Exhibit 10(iii)(A)(11)(a)
EMPLOYMENT AGREEMENT
AGREEMENT by and between Bankers Trust Corporation, a New York
corporation and Xxxxx X. Xxxxxx (the "Executive"), dated as of the 30th day of
November, 1998.
1. Employment Period. Subject to the consummation of the
transactions contemplated by the Agreement and Plan of Merger among the Company,
Merger Sub and Deutsche Bank AG ("Deutsche"), dated as of November 30, 1998 (the
"Merger Agreement, the Company or its successor agrees to employ the Executive,
and the Executive hereby agrees to remain in the employ of the Company subject
to the terms and conditions of this Agreement, for the period commencing on the
closing date of the transactions contemplated by the Merger Agreement (the
"Commencement Date") and ending on December 31, 2003 (the "Employment Period").
2. Terms of Employment. (a) Position and Duties. (i) During the
Employment Period, the Executive shall serve in the position set forth on
Exhibit A hereto, with reporting relationships as set forth on Exhibit A. The
Executive's office shall be located as set forth on Exhibit A.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote full attention and time during normal business hours to the
business and affairs of the Company and to use the Executive's reasonable best
efforts to perform such responsibilities in a professional manner. It shall not
be a violation of this Agreement for the executive to (A) serve on corporate,
civic or charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the Executive prior
to the Commencement Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Commencement Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") in the
amount set forth on Exhibit A. The Annual Base Salary shall be paid no less
frequently than in equal monthly installments.
(ii) Annual Bonus. For each year during the Employment Period,
in addition to Annual Base Salary, the Executive will be awarded an annual bonus
(the "Annual Bonus") which is consistent with Company practice and policy with
respect to the division in which the Executive is employed but which will not be
less than the amount set forth on Exhibit A (the "Minimum Bonus"), payable in
the ratio of cash and equity incentives set forth on Exhibit A.
(iii) Deferral Amount; Stock Options. The Executive is
entitled to certain amounts set forth on Exhibit A upon the consummation of the
Merger pursuant to the Company
Stock Options Plans and pursuant to the terms of other Awards (as such terms are
defined in the Merger Agreement). The Executive may elect to defer receipt of an
amount set forth on Exhibit A on the terms set forth therein (the "Deferral
Amount"). The Executive also agrees that any amounts that would become payable
or vested upon shareholder approval of the Merger shall not be payable or vest
until consummation of the Merger. The Executive agrees to the treatment of his
stock options set forth in the Merger Agreement.
(iv) Savings and Retirement Plans. During the Employment
Period, the Executive shall be eligible to participate in all savings and
retirement plans, practices, policies and programs to the extent applicable
generally to other peer executives of the Company and its affiliated companies
and shall receive service credit for all service to the Company or its
affiliates (other than for purposes of benefit accrual under a defined benefit
plan).
(v) Welfare and Other Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits under welfare,
fringe, change of control protection, vacation and other similar benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent applicable generally to other peer
executives of the Company and its affiliated companies. For purposes of all such
plans, the Company shall credit the Executive with full credit for all service
credited under the corresponding existing benefit plans in which the Executive
participates for purposes of eligibility to participate and receive benefits but
not for purposes of benefit accrual. With respect to the Company's welfare
benefit plans, the Company shall cause any such plan to waive any pre-existing
condition exclusions and actively-at-work requirements thereunder with respect
to the Executive and his eligible dependents and shall ensure that any covered
expenses incurred on or before the Commencement Date shall be taken into account
for purposes of satisfying applicable deductible, coinsurance and maximum
out-of-pocket provisions after the Commencement Date to the extent that such
expenses are taken into account for the benefit of peer executives of the
Company.
(vi) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable business
expenses incurred by the Executive, in accordance with the policies of the
Company.
(vii) Indemnity. The Executive shall be indemnified by the
Company against claims arising in connection with the Executive's status as an
employee, officer, director or agent of the Company in accordance with the
Company's indemnity policies for its senior executives, subject to applicable
law.
3. Termination of Employment. (a) Death or Disability. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 10(b) of this Agreement of
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its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall have the meaning set forth in the
Company's Long-Term Disability Plan.
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) intentional gross misconduct by the Executive damaging in a
material way to the Company, or
(ii) a material breach of this Agreement damaging in a material way
to the Company, which shall include a material breach of Section 6 hereof,
after the Company has given the Executive notice thereof and a reasonable
opportunity to cure.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) the assignment to the Executive of any duties materially and
adversely inconsistent with the Executive's position (including, without
limitation, status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Exhibit A, a
failure by Deutsche to appoint the Executive as a member of the Vorstand
of Deutsche, reporting directly to the Spokesman of the Vorstand, or any
other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this
purpose any action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(ii) any material failure by the Company to comply with any of the
provisions of Section 2(b) of this Agreement, other than a failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iii) The Company's requiring the Executive to be based at any
office or location except as set forth on Exhibit A and except for
required travel consistent with your position;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy Section
10(c) of this Agreement, unless such failure does not occur in bad faith
and is remedied by the Company promptly after receipt of notice thereof
given by the Executive.
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Any good faith determination by the Executive of Good Reason after
the first anniversary of the Merger shall be conclusive. Notwithstanding the
foregoing, no event, action or omission shall constitute Good Reason if (x) the
Executive shall have consented in writing thereto, or (y) the Executive shall
not, within 60 days of knowledge thereof, have given the Company written notice
in accordance with Section 3(d) hereof of the Executive's termination on the
grounds that such event, action or omission constitutes Good Reason.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be ,(ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
4. Obligations of the Company upon Termination. (a) Good Reason;
Other Than for Cause. If, during the Employment Period, the Company shall
terminate the Executive's employment other than for Cause, including by reason
of the Executive's death or Disability, or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the amounts
set forth in clauses A and B below:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Minimum Bonus and (y) a fraction (the "Proration
Fraction"), the numerator of which is the number of days in the
current calendar year through the Date of Termination, and the
denominator of which is 365 and (3) any compensation previously
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deferred by the Executive (together with any accrued interest or
earnings thereon) to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) the number of years
(including fractions thereof) remaining from the Date of Termination
until December 31, 2003 and (2) the sum of(x) the Executive's Annual
Base Salary and (y) the Minimum Bonus; and
(ii) all stock awards or stock equivalents held by the Executive
shall be immediately vested and payable; and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is entitled to
receive under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies, excluding any
severance plan, policy or agreement except to the extent that such plan,
policy or agreement provides, in accordance with its terms, benefits with
a value in excess of the benefits payable to the Executive under this
Section 4 (such other amounts and benefits shall be hereinafter referred
to as the "Other Benefits").
(b) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause or the Executive terminates employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (x) Accrued Obligations less the amount determined under Section
4(a)(i)A(2) hereof, and (y) Other Benefits, in each case to the extent
theretofore unpaid.
5. Arbitration. The Company and the Executive agree that any
disputes with respect to this Agreement shall be subject to binding arbitration
in New York City in accordance with the rules of the American Arbitration
Association. The proceedings and the results of such arbitration shall be
treated as confidential information subject to Section 6(a) hereof The Company
agrees to pay for the costs of arbitration and shall reimburse the Executive for
his reasonable attorney's fees provided that the Executive prevails on at least
one material issue in the arbitration.
6. Confidential Information/Noncompetition. (a) The Executive shall
hold in a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the Company or any of
its affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Company or
any of its affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process
(provided the Company has been given notice of and opportunity to challenge or
limit the scope of disclosure purportedly so required), communicate
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or divulge any such information, knowledge or data to anyone other than the
Company and those designated by it.
(b) Until December 31, 2003, or if earlier, one year after the
Executive's termination of employment, the Executive will not own, manage,
operate, control or participate in the ownership, management, operation or
control of, or be connected as an officer, employee, partner, director or
otherwise with, or have any financial interest in, any business which is in
competition with the investment banking, corporate finance, corporate advisory,
asset management or M&A business conducted by the Company or Deutsche or any of
their respective affiliates in the United States. Ownership, for personal
investment purposes only, of not to exceed 2% of the voting stock of any
publicly held corporation shall not constitute a violation hereof. This Section
6(b) shall be of no force or effect if the Executive's employment is terminated
without Cause.
7. Specific Performance. The Executive acknowledges that a violation
on his part of any of the covenants contained in Section 6 hereof would cause
immeasurable and irreparable damage to the Company. Accordingly, the Executive
agrees that the Company shall be entitled to injunctive relief in any court of
competent jurisdiction for any actual or threatened violation of any such
covenant in addition to any other remedies it may have. The Executive agrees
that in the event that any arbitrator or court of competent jurisdiction shall
finally hold that any provision of Section 6 hereof is void or constitutes an
unreasonable restriction against the Executive, the provisions of such Section 6
shall not be rendered void but shall apply to such extent as such arbitrator or
court may determine constitutes a reasonable restriction under the
circumstances.
8. Successors. (a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the Company
to or for the benefit of the Executive whether pursuant to this Agreement or
otherwise, and determined without regard to
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any additional payments required under this Section 9 (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, is hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by KPMG Peat
Marwick (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 9, shall be paid by the Company to the
Executive within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 9(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30 day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, ac-
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cepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 9(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to this Section 9, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 9(c)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
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10. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The Company's obligation to make the payments provided for in
this Agreement and otherwise to perform obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others, other than
claims for a breach of Section 6 of this Agreement. In no event shall the
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement, and such amounts shall not be reduced whether or
not the Executive obtains other employment.
(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(e) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(f) On and after the Commencement Date, this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ Xxxxx X. Xxxxxx
----------------------------------------
XXXXX X. XXXXXX
BANKERS TRUST CORPORATION
By /s/ Xxxxx X. Xxxxx, Xx.
-------------------------------------
XXXXX X. XXXXX, XX.
Acknowledged and agreed as a Guarantor
of performance:
DEUTSCHE BANK AG
By
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Exhibit A
Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer of Bankers Trust Corporation and
Bankers Trust Company or their successors. Co-Head of the Global Corporates and
Institutions division of Deutsche (or its functional equivalent) (including the
Global Institutional Services business), reporting directly to the Spokesman of
the Vorstand. It is management's intention to recommend to the Supervisory Board
of Deutsche Bank AG that the Executive be appointed a member of the Vorstand of
Deutsche Bank AG.
Location: Manhattan, New York
Annual Base Salary: $900,000
Minimum Bonus: $10,100,000 payable at least $7,070,000 in cash and the remainder
may be based on the value of Deutsche common stock (a "Stock Award"). The cash
portion of the Minimum Bonus payable with respect to calendar year 1999 shall be
reduced by any pro rata bonus payable upon a Change of Control of the Company.
The Stock Award shall vest in three equal annual installments after the date of
grant. The Stock Award shall have a floor value, upon vesting, guaranteed by the
Company of 75% of its value on the date of grant. All Stock Awards will vest
immediately upon a termination by the Company without Cause or by the Executive
for Good Reason or upon the Executive's retirement, whether or not during the
Employment Period.
Deferral Amount: $14,000,000. The Deferral Amount shall be paid to the Executive
in three equal annual installments, commencing on the first anniversary of the
Merger, together with interest at a rate of 12.5%.
