EXHIBIT 4.26


 


Deed of settlement and release – Mr Peter B
Scott


 





















 


National Wealth
Management Services Limited


ABN 97 071 514
264


 


National
Australia Bank Limited


ABN 12 004 044
937


 


and


 


Peter Brooke
Scott


 


Terms
of Settlement and Release Agreement


 





















 


THIS AGREEMENT is made on                                                                                                        200


 


PARTIES


 


NATIONAL WEALTH MANAGEMENT SERVICES LIMITED


ABN 97 071 514 264


of
Ground Floor, 105-153 Miller Street, North Sydney, New South Wales 2060


(“NWMSL”)


 


NATIONAL AUSTRALIA BANK LIMITED


ABN
12 004 044 937


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


(the
“Bank”)


 


NWMSL,
and the Bank and its Subsidiaries, being collectively referred as the “National” in this Agreement


and


 


PETER BROOKE SCOTT


 


(“Mr Scott”)


 


RECITALS


 


A                                      Mr
Scott is currently employed by NWMSL as Executive General Manager, Wealth
Management.


 


B                                        Mr
Scott will continue in his role as Executive General Manager, Wealth
Management, until 31 January 2005, at which time he will relinquish the
said role and will provide ongoing employment services to the National until
the Termination Date.


 


C                                        The
revised contract of employment between NWMSL and Mr Scott will end on the
Termination Date.


 


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


 


E                                         The
National denies any liability to Mr Scott.


 


F                                         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.


 





















 


AGREED TERMS


 


1                                         Definitions and interpretation


 


1.1                               Definitions


 


In
this document, unless the context requires otherwise:


 


“Agreement” means this document.


 


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


 


“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 Scott gained access, whether before,
during or after his employment with NWMSL. 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 (Cwth) as amended and in force from time to time


 


“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.


 


“Group”
means the Bank and its Subsidiaries.


 


“Pre-1 February 2005
Compensation Package” means the
compensation package and leave entitlements referred to in clause 2.4.


 


“Post-31 January 2005
Salary” means the compensation referred to in
clause 2.5(b).


 


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


 


“Shares” means ordinary shares in the capital of the Bank.


 


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


 


“Termination Date” means 31 July 2005.


 


“Wealth Management”
means the Wealth Management division of the Group.


 





















 


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 “$” 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


 


(ii)                                  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 Scott will continue to be employed by NWMSL
until 31 January 2005 as Executive General Manager, Wealth Management, and
until that date he will act in good faith as an employee of NWMSL.


 


2.2                                 The National will continue to provide
appropriate office accommodation and technology support to Mr Scott until 31 January 2005.


 


2.3                                 From 1 February 2005 until the Termination
Date, Mr Scott will continue as an employee of NWMSL and will:


 


(a)                                  provide
assistance to the National in an advisory capacity, as may reasonably be
required by the National from time to time; and


 


(b)                                 advise
the National in a timely manner of any issues, concerns or matters of which he
is aware relating to the management or operations of Wealth Management.


 


2.4                                 NWMSL will continue to provide to Mr Scott until
31 January 2005:


 


(a)                                  the
total employment compensation package; and


 


(b)                                 sick
leave, annual leave and long service leave,


 


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


 


2.5                                 From 1 February 2005:


 


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


 


(b)                                 subject
to clause 2.5(c), NWMSL will pay to Mr Scott a compensation package of
$115,000, which is inclusive of salary, employer-funded superannuation, car
leasing and car parking, accrued annual leave and long service leave, until the
Termination Date;


 


(c)                                  NWMSL
will continue pay the cash component of Mr Scott’s compensation package
referred to in clause 2.5(b) in arrears, in equal fortnightly instalments
until the Termination Date; and


 





















 


(d)                                 Mr
Scott will not be entitled to receive any short-term or long-term incentive
awards, payments or any bonuses, shares, options or performance rights, other
than his eligibility to receive any prorated short-term incentive under the
Group’s Executive Incentive Plan in respect of the 2004/05 year, as described
in clauses 3.2 and 3.3.


 


2.6                                 Mr Scott’s employment with NWMSL will terminate
on the Termination Date.


 


2.7                                 Within 14 days after the Termination Date, NWMSL
will pay to Mr Scott a gross termination payment of $656,000.


 


2.8                                 The amounts referred to in clauses 2.4(a),
2.5(b), 2.5(c) and 2.7 will be subject to applicable deductions of
taxation as required by law.


 


2.9                                 As a consequence of Mr Scott’s termination of
service with NWMSL on the Termination Date, a benefit from the National Wealth
Management Superannuation Plan (the “Plan”) in respect of Mr Scott’s membership
of the Plan will be payable by the Plan Trustee in accordance with the
provisions of the Plan’s trust deed and rules.


 


2.10                           Subject to clause 2.11, the National agrees that
in the period up to and including 31 July 2005, Mr Scott 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 Scott of his obligations under this Agreement.


 


2.11                           Mr Scott must not, up to and including 31 July 2005,
without the National’s written consent, accept employment, a non-executive
directorship or undertake consulting activities with AMP Limited, 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                                 NWMSL will:


 


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


 


(i)                                     an
amount in lieu of accrued and untaken annual leave and long service leave
(calculated up to and including 31 January 2005 with reference to the Pre-1
February 2005 Compensation Package) within 14 days after the Termination
Date;


 


(ii)                                  an
amount equal to the legal and/or tax accounting expenses incurred by him (up to
a maximum of $10,000 inclusive of GST) in relation only to this Agreement, on
receipt of invoices from Mr Scott’s solicitor and/or taxation accountant;


 


(b)                                 pay
for outplacement services at the executive level for Mr Scott, using a service
provider appointed by the Bank; and


 


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


 





















 


3.2                                 Should NWMSL make any payments under the Group’s
Executive Incentive Plan in respect of 2004/05 (i.e. for the period 1 October 2004
to 30 September 2005 inclusive), Mr Scott will be considered for a
prorated payment in respect of the period of his service with NWMSL from 1 October 2004
to 31 January 2005 inclusive.


 


3.3                                 Any amount payable to Mr Scott under clause 3.2:


 


(a)                                  will
be based on Mr Scott’s individual performance and the Group’s performance and
will be in accordance with the terms and conditions of the National’s Executive
Incentive Plan; and


 


(b)                                 will be made around the same time that any such payments
are made to other participants under the National’s Executive Incentive Plan.


 


3.4                                 The amount referred to in clause 3.1(a)(i), and
any payment due to Mr Scott under clause 3.3, will be subject to applicable
deductions of taxation as required by law.


 


3.5                                 Mr Scott will receive approval from the Bank to
retain all Shares and all Options granted to him under any ESOP in accordance
with the terms and conditions of the original offer of the Shares and Options,
including any shares, options or performance rights granted to Mr Scott by any
predecessor company (in accordance with the terms and conditions of their
original offer) prior to its acquisition by the Bank.


 


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 Scott


 


Subject
to clause 6.3, Mr Scott 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)                                  arising
from personal injury arising from his employment with NWMSL;


 


(b)                                 arising
from this Agreement,


 


Mr
Scott 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 Scott 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 Scott by NWMSL or the termination of that employment or in
the course of or in the termination of any directorships with the National.


 





















 


6.2                                 Without derogation from the provisions of clause
6.1, upon execution of this Agreement Mr Scott 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 Scott’s right to prosecute a Claim against the National should it be
discovered at a later date that the National had deliberately defrauded Mr
Scott.


 


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 Scott 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 Scott arising out of the employment of Mr Scott by NWMSL 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 Scott in any Court, Commission or Tribunal in respect
of any Claim which is released and discharged pursuant to clause 6.4.


 


6.6                                 Nothing in clause 6.4 shall limit or affect the
National’s right to prosecute a Claim against Mr Scott should it be discovered
at a later date that Mr Scott 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 Scott 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 any eligible payments provided in
clause 2 to an approved superannuation fund.


 


7.3                                 Without limiting any express or implied
obligation of confidentiality binding upon Mr Scott under any statute
(including the Corporations Act) or under his contract of employment with
NWMSL, Mr Scott 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 Scott 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 Scott and the National must not make any
statement, or induce anyone else to make any statement (whether written or
oral) about Mr Scott’s employment, the cessation of that employment or any
related matter which:


 


(a)                                  in
respect of Mr Scott 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 Scott 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
Scott agrees not to represent himself, after the 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
Scott 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 Scott’s employment with the
National; and


 


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


 


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 Scott agrees that he
will, if requested by the National or any of its Subsidiaries, both prior to
and subsequent to the 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 Scott such
remuneration as may be agreed between the parties, and reimburse Mr Scott for
all reasonable expenses incurred by Mr Scott, in providing the assistance
referred to in clause 13.1 after the Termination Date.  Mr Scott 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
Scott agrees:


 


(a)                                  to
deliver to the National, on or before the Termination Date, 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


 


(b)                                 not
to make or retain a copy of any document which is the property 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

  	
  )

  )

  )

  )

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Robert
  Geoffrey Williams

  	
   

  	
  /s/ Arthur
  Willett

  	
   

  
	
  Signature of
  witness

  	
   

  	
  Signature of
  authorised representative

  
	
   

  	
   

  	
   

  
	
  Robert
  Geoffrey Williams

  	
   

  	
  Arthur Willett

  	
   

  
	
  Name of
  witness (print)

  	
   

  	
  Name of
  representative (print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General
  Manager Workplace Solutions

  	
   

  
	
   

  	
   

  	
  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
  on behalf of NATIONAL WEALTH

  MANAGEMENT SERVICES LIMITED by its

  duly authorised representative in the

  presence of

  	
  )

  )

  )

  )

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Suzanne
  Maudlen

  	
   

  	
  /s/ Stephen
  Tucker

  	
   

  
	
  Signature of Company
  Secretary

  	
   

  	
  Signature of
  authorised representative

  
	
   

  	
   

  	
   

  
	
  Suzanne
  Maudlen

  	
   

  	
  Stephen
  Tucker

  	
   

  
	
  Name of
  witness (print)

  	
   

  	
  Name of
  representative (print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (By executing
  this Agreement the signatory

  warrants that he is duly authorised to

  execute this Agreement on behalf of

  National Wealth Management Services

  Limited)

  



 


 


	
  SIGNED
  by PETER BROOKE SCOTT in

  the presence of

  	
  )

  )



  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ A.J.
  Millicheap

  	
   

  	
  /s/ Peter
  Scott

  	
   

  
	
  Signature of
  witness

  	
   

  	
  Peter Brooke
  Scott

  
	
   

  	
   

  	
   

  
	
  Alason
  Millicheap

  	
   

  	
  Peter Brooke
  Scott

  	
   

  
	
  Name of
  witness (print)