EXHIBIT 10.33
[LETTERHEAD OF TRANS WORLD AIRLINES, INC. APPEARS HERE]
January 6, 1997
Xx. Xxxxxx Xxxxx
0000 Xxxxxxxxx
Xxxxxxxxxx Xxxx, XX 00000
Dear Xx. Xxxxx:
This will confirm our agreement concerning the termination of your
employment with Trans World Airlines, Inc. ("TWA"). In this connection, TWA and
you have agreed as follows:
1. Your employment by TWA terminated as of December 19, 1996.
2. On or about the first week of January, 1997, you will receive: (a)
severance pay in the aggregate amount of $100,000.00, which will be paid to
you in a lump sum (less any applicable federal and state income and
employment tax withholdings and less any excess payment made in advance
pursuant to the Company's policy of paying executive officers on the 15th
day of each month); and (b) all accrued vacation, generally payable to
employees on termination, in the aggregate amount of $4,467.25 (less any
applicable federal and state income and employment tax withholdings).
3. 39,100 of the non-qualified stock options issued to you under TWA's Key
Employee Stock Incentive Program ("KESIP") will be treated as vested
options and such vested options will be exercisable by you in accordance
with the terms of the KESIP until their expiration on August 19, 2004.
All remaining unvested options lapsed as of December 19, 1996.
4. You will be entitled to Class 1 pass privileges for you and your spouse and
your dependent children for a period for six months from the effective date
of your termination. A non-ID Term Pass will be issued to you, and when you
receive it you will promptly return your current ID term pass to the
undersigned on behalf of TWA. Use of the above pass will be subject to
TWA's pass policy and applicable restrictions published in its Management
Policy and Procedure Manual, as the same may be in effect from time to
time. You will promptly return to the undersigned on behalf of TWA all term
passes issued to you by other air carriers.
5. All retirement benefits to which you are entitled under TWA"s Retirement
Savings Plan for Non-Contract Employees are vested.
6. All TWA group medical and dental insurance currently provided to you and
your spouse and dependent children by TWA will be maintained in force and
effect by TWA under the
Xx. Xxxxxx Xxxxx
December 30, 1996
Page 2
same terms and conditions currently in effect (provided that any generally
applicable changes in such terms and conditions as are hereafter made shall
apply to you) including but not limited to the payment by you of fees for
additional life insurance and ADD coverage, for the period until the
earlier of (i) the date you are re-employed full time and become covered by
your new employer's comparable benefit plans, or (ii) the expiration of six
(6) months after December 19, 1996. Any generally applicable changes in the
terms and conditions of such coverage which may hereafter be made shall
also apply to you and your spouse during the period specified.
7. You will continue to be entitled, with respect to claims by third parties
against you in your capacity as an officer of TWA or an officer or director
of any of its subsidiaries relating to periods which you were employed by
TWA, to be indemnified under the provisions of TWA's bylaws and under the
terms of that certain Indemnification Agreement dated as of the 17th day of
September, 1996 (a copy of which is attached) and you are entitled to be
covered by such officers' and directors' liability insurance coverage as
shall be maintained by TWA from time to time.
8. You will upon execution of this letter agreement return to the undersigned
on behalf of TWA any computers and all accessories, software and
appurtenances thereto, or pages, which are the property of or leased by TWA
and in your possession, and all other TWA property, documents or material
that may be in your possession.
9. You agree that for a period of two (2) years after the termination of your
employment with TWA you will not for any reason solicit (or assist or
encourage the solicitation of) any employee of TWA or any of its
subsidiaries or affiliated companies to be employed by you or any entity
in which you own or expect to own an equity interest in excess of five (5)
percent of any class of the outstanding securities thereof, or by which
you are employed or for which you serve or expect to serve in any capacity.
For purposes of this paragraph, the term "solicit" shall mean your
contacting or providing information to others who may be expected to
contact, any employee of TWA or of any of its subsidiaries or affiliated
companies regarding their employment status, job satisfaction, interest in
seeking employment with you, any person affiliated with you or by whom you
are employed or any other person or concerning any related matter, but
shall not include general print advertising for personnel or responding to
an unsolicited request for a personal recommendation for or evaluation of
an employee of TWA or any of its subsidiaries or affiliated companies.
10. You agree to make yourself reasonably available (taking into consideration
your then current employment circumstances) and to cooperate with TWA as
may be reasonably necessary in connection with any litigation or other
proceedings which have arisen or may
Xx. Xxxxxx Xxxxx
December 30, 1996
Page 3
arise, directly or indirectly, out of or in connection with the
performance of your duties while you were employed by TWA. TWA will
compensate you for said services pursuant to its standard compensation
of an hourly rate based upon your last salary while still employed by
TWA or, if greater your then current salary. You agree not to serve as
an expert witness or otherwise testify against TWA in any litigation
against TWA brought by any third parties unless you are under a court
order or subpoena to do so. You will promptly notify TWA if you are so
subpoenaed or ordered by any court to so testify in any litigation
against TWA.
11. You agree:
a) That you will not disclose or make public to anyone, or release to
the media any nonpublic TWA commercial, operational or financial
information, including costs, strategies, forecasts or trade
secrets for a period of twelve (12) months after your signing this
Agreement, unless you are under a court order or subpoena to do
so.
b) That you will not discuss or disclose to the media the
circumstances or terms of your termination of employment from TWA
for a period of two (2) years after your signing this Agreement and
you will not publicly disparage or denigrate the Company or any of
its officers, directors or practices.
c) With the exception of claims arising out of any breach of this
Agreement, you irrevocably and unconditionally release, remise,
acquit and forever discharge TWA, its past and present
shareholders, subsidiaries, divisions, controlling parties,
officers, directors, agents, employees, successors and assigns
(separately and collectively "TWA Releases") jointly and
individually, of and from any and all claims, demands, causes of
action, obligations, damages or liabilities in law or in equity,
arising from all bases, however denominated, known or unknown,
directly or indirectly arising out of or relating to your
employment by TWA and the termination thereof, including but not
limited to any claims of employment discrimination under any
federal, state or local law, rule or regulation. This release
extends to any relief, no matter how denominated, including but not
limited to back pay, front pay, reinstatement, compensatory
damages, punitive damages, or damages from pain and suffering. you
further agree that you will not file nor permit to be filed on your
behalf any such claim, will not permit yourself to be a member of
any class seeking relief against TWA Releases, and will not counsel
or assist in the prosecution of any claims against the TWA Releases
whether those claims are on behalf of yourself or others, unless
you are under a subpoena court order compelling you to do so.
Xx. Xxxxxx Xxxxx
December 30, 1996
Page 4
d) This Agreement is intended to be a total accord, settlement and
satisfaction of any and all claims which you have or may have had
against the TWA Releases, including but not limited to any and all
contract, tort, and statutory claims, including but not limited to
claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, 29 U.S.C. (S) 621 et. seq., the
-- ---
Civil Rights Act of 1991, or under state or federal statute or law.
e) You further acknowledge that the only consideration for signing this
Agreement and all that you are ever to receive from the TWA Releases
are the terms stated in this Agreement and that, except as set forth
herein, no other promises or agreements of any kind have been made to
you or with you by any person or entity whatsoever to cause you to
sign this Agreement, and that you have signed this Agreement as your
free and voluntary act. You further acknowledge that pursuant to the
terms of this Agreement you are and will be receiving benefits from
TWA which are above and beyond those benefits normally provided under
TWA's corporate policies and procedures governing termination of
employment; that you have had a full, fair and adequate opportunity
to reflect upon and consider the terms of this Agreement, to
negotiate with TWA and its representatives concerning the same, and
to discuss the same if desired with legal counsel of your choice;
that no duress or pressure of any kind has been applied to you with
respect to your entering into this Agreement; and that you are
satisfied with the terms and provisions of this Agreement.
f) The execution of this Agreement, including the general release set
forth above, is knowing and voluntary and that you understand this
Agreement and the general release set forth in (c) above. You
acknowledge that you have been advised by TWA in writing to consult
with an attorney prior to executing this Agreement, you have in fact
consulted with an attorney prior to executing this Agreement, and you
have twenty-one (21) days from tender of this Agreement within which
to consider this Agreement.
For a period of seven (7) days following execution of this Agreement,
you may revoke this Agreement and this Agreement will not become
effective or enforceable until after the revocation period has
expired. Said revocation must be delivered in writing on or before
5:00 PM on the 7th day after execution of this Agreement to the
undersigned.
12. This Agreement shall be binding upon and inure to the benefit of TWA and
you, to the successors and assigns of TWA and to your heirs and personal
representatives.
Xx. Xxxxxx Xxxxx
December 30, 1996
Page 5
13. This Agreement contains the entire agreement between the parties regarding
its subject matter and supersedes all prior agreements between the parties.
This Agreement may only be modified in writing signed by the parties.
If this Agreement accurately reflects our understanding, please sign the
enclosed copy of this letter in the space provided and return same to me.
Sincerely,
TRANS WORLD AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President &
General Counsel
Read, Acknowledged and Agreed to
this 6th day of January, 1997.
/s/ Xxxxxx Xxxxx
------------------
Xxxxxx Xxxxx
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of the 17th day of
September, 1996, by and between Trans World Airlines, Inc., a Delaware
corporation, having its principal offices at One City Centre, 000 X. Xxxxx
Xxxxxx, Xx. Xxxxx, XX 000000 ("TWA" or the "Company"), and Xxxxxx Xxxxx,
residing at 0000 Xxxxxxxxx, Xxxxxxxxxx Xxxx 00000 (the "Indemnitee").
WHEREAS, it is essential for TWA, a corporation recently reorganized and
emerged from bankruptcy protection, to retain and attract as directors and
officers the most capable persons available; and
WHEREAS, Indemnitee is an executive officer of the Company; and
WHEREAS, both TWA and Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers of public
companies; and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to maintain Indemnitee's continued service
to the Company in an effective manner and to provide Indemnitee with specific
contractual assurance that the protection included in the Company's Third
Amended and Restated Certificate on Incorporation and Restated By-Laws will be
available to Indemnitee, the Company desires to provide in this Agreement for
the indemnification and the advance of expenses to Indemnitee as set forth in
this Agreement and, to the extent officers' and directors' liability insurance
is maintained by the Company, to provide for the continued coverage of
Indemnitee under the Company's officers' and directors' liability insurance
policies;
NOW THEREFORE, in consideration of the covenants contained in this
Agreement and of Indemnitee's continuing service to the Company directly or, at
its request, through other enterprises, and intending to be legally bound, the
parties agree as follows:
1. The Company hereby irrevocably, absolutely and unconditionally
indemnifies and holds harmless the Indemnitie from and against any claim
against the Indemnitee, other than as identified in Paragraph 2 below, based
upon any act, omission, neglect, or breach of duty that the Indemnitee may
commit, omit or suffer while acting in his capacity as a director/officer of the
Company, and agrees to reimburse the Indemnitee, upon ten (20) days written
notice, for any payments made or losses which the Indemnitee becomes legally
obligated to pay in connection with any such claim (the "Indemnified Claim").
2. As used in this Indemnity Agreement, the Indemnified Claim shall not
include the following: (i) any claim which is based upon the Indemnitee's
gaining any personal profit or advantage to which he is not legally entitled,
(ii) any claim which is for an accounting of profits made from the purchase or
sales by Indemnitee of securities of the Company within the meaning of Section
18(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of Delaware Law, or (iii) any
claim which is based upon the Indemnitee's knowingly fraudulent, deliberately
dishonest or willful misconduct.
3. Subject to the provisions of Paragraph 4 below, the Company
shall reimburse the Indemnitees for all costs and expenses incurred by the
Indemnitee in defending or investigating any Indemnified Claim and all such
costs and expenses shall be paid by the Company in advance of the final
disposition thereof unless the Company, its independent legal counsel, the
stockholders of the Company or a court of competent jurisdiction determines
that: (i) the Indemnitee did not act in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
Company, (ii) in the case of any criminal action or proceeding, the Indemnitee
had reasonable cause to believe his conduct was unlawful; or (iii) the
Indemnitee intentionally breached his duty to the Company or its stockholders.
4. The Indemnitee hereby agrees to repay the Company for any costs
or expenses advanced to the Indemnitee if it shall ultimately be determined by a
court of competent jurisdiction in a final, non-appealable adjudication, that
the Indemnitee is not entitled to indemnification under the terms of this
Indemnity Agreement.
5. If any Indemnified Claim is formally asserted or brought against
the Indemnitee which does or might entitle the Indemnitee to any or all of the
benefits of this Indemnity Agreement, the Indemnitee shall give prompt notice
thereof to the Company, together with true copies of all process, pleadings and
other papers received from the Claimants. The Company shall confirm to the
Indemnitee, by notice within three (3) business day thereafter, that the Company
will negotiate and/or defend (as the case may be) such Indemnified Claim,
advising briefly therein of the action the Company intends to take. The Company
shall promptly commence and proceed with due diligence to negotiate and/or
defend such Indemnified Claim, at the Company's sole expense, by appropriate
procedures and/or proceedings. The Company shall keep the Indemnitee reasonably
and currently apprised through such negotiations and/or defense of the status
thereof and shall promptly pay the amount of all final judgments and agreed
settlements, including attorneys' fees and costs. The Indemnitee shall cooperate
with the Company in all reasonable ways in such negotiations and/or defense, but
at the sole expense of the Company and without incurring or being deemed to have
incurred any obligation or liability of any kind, nature or description by
reason thereof.
6. Except as set forth in Paragraph 4 above, the Company hereby
irrevocably waives any and all rights which it might otherwise have to be
reimbursed for, or require contribution from the Indemnitee on account of all or
any party of any Indemnitee Claim.
7. All notices, demands, request, or other communications
("Notices") required or permitted to be given under or which are given with
respect to this indemnity Agreement shall be in writing and shall be sent by
certified mail, return receipt requested, postage prepaid, addressed to the
party to be notified at its last known address. Notices given as provided
herein shall be deemed received two (2) days after the date so mailed.
8. This indemnity Agreement may not be amended or otherwise
modified except by a writing executed and delivered by both of the parties
hereto.
9. This indemnity Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware without
giving effect to the principles of conflicts of law.
10. All rights and remedies afforded to the Indemnitee by reason of this
indemnity Agreement and/or by law are separate and cumulative and the exercise
of one shall not in any way limit or prejudice the exercise of any other such
right or remedy. No purported waiver or delay in exercising any of such right or
remedy by the Indemnitee shall be deemed made by the Indemnitee under any
circumstances unless in writing and duly signed by the indemnitee.
11. This Agreement shall inure to the benefit of the Indemnitee and his
successors and assigns and shall be binding upon and enforceable against the
Company.
12. The Company agrees to maintain an insurance policy or policies
providing directors' and officers' liability insurance. Indemnitee shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any director or officer of the
Company.
13. The provisions of this Agreement shall be severable if any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law.
Executed as of the 17th day of September, 1996.
TRANS WORLD AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President &
General Counsel
ACCEPTED AND AGREED:
/s/ Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
