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Exhibit 10.1
AGREEMENT, dated as of February 12, 1997, between Trans World Airlines,
Inc. ("Company"), and Xxxxxx X. Xxxxxx ("Executive");
WHEREAS, the Company desires to employ, and the Executive has accepted
a position as, Chief Executive Officer and Chairman; and
WHEREAS, the parties desire to set forth the entirety of their
agreements and understandings;
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties agree as follows:
1. Employment. The Company hereby employs Executive to render the
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services hereinafter described, and Executive hereby accepts such employment
and agrees to render such services, upon and subject to the terms and
conditions described in this Agreement.
2. Term. Executive's employment commences as of the date of this
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Agreement and shall continue for an indefinite period until terminated at any
time by the Company or Executive with or without cause in accordance with the
terms of this Agreement. Nothing in this Agreement or otherwise shall be
construed as entitling Executive to employment for any definite term except
as otherwise provided herein.
3. Duties. (a) Executive shall serve during the term of this
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Agreement as Chief Executive Officer and Chairman and shall perform such
executive, advisory and/or administrative and managerial assignments and
duties as may be assigned to Executive from time to time by the Board of
Directors, in each case consistent with the position of Chief Executive
Officer and Chairman. Executive also will comply in all material respects
with and carry out all rules and policies of the Company, and will serve,
without additional compensation, as an officer and/or director of any
subsidiary, affiliated or related corporation or business (collectively
"Company related entity") provided that such Company related entity at all
times provides the Executive with comparable Director and Officer Liability
insurance coverage as is afforded to the Executive as an officer of the
Company.
(b) Executive will devote his full time to the business and
affairs of the Company and use his best efforts to promote the interests of
the Company and to perform faithfully and efficiently the responsibilities
assigned to Executive in accordance with the terms of this Agreement;
provided that, Executive may continue to serve as Executive Chairman of
Avalon Group, LTD. and in various other positions with its affiliates,
successors and/or assigns provided, however, that no such service may
interfere in any material respect with the Executive's obligations to perform
the services required under this Agreement.
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4. Compensation and Other Terms of Employment. In accordance with
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the terms of this Agreement, the Executive shall receive the following:
(a) Salary. The Executive will be paid base salary at an annual
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rate of $500,000.00 on a regular basis, not less frequently than one time per
month, on a regular Company pay day. This rate of pay ("Base Salary") is
subject to adjustment from time to time (but not less than an annual rate of
$500,000.00), and will be reviewed on a regular basis. All payments of Base
Salary will be subject to appropriate withholding for taxes.
(b) Stock Incentive Plan. The Executive shall be eligible to
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participate in the Company's Key Employee Stock Incentive Plan ("KESIP").
The Executive's initial grant awarded by action of the Compensation Committee
and the Board of Directors on February 12, 1997 shall be for an option to
purchase 800,000 shares of the Company's common stock (the "Option"), subject
in its entirety to the terms and conditions set forth in the agreement
entered into between the Executive and the Company under the terms of the
KESIP in respect of such option shares (the "KESIP Agreement"). Such option
shares shall vest on the following schedule: 500,000 on the date of this
Agreement, 150,000 on the first anniversary of the date of this Agreement and
150,000 on the second anniversary of the date of this Agreement. The
Exercise Price of the Option shall be $5.84 (which price was the Fair Market
Value, as that term is defined in the KESIP, of the Company's Common Stock as
of the date on which Executive's appointment became effective, February 12,
1997 (the "Employment Date"). Subject only to the Executive being employed
by the Company on February 12, 1998, the Executive shall also be granted an
option to purchase 200,000 shares of the Company's common stock (the
"Additional Option") at an option exercise price equal to the Fair Market
Value (as that term is defined in the KESIP) as of February 12, 1998 and with
50% of such additional option shares vesting upon the first anniversary of
the date of grant and 50% as of the second anniversary of the date of grant.
The KESIP Agreement will provide with respect to the Option and the
Additional Option (if any) that, if the employment of the Executive is
terminated for any reason, the exercise period with respect to any vested
options will terminate upon the earlier of the termination date of the Option
if the Option expires within sixty (60) days of the date of termination of
employment (the "Option Termination Period") or sixty (60) days following the
date of termination of employment provided that, if at any time during the
Option Termination Period or such sixty day period either the Company
requests that the Executive not trade in securities of the Company for a
period of time or the Executive notifies the Company that counsel reasonably
acceptable to the Company has advised the Executive that applicable
securities laws prohibit trading securities of the Company (either such
period being referred to herein as a "Restricted Period") then the Company,
subject to any applicable Option expiration dates set out in the KESIP
Agreement, shall extend the period during which the Option may be exercised
(the "Exercise Period") until the close of business on the day which follows
the end of the Restricted Period, by the number of days remaining in such
Option Termination Period or 60 day 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.
(c) Make-Whole Payment. (i) Under all circumstances and
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notwithstanding any termination of the employment of the Executive for any
reason whatsoever, the Company will pay to the Executive, quarterly in
arrears promptly after each of the first four quarterly periods immediately
following the
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date hereof commencing on May 12, 1997, $62,500. (ii) In respect of each month
of the second year of the Executive's employment hereunder, the Company will pay
to the Executive, promptly after the end of such month, $20,834; provided that,
the Executive's right to such monthly payments shall terminate upon any
termination of his employment and, in the event of any such termination in the
middle of any month, the amount owing to the Executive shall be prorated based
on the number of days in such month during which the Executive's employment
continued.
(d) Incentive Cash Bonus. The Executive will be entitled to
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receive an annual incentive cash bonus of up to $250,000 based upon the
attainment by the Company during a fiscal year of objective measures of
performance improvement ("performance standards") (for example, meeting
business plan, cost per available seat mile, revenue per available seat mile,
EBIT, cash flow and stock price improvement), which for fiscal year 1997
shall be as set forth in Attachment A hereto, and for future years shall be
based upon objective criteria mutually agreed upon by the Compensation
Committee of the Company's Board of Directors and the Executive no later than
ninety (90) days after the beginning of each fiscal year provided, however,
in the event that in any fiscal year the performance standards are not
established within this ninety day period, the Company and the Executive
agree that the attainment of the performance standard categories established
for the immediately preceding fiscal year will be the objective criteria
applicable with respect to the business plan for the then current fiscal
year. The Board of Directors may consider incentive cash bonus amounts in
excess of $250,000 in its sole and absolute discretion.
(e) Change of Control Agreement. In the event that the Company's
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Board of Directors authorizes the Company to enter into "change of control"
with one or more of its officers, the Executive will be offered the
opportunity to enter into such an agreement on terms and conditions no less
favorable in any material respect than those offered to any other of the
Company's officers serving at that time. The Company hereby represents that
as of the date hereof no such agreements are currently in effect with respect
to any officer nor does the Company's Board of Directors or any of its
committees have before it in active consideration any such agreement.
(f) Passes. The Executive and eligible family members will be
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entitled to card-type Class A "term" passes on the Company's routes worldwide
during the period of time that the Executive is employed by the Company.
(g) Medical, Dental, Insurance, Life and Accident Insurance. The
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Executive shall at all times be eligible to receive the same level of
benefits on the same terms and conditions as they may be offered to any other
officer of the Company. The Executive and his eligible dependents will be
eligible to participate in the Company-paid comprehensive Medical and Dental
Plan and the Travel Accident Insurance Program offered by the Company, on the
same terms and conditions applicable to other executive officers of the
Company. The Executive will be eligible for coverage under the Company's
Group Term Life Insurance Plan under which the Company currently provides
Basic Life Insurance of $50,000 at no cost to the Executive. Assuming that
the Executive is insurable at standard rates, the Executive will also have
the option to purchase at the Executive's expense Additional Group Life
Insurance in an amount up to three times the Executive's Base Salary, less
the Basic $50,000 coverage. The monthly cost of this Additional Life
Insurance, which at all times shall be offered at the expense of the
Executive, is currently $4.50 per $10,000 and such monthly cost may increase
from time-to-time. The Executive will be eligible to participate in the
Company's Voluntary Personal Accident Insurance Plan. The maximum coverage
for this plan is currently $150,000 at a monthly cost of $6.60, which at all
times shall be offered at the
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expense of the Executive, and such monthly cost may increase from time-to-time.
The Executive will be eligible to participate in the Company's Long-Term
Disability protection pursuant to plan provisions at standard rates and subject
to standard conditions. Nothing in this paragraph (g) or elsewhere herein shall
be construed to prevent the Company from amending or altering any such plans or
programs set forth herein so long as the Executive continues to have the
opportunity to receive in the aggregate benefits at a level no less favorable
than those set forth herein.
5. Vacation. The Executive will be eligible for four (4) weeks paid
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vacation per annum and holidays in accordance with normal Company policy.
6. Termination of Employment.
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(a) Death/Permanent Disability. The Executive's employment shall
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terminate automatically upon the Executive's death and/or permanent
disability. All benefits and compensation then accrued hereunder, and under
any related plans including without limitation all obligations under section
4(c), shall be paid when due to the Executive's beneficiaries or legal
representatives, as appropriate.
(b) Termination Without Cause. The Company shall have the right
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to terminate the Executive's employment without cause at any time upon 30
days prior written notice. In such event the Company shall pay to the
Executive in a single lump sum within five (5) business days of the date of
such termination any earned, unpaid salary, any unreimbursed expenses, earned
unused vacation accrued from the calendar year(s) prior to the calendar year
in which the Executive's employment is terminated ("earned unused vacation")
and current earned unused vacation for the calendar year in which the
Executive's employment is terminated pro rated by month as of the month in
which the effective date of the Executive's termination occurs ("current
earned unused vacation") and any other obligations then due and owing to the
Executive except as otherwise provided hereunder provided such payments for
earned unused vacation and current earned unused vacation are in accordance
with Company policy in effect at the time of the termination of employment.
In addition, in such event, the Company shall pay to the
Executive: (i) the unpaid portion of any payment due at the time of
termination under section 4(c) hereof; and (ii) $250,000 which shall be
reduced by the offset, if any, set forth below in this paragraph, in lieu of
any unpaid incentive cash bonus to which the Executive might have been
entitled under section 4(d) but for such termination. (such amount payable
pursuant to this clause (ii) is referred to as the "Additional Amount").
Such payment pursuant to clause (i) immediately above shall be paid to
Executive in a single lump sum within five business days following the date
of such termination and the payment of the Additional Amount shall be paid to
Executive in a single lump sum on the Final Sale Date. The offset amount
shall be equal to the aggregate amount of any cash proceeds actually received
by the Executive from the sale of any underlying stock under vested stock
options or the vested stock options, in each case, which were granted to
Executive pursuant to section 4(b) hereof ("prior value"). On the 60th day
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following the effective date of the Executive's termination of employment
(other than a termination by the Company for Cause), if the then outstanding
offset amount is less than the payments due under this paragraph, the Company
shall immediately deposit in an escrow account which is for the benefit of
Executive and bankruptcy remote from the creditors of the Company, the sum of
$250,000 net of any prior value which shall be held in such escrow account
until the earlier to occur of (x) the date that the prior value equals or
exceeds $250,000 and (y) the date that all such underlying stock or options
have been sold by the Executive (the "Final Disposition Date"). On the Final
Disposition Date, the Executive shall be paid from the escrow account the sum
of $250,000 net of any prior value. Any balance thereafter remaining in the
escrow account shall be paid to the Company. The Executive hereby agrees to
notify the Company within 10 days of such termination as to whether the
Executive will use his commercially reasonable best efforts to promptly sell
all remaining underlying stock under vested stock options or vested stock
options, in each case, which were granted to Executive pursuant to section
4(b) hereof. Notwithstanding the foregoing, in the event the Executive fails
to deliver such notice to the Company, the Company shall not be obligated to
deposit any funds in such escrow account.
Upon the making of such payments as are set forth herein at the
time of the Executive's termination of employment or at such later times as
may be provided herein, the Company shall have no further obligation to the
Executive under this Agreement and Executive accepts the Company's agreement
and obligation to make such payments in full satisfaction of such claims
against the Company.
(c) Termination For Cause. The Company shall have the right to
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terminate the Executive's employment at any time and without advance notice
for Cause. For the purposes of this Agreement, "Cause" shall mean that (i)
the Executive is convicted of or engages in conduct which constitutes a
felony, or a misdemeanor involving moral turpitude; or (ii) the Executive is
found by the Company's Board of Directors to have failed or refused to in any
material respect to perform his duties and responsibilities provided that a
failure shall not mean actions taken in good faith in the Executive's
exercise of his business judgment and within the Executive's authority as
Chairman and Chief Executive Officer (after notice and opportunity to cure if
such material failure or refusal can be cured); or (iii) the Executive is
found by the Company's Board of Directors to have willfully engaged in
conduct which is demonstrably and materially injurious to the Company and
such conduct was not taken in good faith in the Executive's exercise of his
business judgment and within the Executive's authority as Chairman and Chief
Executive Officer or was not otherwise authorized in the Company's business
plan or directly or indirectly by the Board of Directors, or (iv) the
Executive has breached his legal duty of loyalty to, or committed any act of
fraud, theft or dishonesty against or involving, the Company or any of its
affiliated companies; or (v) the Executive has breached any material
provision of this Agreement. If the Executive's employment is terminated for
Cause, the Company shall pay the Executive within five business days of the
effective date of his termination:
- his earned, unpaid, salary and any unreimbursed expenses
and any other obligation owed to the Executive hereunder
through the date of such termination at the rate in effect at
the time of such termination;
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- any earned unused vacation and current earned unused vacation
through the effective date of such termination provided such
payments for earned unused vacation and current earned unused
vacation are in accordance with Company policy in effect at the
time of the termination of employment;
- the unpaid portion of any payment due at the time of termination
under section 4(c) hereof.
Upon the making of such payments as are set forth herein at the
time of the Executive's termination of employment for cause or at such later
times as may be provided herein, the Company shall have no further obligation
to the Executive under this Agreement and Executive accepts the Company's
agreement and obligation to make such payments in full satisfaction of such
claims against the Company.
(d) Termination by the Executive. If the Executive voluntarily
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terminates his employment, the Executive must give the Company thirty (30)
calendar days advance notice in writing provided, however, the Executive may
immediately voluntarily terminate his employment in the event that there is a
material breach by the Company of any of the terms of this Agreement or on
the date that the Company's Director and Officer Liability Insurance coverage
lapses and is not replaced by comparable coverage or is otherwise diminished
in any material way.
(e) Miscellaneous Termination Provisions. Upon termination of
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employment and otherwise upon demand, Executive will turn over to Company all
Company property and documents and all computer passwords, and will (after
copying the same to 3.5 inch disks and returning the disks to the Company)
delete all Company information from any computer which is not Company
property.
7. Termination Obligations. The Executive agrees that during his
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employment and following his termination under any of the circumstances set
forth herein:
(a) he shall not during his employment or for a period of two
years following the effective date of his termination, 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
Executive's employment by the Company to be employed by the Executive or by
any entity in which the Executive owns or reasonably expects 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 the Executive is employed or
for which the Executive serves or reasonably expects to serve in any
capacity; nor (after his employment ends and during such 2 year period)
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 the Executive with or providing information to others who
may be reasonably 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 the Executive,
with any person affiliated with the Executive or by whom the Executive is
employed but shall not include print advertising for personnel or responding
to any unsolicited
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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) he 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, 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 the
Executive during or by reason of his employment by the Company or by any of
its subsidiaries or affiliated companies and which shall not be public
knowledge. During and after the end of the term of employment, the Executive
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
Executive 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,
except that while employed by the Company in the business of and for the
benefit of the Company the Executive may provide confidential information as
appropriate to those persons who in the Executive's judgment have a need to
know such confidential information.
(c) except as may otherwise be required by law or regulation, he
shall not for a period of two years following the effective date of his
termination discuss or disclose to the media or Company personnel the
circumstances or terms of his termination of employment.
(d) he shall not publicly disparage or denigrate the Company or
any of its officers, directors or practices.
The Company agrees that its officers, directors and agents shall
not publicly disparage or denigrate the Executive following his termination
of employment or otherwise discuss or disclose to the media or Company
personnel the circumstances or terms of his termination of employment .
To the extent that any covenant or agreement contained in this
Section 7 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
Executive's conduct and activities permitted by applicable law in such
circumstances.
8. No Assignment. This Agreement is personal to the Executive and
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without the Company's and the Executive's prior written consent it shall not
be assignable by the Executive or the Company other than by will or the laws
of descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the legal representatives of Executive's estate.
9. Assistance. For a period of two (2) years following termination
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of employment, Executive will to the extent reasonably possible, upon
reasonable prior notice, make himself available 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 a trial, deposition or proceeding,
concerning any legal
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matter involving or affecting the Company. The Company will pay for all
reasonable and necessary out of pocket travel and telephone and such other costs
and expense incurred by Executive in connection with any such activity including
compensation at the Executive's then standard hourly rate for such time as the
Executive is required to devote to the matter provided however that as to such
required time the Executive is not then otherwise being compensated by his
employer, firm or other similar such entity.
10. Living Expenses. Notwithstanding any provision of this Agreement,
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Executive shall not be required to move his principal residence. The Company
agrees to promptly pay or reimburse Executive for all reasonable living
expenses incurred by Executive and associated with his employment hereunder
for so long as Executive does not relocate his principal residence to the
location where the Company's corporate headquarters are located (currently
St. Louis, Missouri) If the Executive elects to relocate his principal
residence to the Company's corporate headquarters (currently in St. Louis,
Missouri) or to such other location as the Company may designate as its
corporate headquarters, the Company shall provide to the Executive the
relocation package normally provided to the Company's senior executives. In
all such cases the Company shall gross up such payments to the extent
necessary to hold the Executive free of any taxes.
11. Miscellaneous.
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(a) This Agreement shall be governed by and be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within New York and 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.
(b) All notices and other communications hereunder shall be in
writing and shall be given 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 the Executive:
Xxxxxx X. Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxx, Xxx Xxxxxx 00000
If to the Company:
Trans World Airlines, Inc.
One City Centre
000 Xxxxx 0xx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
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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.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) 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. The terms
of any employee manual, handbook, or any policy of the Company, shall not
modify, alter, or invalidate any term of this Agreement nor alter Executive's
at will status, and in case of any conflict between a term of this Agreement
and any such policy, handbook or manual, the terms of this Agreement control,
except for benefit plans and Stock option awards described herein (to the
extent not otherwise provided in this Agreement).
(e) Executive represents that or he is not a party to any
agreement, or under any legal obligation, which would preclude or in any way
impair Executive's performance of Executive's duties for the Company
hereunder. Executive has not provided, and will not provide, to Company any
trade secret of another person whose secrecy he is obligated to maintain.
(f) Notwithstanding any provision hereof to the contrary, nothing
in this Agreement shall be deemed to entitle the Executive to employment
beyond the Term hereof.
(g) In the event that a dispute arises between the Company and
the Executive concerning the enforcement or interpretation of the terms of
this Agreement, the Company and the Executive agree to negotiate in good
faith to resolve such dispute. In the event that the parties are unable to
resolve this dispute within ninety (90) business days of the date of written
notice one to the other concerning this dispute, the parties agree to submit
this dispute for expedited binding arbitration at the American Arbitration
Association ("AAA") in New York, New York before a panel of three (3)
arbitrators all in accordance with the AAA rules then obtaining. Expedited
arbitration shall mean that the time period following the submission of the
dispute to the AAA for the selection of the arbitrators shall not exceed
twenty (20) business days and that the time period between the selection of
the arbitrators and the issuance of a decision shall not exceed sixty (60)
business days. Upon the rendering of a decision by the arbitrators, the
prevailing party shall be entitled to reimbursement from the other party of
all fees and costs related to the arbitration, including submission of the
claim. The decision of the arbitrators shall be binding upon the parties and
any such decision may be entered in any court having jurisdiction thereof.
During the pendency of the arbitration, this Agreement shall remain in full
force and effect.
(h) Notwithstanding any provision hereof, Executive shall retain
any and all such Company pass travel rights as were provided to Executive in
his status as a Member of the Company's Board of Directors and at such time
as the Executive ceases to be an employee of the Company but continues to
serve as a Member of the Company's Board of Directors he shall be entitled to
all such benefits
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including but not limited to an annual retainer and fees as are then provided to
all other members of the Board of Directors.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed in its corporate name, and the Executive has hereunto set his hand,
all as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
TRANS WORLD AIRLINES, INC.
By: /s/ Xxxxxxx X. Magurro
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Name: Xxxxxxx X. Magurro
Title: Sr. V.P.-Legal
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ATTACHMENT A
1997 CEO OBJECTIVES
1. End of year balance sheet cash to be equal to or greater than that contained
in the January 24, 1997 Business Plan
2. Pre-tax profit equal to or greater than that contained in the January 24,
1997 Business Plan ($45.1 million).
3. Revenue for 1997 to be equal to or greater than that contained in the
January 24, 1997 plan.
4. On-time performance as measured by DOT: TWA to be ranked in upper half for
the last six months of 1997.
5. Cost per available seat mile for fiscal 1997 cost per ASM to be equal to
or less than that contained in the January 24, 1997 Business Plan.
These objectives are independent of each other and will be used to determine
whether some or all of the agreed minimum bonus is paid to the CEO.
Achievement of any one or more objectives will result in payment of 20% of
the minimum bonus for each object met. Such payment, if earned, will be due
and payable on the following dates:
In the case of objectives, 1, 2 and 3, at the time of filing of
Form 10-K; for the Company's 1997 fiscal year end (but no later than
May 31, 1998) in the case of objective 4 at the time that DOT produces
the relevant reports; in the case of objective 5, at the time that
TWA Finance Department calculates the results (and it is certified
correct by the Company Auditirs), but no later than March 31, 1998.
