EXHIBIT 10(iii)(A)(3)
Phantom Stock Award Agreement
PHANTOM STOCK BONUS AWARD AGREEMENT OF AUSTRALIA between
Bankers Trust Australia Limited ("BT Bank"), an indirect
subsidiary of Bankers Trust New York Corporation (the
"Corporation"), the Corporation and (the
"Recipient").
WHEREAS, the purpose of BT Bank Phantom Stock Bonus Awards is to
aid BT Bank in securing and retaining officers and other key
employees of outstanding ability and to motivate such employees to
exert their best efforts on behalf of BT Bank, and have a
favourable impact on the management, growth and protection of the
business of BT Bank and its subsidiaries; and
WHEREAS, in consideration of the Recipient's past services in the
employment of BT Bank for the calendar year and of the
agreement of the Recipient to continue in the employment of BT
Bank for the time being, the Human Resources Committee of the
Corporation (the "Committee") has resolved (and so directs BT
Bank), subject to the provisions of this Agreement, to award the
Recipient a US$ cash bonus equal to the US$ fair market value of
shares of the Corporation's Common Stock (the "Phantom
Stock"), such cash bonus being calculated and payable at the end
of a deferral period beginning on the date hereof and, subject to
Section 2 hereof, ending on (the "Deferral Period")
and in connection with such award, BT Bank, the Corporation and
the Recipient agree as follows:
1. Upon receipt of this Agreement executed by the Recipient, BT
Bank and the Corporation for the purposes of calculating the award
will notionally grant of Phantom Stock to the
Recipient. This notional grant is to be used as the basis for
calculating the amount of bonus payable by BT Bank to the
Recipient at the end of the Deferral Period. Subject to Section
2, at the end of the Deferral Period, BT Bank will pay a bonus to
the Recipient equal to, the greater of, the amount determined by
multiplying the number of shares of Phantom Stock awarded to the
Recipient times the US$ fair market value of the Corporation's
common stock, par value US$1 per share (the "Common Stock") upon
the expiration of the Deferral Period, or, an amount determined by
multiplying the number of shares of Phantom Stock awarded to the
Recipient times US$ . The Recipient irrevocably authorizes
and directs BT Bank to deduct PAYE tax from the amount of the
bonus.
2. The Recipient acknowledges that the Recipient's rights
hereunder may not be sold, assigned, transferred, pledged or
otherwise dealt with or encumbered. Whilst this award is only
payable at the end of the Deferral Period, it is
nonforfeitable on and after (the "Vesting Date").
If the Recipient ceases to be employed by the Corporation or
any of its direct or indirect subsidiaries prior to the
Vesting Date, the Recipient agrees that the Recipient's rights
hereunder will be forfeited without any action required by the
Recipient, the Committee or BT Bank. However, the Committee
may, in its absolute discretion, when it finds that it would
be in the best interest of BT Bank to do so, deem the
Recipient to have met the vesting period requirements and so
direct BT Bank. The Committee, as part of exercising this
discretion, may take into account any factors it thinks fit
including (without limitation) whether the Recipient resigned
from his/her employment or was terminated by BT Bank; the
reason for the cessation of employment; whether the Recipient
intended or was likely to commence employment with a
competitor; whether the employee has accepted new employment
and will be performing roles and functions in the new
employment which are similar to those the employee performed
while employed by BT (or any related body corporate of BT).
Whether or not the roles and functions are considered
"similar" will be determined in the absolute discretion of the
directors. Whether the Recipient caused, or was likely to
cause any damage to the business or reputation of BT Bank (or
any related body corporate of BT Bank); whether the Recipient
attempted to entice or take clients or other employees of BT
Bank (or any related body corporate of BT Bank) with him or
her. Further, notwithstanding anything in the foregoing to
the contrary, upon a Change of Control, as defined in Schedule
I to this Agreement, the Deferral Period in respect of all of
the bonus award shall be deemed to have ended immediately
before such Change of Control.
3. The Recipient shall not have either voting or dividend rights
with respect to the notional grant of Phantom Stock; however,
the Recipient shall be entitled to receive from BT Bank, by
way of additional bonus remuneration, dividend equivalent
payments with respect to the Phantom Stock that will coincide
with the dividends actually paid by the Corporation on its
Common Stock in terms of both payment amounts and periods.
The Recipient will become entitled to the dividend equivalent
amount on the ex date applicable to the dividend actually paid
by the Corporation on its Common Stock. The dividend
equivalent payments will be converted to A$ by BT Bank at the
closing A$/US$ exchange rate on the business day preceding
payment of the dividend equivalent amount by BT Bank (as
determined by BT Bank in good faith). The dividend equivalent
payments shall be made within thirty days after the relevant
dividends are paid by the Corporation and will be made Net
After Tax.
4. Neither this Agreement nor any action taken under this
Agreement shall be construed as giving the Recipient any right
to be retained in the employ of BT Bank.
5. The Recipient acknowledges that the Committee may in its
absolute discretion (including, without limitation, to take
account of any consolidation, subdivision or bonus issue of
the Corporation's stock) amend the terms and conditions of
this Agreement including retroactive amendments and may so
direct BT Bank, provided, however, that no such amendment
shall materially impair the Recipient's rights hereunder
without his or her consent.
6. The award of bonus set forth in this Agreement shall be
subject to cancellation by the Committee, which will so advise
BT Bank, unless within twenty one (21) days of the date herein
above set forth the Recipient delivers or mails a duly
executed copy of this Agreement, to Bankers Trust New York
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
7. Notwithstanding anything to the contrary in this Agreement,
the amount of the bonus is to be reduced by the payroll tax,
superannuation fund contributions (in lieu of superannuation
guarantee charge) and any other computation type "on" costs
determined by BT Bank in good faith to be referable thereto.
8. As used in this Agreement, "Net After Tax" means the amount
determined by BT Bank in good faith after deduction from the
bonus amount, as reduced under Section 7, of the normal pay as
you earn tax installment deductions.
9. As used in this Agreement, the "fair market value" of the
Corporation's Common Stock on a particular day is the weighted
average price of the Corporation's Common Stock traded on the
New York Stock Exchange on that particular day (or where that
particular day is not a business day, the immediate preceding
business day) as determined in good faith by BT Bank, as to
which a certificate in writing by the secretary for the time
being of BT Bank shall (in the absence of fraud or manifest
material error) be conclusive.
10.Notwithstanding the foregoing, this award of bonus is
contingent on the approval of the Committee and the Board of
Directors of the Corporation.
11.This agreement shall be construed and its provisions enforced
and administered in accordance with the law of Australia.
IN WITNESS WHEREOF, BT Bank and the Corporation have duly executed
this Phantom Stock Bonus Plan Agreement on the date set forth
above.
BANKERS TRUST NEW YORK CORPORATION
BY
BANKERS TRUST AUSTRALIA LIMITED
BY
Agreed to this 3rd day of August, 1995
Recipient
Schedule 1
As used in this Agreement, a "Change of Control" shall mean the
following events:
(i) The acquisition, other than from the Corporation, by any
individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20%
or more of either the then outstanding shares of common stock of
the Corporation (the "Outstanding Corporation Common Stock") or
the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the
election for directors (the "Corporation Voting Securities"),
provided, however, that any acquisition by the Corporation or any
of its subsidiaries, or any employee benefit plan (or related
unit) of the Corporation or its subsidiaries, or any corporation
with respect to which, following such acquisition, more than 80%
of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors, is then beneficially
owned, directly or indirectly by the individuals and entities who
were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Corporation Voting Securities
immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such
acquisition, of the Outstanding Corporation Common Stock and
Corporation Voting Securities, as the case may be, shall not
constitute a Change of Control; or
(ii) Individuals who, as of January 1, 1994, constitute the Board
(as of the date hereof the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board, provided that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the
Corporation (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act); or
(iii) Approval by the stockholders of the Corporation of a
reorganization, merger or consolidation, in each case, with
respect to which the individual and entities who were the
respective beneficial owners of the common stock and voting
securities of the Corporation immediately prior to such
reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 80% of, respectively, the then
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger of
consolidation, or a complete liquidation or dissolution of the
Corporation or of the sale or other disposition of all or
substantially all of the assets of the Corporation.
Anything herein to the contrary notwithstanding, a Change of
Control shall not be deemed to have occurred if such Change of
Control results from or arises out of a purchase or other
acquisition of the Corporation, directly or indirectly, by a
corporation or other entity in which the Recipient has a direct or
indirect equity interest; provided, however, that the limitation
contained in this sentence shall not apply to any direct or
indirect equity interest in a corporation or other entity (a)
which equity interest is part of a class of equity interests which
are publicly traded on any securities exchange or other market
system, (b) received by the Recipient, without the Recipient's
concurrence or consent, as a result of a purchase or other
acquisition of the Corporation by such corporation or other
entity, or (c) received by the Recipient without the Recipient's
concurrence or consent, in connection with a purchase or other
acquisition of the Corporation by such corporation or other entity
in respect of any stock options or performance awards granted to
the Recipient by the BT Bank or the Corporation.
