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EXHIBIT 10.3
CONSULTING AGREEMENT
This Consulting Agreement (hereinafter "Agreement") is made and
entered into as of the 16th day of December, 1996, 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 and shall serve as
the Company's Acting Executive Vice President and Chief
Operating Officer. 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 times as he deems to be necessary to performing
consulting services hereunder. This Agreement is on an
ongoing as needed basis, and will terminate one (1) day 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.
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5. Consultant shall be paid at the rate of $2725.00 for each full
working day ( hereinafter the "per diem rate") 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 or 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 or during periods where
Consultant is being compensated for services pursuant to this
Agreement. Consultant will be indemnified by the Company with
respect to his service as an officer of the Company as
provided in the corporate By-Laws of the Company and in the
Director's October 31, 1996 Indemnification Agreement to the
fullest extent permitted to law.
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 or becomes 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 or in the performance of the duties
hereunder to be disclosed.
8. To the extent required, federal, state and local income tax
and payroll taxes shall be withheld or paid by the Company on
behalf of Consultant.
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9. The Company acknowledges that subject to the requirements of
his engagement hereunder, Consultant may continue 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 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.
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
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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 as of this 16th day of December, 1996.
TRANS WORLD AIRLINES, INC.
By:
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XXXXX XXXXXXX
Title: Senior Vice President - Legal
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