EXHIBIT 10 iii(a)(2)
SETTLEMENT AND NON-DISCLOSURE AGREEMENT
XXXXXXX X. XXXXXX, on his own behalf and on behalf of his heirs,
executors, administrators, attorneys, successors and assigns (hereinafter
collectively referred to as "Xxxxxx"), and BANKERS TRUST CORPORATION on its
own behalf and on behalf of its, domestic and international subsidiaries,
divisions, and affiliates and its and their successors (including without
limitation, Deutsche Bank AG) and assigns, respective officers, directors,
agents, representatives and employees (hereinafter collectively referred to
as "Bankers Trust" or the "Corporation"), have reached the within agreement
("Agreement") in settlement of any and all issues related to Daniel's
employment with, and separation from the employ of, Bankers Trust, such
Agreement being reached on the following terms and conditions:
1 . Daniel's employment with Bankers Trust will end on June l5, 1999
(the "Termination Date").
2. In full and complete satisfaction of all known and unknown claims
against Bankers Trust, and in consideration for executing this Agreement
and a second original of this Agreement reaffirming its terms and
conditions including the waiver and release provisions contained herein on
his last day on the Corporation's premises, Xxxxxx will receive payments
and benefits in accordance with the following provisions, together with all
deferred compensation and other payments due him pursuant to the so-called
"Trigger 1 Change of Control Payout" (as detailed in Exhibit 1),
immediately following his off payroll date but not before the eighth day
following his execution and return to the Corporation of this Agreement:
(i) In full satisfaction of the benefits available under the
Change in Control Severance Plan I ("COC-1"), Xxxxxx will be paid a lump
sum of 7.5 million dollars;
(ii) Xxxxxx will receive a lump sum payment of 6.75 million
dollars, less $1,296,212.12, an amount equal to any compensation
received by him for 1999 up to and including the Termination Date, provided
that his off payroll date is June 14, 1999, as full payment of all
compensation under the December 17, 1998 Retention Agreement between Xxxxxx
and Bankers Trust, which is hereby mutually rescinded. To the extent that
Daniel's off payroll date is subsequent to June 14, 1999, the amount deducted
from the lump sum payment will increase by $1,325.76 per day;
(iii) Daniel's 401(k) Savings Plan and Cash Balance
Retirement Plan Accounts were fully vested as of the Change of Control date.
All additional accruals subsequent to this date will vest and be
distributable on the Termination Date. The 401(k) Savings Plan will have an
additional trailing contribution at year end, which will be available
immediately at that time;
(iv) Xxxxxx will receive the cash value of his 1999 accrued and
unused vacation days;
(v) As provided for under the COC-1, Daniel's group medical and
dental benefits will continue for a period of three (3) years following the
Termination Date, or until Xxxxxx is reemployed by another employer and
eligible to receive the welfare benefits from such an employer, whichever
first occurs. Xxxxxx shall share the costs of such coverage on the same
tax effective basis as in effect prior to the date of his termination. At
the end of the three (3) year period, Xxxxxx will be offered the
opportunity to continue his group health insurance at his own expense
through COBRA.
(vi) The Corporation will arrange for Xxxxxx to be provided with
the use of Off-premises office facilities for the initial period of three
(3) months which thereafter may be extended by mutual agreement in separate
one (1) month increments. The extended period(s) will be provided in the
event that Xxxxxx has not obtained employment at the conclusion of the initial
period or at the conclusion of each of the individual extensions.
Xxxxxx acknowledges that the payments and benefits set forth above
shall be subject to applicable federal, state and local taxes, and all
other deductions as required by applicable laws and Bankers Trust policy.
Xxxxxx shall have no duty to seek other employment or to become self-
employed to mitigate any payments or benefits to which he is entitled
pursuant to this Agreement nor shall there be any offset against such
payments or benefits in the event of such employment or self-employment.
In the event that it is determined that any payment or distribution by
the Corporation to Xxxxxx is subject to the excise tax imposed by Section
4999 of the Internal Revenue Code, Xxxxxx shall be entitled to receive an
additional cash payment (a "Gross-Up Payment") in an amount such that after
payment by Xxxxxx of all taxes, he retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the payments provided
hereunder.
3. Xxxxxx agrees that he will not publicly or privately disparage
Bankers Trust or any of the Corporation's products, services, divisions,
affiliates, related companies or current or former officers, directors,
trustees, employees, agents, administrators, representatives or
fiduciaries. Notwithstanding the foregoing, neither Xxxxxx nor the
Corporation will be restricted from providing information about the other
as required by a court or governmental agency or by applicable law.
Further, the Corporation and Xxxxxx shall not be restricted from reporting
information regarding his performance while employed by the Corporation to
internal or external auditors, special counsel or investigators, any
applicable enforcement agencies, regulatory agencies, insurance carriers or
in litigation involving Xxxxxx or the Corporation. The Corporation agrees
that it will not publicly or privately disparage Xxxxxx.
4. In exchange for the consideration described in Paragraph 2, Xxxxxx
hereby releases Bankers Trust from any and all liability arising from any
and all acts or omissions including, but not limited to, those arising out
of his employment relationship with the Corporation or under any contract,
tort, federal, state, or local fair employment practices or civil rights
law including, but not limited to, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Older Worker Benefits Protection Act of 1990, the Civil
Rights Act of 1866, the Americans With Disabilities Act of 1990, the
Employee Retirement Income Security Act of 1974, the New York State and New
York City Civil Rights Laws, or any claim for physical or emotional
distress or injuries, or any other duty or obligation of any kind or
description.
This release shall apply to all known, unknown, unsuspected and
unanticipated claims, liens, injuries and damages including, but not
limited to, claims of employment discrimination, indemnity for discharge,
or claims sounding in tort or in contract, express or implied, as of the
date of the execution of this Agreement, and including any claims for
wages, bonuses or separation allowance or severance payments including
under the Bankers Trust Corporation's Change In Control Severance Plan 1,
or any other form of compensation or benefits. Notwithstanding the
foregoing, Xxxxxx does not release his right to have the Corporation
perform its obligations under this Agreement, including without limitation,
his right to (i) indemnification pursuant to this paragraph 4, or any other
right to indemnification by the Corporation, (ii) any compensation or
benefits pursuant to any plan or program that is part of the subject matter
of this Agreement, including the amounts shown on Exhibit 1, (iii) pension,
health or similar benefits under the Corporation's retirement programs.
Xxxxxx also agrees not to initiate any legal action, charges or
complaints against Bankers Trust in any forum whatsoever, in connection
with the claims released by him pursuant to this paragraph 4. In the event
any such actions, charges or complaints are asserted in the future by or on
behalf of Xxxxxx, a material violation of a material provision of this
Agreement shall be deemed to have occurred, entitling Bankers Trust to the
return of the consideration set forth in this Agreement which is over and
above the 7.5 million dollar separation allowance to which Xxxxxx is
normally entitled under Bankers Trust's Change in Control Severance Plan 1,
the compensation received by him for 1999 up to and including the
Termination Date and the pro rata bonus paid in conjunction with the Change
in Control, as well as the attorneys' fees incurred by Bankers Trust in
defending such action, charge or complaint.
Bankers Trust expressly denies that it has violated any law, statute,
ordinance, contract, duty or obligation whatsoever, or that it committed
any tort or engaged in any wrongful conduct with respect to Xxxxxx. Xxxxxx
acknowledges that the consideration described in this Agreement is in
excess of that to which he was otherwise entitled upon his termination
under either applicable law, Corporation policy, or pursuant to any
contractual agreement he may have with Bankers Trust. Xxxxxx also
acknowledges that the consideration provided herein is good and sufficient
consideration to support the waivers and releases in this Agreement and the
second original of this Agreement he will be executing on his last day on
Corporation premises.
Bankers Trust agrees that Xxxxxx is entitled to indemnification to the
fullest extent provided by the Corporation to officers, as set forth in the
Corporation's by-laws as may exist from time to time. Xxxxxx shall also be
entitled to officers' liability insurance in accordance with the terms of
the policy provided by the Corporation for its officers, as amended from
time to time.
5. The terms of this Agreement, the claims that have been or could
have been raised against Bankers Trust as of the date of this Agreement,
and the facts and circumstances underlying any such claim shall not be
admissible by Xxxxxx in any litigation or proceeding in any forum, except
as required by law, for any purpose other than to secure enforcement of the
terms and conditions of this Agreement.
6. Neither Xxxxxx nor the Corporation will publish, publicize, or
disseminate or cause to be published, publicized or disseminated or permit
to be published, publicized or disseminated, directly or indirectly, and
will keep entirely confidential any information, data or documents (1)
relating to Daniel's employment with and separation from Bankers Trust,
except that (a) either party may discuss the fact that he was employed by
Bankers Trust, his title, responsibilities and that he resigned his
position and (b) the parties shall agree in advance to the wording of an
announcement concerning Daniel's departure from the Corporation; or (2)
relating to the terms of this Agreement or the fact that this Agreement
exists, except for (a) the purpose of enforcing this Agreement should that
ever become necessary; or (b) disclosures required by a court or
governmental agency or by applicable law, or to any investigatory or
regulatory agency with authority over the Corporation. Xxxxxx xxx disclose
the terms of this Agreement to his spouse, outplacement firms, accountants,
attorneys or tax preparers, or prospective employers, provided that
disclosures to prospective employers shall be limited according to the
provisions of paragraphs 3 and 6, and, the Corporation may disclose the
terms of this Agreement to its accountants, attorneys, tax preparers, its
employees who have a need to know such terms, and as otherwise set forth
above.
Xxxxxx further agrees that he will not publish, publicize or
disseminate, or cause to be published, publicized or disseminated or permit
to be published, publicized or disseminated, directly or indirectly, and
will keep entirely confidential any confidential information, data or
documents relating to the operations of the Corporation, including any
trade secrets or other proprietary information, except as may be required
by a court or governmental agency. Confidential information shall mean all
information that is not known or available to the public concerning the
business of the Corporation relating to its financial products, product
development, trade secrets, customers, suppliers, finances, and business
plans and strategies, including know-how, financial information concerning
the Corporation and its customers and specifications, programs,
documentation and manuals relating to all financial models,
telecommunications and computer systems, software, hardware and
applications developed or used by Bankers Trust. Confidential information
shall include information that is, or becomes, known to the public as a
result of a breach by Xxxxxx of the provisions of this paragraph 6.
Bankers Trust reserves the right to seek appropriate damages, including
attorneys' fees and injunctive relief, should Xxxxxx violate this
Agreement.
7. Xxxxxx agrees that during his employment and for the six-month
period following his termination, he will not, directly or indirectly,
personally solicit or induce or cause any third party to solicit or induce
any Bankers Trust employees to work for him or any competitor of the
Corporation, it being understood that if any such employee contacts Xxxxxx
on his or her own initiative, Xxxxxx xxx thereafter discuss with such
employee his or her working for him or a competitor, provided that in such
situations, Xxxxxx agrees to notify the Chief Legal or Human Resources
Officer of Bankers Trust and advise either executive of such contact and of
the employee(s) making such contact, before extending any offer of
employment to such individual(s).
8. The failure of either party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive such party of the right thereafter to insist upon strict
adherence to that term or any other term of the Agreement. Any waiver must
be in writing and signed by Xxxxxx or any authorized officer of the
Corporation, as the case may be.
9. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to its
conflicts of laws provisions.
10. If any of the provisions, terms, clauses, or waivers or releases
of claims or rights contained in this Agreement are declared illegal,
unenforceable, or ineffective in a legal forum, such provisions, terms,
clauses, waivers, releases or claims or rights shall be deemed severable,
such that all other provisions, terms, clauses, waivers, releases of claims
and rights contained in this Agreement shall remain valid and binding upon
both parties.
11. Xxxxxx agrees to voluntarily cooperate with the Corporation in
connection with any threatened, actual or future litigation or
investigations by federal, state, or local agencies involving the
Corporation, whether administrative, civil or criminal in nature, in which
and to the extent his cooperation is deemed necessary by the Corporation in
its discretion. The Corporation agrees to reimburse Xxxxxx for reasonable
and necessary out-of-pocket expenses incurred in connection with providing
such cooperation. This shall cover transportation, meals, and lodging, if
required.
12. Xxxxxx acknowledges that he has had at least (21) days from the
date he received this Agreement to consider the terms of this Agreement and
further, acknowledges that he is fully aware of its contents and of its
legal effects. Xxxxxx is also hereby advised in writing by Bankers Trust to
consult with an attorney regarding this Agreement.
The Corporation agrees to pay Daniel's counsel up to Five Thousand ($5,000)
Dollars for such services. In the event that Daniel's attorneys' fees
appear that they will exceed this amount, Xxxxxx agrees to notify the
Corporation prior to such time the fees exceed Five Thousand ($5,000) and
seek prior approval for the payment of an additional sum certain. Further,
Xxxxxx xxx revoke either this Agreement, or the second original of this
Agreement he will be executing on his last day on Corporation premises,
within seven (7) days after Xxxxxx executes the same, by notifying Xxxxx
Xxxxxxxx of Deutsche Bank AG, in writing, during this seven (7) day period.
Daniel's failure to execute the second original of this Agreement on his
last day on Corporation premises, or his revocation of same will not affect
the validity of the waivers and releases given by Xxxxxx as a result of his
initial execution of this Agreement.
13. This Agreement has been executed freely, knowingly and voluntarily
by Xxxxxx without duress, coercion, or undue influence, with a full and
free understanding of its terms.
14. This Agreement supersedes all prior oral and written agreements,
if any, with respect to the subject matter hereof between the parties. This
Agreement may not be changed except by a writing signed by Xxxxxx and an
authorized management representative of Bankers Trust.
AGREED:
/S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
15 June 99
Date
On this 15th day of June 1999,
before me personally came Xxxxxxx X.
Xxxxxx to me known to be the individual
described in and who executed the fore-
going Settlement and Non-disclosure
Agreement, and duly acknowledged to me
that he executed the same.
/S/ Xxxxx X. Xxxxxxxx
Notary Public
AGREED:
BANKERS TRUST CORPORATION
By: /S/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Date 15 June 99
On this 15th day of June 1999,
before me personally came Xxxxx X.
Xxxxxx, authorized representative for
Bankers Trust Corporation to me known to
be the individual described in and who
executed the foregoing Settlement and
Non-disclosure Agreement, and duly
acknowledged to me that he executed the
same.
/S/ Xxxxx X. Xxxxxxxx
Notary Public
XXXXX X. XXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO.4863442
OUALIFIED IN NASSAU COUNTY
CERTIFICATE FILED IN NEW YORK COUNTY
COMMISSION EXPIRES OCTOBER 27, 19 _____
Xxxxxxx Xxxxxx
Exhibit I - Trigger I Change of Control Payout
Stock Options:
[CAPTION]
Grant Date Option Price ISO NQSO Total Payout at $93
2/1/96 64.5625 1,548 18,452 20,000 568,750.00
6/18/96 76.4375 0 60,000 60,000 993,750.00
6/17/97 90.7500 1,101 58,899 60,000 135,000.00
Total 2,649 137,351 140,000 $1,697,500.00
Partnership Equity Plan (PEP):
[CAPTION]
Vested Unvested Total Shares
Award Year Shares Shares Outstanding Payout at $93
1996 23,305.1831 1,334.0261 24,639.2092 2,291,446.46
1997 16,373.4287 250.9058 16,624.3345 1,546,063.11
Total 39,678.6118 1,584.9319 41,263.5437 $3,837,509.56
EPP:
Total Shares
Award Year Outstanding Payout at $93
1996 4,702.4246 $437,325.49
1997 6,821.7055 634,418.61
1998 22,464.3379 2,089,183.42
Total 33,988.4680 $3,160,927.52
POP: (As of 7/1/99)
POP 1 $1,443,750.00
Interest $256,275.51
POP 11 $2,741,666.67
$4,441,692.18
Prorata Bonus: (As of 6/4/99)
$1,137,121.21
ADCAP:
$331,363.91*
Total Payout at COC $14,606,114.39
* This amount is as of March 31,1999 and will be adjusted to reflect
performance through June 4, 1999
