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Exhibit 10.1
CONSULTING AGREEMENT
This Consulting Agreement (hereinafter "Agreement") is made and entered into
as of the 6th day of June, 1997, between Xxxxx Xxxxxxx. (hereinafter
"Consultant"), and Trans World Airlines, Inc., a Delaware corporation
(hereinafter "Company").
In consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Consultant shall be retained by the Company as an independent
contractor and consultant to the Company. Consultant is presently a
member of the Company's Board of Directors. Consultant shall devote
his best efforts to performing consulting services for and on behalf
of the Company pursuant to this Agreement and will devote such time
as may be reasonably requested by the Company to performing
consulting services hereunder. This Agreement is on an ongoing as
needed basis, and will terminate one (1) month after notice in
writing of the termination of this Agreement by the Company to the
Consultant or from the Consultant to the Company.
2. For the purposes of this Agreement, Consultant is and will act at all
times as an independent contractor. Nothing contained in this
Agreement establishes or constitutes or will be construed as
establishing or constituting an employment agreement between the
Company and Consultant or the relationship of employer and employee.
Further, the parties acknowledge that this Agreement does not
establish or constitute a partnership or joint venture between the
Company and Consultant. Notwithstanding any other provision of this
Agreement, neither party to this Agreement has or may interfere with
or assume the right to direct or control the time, manner, and
method of executing the work of the other party; provided, however,
that this contract provision in no way waives the right of either
party to require definite results from the other party in conformity
with the terms of this Agreement. The acceptance by either party of
the work of the other party under this Agreement shall in no way be
considered as a ratification by the accepting party of any act of
wrongdoing by the other party.
3. Consultant expressly represents and warrants to the Company that he is
not and shall not be construed to be an employee of the Company and
that his status shall be that of an independent contractor.
Consultant is not authorized to enter into contracts or agreements on
behalf of the Company which create obligations of the Company to
third parties except with prior approval or authorization of (i) the
Board of Directors, or (ii) such Company officers and/or employees
who have authority to enter into such contracts or agreements.
4. Consultant shall perform duties and provide services, rendering such
advice and/or consultation as the Company may reasonably request.
5. Consultant shall be paid at the rate of $25,000.00 per quarter, such
fee to be paid quarterly in arrears, as a fee for consulting services
to the Company. Nothing herein contained shall invalidate or change
any compensation arrangement, options or other contractual
commitments between the Company and the Consultant in Consultant's
status as a member of the Board of Directors provided, however that
Consultant shall not receive such compensation as a member of the
Board of Directors that would otherwise be payable to him for work
which he is performing in his capacity as a consultant for services
or participation in meetings where
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Consultant is being compensated for services pursuant to this Agreement.
Consultant will be indemnified by the Company for work which he performs
pursuant to the terms of this Agreement.
6. Consultant will be provided office space and administrative support
while working in the Company's St. Louis, Missouri executive offices.
Reasonable rental for said office space and administrative support is
included in Consultant's per diem rate. Reasonable out-of-pocket
expenses for any business travel and business expenses incurred by
Consultant in the performance of above stated duties shall be
reimbursed by the Company upon submission of appropriate expense
statements.
7. During the term of this Agreement, and for a period of twenty-four
months thereafter and except as may otherwise be required under
applicable provisions of, or rules or regulations under applicable
federal, state or local laws or in connection with interrogatories,
requests for information or documents, subpoena, civil investigative
demand for any formal or informal investigation by any government or
governmental agency or authority, Consultant shall not disclose any
confidential or proprietary information relating to the business
presently being conducted, or presently proposed to be conducted, by
the Company or its subsidiaries or affiliates, to any person, firm,
corporation, association or other entity, nor shall Consultant make
use of any such confidential or proprietary information for his own
purpose or for the benefit of any other entity except the Company or
its subsidiaries or affiliates. For the purpose of this paragraph,
the term "confidential or proprietary information" shall mean all
confidential or proprietary information which is known regardless of
form, to Consultant and relates to matters of the business conducted
or proposed to be conducted by the Company or its subsidiaries or
affiliates, and relates, without limitation, to matters such as work
product, trade secrets, customers, pricing and credit techniques,
books and records, suppliers, private processes, inventions,
techniques, marketing plans, strategies, forecasts, product
cost/information, and financial data as may exist from time to time
but shall not include any information which at the time of its
disclosure is in the public domain or which is required by law to be
disclosed.
8. Federal, state and local income tax and payroll taxes of any kind shall
not be withheld or paid by the Company on behalf of Consultant.
9. The Company acknowledges that subject to the requirements of his
engagement hereunder, Consultant may continue to engage in such
activities in which he is presently engaged or in which he may choose
to engage during the term of this Consulting provided however that
Consultant shall engage in no such activity which is materially
adverse to the Company's interests and/or which interferes with
Consultant's ability to render services to the Company as provided
hereunder.
10. For a period of twenty-four months from and after the termination of
this Agreement, Consultant shall not make any derogatory or negative
statements (oral and written), or cause detriment or damage
concerning the Company or its subsidiaries or affiliates or its
management, business or prospects; provided, however, that
Consultant's truthful compelled testimony in a judicial proceeding
shall not be deemed to be a breach of this Agreement.
11. This Agreement sets forth the entire agreement between the parties.
All prior agreements or understandings between the parties hereof
pertaining to the subject matter hereof are superseded. This
Agreement shall not be transferred or assigned, in whole or in part,
by Consultant.
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12. Should any provision of this Agreement be determined by any Court to be
illegal or invalid, the validity of the remaining provisions shall
not be affected thereby and said invalid part or provision shall be
deemed not part of this Agreement.
13. In the event of any controversy, dispute or claim of whatever nature
between the parties hereto arising out of, in connection with, or in
relation to the interpretation, performance or breach of this
Agreement, including without limitation, any claim based on contract,
tort or statute, such controversy, dispute or claim of whatever
nature shall be submitted to and resolved by binding arbitration
before a single arbitrator in New York, New York appointed and acting
in accordance with the Rules of the American Arbitration Association
then in force and effect, except to the extent such Rules are
modified by the express terms hereof. The decision of the arbitrator
submitted to arbitration pursuant to this provision shall be final
and binding upon the parties and judgment upon any such award
rendered by the arbitrator may be entered by any state or federal
court in New York. No suit at law or in equity based upon any
controversy, dispute or claim arbitrable hereunder shall be
instituted by any party except to enforce the award of the
arbitrator. The arbitrator shall be entitled to determine which is
the prevailing party and shall include in the award reasonable
attorneys fees and costs to such prevailing party.
The parties hereto agree to endeavor in good faith to obtain a decision
from any such arbitration as promptly as practicable and shall so
endeavor to conduct any hearing required and obtain any decision of
the arbitrator without delay and, in any event, within three months
of any demand for arbitration if possible, and if not possible, as
promptly as reasonably practicable. The arbitration hearing shall be
conducted within thirty (30) days unless otherwise ordered by the
arbitrator and the award on the hearing shall be made within fifteen
(15) days after the hearing. The parties each irrevocably waive (and
irrevocably agree not to raise) any objection which it may have now
or hereafter to the venue of any such arbitration proceeding or court
referred to in this Section and any claim that such arbitration
proceedings have been brought in any inconvenient forum.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the principles
of conflict of laws thereof.
In witness hereof and intending to be legally bound hereby, Consultant has
executed the foregoing Agreement.
Executed this 6th day of June, 1997.
TRANS WORLD AIRLINES, INC.
By:
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XXXXX XXXXXXX
Title: Senior Vice President - Legal
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