EXHIBIT
4.19


 


Deed of settlement and release
and Deed of indemnity (November 2004) – Mr Richard E McKinnon


 





















 


National Australia Bank
Limited


ABN 12 004 044 937


 


and


 


Richard Ernest McKinnon


 


 


Terms of
Settlement and Release Agreement


 





















 


TABLE OF CONTENTS


 


	
  1

  	
  Definitions and
  interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
  1.2

  	
  Words and expressions

  	
   

  
	
   

  	
  1.3

  	
  Other rules of
  interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
  2

  	
  Role

  	
   

  
	
   

  	
   

  	
   

  
	
  3

  	
  Obligations
  to be fulfilled by the National

  	
   

  
	
   

  	
   

  	
   

  
	
  4

  	
  No admission of liability

  	
   

  
	
   

  	
   

  	
   

  
	
  5

  	
  Obligations
  to be fulfilled by Mr McKinnon

  	
   

  
	
   

  	
   

  	
   

  
	
  6

  	
  Release

  	
   

  
	
   

  	
   

  	
   

  
	
  7

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  8

  	
  Public Comment

  	
   

  
	
   

  	
   

  	
   

  
	
  9

  	
  No Representation

  	
   

  
	
   

  	
   

  	
   

  
	
  10

  	
  Competency

  	
   

  
	
   

  	
   

  	
   

  
	
  11

  	
  Entire Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  12

  	
  No Representations
  and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  13

  	
  Transition
  Arrangements and future assistance

  	
   

  
	
   

  	
   

  	
   

  
	
  14

  	
  National Property

  	
   

  
	
   

  	
   

  	
   

  
	
  15

  	
  Severance

  	
   

  
	
   

  	
   

  	
   

  
	
  16

  	
  Variation and Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  17

  	
  Inconsistent Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  18

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  19

  	
  Governing Law

  	
   

  



 





















 


THIS AGREEMENT is made on 11 November 2004


 


PARTIES


 


NATIONAL
AUSTRALIA BANK LIMITED


ABN 12 004
044 937


of 24th
Floor, 500 Bourke Street, Melbourne, Victoria 3000


(“National”)


 


and


 


RICHARD
ERNEST MCKINNON


of 11 Merna
Drive, Templestowe, Victoria 3000


(“Mr McKinnon”)


 


BACKGROUND


 


	
  A

  	
   

  	
  Mr McKinnon commenced employment with the National on 3 February 1986.
  Mr McKinnon was appointed to the position of CFO on 1 June 2000.

  
	
   

  	
   

  	
   

  
	
  B

  	
   

  	
  The National and Mr McKinnon entered into a Terms of
  Settlement and Release Agreement on 2 April 2004 which provided, inter
  alia, that the date for termination of Mr McKinnon’s employment may be
  varied by mutual agreement.

  
	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  Mr McKinnon effectively ceased his role as CFO on 31 August 2004
  upon the commencement of Michael Ullmer (“Mr Ullmer”) as CFO. Mr Ullmer and
  John Stewart, Managing Director and Chief Executive Officer of the National (“Mr
  Stewart”) have requested that Mr McKinnon remain in employment with the
  National to assist Mr Ullmer, Mr Stewart and the National on matters relating
  to the preparation and filing of the Financial Accounts and to assist in a
  smooth transition for the new CFO.

  
	
   

  	
   

  	
   

  
	
  D

  	
   

  	
  Mr McKinnon has performed his duties as CFO for the period
  covered by the Settlement Agreement to a reasonable standard and has worked
  effectively with Mr Ullmer to provide a smooth transition for the new CFO.

  
	
   

  	
   

  	
   

  
	
  E

  	
   

  	
  The National and Mr McKinnon have agreed to vary the date
  of termination of Mr McKinnon’s employment with the National and some of the
  terms of the Settlement Agreement.

  
	
   

  	
   

  	
   

  
	
  F

  	
   

  	
  This Agreement supersedes any other agreements,
  understandings, arrangements or negotiations between the National and Mr
  McKinnon, including the Settlement Agreement, relating to Mr McKinnon’s
  employment and the termination of his employment with the National.

  



 





















 


AGREED TERMS


 


1              Definitions
and interpretation


 


1.1          Definitions


 


In this
document, unless the context requires otherwise:


 


“Agreement”
means this document.


 


“Board”
means the board of directors of the National.


 


“Business Day”
means a day on which the National is open for general banking business in
Melbourne, excluding Saturdays, Sundays and public holidays.


 


“CFO”
means the Chief Financial Officer of the National from time to time.


 


“Claims”
means actions, suits, proceedings, causes of action, claims, liabilities,
damages, costs and demands.


 


“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 of its Subsidiaries or any clients
or suppliers to which Mr McKinnon gained access, whether before, during or
after his employment with the National. Where there is any doubt about whether
information is confidential it will be deemed to be confidential information
unless the parties otherwise agree.


 


“Corporations
Act” means the Corporations Act 2001 (Cth).


 


“Deed of
Indemnity” means a deed of indemnity in the form of Appendix 1


 


“ESOP”
means an executive or employee share or option plan in which executives or
employees of the National or any of its Subsidiaries may participate from time
to time.


 


“Financial
Accounts” means the financial accounts (or any part of them) of the
National for the financial year ended 30 September 2004.


 


“Options”
means options, and any other rights (including performance rights), to acquire
or subscribe for Shares or other securities issued by the National.


 


“Settlement
Agreement” mean the Terms of Settlement and Release Agreement
referred to in Recital B.


 


“Shares”
means shares in the capital of the National.


 





















 


“Substituted
Termination Date” means the earliest to occur of:


 


(a)           the Termination Date;


 


(b)           such other date as is determined in accordance
with clause 2.9; or


 


(c)           the date on which Mr McKinnon dies or becomes
permanently disabled.


 


“Subsidiaries”
has the meaning given to that term in the Corporations Act.


 


“Termination
Date” means the 30 September 2005.


 


“2004 Package”
means the compensation package and leave entitlements referred to in
clause 2.6.


 


“2005 Salary”
means the compensation referred to in clause 2.7(b).


 


1.2          Words and expressions


 


In this
document, unless the context requires otherwise:


 


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


 


(b)           words denoting any gender include all genders;


 


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


 


(d)           a reference to a party, clause or annexure is a
reference to a party, clause or annexure to or of this document;


 


(e)           a reference to this document includes any
annexures;


 


(f)            headings are for convenience and do not affect
interpretation;


 


(g)           the recitals to this document are adopted as and
form part of this document;


 


(h)           a reference to any document or agreement
includes a reference to that document or agreement as amended, novated,
supplemented, varied or replaced from time to time;


 


(i)            a reference to “$”, “A$” or “dollar” is a
reference to Australian currency;


 


(j)            a reference to a party includes its executors,
administrators, successors, substitutes (including persons taking by novation)
and permitted assigns;


 


(k)           a reference to writing includes any method of
representing words, figures or symbols in a permanent and visible form;


 


(l)            words and expressions denoting natural persons
include bodies corporate, partnerships, associations, firms, governments and
governmental authorities and agencies and vice versa;


 





















 


(m)          a reference to any legislation or to any
provision of any legislation includes:


 


(i)            any modification or re-enactment of the
legislation;


 


(ii)           any legislative provision substituted for, and
all legislation, statutory instruments and regulations issued under, the
legislation or provision; and


 


(iii)          where relevant, corresponding legislation in any
Australian State or Territory;


 


(n)           no rule of construction applies to the
disadvantage of a party because that party was responsible for the preparation
of this document or any part of it; and


 


(o)           the words “including”, “for example”, “such as”
or other similar expressions (in any form) are not words of limitation.


 


1.3          Other rules
of interpretation


 


In this
document, unless expressly provided otherwise:


 


(a)           (method of payment)
any payment of money by one party to another will be made in Australian
currency by bank cheque or by credit of cleared funds to a bank account
specified by the recipient;


 


(b)           (Business Days)
if:


 


(i)            the day on or by which any act, matter or thing
is to be done is a day other than a Business Day, the act, matter or thing will
be done on the next Business Day; and


 


(c)           any money falls due for payment on a date other
than a Business Day, that money will be paid on the next Business Day (without
interest or any other amount being payable in respect of the intervening
period).


 


2              Role


 


2.1           Mr McKinnon will continue to be employed by the
National until the Substituted Termination Date as Executive General Manager,
Special Duties and until that date will act in good faith as an employee of the
National.


 


2.2           The National will continue to provide
appropriate office accommodation and technology support to Mr McKinnon until
the Substituted Termination Date.


 


2.3           Subject to clause 2.4, from 1 September 2004
until 31 December 2004:


 


(a)           Mr McKinnon will provide assistance, in an
advisory capacity, as may reasonably be required by Mr Ullmer and Mr Stewart
from time to time in relation to the preparation and filing of the Financial
Accounts and the preparation of announcements, roadshow presentations, pre
close statements and other similar documents related to the public presentation
of the National’s results for the financial year ended 30 September 2004;
and


 





















 


(b)           Mr McKinnon will advise Mr Ullmer and Mr Stewart
in a timely manner of any issues, concerns or matters relating to the matters
referred to in clause 2.3(a) of which he is aware.


 


2.4           Notwithstanding any other clause of this
Agreement, the National and Mr McKinnon agree that Mr McKinnon’s duties from 1 September 2004
will not include:


 


(a)           responsibility for the preparation of the
Financial Accounts;


 


(b)           presentation of the Financial Accounts to the
Managing Director, the CFO and/or the Board;


 


(c)           signing off on any of the Financial Accounts or
any other financial documents in respect of the National or any of its
Subsidiaries, making any certifications in respect of the Financial Accounts or
any other financial documents in respect of the National or any of its
Subsidiaries including, on any forms required under or relating to the Sarbanes
Oxley Act 2002 (United States);


 


(d)           presenting results and analyses to analysts and
institutions; or


 


(e)           otherwise performing any of the duties generally
performed by a CFO or a chief financial officer of any of the National’s
Subsidiaries.


 


2.5           The National and Mr McKinnon acknowledge and
agree that:


 


(a)           Mr McKinnon will not owe the National any duties
other than as set out under this Agreement, whether as CFO or otherwise, after
31 August 2004;


 


(b)           Mr McKinnon is not required to perform, and has
not performed, any of the duties of CFO after 31 August 2004;


 


(c)           Mr McKinnon has not had any of the rights or
responsibilities of CFO since 31 August 2004; and


 


(d)           Mr McKinnon has not been a member of the
executive committee of the National since 31 August 2004.


 


2.6           The National will continue to provide to Mr
McKinnon until 31 December 2004:


 


(a)           the total employment compensation package; and


 


(b)           the sick leave, annual leave, long service leave
and any other type of leave entitlement,


 


he is eligible
to receive as at the date of this Agreement.


 


2.7           From 1 January 2005:


 


(a)           until the Substituted Termination Date, Mr
McKinnon will provide assistance as and when reasonably required by the
National;


 


(b)           subject to clause 2.7(c), the National will pay
to Mr McKinnon a  compensation package of
$750,000 which is inclusive of salary, employer funded superannuation, car
leasing, car parking, accrued annual leave and long service leave for the
period from 1 January 2005 until the Termination Date (regardless of the
when the Substituted Termination Date occurs);


 





















 


(c)           subject to clause 2.10, the National will pay
the cash component of the 2005 Salary of $750,000 in arrears, in equal
fortnightly instalments commencing on the first date in January on which
the National pays its staff.; and


 


(d)           Mr McKinnon will not be entitled to receive any
other benefits, short term or long term incentive payments, payments under the
EVA Incentive Plan, bonuses, shares, options or performance rights.


 


2.8           Mr McKinnon’s employment with the National will
terminate on the Substituted Termination Date.


 


2.9           Mr McKinnon may vary the Substituted Termination
Date by giving the National 3 months  written
notice of the new date on which his employment with the National will terminate,
which new date may not be after the Termination Date.


 


2.10         If the Substituted Termination Date is a date
other than the Termination Date, the National will pay to Mr McKinnon so much
of the 2005 Salary (less tax) as has not then been paid to him, within 7 days
after the Substituted Termination Date.


 


2.11         The amounts referred to in clauses 2.6(a),
2.7(b) and 2.10 will be subject to applicable deductions of taxation as
required by law.


 


2.12         Subject to clause 2.13, the National agrees that
in the period up to the Substituted Termination Date, Mr McKinnon may accept
and undertake non-executive directorships with other companies and consulting
activities for other companies if the undertaking of those directorships and
consulting activities would not prevent or be inconsistent with the fulfilment
by Mr McKinnon of his obligations under this Agreement.


 


2.13         Mr McKinnon must not, prior to 31 August 2005,
without the National’s written consent, accept employment, a non-executive
directorship or undertake consulting activities with Commonwealth Bank of
Australia Limited, Westpac Banking Corporation Limited, Australia and New
Zealand Banking Group Limited or St. George Bank Limited (or any of their
respective subsidiaries), being direct competitors of the National in the
financial services sector.


 


3              Obligations
to be fulfilled by the National


 


3.1           The National will pay to Mr McKinnon a gross
lump-sum severance payment of $2,311,608 within 7 days after the Substituted
Termination Date.


 


3.2           In addition to the payment referred to in
clause 3.1, the National will:


 


(a)           pay to Mr McKinnon or on his behalf:


 


(i)            an amount in lieu of accrued and untaken annual
leave and long service leave  (calculated
up until 31 December 2004 with reference to the 2004 Package) within 7
days after the Substituted Termination Date;


 


(ii)           the amount of $146,000 (being a deferred
incentive payment due to Mr McKinnon) within 7 days after the date of execution
of this Agreement;


 





















 


(iii)          an amount equal to the cost of outplacement
services at the executive level provided to Mr McKinnon by a provider of his
choice (up to a maximum of $20,000 inclusive of GST) on receipt of invoices
from that provider;


 


(iv)          an amount equal to the legal expenses incurred
by him (up to a maximum of $10,000  inclusive
of GST) in relation to this Agreement on receipt of invoices from Mr McKinnon’s
solicitor; and


 


(v)           the amount of $374,000 (being an incentive
payment under the EVA Incentive Scheme for 2003/2004) on or before the earlier
of:


 


(A)          the date on which the National first makes a
payment under that scheme to one or more of its Executive General Managers; and


 


(B)           31 January 2005;


 


(b)           continue to provide to Mr McKinnon the
concessional lending terms currently provided to him by the National up to the
Substituted Termination Date and for the 12-month period following the
Substituted Termination Date; and


 


(c)           provide a certificate of service to Mr McKinnon
within 14 days after the Substituted Termination Date.


 


3.3           The amounts referred to in clauses 3.1,
3.2(a)(i), 3.2(a)(ii) and 3.2(a)(v) will be subject to applicable deductions of
taxation as required by law.


 


3.4           Mr McKinnon is entitled to retain all Shares and
all Options owned or held by Mr McKinnon, including without limitation any
Shares or Options issued or granted to Mr McKinnon, or to which Mr McKinnon is
entitled, pursuant to any ESOP.


 


3.5           Notwithstanding anything to the contrary in the
terms of any ESOP or the terms of issue of any Options owned or held by Mr
McKinnon, those Options will not lapse or be forfeited or cease to be
exercisable on, or as a result of, Mr McKinnon ceasing to be an employee or
executive of the National or of any of its Subsidiaries at any time (including
as a result of the cessation of Mr McKinnon’s role as CFO on 31 August 2004
or the cessation of Mr McKinnon’s employment with the National on the
Substituted Termination Date).  Following
the date on which Mr McKinnon ceases to be an employee or executive of the
National or of any of its Subsidiaries, the terms of any of those Options will
continue to apply to Mr McKinnon as if he had not ceased to be an executive or
employee of the National or of any of its Subsidiaries.


 


3.6           The National will, if it has not already done so
by the date of execution of this Agreement, provide to Mr McKinnon a duly
executed Deed of Indemnity and, in any event, by executing this Agreement it
indemnifies Mr McKinnon against claims described in the Deed of Indemnity and
the other terms and conditions set out in the Deed of Indemnity will automatically
apply.


 


4              No admission
of liability


 


The parties
agree that this Agreement is not, and must not be interpreted or construed as,
an admission of liability by either party to the other for any matter, other
than as expressly provided in this Agreement.


 





















 


5              Obligations
to be fulfilled by Mr McKinnon


 


Subject to
clause 6.3, Mr McKinnon undertakes not to lodge any applications or make any
claim against the National or any of its officers, directors 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 6.1 of this
Agreement.


 


6              Release


 


6.1           Subject to clause 6.3 and other than in respect
of any Claim:


 


(a)           for which Mr McKinnon is indemnified under the
Deed of Indemnity or clause 3.5;


 


(b)           arising from personal injury; or


 


(c)           arising from this Agreement,


 


Mr McKinnon
releases and forever discharges the National, which expressions shall include
all past and present officers, employees and directors from all Claims whatsoever
and howsoever arising which Mr McKinnon now has or may have had 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
or in the course of or in the termination of any directorships with any related
body corporate of the National.


 


6.2           Without derogation from the provisions of clause
6.1, upon execution of this Agreement Mr McKinnon shall take all steps
necessary to withdraw and forever stay any proceedings commenced or pending by
him against the National in any Court, Commission or Tribunal in respect of any
Claim which is released and discharged pursuant to clause 6.1.


 


6.3           Nothing in clauses 5 or 6.1 shall limit or
affect Mr McKinnon’s right to prosecute a Claim against the National should it
be discovered at a later date that the National had deliberately defrauded Mr
McKinnon.


 


6.4           Subject to clause 6.6 and other than in respect
of any Claim arising from this Agreement, the National releases and forever
discharges Mr McKinnon from all actions, suits, proceedings, causes of action,
claims, liabilities, damages, costs 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.


 


6.5           Without derogation from the provisions of clause
6.4, upon execution of this Agreement, the National shall take all steps
necessary to withdraw and forever stay any proceedings commenced or pending by
the National against Mr McKinnon in any Court, Commission or Tribunal in
respect of any Claim which is released and discharged pursuant to this clause
6.4.


 


6.6           Nothing in clause 6.4 shall limit or affect the
National’s right to prosecute a Claim against Mr McKinnon should it be
discovered at a later date that Mr McKinnon had deliberately defrauded the
National.


 





















 


7              Confidentiality


 


7.1           Subject to this Agreement, 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.


 


7.2           A party may disclose the matters referred to in
clause 7.1 as follows:


 


(a)           in the case of Mr McKinnon to his family;


 


(b)           to the legal and financial advisers of that
party;


 


(c)           with the prior written consent of the other
party;


 


(d)           as required by law;


 


(e)           as required by any regulatory body including a
stock exchange;


 


(f)            for the purpose of enforcing its rights or the
other party’s obligations under this Agreement, or to defend any Claim by the
other party against it, in legal proceedings; or


 


(g)           for the purpose of effecting any rollover of the
payments provided in clauses 2 or 3 to an approved superannuation fund.


 


7.3           Without limiting any express or implied
obligation of confidentiality binding upon Mr McKinnon under any statute
(including the Corporations Act 2001) 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 of its Subsidiaries
or any other confidential information belonging to the National or any of its
Subsidiaries except with prior written authority of the National or where the
Confidential Information has come into the public domain through no fault of Mr
McKinnon or where that disclosure is required by law.


 


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


 


8              Public Comment


 


8.1           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’s employment, the cessation of that employment or any
related matter which:


 


(a)           in respect of Mr McKinnon is likely to harm his
reputation; or


 


(b)           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.


 





















 


8.2           The National and Mr McKinnon will agree on the
form of any public statement which may be made about any of the events
described in the Recitals to this Agreement, and will not make any public
statement about any matter described in the Recitals without the agreement of
the other party.


 


9              No Representation


 


Mr McKinnon
agrees not to represent himself, after the Substituted Termination Date, as an
officer or employee of the National or as being in any way connected with or
interested in the business of the National other than as the holder of Shares
or Options.


 


10           Competency


 


Mr McKinnon
acknowledges that:


 


(a)           he was given the opportunity to seek independent
legal and other advice of his choice before executing this Agreement;


 


(b)           in light of any advice provided, he considered
his position;


 


(c)           if advised by his legal representative, he has
been advised as to the terms of this Agreement;


 


(d)           the effect of this Agreement is fully
understood; and


 


(e)           the terms of this Agreement are fair and reasonable.


 


11           Entire Agreement


 


Each party
acknowledges and agrees that this Agreement:


 


(a)           constitutes the entire agreement of the parties
concerning the resolution of all matters relating to the employment and
termination of Mr McKinnon’s employment with the National; and


 


(b)           supersedes all prior agreements, understandings
and negotiations in respect of same, including the Settlement Agreement.


 


12           No
Representations and Warranties


 


Each party
acknowledges that in entering into this Agreement it has not relied on any
representations or warranties from or by the other party except as expressly
provided by the written terms of this Agreement.


 


13           Transition
Arrangements and future assistance


 


13.1         Subject to clause 13.2, Mr McKinnon agrees that
he will, if requested by the National or any of its Subsidiaries, both prior to
and subsequent to the Substituted Termination Date provide such assistance
(including by giving statements and evidence) as the National or


 





















 


the Subsidiary may reasonably require in respect
of any court proceedings or any investigation or enquiry by any relevant
regulator in relation to the National or the Subsidiary.


 


13.2         The National agrees to pay Mr McKinnon such
remuneration as may be agreed between the parties, and reimburse Mr McKinnon
for all reasonable expenses incurred by Mr McKinnon, in providing the
assistance referred to in clause 13.1 after the Substituted Termination
Date.  Mr McKinnon will not be obliged to
provide any assistance pursuant to clause 13.1 until his remuneration for doing
so is agreed.


 


14           National Property


 


Mr McKinnon
agrees:


 


(a)           to deliver to the National, on or before the
Substituted Termination Date, all property belonging to the National or any of
its Subsidiaries which is in his possession, custody or control including
without limitation all books, documents (including emails), papers, materials
and any other item; and


 


(b)           not to make or retain a copy of any document
which is the property of the National or any subsidiary of the National,
including any computer-based copies.


 


15           Severance


 


Part or all
of any provision of this Agreement that is illegal or unenforceable will be
severed from this Agreement and will not affect the continued operation of the
remaining provisions of this Agreement. 
This clause has no effect if the severance alters the basic nature of
this Agreement or is contrary to public policy.


 


16           Variation and Waiver


 


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.


 


17           Inconsistent
Agreements


 


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 will prevail.


 


18           Counterparts


 


This
Agreement may be executed in counterparts. 
All executed counterparts constitute one document.


 


19           Governing Law


 


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


 





















 


EXECUTED as an AGREEMENT


 


 


	
  SIGNED on behalf of NATIONAL 

  	
  )

  	
   

  
	
  AUSTRALIA
  BANK LIMITED by its
  duly 

  	
  )

  	
   

  
	
  authorised
  representative in the presence of

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Original
  signed]

  	
   

  	
   

  	
  [Original
  signed]

  	
   

  
	
  Signature of witness

  	
   

  	
  Signature of
  authorised representative

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Arthur Robert Willett

  	
   

  	
   

  	
  L M PEACOCK

  	
   

  
	
  Name of witness
  (print)

  	
   

  	
  Name of representative
  (print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EGM PEOPLE &
  CULTURE

  	
   

  
	
   

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by RICHARD ERNEST 

  	
  )

  	
   

  
	
  McKINNON in the presence of

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  [Original signed]

  	
   

  	
   

  	
  [Original
  signed]

  	
   

  
	
  Signature of witness

  	
   

  	
  Richard Ernest
  McKinnon

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Arthur Robert Willett

  	
   

  	
   

  	
   

  
	
  Name of witness
  (print)

  	
   

  	
   

  



 





















 


Deed of Access, Indemnity
and Insurance


 


Date:                                                                                                                                                        11 November 2004


 


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


 


Richard
Ernest McKinnon of
11 Merna Drive, Templestowe in the State of Victoria (“Officer”)


 


Recitals:


A.            The Officer has been employed by the
Company and has been a director of related bodies corporate of the Company
pursuant to such employment.


 


B.             The Company and the Officer have agreed
that the Officer’s employment with the Company will terminate effective from
30 September 2005 or such earlier date as is agreed.


 


C.             Article 21 of the Bank’s
Constitution provides, inter alia, that in circumstances referred to therein, a
person who has been an officer of the Company (which includes a director of
related bodies corporate) is entitled to insurance, access to documents and to
be indemnified out of the property of the Company against certain liabilities
referred to in the Article.


 


Operative provisions:


 


1              Definitions


 


1.1           In this Deed:


 


Claim means:


 


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


 


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)           all communications provided from or on behalf of the
Company or its related body corporates to the Officer during the Officer’s
employment with the Company 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 Officer for
the purposes of carrying out their duties as an officer or referred to in any
of the abovementioned documents,


 


except where legal professional privilege applies to
such documents and the Officer does not have the benefit of such privilege.


 


Document Records means the Documents stored in
paper form or such other form as will permit ready access to, and reproduction
of, such Documents by the Officer.


 


Insurance Policy means an insurance policy or
policies insuring against the following liabilities incurred by the Officer in
the Officer’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
Officer in defending proceedings, whether civil or criminal and whatever their
outcome; and


 


(b)           a liability incurred by the person as an officer
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 Officer,
such other liability as may be permitted under the Company’s Constitution from
time to time.


 


Period means the period during which the Officer
is employed by the Company and ends on the day seven years from the date the
Officer ceases to be employed by 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 an officer of
the Company” includes a reference to a liability incurred by a person who has
ceased to be an officer of the Company to the extent the liability relates to
an act or omission occurring while that person was an officer.


 


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


 


2              Access to Documents


 


The Company’s Undertaking


2.1           In the event a Claim is made against the Officer, the
Company undertakes to ensure that throughout the Period it will allow the
Officer and the Officer’s representatives full and free access (at no cost to
the Officer) to the Document Records as are relevant and reasonably necessary
to defend himself at all reasonable times during the Period, including providing
the information, assistance and facilities (including photocopying facilities)
that the Officer reasonably requires in order to examine and, subject to clause
2.2, make and take away copies of the Document Records or any part of them.


 


Officer’s Undertaking


2.2           The Officer undertakes:


 


(a)            to observe the same duties of confidentiality to the
Company and any related body corporate of the Company in relation to the
Documents as if the Officer remained an officer of the Company except that the
Officer may disclose:


 


(i)            Documents to the Officer’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 an officer; and


 


(ii)           those parts of the Documents where disclosure is
required as part of court proceedings brought against the Officer 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 Documents to which legal
professional privilege applies in favour of the Officer and 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 the Officer 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
Officer


 


Indemnity


3.1           The Company indemnifies the Officer, to the relevant
extent, against a liability (including a liability for costs or expenses)
incurred by the Officer as an officer 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 Officer,
such other liability as may be permitted under the Company’s Constitution from
time to time.


 


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


 


Costs and expenses


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


 


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


 


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


 


Payment


3.4           If the Officer becomes liable to pay any amount in
respect of which the Officer is indemnified, the Company must indemnify the
Officer by paying the Officer within 30 days from the date the Officer provides
satisfactory evidence to the Company that the Officer is liable to pay that
amount.


 


Nature of indemnities


3.5           Subject to the other provisions of this Deed, the
indemnities provided by clauses 3.1 and 3.3:


 





















 


(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 Officer is an officer of the Company, or a related body
corporate of the Company, and notwithstanding that the Officer has ceased to be
an officer of the Company, or a related body corporate of the Company, before
any claim is made under this Deed.


 


Undertakings


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


 


3.7           The Officer 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 Officer’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 Officer’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 Officer in respect of that Claim and
promptly take all reasonable steps to enforce all the Officer’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 Officer 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 Officer details of such amounts; and


 


(h)            if the Company has pursuant to this Deed paid an
amount for costs and expenses incurred by the Officer and judgment is not
subsequently given in favour of the Officer, the Officer is not subsequently
acquitted or the Court does not grant relief to the Officer 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
Officer 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.


 


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


 


3.9           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 Officer 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.


 


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


 


(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 Officer, 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 Officer, provides the Officer with a
copy of the Insurance Policy and any certificates of insurance connected with
it;


 


(e)            notifies the Officer 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, the Officer 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 on behalf of NATIONAL

  	
  )

  	
   

  
	
  AUSTRALIA
  BANK LIMITED by its
  duly

  	
  )

  	
   

  
	
  authorised
  representative in the presence of

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Original
  signed]

  	
   

  	
   

  	
  [Original signed]

  	
   

  
	
  Signature of witness

  	
   

  	
  Signature of
  authorised representative

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Arthur Robert Willett

  	
   

  	
   

  	
  L M PEACOCK

  	
   

  
	
  Name of witness
  (print)

  	
   

  	
  Name of representative
  (print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EGM PEOPLE &
  CULTURE

  	
   

  
	
   

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by RICHARD ERNEST

  	
  )

  	
   

  
	
  McKINNON in the presence of

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Original signed]

  	
   

  	
   

  	
  [Original
  signed]

  	
   

  
	
  Signature of witness

  	
   

  	
  Richard Ernest
  McKinnon

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Arthur Robert Willett

  	
   

  	
   

  	
   

  
	
  Name of witness
  (print)