EXHIBIT 10(iii)(A)(2)
SETTLEMENT AND NON-DISCLOSURE AGREEMENT
XXXXXXX X. XXXXXXX, XX., on his own behalf and on
behalf of his heirs, executors, administrators, attorneys,
successors and assigns (hereinafter collectively referred to as
"Xxxxxxx"), 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 Xxxxxxx'x employment with, and
retirement from the employ of, Bankers Trust, such Agreement
being reached on the following terms and conditions:
x. Xxxxxxx shall resign his position as Chairman of Bankers
Trust effective April 16, 1996 and his employment on April 30,
1996.
ii. In recognition of his many years of dedicated service to
Bankers Trust and of his retirement from the Company and for
executing this Agreement, Xxxxxxx will be provided with the
following:
(1) On or about the eighth (8th) day following his execution
of this Agreement, which Xxxxxxx acknowledges may not be executed
prior to April 30, 1996, his last day of employment, Bankers
Trust shall contribute $2,000,000 to Xxxxxxx'x ADCAP account.
Xxxxxxx'x entire ADCAP account will be distributed to him on or
about May 31, 1996. Xxxxxxx hereby acknowledges and further
agrees that the $2,000,000 contribution to his ADCAP account made
pursuant to this paragraph, will be forfeited and he will be
required to tender back such contribution to Bankers Trust within
thirty (30) days of a request therefor, if he materially violates
any provisions of this Agreement, within the one-year period
following its execution. Xxxxxxx also acknowledges that should
any request be made by Bankers Trust for the tender back of this
contribution in the event of his material violation of this
Agreement, and should he fail to tender back such contribution
within the requisite thirty (30) day period, he shall be
responsible for Bankers Trust's attorneys' fees and costs
incurred in any action to recover such contribution.
(2) On April 16, 1996, Bankers Trust shall provide Xxxxxxx
with 75,000 stock options under the terms of the BTNY Corporation
Stock Option Stock Award Plan. These options shall vest on the
eighth (8th) day following the execution of this Agreement. Such
options shall become first exercisable on April 16, 1997. These
options together with all other previously awarded options that
are currently outstanding shall continue to become exercisable in
accordance with their terms and, notwithstanding any provisions
of such options to the contrary, shall remain exercisable for the
original terms under which they have been granted. That is,
options which have previously been granted to Xxxxxxx and are
currently outstanding may be exercised for the remainder of the
original ten year exercise period. Any options remaining
unexercised at the end of the respective periods will be
forfeited.
Xxxxxxx understands that upon execution of this
Agreement by the Company, any Incentive Stock Options outstanding
will be deemed "Modified" and thereby lose their tax qualified
status.
(3) Bankers Trust acknowledges that Xxxxxxx has a
Restricted Stock award outstanding of 63,500 shares. On or about
the eighth (8th) day after he executes this Agreement, such
shares will vest and be distributed to Xxxxxxx.
Xxxxxxx 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. Xxxxxxx 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 Xxxxxxx dies
prior to the payment of any of the amounts set forth in this
paragraph, Xxxxxxx'x estate or his designated beneficiary shall
be paid such amounts.
iii. In exchange for the consideration described in
paragraphs ii(1), (2) and (3), Xxxxxxx 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, the Age Discrimination in Employment Act of 1967 as
amended by the Older Workers' Benefits Protection Act of 1990, 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, Xxxxxxx 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 hereafter 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.
Xxxxxxx 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 Xxxxxxx. Xxxxxxx
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 Xxxxxxx 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. Xxxxxxx 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, Xxxxxxx shall have the right
to choose his own counsel in connection with any investigatory or
legal proceedings, in which Xxxxxxx may be or become involved,
and shall be reimbursed for reasonable attorneys' fees in
connection with any such investigation or litigation.
Additionally, Xxxxxxx 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.
iv. 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 Xxxxxxx 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.
v. Neither Xxxxxxx 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
Xxxxxxx'x 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. Xxxxxxx 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.
Xxxxxxx 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 Xxxxxxx
of the provisions of this Agreement. Bankers Trust reserves the
right to seek appropriate damages, including attorneys' fees and
injunctive relief, should Xxxxxxx violate this Agreement.
vi. 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 Xxxxxxx or any authorized officer of the Company, as
the case may be.
vii. 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.
viii. 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.
ix. Xxxxxxx 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 Xxxxxxx 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. Xxxxxxx shall be entitled to a fee of $2,500 per
day (pro-rated for a portion of a day) for furnishing such
voluntary cooperation, such fee to be paid promptly following his
submission of a statement therefor.
x. Xxxxxxx 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.
Xxxxxxx is also hereby advised by Bankers Trust to consult with
an attorney regarding this Agreement.
xi. This Agreement has been executed freely, knowingly
and voluntarily by Xxxxxxx 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 Xxxxxxx 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.
xii. 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 Xxxxxxx and an authorized
management representative of Bankers Trust.
AGREED: AGREED:
BANKERS TRUST NEW YORK
CORPORATION on behalf of
Bankers Trust
/S/XXXXXXX X. XXXXXXX, XX. By: /S/XXXX XXXXXX
XXXXXXX X. XXXXXXX, XX. Xxxx Xxxxxx
Executive Vice President
April 30, 1996 April 10, 1996
Date Date
On this 30th day of April 1996, On this 10th day of April
before me personally came XXXXXXX 1996, before me personally
X. XXXXXXX, XX. to me known to be came Xxxx Xxxxxx, authorized
the individual described in and representative for Bankers
who executed the foregoing Trust New York Corporation, to
Settlement and Non-disclosure me known to be the individual
Agreement, and duly acknowledged described in and who executed
to me that he executed the same. the foregoing Settlement and
Non-disclosure Agreement, and
duly acknowledged to me that
he executed the same.
/S/XXXXX X. XXXXXXXX /S/XXXXX X. XXXXXXXX
Notary Public Notary Public
