EXHIBIT 10 iii(a)(1)
SEPARATION AGREEMENT
This Separation Agreement (this "Agreement) is made on June 29, 1999,
by and between Xxxxx X. Xxxxxx (the "Executive") and Bankers Trust
Corporation (the "Company").
1. Termination of Employment. The Executive and the Company agree
that the Executive's employment with the Company shall terminate effective
as of June 30, 1999 (the "Termination Date"). The Executive hereby
resigns, effective as of the Termination Date, all positions, titles,
duties, authorities and responsibilities with, arising out of or relating
to his employment with the Company and its affiliates.
2. Payments. (a) On the first business day following the Effective
Time (as such term is hereinafter defined), the Company shall pay the
Executive his earned but unpaid base salary through the Termination Date at
an annual rate of nine-hundred thousand dollars ($900,000).
(b) On the first business day following the Effective Time, the
Company shall pay the Executive, by wire transfer to an account designated
by the Executive, fifty-two million seven hundred fifty thousand seven
hundred fifty eight dollars, ($52,750,758.00).
(c) On July 1 (or such later date not after the first business day
following the Effective Time on which such payments are distributed
generally to executives of the Company), the Company shall also pay to the
Executive, by wire transfer to an account designated by the Executive,
twenty-one million three hundred eight thousand five hundred six dollars
and thirty-one cents ($21,308,506.31), in cash in a lump sum, in full
satisfaction of the Executive's entitlement under various incentive plans
of the Company.
(d) The Company shall continue to provide the Executive and his spouse
with medical and dental benefits on the same basis and terms as the Company
provides generally to its senior executive officers from time to time, for
the period from the Termination Date through the earlier of June 30, 2002,
or such date as the Executive is entitled to receive substantially similar
benefits from any new employer of the Executive. Such benefit continuation
shall not satisfy the Company's obligation to offer to continue the
Executive's medical benefits at the Executive's own expense under the
federal law commonly referred to as COBRA.
(e) For the period from the Effective Time through the earlier of
December 31, 2003, or the date on which the Executive commences new
employment (i) the Company shall continue to provide the Executive with a
car and driver for his personal use; and (ii) the Company will continue to
provide the Executive with an office that is reasonably acceptable to the
Executive and the Company and with a secretary, who may be his current
secretary or another secretary of his choosing, provided that the annual
cost of such secretary does not exceed $75,000, increased each year by the
increase in the Consumer Price Index for the New York City area.
(f) The payment provided for in Section 2(b) hereof shall not be taken
into account as compensation under, and no service credit shall be given
after the Termination Date for purposes of determining the benefits payable
under, any employee benefit plan, program, agreement or arrangement of the
Company.
3. Other Agreements. (a) Following the Effective Time, the Executive
shall have the honorary title "Chairman Emeritus of Bankers Trust
Corporation."
(b) The Executive acknowledges and agrees to comply as of the
Effective Date with the agreements set forth in Section 6 and 7 (concerning
confidentiality and competition) of the Employment Agreement dated as of
November 30, 1998, between the Company and the Executive (the "Employment
Agreement").
(c) The Company and the Executive acknowledge and reaffirm their
agreements set forth in Section 9 of the Employment Agreement (concerning
excise taxes). The Company and the Executive agree that the payments
referred to in Section 9(a) of the Employment Agreement include the
payments referred to in this Agreement. The Company and the Executive also
agree that, in lieu of the agreements set forth in Section 9(b) of the
Employment Agreement the Company shall make all of the determinations
required by Section 9(a) of the Employment Agreement and, subject to
Sections 9(c) and (d) of the Employment Agreement, the Executive agrees not
to take any position inconsistent with such determinations.
(d) The Executive agrees to reasonably cooperate (including attending
meetings) with respect to any claim, arbitral, hearing, lawsuit, action or
governmental or internal investigation relating to the conduct of the
business of the Company or its affiliates. The Executive agrees to provide
full and complete disclosure in response to any inquiry in connection with
any such matters. The Company agrees to reimburse the Executive for his
reasonable expenses incurred in connection with such cooperation,
(e) The Executive and the Company agree that Deutsche Bank AG will
issue the press release attached hereto as Exhibit A as soon as practical
after the date hereof.
(f) Executive shall not intentionally make any public statements,
encourage others to make statements or release information intended to
disparage or defame the Company, any of its affiliates or any of their
respective directors or officers. The Company shall cause its senior
executives and the senior executives and directors of Deutsche Bank AG not
to intentionally make, or cause or encourage others to make, any public
statements or release information intended to disparage or defame the
Executive's reputation, and the Company shall not take any such action on
its own behalf. Notwithstanding the foregoing, nothing in this Section
3(f) shall prohibit any person from making truthful statements when
required by order of a court or other body having jurisdiction or as
required by law.
(g) The Company agrees to continue to maintain a directors' and
officers' liability insurance policy covering the Executive until such time
as suits against the executive with respect to his employment with the
Company are no longer permitted by law.
4. General Release and Waiver (a) The Executive hereby releases,
remises and acquits the Company and all of its affiliates, and their
respective officers, directors, shareholders, members, agents, executives,
consultants, independent contractors, attorneys, advisers, successors and
assigns, jointly and severally, from any and all claims, known or unknown,
which the Executive or the Executive's heirs, successors or assigns have or
may have against any of such parties arising on or prior to this date of
this Agreement and any and all liability which any of such parties may have
to the Executive, whether denominated claims, demands, causes of action,
obligations, damages or liabilities arising from any and all bases, however
denominated, including but not limited to all contractual claims and any
claims, under the Age Discrimination in Employment Act, the Americans With
Disabilities Act of 1990, the Family and Medical Leave Act of 1993, Title
VII of the United States Civil Rights Act of 1964, 42 U.S.C. S 1981 or any
other Federal, State or local law and any workers' compensation or
disability claim under any such law. This release relates to claims arising
from and during the Executive's employment relationship with the Company or
as a result of the termination of such relationship. The Executive further
agrees that the Executive will not file or permit to be filed on the
Executive's behalf any such claim. Notwithstanding the preceding sentence
or any other provision of this Agreement, this release is not intended to
interfere with the Executive's right to file a charge with the Equal
Employment Opportunity Commission in connection with any claim he believes
he may have against the Company. However, by executing this Agreement the
Executive hereby waives the right to recover in any proceeding the
Executive may bring before the Equal Employment Opportunity Commission or
any State human rights commission or in any proceeding brought by the Equal
Employment Opportunity Commission or any State human rights commission on
the Executive's behalf. This release is for any relief no matter how
denominated, including, but not limited to,
injunctive relief, wages, back pay, front pay, compensatory damages, or
punitive damages. This release shall not apply to any obligation of the
Company pursuant to this Agreement any benefit to which the Executive may
be entitled under any tax qualified pension plan of the Company or its
affiliates, COBRA continuation coverage benefits or any other similar
benefits required to be provided by law, any rights in the nature of
indemnification which the Executive may have with respect to claims against
the Executive relating to or arising out of his employment with the Company
or any rights that the Executive may have to obtain contribution in the
event of the entry of judgment against him as a result of any act or
failure to act for which both the Executive and the Company or any of its
affiliates are jointly responsible.
(b) The Executive acknowledges that the agreements of the Company
hereunder are being provided in consideration of the foregoing release and
that the Executive may not otherwise be entitled to certain of the benefits
described herein. The Executive agrees not to make any claim or take any
position inconsistent with the preceding sentence.
(c) The Company hereby releases, remises and acquits the Executive
and his successors, heirs and advisers, jointly and severally, from any and
all claims, known or unknown, which the Company or its affiliates,
successors or assigns have or may have against any of such parties arising
on or prior to the date of this Agreement and any and all liability which
any of such parties may have to the Company, whether denominated claims,
demands, causes of action, obligations, damages or liabilities arising from
any and all bases, however denominated, including but not limited to all
contractual claims and any claims under law, excluding any claim relating
to intentional gross misconduct by the Executive damaging in a material way
to the Company or one of its affiliates. The Company further agrees that
the Company will not file or permit to be filed any such claim. This
release is for any relief no matter how denominated, including, but not
limited to, injunctive relief, compensatory damages or punitive damages.
This release shall not apply to any obligation of the Executive pursuant to
this Agreement or any rights that the Company or its affiliates may have to
obtain contribution in the event of the entry of judgment against the
Company or any such affiliate as a result of any act or failure to act for
which both the Executive and the Company or such affiliate are jointly
responsible.
5. No Admission. This Agreement does not constitute an admission of
liability or wrongdoing of any kind by the Company or its affiliates or
Executive.
6. Reirs and Assigns. The terms of this Agreement shall be binding
on the parties hereto and their respective successors and assigns.
7. Confidentially. (a) For the period during which this Agreement
has not been publicly disclosed by the Company, the Executive agrees to
keep in full confidence all information concerning this Agreement except
(i) to the extent disclosure is or may be required by a statute, by a court
of law, by any governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order him to
divulge, disclose or make accessible such information, (ii) to the extent
disclosure to the Executive's legal counsel and personal financial advisors
is reasonably necessary in connection Executive's consideration of the
terms of this Agreement or Executive's personal financial dealings and
(iii) to members of his immediate family.
(b) The Company agrees to keep in full confidence all information
concerning this Agreement, except (i) to the extent disclosure is or may be
required by the Company or any of its affiliates by a statute, by a court
of law, by any governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order the
Company or its affiliate to divulge, disclose or make accessible such
information, (ii) to the extent disclosure to the legal counsel and
auditors by the Company or its affiliates is reasonably necessary and (iii)
to those persons within the Company and its affiliates who, as reasonably
determined by the Company, must, know about it in carrying out their
duties.
(c) The Executive and the Company acknowledge and agree that each
shall be entitled to enforce specifically the covenants in this Section 7
by seeking an injunction to prevent violation thereof in addition to any
other remedies available at law or in equity.
8. General Provisions. (a) This Agreement constitutes the entire
understanding of the Company and the Executive with respect to the subject
matter hereof and supersedes all prior understandings, written or oral,
with respect thereto. The terms of this Agreement may be changed, modified
or discharged only by an instrument in writing signed by the parties
hereto. A failure of the Company or the Executive to insist on strict
compliance with any provision of this Agreement shall not be deemed a
waiver of such provision or any other provision hereof. In the event that
any provision of this Agreement is determined to be so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as
is enforceable.
(b) This Agreement shall be construed enforced and interpreted in
accordance with and governed by the laws of the State of New York. The
Company and the Executive irrevocably and unconditionally submit to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York located in the borough of Manhattan in the City of New
York or the Supreme Court of the State of New York, New York County for the
purposes of any suit, action or other proceeding arising out of or relating
to this Agreement and each party agrees that any such suit, action or other
proceeding shall be heard without a jury and hereby waives any right to a
trial by jury in connection therewith.
(c) The parties hereto acknowledge and agree that each party has
reviewed and negotiated the terms and provisions of this Agreement and has
had the opportunity to contribute to its revision. Accordingly, the rule
of construction to the effect that ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this
Agreement. Rather, the terms of this Agreement shall be construed fairly
as to both parties hereto and not in favor or against either party.
(d) This Agreement may be executed in any number of counterparts and
by different parties on separate counterparts, each of which counterpart,
when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the
same Agreement
(e) All notice, requests, demands or other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or when received by facsimile or overnight express
to the party to whom such notice is being given as follows:
As to Executive:
Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As to the Company:
Xx. Xxxxx Xxxxxx
Deutsche Bank AG
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx-xx-Xxxx, Xxxxxxx
Either party may change his or its address or the name of the person to
whose attention the notice or other communication shall be directed from
time to time by serving notice thereof upon the other party as provided
herein.
(f) The Company represents and warrants to the Executive that the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized and that all corporate action required to be taken by the
Company for the execution, delivery and performance of this Agreement has
been duly and effectively taken. The Company acknowledges that the
Executive has relied upon such representations and warranties in entering
into this Agreement.
(g) All payments and benefits payable pursuant hereto shall be paid
subject to all required tax withholdings.
9. Knowing and Voluntary Waiver. The Executive acknowledges that by
the Executive's free and voluntary act of signing below, the Executive
agrees to all of the terms of this Agreement and intends to be legally
bound thereby.
The Executive understands that he may consider whether to agree to the
terms contained herein for a period of twenty-one days after the date
hereof. Accordingly, the Executive may execute this Agreement by July 20,
1999, to acknowledge his understanding of and agreement with the foregoing.
The Executive acknowledges that he has been advised to consult with an
attorney prior to executing this Agreement.
This Agreement will become effective, enforceable and irrevocable at 5
p.m. (eastern time) on the seventh day after the date on which it is
executed by the Executive (the "Effective Time"). During the seven-day
period prior to the Effective Time, the Executive may revoke his agreement
to accept the terms hereof by notifying the Company of his intention to
revoke. If the Executive exercises his right to revoke hereunder, he shall
forfeit his right to receive any of the benefits provided for herein.
BANKERS TRUST CORPORATION
/S/ Xxxxx X. Xxxxx
By: Xxxxx X. Xxxxx, Secretary-Bankers Trust
Corporation
/S/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Acknowledgment
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 29th day of June, 1999, before me personally came Xxxxx X. Xxxxxx
who, being by me duly sworn, did depose and say that he resides at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and did acknowledge and represent that he
has had an opportunity to consult with attorneys and other advisers of his
choosing regarding the Separation Agreement attached hereto, that he has
reviewed all of the terms of the Separation Agreement and that he fully
understands all of its provisions, including, without limitation, the
general release and waiver set forth therein.
/S/ Xxxx X. Xxxxxxxx
Notary Public
Date: June 29, 1999
XXXX X. XXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 31-MO4867292
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES AUGUST 11, 2000
PRESS RELEASE DEUTSCHE BANK
Frankfurt am Main, June 29, 1999
Xxxxx Xxxxxx, Co-Chairman of Global Corporates and Institutions (GCI)
Division of the Deutsche Bank Group and Chairman of the Board of Directors
and Chief Executive Officer of Bankers Trust Corp. will be leaving the
Deutsche Bank Group after the recent successful acquisition of Bankers
Trust by Deutsche Bank. His resignation will be on amicable terms and will
take effect on June 30,1999. With the closing having occurred and the
smooth integration process well on its way, Xxxxx Xxxxxx has attained his
goals of achieving maximum value for the Bankers Trust shareholders and
delivering the Bankers Trust franchise into a secure future. He is now
planning to devote his future time on new projects. Dr. Xxxx-X. Xxxxxx,
Spokesman of the Board of Managing Directors of Deutsche Bank thanked Xxxxx
Xxxxxx for his constructive cooperation and his essential contribution to
the closing and to the smooth integration of Bankers Trust's businesses and
employees.
Xxxxx Xxxxxx stated: "BT has now been delivered into sound hands. Much has
already been accomplished, as a result of active integration planning over
the past several months. Combined operations are off to an excellent start.
At this point, I concluded that the role originally envisioned for me will
not be necessary. I thought it made sense for me to step aside at this
time, and let the continuing management team carry on with the momentum
already initiated. I expect the expanded DB to be very successful, and take
my leave on excellent terms with Xxxx Xxxxxx, for whom I have a great deal
of respect, as well as the other members of the Management Board. I'll also
take this opportunity to once again thank the exceptional people of BT, who
have helped so much to build and transform the company over these past few
years; I wish them great success in their new roles."
BANKERS TRUST CORPORATION
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
June 29, 0000
Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxx:
This letter confirms that Bankers Trust Corporation agrees to
contribute the sum of five million dollars ($5,000,000) to a charitable
foundation or trust that is qualified under Section 170(c) of the U.S.
Internal Revenue Code of 1986 (the "Charitable Trust") specified by you.
It is understood that you or your designees will act as trustees of the
Charitable Trust and will designate the non-profit organizations to receive
funds from the Charitable Trust over time. While the Charitable Trust may
pay administrative costs, no funds of the Charitable Trust may be paid to
you or any member of your family. Bankers Trust Corporation's contribution
to the Charitable Trust will be made on the business day following the
Effective Date under your Separation Agreement, or any subsequent date
specified by you, provided that you provide the Corporate Secretary of
Bankers Trust Corporation or its successor with at least three business
days' notice.
Sincerely,
/S/_James Byrne__________________
Xxxxx Xxxxx, Secretary-Bankers
Trust Corporation
