EXHIBIT 10.4
June 24, 1999
Xx. Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxx
Xxxx & Xxxxxxx, XX 00000
Dear Xxx:
This will confirm the Company's agreement concerning your separation
from Trans World Airlines, Inc. ("TWA" or the "Company"). In this
connection, TWA and you have agreed as follows:
1. Your last day of employment at TWA will be June 30, 1999
("termination date"). Subject to your compliance with the terms
and conditions of this letter, following the termination date TWA
will continue to issue monthly checks to you in an amount equal to
your monthly earnings less all statutory tax withholdings and
normal payroll deductions up to and including the check issued on
June 15, 2000.
2. On or about the second week of July, 1999, you will receive
payment in lieu of all remaining accrued vacation in an aggregate
amount equal to 14 days of vacation at your current rate of pay
(less any applicable federal and state income and employment tax
withholdings).
3. 135,340 of the non-qualified stock options (the "Options") issued
to you under TWA's Key Employee Stock Incentive Program ("KESIP")
will be treated as vested options (117,250 such options pursuant
to the November 11, 1997 award and 18,090 such options pursuant to
the January 25, 1999 award) and such vested options will be
exercisable by you in accordance with the terms of the KESIP, as
amended to date. All other options granted to you shall be
forfeited as of the termination date.
4. In accordance with the KESIP, your vested options will expire
sixty (60) days following the date (after the termination date) on
which TWA files its Form 10-Q with the United States Securities
and Exchange Commission which filing should be on or about August
14, 1999 ("Option Termination Period") provided that, if at any
time during the Option Termination Period either TWA requests that
you not trade in
Xxxxx X. Xxxxxx
June 24, 1999
Page 2
securities of the Company for a period of time or you notify TWA
that counsel reasonably acceptable to the Company has advised you
that applicable securities laws prohibit trading securities of the
Company (either such period being referred to herein as a
"Restricted Period") then TWA, subject to any applicable Option
expiration dates set out in the KESIP Agreement between you and
TWA ("the KESIP Agreement"), shall extend the period during which
the Option may be exercised until the close of business on the day
which follows the Restricted Period, by the number of days
remaining in such Option Termination Period as of the beginning of
the Restricted Period. To the extent that there is any
inconsistency between the terms and conditions of this Agreement
and those of the KESIP or the KESIP Agreement, the terms and
conditions of this Agreement shall control.
5. You, your spouse and eligible dependents will be entitled to Class
A pass privileges for 90 days following the termination date. A
non-ID Term Pass will be issued to you, your spouse and eligible
dependents and when received you will promptly return all TWA
issued term passes to the undersigned on behalf of TWA. Use of
the above passes 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.
6. Your participation in the Retirement Savings Plan for Non-Contract
Employees of TWA will continue for the period until the earlier of
(i) the date you are re-employed, or (ii) June 23, 2000, on
which date TWA's contribution on your after-tax savings will be
100% vested. Your vested account balance will be treated as you
elect, subject to and in accordance with the terms of the Plan.
7. All TWA 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 for the period until the earlier of (i)
the date you are re-employed or otherwise become covered by a
medical benefits plan, or (ii) the expiration of twelve (12)
months after June 30, 1999. After June 30, 2000 (if you have not
attained other coverage by that time as a result of obtaining
other employment) you will be eligible for group medical and or
dental benefit coverage continuation at your expense as provided
by COBRA.
8. TWA will provide you professional out placement services from a
firm selected by TWA and reasonably acceptable to you for a period
until the earlier of (i) the date you are re-employed or (ii)
the expiration of six (6) months after June 30, 1999.
9. Any and all coverage and benefits, other than those set out above,
under any TWA group benefit or insurance plan and any other
benefits, privileges, or emoluments whatsoever pertaining to your
employment by TWA shall be discontinued as of midnight, June 30,
1999, after which time you will be eligible to convert your TWA
Group Life Insurance or Additional Life Insurance, if applicable,
to individual coverage. Information regarding life insurance
conversion will be provided to you.
Xxxxx X. Xxxxxx
June 24, 1999
Page 3
10. Unless otherwise agreed by the parties, you will return to TWA any
computers and all accessories, software and appurtenances thereto
and cellular telephones or pagers which are the property of or
leased by TWA and in your possession, and any other Company
property, documents or material that may be in your possession, by
not later than the termination date.
11. For a period of three (3) years following the termination date,
you will, upon reasonable notice, make yourself available at
reasonable times for consultation with Company counsel, to meet
with Company counsel and prepare to testify as a witness or
deponent, and to testify as a witness at trial, deposition,
arbitration or proceeding, concerning any legal matter involving
or affecting the Company, or to consult regarding any matter
involving or affecting the Company which have arisen or may 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. Time
which is not time spent actually performing services pursuant to
this paragraph will not be compensated. The Company will also
reimburse you for all reasonable and necessary out of pocket
travel and telephone costs and expense incurred by you in
connection with any such activity. At the Company's option, air
transportation on TWA shall be provided gratis by TWA for your use
in providing services hereunder. You will utilize TWA air
transportation services except when expressly authorized by TWA in
writing in advance.
12. You agree that under any of the circumstances set forth herein:
(a) you shall not for a period of two years following your termination
date, directly or indirectly solicit (or assist or encourage the
solicitation of) any employee of the Company or any of its
subsidiaries or affiliated companies or anyone who was so employed
at any time within twelve (12) months prior to termination of
your employment by the Company to be employed by you or by any
entity in which you own or expect to own any equity interest in
excess of five (5) percent of any class of the outstanding
securities thereof, or by any entity by which you are employed or
for which you serve or expect to serve in any capacity; nor
encourage or induce any Company employee to terminate his or her
Company employment. For the purposes of this paragraph, the term
"solicit" shall mean any contact by you with or providing
information to others who may be expected to contact any employees
of the Company or of any of its subsidiaries or affiliated
companies regarding their employment status, job satisfaction,
interest in seeking employment with you, with any person
affiliated with you or by whom you are employed but shall not
include
Xxxxx X. Xxxxxx
June 24, 1999
Page 4
print advertising for personnel or responding to any unsolicited
request for a personal recommendation for or evaluation of a
Company employee or an employee of any of the Company's
subsidiaries or affiliated companies.
(b) you shall hold forever hereafter 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
subsidiaries or affiliated companies, including but not limited to
commercial, operational, marketing, pricing, personnel or
financial information including costs, strategies, forecasts or
trade secrets, acquisition strategies or candidates or personnel
acquisition plans ("confidential information") which shall have
been obtained by you during or by reason of your employment by the
Company or by any of its subsidiaries or affiliated companies and
which shall not be public knowledge. You shall not, without the
prior written consent of the Company or unless required to do so
by reason of a court order or subpoena (in which case you shall
give Company prompt notice of any such other subpoena or order, or
request therefore, so as to provide Company the maximum
opportunity to contest the same), communicate or divulge any such
confidential information to anyone other than the Company or those
designated by it.
(c) you shall not for a period of two years following your termination
date discuss or disclose to the media or Company personnel the
circumstances or terms of your termination of employment.
(d) you shall not publicly disparage or denigrate the Company or any
of its officers, directors or practices.
To the extent that any covenant or agreement contained in this
paragraph shall be determined by a Court to be invalid or unenforceable
in any respect or to any extent, the covenant or agreement shall not be
rendered void, but instead shall be automatically amended to such lesser
scope or to such lesser extent as will grant Company the maximum
restriction on your conduct and activities permitted by applicable law
in such circumstances.
13. In consideration of the foregoing, you agree as follows:
(a) With the exception of claims arising out of a breach of this
Agreement, you irrevocably and unconditionally release, remise,
acquit and forever discharge Trans World Airlines, Inc., its past
and present parents, subsidiaries, divisions, controlling parties,
officers, directors, agents, employees, successors, and assigns
(separately and collectively "releasees") 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 any and all bases, however denominated, known or
unknown, relating to your employment by TWA and the termination
thereof, including, but not limited to, any and all claims under
the agreement dated October 1, 1996 described above and any and
all claims of employment discrimination under any
Xxxxx X. Xxxxxx
June 24, 1999
Page 5
federal, state or local law, rule or regulation. This release
expressly refers to, includes and releases all rights or claims
arising under the Age Discrimination in Employment Act of 1967, as
amended, Title 29 U.S. Code 621, et. seq. This release extends to
any relief, no matter how described, including, but not limited
to, back pay, front pay, reinstatement, compensatory damages,
punitive damages, liquidated damages or damages for 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 releasees, and
will not counsel or assist in the prosecution of any claims
against the releasees, whether those claims are on behalf of
yourself or others, unless you are under a court order or subpoena
to do so. In the event you are served with such a court order or
subpoena, you agree to notify TWA's Legal Department of such
service within 24 hours of your obtaining actual knowledge of
service or your receipt of same, whichever first occurs. This
release extends to and includes all rights or claims arising on or
before the date of your signing of this Agreement, but shall not
extend to or include any rights or claims that may arise after the
date on which you sign this Agreement is signed.
(b) You further acknowledge that the only consideration for signing
this Agreement and all that you are ever to receive from the
releasees are the terms stated in this Agreement and that 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 substantially above and beyond those benefits
to which you are already entitled under TWA's published corporate
policies and procedures governing termination of employment; that
you are entitled to a full, fair and adequate opportunity of at
least twenty-one (21) days in which to reflect upon and consider
the terms of this Agreement if you so elect; that you have been
advised to consult, and have consulted, with an attorney of your
choosing prior to signing this Agreement; that you have elected to
waive the 21 day period and intend that this letter agreement be
effective at the end of the seven day period provided in paragraph
(c) below unless you elect to revoke the agreement pursuant to
that paragraph, that no pressure or duress of any kind has been
applied to you with respect to your signing this Agreement; and
that you understand and are fully satisfied with the terms and
provisions of this Agreement.
(c) Under the Older Workers Benefits Protection Act of 1990, you have
seven (7) days from the date of your signing of this Agreement to
revoke the Agreement, and this Agreement shall not become
effective or enforceable until this revocation period has expired
and you have not revoked the Agreement.
14. With the exception of claims arising out of a breach of this
Agreement, XXX agrees to irrevocably and unconditionally release,
remise, acquit and forever discharge you, your successors, and
assigns (separately and collectively "releasees") jointly and
individually, of and from any and all claims, demands, causes of
action, obligations,
Xxxxx X. Xxxxxx
June 24, 1999
Page 6
damages or liabilities, in law or in equity, arising from any and
all bases, however denominated, known or unknown, relating to your
employment by TWA and the termination thereof.
15. This Agreement shall be governed by and be construed in accordance
with the laws of the State of Missouri, without reference to
principles of conflicts of laws. The captions of this Agreement
are not part of the provisions hereof and shall have no force or
effect. Neither this Agreement nor any of its terms may be
amended, waived, added to or modified other than by written
agreement executed by the parties hereto or their respective
successors and legal representatives.
16. All notices and other communications hereunder shall be in writing
and shall be given by facsimile or by hand delivery to the other
party or by regular or registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to you:
Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxx
Xxxx & Xxxxxxx, XX 00000
If to the Company:
Trans World Airlines, Inc.
One City Centre
000 Xxxxx 0xx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: 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.
17. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
Xxxxx X. Xxxxxx
June 24, 1999
Page 7
18. This Agreement contains the entire understanding between the
parties concerning the subject matter hereof and supersedes all
prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, among the parties with
respect thereto.
Sincerely,
Xxxxxxxx X. Xxxxx
Senior Vice President & General Counsel
Read, Acknowledged and Agreed to
this day of , 1999:
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Xxxxx X. Xxxxxx
