance Rights issued in 2004);


 


1.3.5        Approval
to have any existing concessional lending with the National continue for a 12
month period following termination of his employment; and


 


1.3.6        A
Certificate of Service from the National.


 


1.4        Should
the National make any payments under the EVA Incentive Scheme for 2003/2004
payment will be made to Mr McKinnon in December 2004 and Mr McKinnon will
qualify for a payment on the same basis as all other Executive General
Managers. Should the termination date occur prior to 30 September 2004
there will be no pro-rata of the eligibility period. For the avoidance of doubt
payment will be based on the period 1 October 2003 to 30 September 2004.


 


2              No
admission of liability


 


2.1        The
parties agree that this Agreement must not be interpreted as an admission by
the National of liability to Mr McKinnon for any matter, other than as expressly
provided in this Agreement.


 


3              Obligations
to be fulfilled by Mr McKinnon


 


3.1        Upon
receiving payment and benefits as provided in clause 1 of this Agreement, Mr
McKinnon undertakes not to lodge any applications or make any claim against the
National or any of its officers or employees pursuant to any law of the
Commonwealth or a State relating to unfair termination or other related claims
as referred to in clause 3 of this Agreement.


 


4              Release


 


4.1        In
consideration of the National paying such amount as referred to in paragraph 1
above, Mr McKinnon hereby RELEASES AND FOREVER
DISCHARGES the National, which expressions shall include all past
and present employees, senior managers and directors from all actions, suits,
proceedings, causes of action, claims and demands whatsoever and howsoever
arising which Mr McKinnon now has or may have had save for any rights arising
from personal injury or, but for this Agreement, he could or might have against
the National arising out of the employment of Mr McKinnon by the National or
the termination of that employment. Not withstanding the generality of the
foregoing, upon execution of this Agreement Mr McKinnon shall take all steps
necessary to withdraw and forever stay any proceedings


 





















 


commenced or pending against the National in
any Court, Commission or Tribunal.


 


4.2        The National hereby RELEASES AND
FOREVER DISCHARGES Mr McKinnon from all actions, suits, proceedings,
causes of action, claims and demands whatsoever which the National has or which
but for this Agreement, the National could or might have had against Mr
McKinnon arising out of the employment of Mr McKinnon by the National or the
termination of that employment save for the right to issue proceedings should
it be discovered at a later date that Mr McKinnon had deliberately defrauded
the National.


 


5              Confidentiality


 


5.1        Subject
to this paragraph, a party to this Agreement must not disclose to any person
whatsoever the terms of this Agreement including, without limiting the
generality of this obligation, the amounts payable hereunder by the National or
the discussions between the parties leading to the making of this Agreement.


 


5.2        A
party may disclose information within this clause as follows:


 


5.2.1        in
the case of Mr McKinnon to his  family;


 


5.2.2        to
the legal and financial advisers of that party;


 


5.2.3        with
the prior written consent of the other party;


 


5.2.4        as
required by law;


 


5.2.5        as
required by any regulatory body including a stock exchange;


 


5.2.6        for
the purpose of enforcing this Agreement in legal proceedings;


 


5.2.7        for
the purpose of effecting any rollover of the payment provided in clause 1.1 of
this Agreement to an approved superannuation fund.


 


5.3        Without
limiting any express or implied obligation of confidentiality upon him under
any statute (including the Corporations Law) or under his contract of
employment with the National, Mr McKinnon undertakes that he will not divulge
to any person or use any trade secrets or confidential information concerning
the business, financial arrangements or position of the National or any other
confidential information belonging to the National except with prior written
authority of the National.


 


5.4        So that there can be no
misunderstanding confidential information means: any trade secrets, process, formulae
or other confidential information relating to the business affairs, accounts,
works, marketing plans, sales plans, prospects, research, management,
financing, products, inventions, designs, processes and any data bases, data
surveys, customer lists, specifications, drawings, records, reports, software
or other documents, material, meetings, minutes of meetings,
disputes, and all matters relating to any litigation, threatened litigation,
investigations, inquiries, judicial or quasi judicial proceedings or other information whether
in writing or otherwise concerning the National or any clients or suppliers to
which Mr McKinnon gained access, whether before, during or after his
employment. Where there is any doubt about whether information is confidential
it should be deemed to be confidential information.


 





















 


5.5        Neither party shall disparage the other nor speak of the
other in the terms which are likely to be injurious to the commercial or
personal standing of the other.


 


6              No
Public Comment


 


6.1        Mr McKinnon and the National must not make any statement, or
induce anyone else to make any statement (whether written or oral) about Mr
McKinnon’ employment, the cessation of that employment or any related matter
which:


 


6.1.2        in
respect of Mr McKinnon is likely to harm his reputation; or


 


6.1.3        in
respect of the National, is likely to harm the reputation of the National, its
directors, officers or employees


 


unless and to the extent that the statement
is required to be made by law or by a stock exchange.


 


7              No
Representation


 


7.1        After
the termination date Mr McKinnon agrees not to represent himself as an officer
or employee of the National or as being in any way connected with or interested
in the business of the National.


 


8              Competency


 


8.1        Mr
McKinnon acknowledges that:


 


8.1.1        he
was given the opportunity to seek independent legal and other advice of their
choice before executing this Agreement;


 


8.1.2        in
light of any advice provide, he considered his position;


 


8.1.3        if
advised by his legal representative, he has been advised as to the terms of
this Agreement


 


8.1.4        the
effect of this Agreement is fully understood; and


 


8.1.5        the
terms of this Agreement are fair and reasonable.


 


9              Entire
Agreement


 


9.1        Mr
McKinnon acknowledges and agrees that this Agreement:


 


9.1.1        Constitutes
the entire agreement of the parties concerning the resolution of all matters
relating to the employment and termination of Mr McKinnon’ employment


 





















 


9.1.2        Supersedes
all prior agreements, understandings and negotiations in respect of same.


 


10           No
Representations and Warranties


 


10.1      Mr McKinnon acknowledges that in entering this Agreement he
has not relied on any representations or warranties except as expressly
provided by the written terms of this Agreement.


 


11           Transition
Arrangements


 


11.1      To
ensure a smooth transition, Mr McKinnon agrees to co-operate fully with any
requests made by the National for the provision of information and other
assistance concerning the business, affairs or customers of the National.


 


12           National
Property


 


12.1      Mr
McKinnon agrees to:


 


12.1.1      immediately
deliver to the National all property belonging to the National which is in his
possession, custody or control including without limitation all books,
documents (including emails), papers, materials and any other item; and


 


12.1.2      not
make or retain a copy of any document which is the property of the National,
including any computer-based copies.


 


13           Severance


 


13.1      If
the whole or any part of this Agreement is void, unenforceable or illegal in a
jurisdiction it is severed for that jurisdiction. The remainder of this
Agreement has full force and effect and the validity or enforceability of that
provision in any other jurisdiction is not effected. This clause has no effect
if the severance alters the basic nature of this Agreement or is contrary to
public policy.


 


14           Remedies


 


14.1      Mr
McKinnon acknowledges that the remedy at law for breach of any of his    obligations under this Agreement would be
inadequate and that temporary and permanent relief by way of injunction against
Mr McKinnon may be granted in any proceedings which the National or any person
acting on its behalf may bring to enforce any of the proceedings of this
Agreement.


 





















 


15           Variation
and Waiver


 


15.1      A
provision of this Agreement or a right created under it may not be waived or
varied except in writing, signed by each of the parties or their authorised
representatives


 


16           Survival
of Obligations


 


16.1      The
following clauses will survive termination (for whatever reason) of this
Agreement:


 


16.1.1      Clause
4 (Release)


 


16.1.2      Clause
5 (Confidentiality)


 


16.1.3      Clause
6 (No Public Comment)


 


16.1.4      Clause
10 (No Representation and Warranties)


 


17           Inconsistent
Agreements


 


17.1      If
a provision of this Agreement is inconsistent with a provision of any other
agreement between the parties to this Agreement the provisions of this
Agreement prevail.


 


 


EXECUTED as
an agreement


 





















 


Execution
Page


 


	
  Signed for and on behalf of

  	
   

  	
  }

  
	
  National Australia Bank Ltd

  	
   

  	
  }

  
	
  this 26 March 2004

  	
   

  	
  }

  
	
  in the presence of:

  	
   

  	
  }

  
	
   

  	
   

  	
   

  
	
  [Original signed]

  	
   

  	
   

  	
  [Original signed]

  	
   

  
	
  Signature of Witness

  	
   

  	
  Signature of authorised representative

  
	
   

  	
   

  	
   

  
	
  JIM YOUNG

  	
   

  	
   

  	
   

  	
   

  
	
  Name of witness

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  	 

	
  22 McLAREN COURT ROSEBUD 3131

  	
   

  	
  Managing Director & Chief Executive Officer

  	 

	
  Address of witness

  	
   

  	
   

  	 

	
   

  	
   

  	
  John Stewart

  	 

	
   

  	
   

  	
  (By executing this Agreement the signatory
  warrants that he is duly authorised to execute this Agreement on behalf of
  National Australia Bank Limited)

  	 

	
  BANK OFFICER

  	
   

  	
   

  	
   

  	 

	
  Occupation of witness

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
  Signed by the said

  	
   

  	
  }

  	 

	
  Peter McKinnon

  	
   

  	
  }

  	 

	
  this 26 March 2004

  	
   

  	
  }

  	 

	
  in the presence of:

  	
   

  	
  }

  	 

	
   

  	
   

  	
   

  	 

	
  [Original signed]

  	
   

  	
   

  	
  [Original signed]

  	
   

  	 

	
  Signature of Witness

  	
   

  	
  Signature of Peter McKinnon

  	 

	
   

  	
   

  	
   

  	 

	
  JIM YOUNG

  	
   

  	
   

  	
   

  	 

	
  Name of witness

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
  22 McLAREN COURT ROSEBUD 3131

  	
   

  	
   

  	 

	
  Address of witness

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
  BANK OFFICER

  	
   

  	
   

  	
   

  	 

	
  Occupation of witness