EXHIBIT 10(iii)(A)(1)
SETTLEMENT AND NON-DISCLOSURE AGREEMENT
XXXXXXX X. XXXXX, on his own behalf and on behalf of his
heirs, executors, administrators, attorneys, successors and
assigns (hereinafter collectively referred to as "Xxxxx"), 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 Xxxxx' employment with, and separation from the
employ of, Bankers Trust, such Agreement being reached on the
following terms and conditions:
x. Xxxxx shall resign his employment with Bankers Trust
effective April 16, 1996.
ii. In full and complete satisfaction of all known and
unknown claims against Bankers Trust, and in consideration for
executing this Agreement, Xxxxx will be entitled to the
following:
(1) On or about the eighth (8th) day following
his execution of this Agreement, which Xxxxx acknowledges may not
be executed prior to April 16, 1996, his last day of employment,
Bankers Trust shall continue Xxxxx' base salary as a separation
allowance for the period April 16, 1996 through March 11, 1997.
Xxxxx' group health insurance benefits will also be continued
during this period, unless he obtains other employment, in which
event he shall be paid the balance of his separation allowance in
a lump sum, his group health insurance benefits will cease, and
he shall be entitled to continue such benefits at his own
expense, in accordance with applicable federal law.
(2) On or about March 11, 1997, provided he has
not materially violated any of the provisions of this Agreement,
Xxxxx will be provided with a $330,303.00 lump sum payment, less
applicable taxes. The acceptance of said lump sum payment by
Xxxxx, shall constitute a reaffirmation of the waiver and release
provisions set forth in paragraph iv of this Agreement, releasing
all claims by Xxxxx against Bankers Trust, whether known or
unknown, as of the date of his acceptance of such payment.
(3) Bankers Trust acknowledges that Xxxxx has a
Restricted Stock award outstanding of 23,900 shares. On or about
April 16, 1996, provided he has executed this Agreement, such
shares will vest and be distributed to Xxxxx.
Xxxxx 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. Xxxxx 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
Xxxxx dies prior to the payment of any of the amounts set forth
in this paragraph, Xxxxx' estate or his designated beneficiary
shall be paid such amounts. Bankers Trust reserves the right to
accelerate any of the severance payments due Xxxxx during the
period April 17, 1996 through March 11, 1997. In such event,
Xxxxx' group health insurance benefits shall be handled as if he
had obtained other employment, in accordance with paragraph ii(1)
above.
iii Xxxxx 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 Xxxxx.
Notwithstanding the foregoing, neither Xxxxx 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 Xxxxx' 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 Xxxxx or
the Company.
iv. In exchange for the consideration described in
paragraphs ii(1), (2) and (3), Xxxxx hereby releases Bankers
Trust from any and all liability arising from any and all acts
including, but not limited to, those arising out of his
employment relationship with the Company or his separation
therefrom, 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 Workers' 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, Xxxxx 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
the by-laws of the Company and applicable Directors' and
Officers' liability insurance as hereinafter described, (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.
Xxxxx 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.
Bankers Trust expressly denies that it has violated any
such law, statute, ordinance, contract, duty or obligation
whatsoever, or that it committed any tort or engaged in any
wrongful conduct with respect to Xxxxx. Xxxxx 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 Xxxxx is entitled to
indemnification to the fullest extent provided by the Company for
Directors and 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 Directors and Officers. Xxxxx shall also be
entitled to Directors' and Officers' liability insurance in
accordance with the terms of the policy provided by the Company
for its Directors and Officers as amended from time to time.
Subject to the terms of such bylaws, Xxxxx shall have the right
to choose his own counsel in connection with any investigatory or
legal proceedings, in which Xxxxx may be or become involved, and
shall be reimbursed for reasonable attorneys' fees in connection
with any such investigation or litigation. Additionally, Xxxxx
shall be given reasonable access to Company books and records
relevant to such investigatory or legal proceedings to the extent
permitted by the Company's bylaws or applicable rules,
regulations or law.
v. 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 Xxxxx 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.
vi. Neither Xxxxx 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
Xxxxx' 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. Xxxxx may
disclose the terms of this Agreement to his spouse, accountants,
attorneys or tax preparers, 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. Should this document or any terms
hereof be disclosed publicly pursuant to applicable law, the
terms of this Agreement with respect to non-disclosure shall no
longer be applicable with respect to any items otherwise made
public.
Xxxxx 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, but not
limited to, 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 Xxxxx of
the provisions of this Agreement. Bankers Trust reserves the
right to seek appropriate damages, including attorneys' fees and
injunctive relief, should Xxxxx violate this Agreement.
vii. Xxxxx 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 Xxxxx on his or her own initiative, Xxxxx
may thereafter discuss with such employee his or her working for
him or a competitor, provided that in such situations, Xxxxx
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 in writing, before extending
any offer of employment to such individual(s).
viii. 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 Xxxxx or any authorized officer of the Company, as the
case may be.
ix. 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.
x. 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.
xi. Xxxxx agrees to voluntarily cooperate with the
independent counsel's investigation of Bankers Trust's
derivatives business, and 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
sole discretion. The Company shall reimburse Xxxxx for all
reasonable out-of-pocket travel expenses incurred by him in
connection with his voluntary cooperation under this paragraph.
Such expenses shall be reimbursed after his submission to the
Company of statements in such reasonable detail as the Company
may require. Xxxxx shall be entitled to a fee of $500 per hour
for furnishing such voluntary cooperation, such fee to be paid
promptly following his submission of a statement therefor.
xii. Xxxxx 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. Xxxxx is
also hereby advised by Bankers Trust to consult with an attorney
regarding this Agreement.
xiii. This Agreement has been executed freely, knowingly
and voluntarily by Xxxxx 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 within the seven (7) day revocation
period after this Agreement is signed by the party seeking
revocation. If Xxxxx 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.
xiv. 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 Xxxxx and an authorized management representa
tive of Bankers Trust.
AGREED: AGREED:
BANKERS TRUST NEW YORK
CORPORATION on behalf of
Bankers Trust
/S/XXXXXXX X XXXXX By: /S/XXXX XXXXXX
XXXXXXX X. XXXXX Xxxx Xxxxxx
Executive Vice President
April 17, 1996 April 10, 1996
Date Date
the foregoing Settlement and
Non-disclosure Agreement, and
duly acknowledged to me that
he executed the same.
On this 17th day of April
1996, before me personally
came XXXXXXX X. XXXXX to me
known to be the individual
On this 10th day of April
described in and who executed
1996, before me personally
came Xxxx 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/XXXXXXXXX X. XXXXX
Notary Public /S/XXXXX X.XXXXXXXX
Notary Public
