EXHIBIT 10(iii)(A)(1)
Bankers Trust New York Corporation
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
CORPORATE HUMAN RESOURCES
SETTLEMENT AND NON-DISCLOSURE AGREEMENT
X.X. XXXXXXX, on his own behalf and on behalf of his
heirs, executors, administrators, attorneys, successors and
assigns (hereinafter collectively referred to as "Kingdon"), and
BANKERS TRUST NEW YORK CORPORATION, on its own behalf and on
behalf of its subsidiaries, divisions, affiliates, successors and
assigns, and its and their respective officers, directors,
agents, representatives and employees (hereinafter collectively
referred to as "Bankers Trust" or the "Company"), have reached
the within agreement ("Agreement") in settlement of any and all
issues related to Kingdon's employment with, and separation from
the employ of, Bankers Trust, such Agreement being reached on
the following terms and conditions:
1. Kingdon will resign his position as Senior
Managing Director of Bankers Trust effective February 14, 1997.
2. In full and complete satisfaction of all known
and unknown claims against Bankers Trust, and in consideration
for executing this Agreement, Kingdon will be entitled to the
following:
a. Bankers Trust shall provide Kingdon with base
salary continuation, payable monthly through Kingdon's off-
payroll date of July 25, 1997.
b. On or about July 25, 1997, Bankers Trust will
make a lump-sum payment to Kingdon of $544,656.
c. Bankers Trust shall pay Kingdon a bonus for
the 1996 performance year of $300,000, on or about the eighth
day after Kingdon executes this Agreement.
x. Xxxxxxx'x 50,000 outstanding Employee Stock
options must be exercised by his off-payroll date of July 25, 1997,
Kingdon's 1996 options granted at $76.4375 strike price will not
vest until June 18, 1997. Any options remaining unexercised
after Kingdon's July 25, 1997 off-payroll date will be forfeited.
e. Bankers Trust acknowledges that Kingdon has a
Restricted Stock award outstanding of 2,500 shares. Kingdon's
shares award will vest and be distributed to him on July 25,
1997, his off-payroll date.
x. Xxxxxxx'x shares awarded under the
Partnership Equity Plan ("PEP") will continue to be deferred
until the fifth anniversary following the end of each related
performance year. That is, Kingdon's 1993, 1994, 1995 and 1996
Awards will be distributable to him in or about December of 1998,
1999, 2000 and 2001, respectively. Shares acquired by net EPS
reinvestments through Kingdon's off-payroll date will immediately
vest. For the remainder of their respective deferral periods,
earnings on shares in Kingdon's PEP account will be limited to
the related common stock dividend rate and will continue to pay
out quarterly. The 75% floor protection on the original shares
awarded to Kingdon (not shares acquired through reinvested net
EPS credits) remains intact until distribution.
g. Bankers Trust acknowledges that Kingdon's
PartnerShare Account is fully vested effective February 14, 1997.
x. Xxxxxxx'x ADCAP account will vest in full
as of his July 25, 1997 off-payroll date, and will be
distributed in cash at such time.
x. Xxxxxxx'x 7,612.8725 shares in the Equity
Participation Plan ("EPP"), to the extent unvested, will vest in
full as of his July 25, 1997 off-payroll date. All shares will
continue to be deferred as scheduled. In the event the Human
Resources Committee approves the early distribution of EPP Share
Awards, and an election is not made to receive early
distributions of shares, shares would nonetheless be mandatorily
distributed one-third per year starting February 1997. Floor
protection remains intact for the remainder of the deferred
period, however, EPS yield in excess of dividend, if any, is
eliminated following the off-payroll date.
j. All salary paid to Kingdon through his off-
payroll date (subject to tax limits) will qualify under the
formula to compute Kingdon's benefit under the terms of the
Company's qualified Pension Plan.
x. Xxxxxxx'x 70,000 POP units valued at $41.25
each ($2,887,500) will vest in full and be distributed in cash on or
about July 25,1997, the off-payroll date, and further, Kingdon waives
any further rights in this plan.
x. Xxxxxxx'x coverage in the Company's group
medical and dental plans shall continue through his off-payroll date.
Thereafter, Kingdon may voluntarily continue coverage
for himself and his eligible dependents at his own expense for a
period of up to eighteen (18) months consistent with applicable federal law.
m. On or about July 25, 1997, Kingdon's
off-payroll date, he will receive the cash equivalent of 4.58
unused vacation days for the 1997 calendar year.
Kingdon 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
law and Bankers Trust policy. Kingdon 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. If
Kingdon dies prior to the payment of any of the amounts set forth
in this paragraph, Kingdon's estate or his designated beneficiary
shall be paid such amounts.
3. Kingdon agrees that he will not publicly or
privately disparage Bankers Trust or any of the Company's
products, services, divisions, affiliates, related companies or
current or former officers, directors, trustees, employees,
agents, administrators, representatives or fiduciaries. The
Company agrees that it will not publicly or privately disparage
Kingdon. Notwithstanding the foregoing, neither Kingdon nor the
Company will be restricted from providing information about the
other as required by a court or governmental agency or by
applicable law. Further, the Company shall not be restricted
from reporting information regarding Kingdon's performance while
employed by the Company to internal or external auditors, special
counsel or investigators, any applicable enforcement agencies,
regulatory agencies, insurance carriers or in litigation
involving Kingdon or the Company. Kingdon hereby acknowledges
and further agrees that the payments and benefits described
herein will be forfeited (including the right to exercise any
outstanding stock options), if he materially violates any
material provisions of this Agreement. In any such instances,
Kingdon also agrees to tender back all amounts he received from
Bankers Trust pursuant to paragraph 2 of this Agreement which is
over and above that to which he is normally entitled under
standard Bankers Trust policy, within thirty days of his being
advised by Bankers Trust of the conduct or behavior which the
Company believes to be a material violation of a material
provision of this Agreement. Should Kingdon not tender back such
consideration as set forth above and, as a result, should Bankers
Trust be forced to take legal action to recover such amounts and
should Bankers Trust be the prevailing party in such litigation,
Kingdon shall be responsible to Bankers Trust for all costs
incurred in bringing such action, including but not limited to,
its reasonable attorneys' fees. Nothing set forth herein should
be construed as preventing Bankers Trust from seeking any
additional rights or remedies it may have at law or in equity in
the event of a material violation of a material provision of this
Agreement.
4. In exchange for the consideration described in
Xxxxxxxxx 0, Xxxxxxx 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 Company 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. Notwithstanding the
foregoing, Kingdon does not release his right to have the Company
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
Company, (ii) any compensation or benefits pursuant to any plan
or program that is part of the subject matter of this Agreement,
(iii) pension, health or similar benefits under the Company's
retirement programs.
Kingdon 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 Kingdon, 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 that to which Kingdon is
normally entitled under standard Company policy, 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 Kingdon. Kingdon 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, Company policy, or pursuant to any contractual
agreement he may have with Bankers Trust.
Bankers Trust agrees that Kingdon is entitled to
indemnification to the fullest extent provided by the Company for
Officers as set forth in the Company's bylaws as may exist from
time to time, but in no event less favorable than available to
other officers. Kingdon shall also be entitled to officers'
liability insurance in accordance with the terms of the policy
provided by the Company 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 Kingdon 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 Kingdon nor the Company 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 Kingdon's
employment with and separation from Bankers Trust, except that
either party may discuss the fact that he was employed by
Bankers Trust, his title, salary, compensation, responsibilities
and that he resigned his position; 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
Company. Kingdon may disclose the terms of this Agreement to
his spouse, accountants, attorneys or tax preparers, or
prospective employers, provided that disclosures to prospective
employers shall be limited to the provisions of paragraphs 6 and
7, and, the Company 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.
Kingdon 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 Company, 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 Company
relating to its financial products, product development, trade
secrets, customers, suppliers, finances, and business plans and
strategies, including know-how, financial information concerning
the Company 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 Kingdon of the
provisions of this paragraph 6. Bankers Trust reserves the
right to seek appropriate damages, including attorneys' fees and
injunctive relief, should Kingdon violate this Agreement.
7. Kingdon agrees that during the one-year period
following the execution of this Agreement, 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 Company, it being understood
that if any such employee contacts Kingdon on his or her own
initiative, Kingdon may thereafter discuss with such employee
his or her working for him or a competitor, provided that in
such situations, Kingdon 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 Kingdon or any authorized officer of the Company, 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. Kingdon agrees to voluntarily cooperate with the
Company in connection with any threatened, actual or future
litigation or investigations by federal, state, or local agencies
involving the Company, whether administrative, civil or criminal
in nature, in which and to the extent his cooperation is deemed
necessary by the Company in its discretion.
12. Kingdon acknowledges that he has had up to twenty-
one (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.
Kingdon is also hereby advised in writing by Bankers Trust to
consult with an attorney regarding this Agreement.
13. This Agreement has been executed freely,
knowingly and voluntarily by Kingdon without duress, coercion, or
undue influence, with a full and free understanding of its terms.
This Agreement is revocable by either party for seven (7) days
following its execution, after which time it shall become
effective and enforceable. Notice of revocation must be sent in
writing to the other party prior to the eighth day after this
Agreement is signed by the party seeking revocation. If Kingdon
wishes to revoke his agreement, his written notice of revocation
must be received within the seven (7) day revocation period by
Xxxxx Xxxxxx, Managing Director, at the following address:
Bankers Trust New York Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx.
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 Kingdon and an authorized management
representative of Bankers Trust.
AGREED:
/S/X.X. XXXXXXX
X.X. XXXXXXX
February 11, 1997
Date
On this 11TH day of FEBRUARY 1997, before me personally
came X.X. XXXXXXX 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
AGREED:
BANKERS TRUST NEW YORK
CORPORATION on behalf of
Bankers Trust
By: /S/ XXXXXX XXXXXX
XXXXX XXXXXX
FEBRUARY 11, 1997
Date
On this 11TH day of FEBRUARY 1997, before me personally
came XXXXX XXXXXX, authorized representative for Bankers
Trust New York 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
QUALIFIED IN NASSAU COUNTY
CERTIFICATE FILED IN NEW YORK COUNTY
COMMISSION EXPIRES OCTOBER 27,1998
