Exhibit 10.12(d)
SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement") was executed
by the parties as of the date set forth on the signature page
(the "Signature Date") and was authorized and effective as of
September 4, 2003 (the "Effective Date"), by and between FLYi,
Inc., a Delaware corporation ("FLYI") and Independence Air, Inc.,
a California corporation ("Independence Air"), and
_______________ ("Employee").
Witnesseth That:
Whereas, Employee is currently employed by the Company as
Senior Vice President of _____________________; and
Whereas, the Company and Employee desire to expressly set
forth in this Agreement the terms of Employee's employment with
the Company; and
Whereas, on September 4, 2003 the Compensation Committee of
the Board of Directors of FLYi, Inc. determined that the best
interests of the Company would be served by setting forth the
terms and conditions of and benefits provided for Employee's
employment with the Company;
Now, Therefore, the parties, for and in consideration of the
mutual and reciprocal covenants and agreements hereinafter
contained, and intending to be legally bound hereby, do contract
and agree as follows:
1. Employment Company hereby employs Employee and
Employee hereby accepts employment by Company and agrees to
perform his duties and responsibilities hereunder upon all of the
terms and conditions as are hereinafter set forth. For purposes
of this Agreement, as used in the definition of Change in
Control, "Company" shall mean FLYi, Inc., and as used elsewhere
in this Agreement shall mean FLYi, Inc. and its subsidiaries, and
shall also mean any successor to FLYi, Inc., including without
limitation any corporation or other entity into which it is
merged or which acquires all or substantially all of its
outstanding common stock or assets.
2. Duties Employee shall serve the Company in the
capacities of Senior Vice President of ____________. Employee
shall generally be responsible for all elements of
_________________________________________________________________
__. Employee's duties may be changed from time to time to
support the requirements of the Company, consistent with
Employees experience and expertise. Employee shall otherwise be
responsible for carrying out all such other duties and services
for the Company commensurate with Employee's position, as may be
designed from time to time by ____________.
3. Term of Employment Employee's term of employment
under this Agreement shall commence on the Effective Date and
shall terminate on July 31, 2005, unless further extended as
hereinafter set forth. On August 1, 2005, and on August 1 in
each subsequent year, this Agreement shall automatically be
extended for an additional twelve (12) months without further
action by either party unless Employee's employment has
previously been terminated, or unless Employee or the Company has
provided notice of intention to terminate Employee's employment
pursuant to the terms of Paragraph 10 below (in which case
Employee's term of employment under this Agreement will be
extended to the pending Termination Date).
4. Extent of Service Employee shall devote such time
and attention as is required to perform his obligations under
this Agreement and will at all times faithfully and
industriously, consistent with his ability, experience and
talent, perform his duties hereunder under the direction of
_____________.
5. Compensation During the term of this Agreement,
Company agrees to pay to Employee, and Employee agrees to accept
from Company, in full payment for services rendered by Employee
and work to be performed by him under the terms of this
Agreement, the following:
A. Salary. An annual base salary of
______________________________________________ ($__________),
shall be paid to Employee. The amount of Employee's base salary
shall be adjusted annually or otherwise from time to time as
determined by the Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee").
Employee's base salary for each year shall be payable to him in
accordance with the reasonable payroll practices of the Company
as from time to time in effect for executive employees (but in no
event less often than monthly).
B. Management Incentive Plan and Executive
Bonuses. Employee shall participate in the Company's Senior
Management Incentive Plan and in its Management Incentive Plan,
both for so long as the Board of Directors determines to maintain
either of such plans, or any successor bonus plan or program for
key executives.
C. Discretionary Compensation. The Company may
pay Employee discretionary compensation, bonuses and benefits in
addition to those provided for herein in such amounts and at such
times as the Compensation Committee shall determine.
6. Benefits
A. The Company shall pay for or provide Employee
such vacation time and benefits, including but not limited to,
coverage under Company's major medical, accident, health, dental,
disability and life insurance plans, as are made available to
other employees of Company generally (and, to the extent provided
by such policies, to Employee's dependents).
B. The Company agrees to promptly reimburse
Employee for any otherwise unreimbursed health or medical
insurance premiums and/or uncovered medical expenses up to
$10,000 per calendar year under a written medical reimbursement
plan maintained for Employee and other key executive employees.
If such payments are taxable to Employee, the Company shall pay
Employee a gross-up equal to the estimated income, FICA and
Medicare taxes due with respect to such reimbursement, with
federal and state income taxes being estimated at the highest
marginal rates.
C. The Company agrees to reimburse Employee for
the cost of investment and tax planning services up to $5,000
incurred during each calendar year. If such payments are taxable
to Employee, the Company shall pay Employee a gross-up equal to
the estimated income, FICA and Medicare taxes due with respect to
such reimbursement, with federal and state income taxes being
estimated at the highest marginal rates.
7. Reimbursement of Expenses The Company agrees to
promptly reimburse Employee, within fifteen (15) days after
presentation of receipts and other appropriate documentation, for
all reasonable, ordinary and necessary travel costs and other
necessary expenses incurred by Employee in performing his duties
pursuant to this Agreement.
8. Stock Options The Company may from time to time
grant to Employee options under the FLYI's Stock Option Plan to
purchase shares of the common stock of FLYI at the price per
share at the closing of the trading market on the last business
date prior to such grant. Any such grant will be pursuant to the
terms of the Stock Option Agreement being utilized at the time of
the grant for stock options granted to Senior Vice Presidents of
the Company. The Compensation Committee retains full discretion
of whether to grant any stock options, and if so to change the
terms of the Stock Option Agreement for any such stock options.
9. Deductions Deductions shall be made from any
component of Employee's compensation provided pursuant to this
Agreement or otherwise for social security, Medicare, federal,
state and local withholding taxes, and any other such taxes as
may from time to time be required by any governmental authority.
10. Termination Employee's employment with the
Company shall be terminated only in accordance with the following
provisions:
A. Disability.
(i) In the event Employee shall become
mentally or physically disabled so as to have been unable to
perform his duties hereunder (such determination to be made
solely by the Company) for six (6) consecutive months, Company
shall have the right to terminate Employee's employment with
Company upon the expiration of such six month period; provided,
however, that upon any such termination Company shall be
obligated to provide Employee with Severance Compensation as
provided in Paragraph 10.E. herein. Such six-month period shall
be deemed to have commenced on the date when Employee is first
unable to perform his duties on a substantially full-time basis
because of mental or physical disability and shall end on the
date on which Employee shall return to the substantial full-time
performance of his duties. If at the expiration of such six
month period, the Company shall desire to terminate Employee on
the basis of disability, it shall give written notice to him.
Employee's employment shall thereafter be terminated if he does
not return to substantial full-time performance of his duties
within ten (10) calendar days after such notice is given.
(ii) For purposes of this Agreement, Employee
shall be deemed to be disabled when he shall have been absent
from his duties because of sickness, illness, injury or other
physical or mental infirmity on a substantially full-time basis.
(iii) At the end of any disability (other
than a disability that results in the termination of Employee's
employment with the Company), Employee shall return to work and
this Agreement shall continue as though such disability had not
occurred.
(iv) The Company will have sole discretion in
determining whether Employee is subject to any disability.
(v) During any period in which Employee is
disabled but his employment shall not have been terminated,
Employee shall continue to receive his base salary and any
applicable bonus, and shall continue to receive all benefits as
an employee and as provided herein generally. Any options
previously granted shall continue to vest, but no new options
shall be issued to Employee.
(vi) The Company may utilize a disability
policy to fund, in whole or in part, the compensation that would
be due to Employee during the term of or in the event of a
disability, in which case the proceeds of the policy would not be
in addition to any compensation otherwise payable to Employee.
Any compensation due to Employee from the Company during a period
of disability or during a Severance Period following a
termination of employment as a result of a disability, will be
reduced by the amount of any proceeds provided to Employee from
any disability policy provided by and at the expense of the
Company. Except as provided in the preceding two sentences,
nothing contained herein shall be construed to affect Employee's
rights under any disability insurance or similar policy, whether
maintained by the Company, Employee or another party.
B. Death.
(i) Employee's employment with Company shall
terminate immediately upon Employee's death; provided, however,
that Company shall be obligated to provide the Severance
Compensation as specified in Paragraph 10.E. herein to Employee's
estate, heirs or beneficiaries.
(ii) Nothing contained herein shall be
construed to affect Employee's rights under any life insurance or
similar policy, whether maintained by Company, Employee or
another party. The Company may utilize a life insurance policy
to fund, in whole or in part, the Severance Compensation that
would be payable in the event of Employee's death, in which case
the proceeds of any such policy would not be in addition to any
Severance Compensation otherwise payable under this Paragraph
10.B.
C. Termination by Employee
(i) Other than Following a Change in
Control. Employee may terminate his employment by delivering to
Company thirty (30) day's written notice, and such termination
shall be effective on the thirtieth (30th) day following the date
of receipt of such notice (the "Termination Date"). In such
event, Employee (i) shall continue to render his services up to
the Termination Date if so requested by Company and (ii) shall be
paid his regular base salary and shall receive all benefits up to
the Termination Date. Employee will be entitled to payment of
any bonus due but not yet paid for prior bonus periods (paid at
the same time it would have been paid had Employee's employment
not been terminated), but will not be entitled to Severance
Compensation, to any bonus for the current bonus period, or to
any other compensation, bonus or fringe benefits accrued after
the Termination Date.
(ii) Following a Change in Control.
Notwithstanding the above, in the event of any termination by
Employee of his employment with the Company which is effected
within twelve (12) months following a Change in Control as
defined and determined under Paragraph 12 of this Agreement,
Company shall be obligated to provide Employee with Severance
Compensation as provided in Paragraph 10.E. herein, provided that
any amounts due as Severance Compensation shall be reduced as
provided in Paragraph 12.C. of this Agreement. The twelve month
period will be deemed to mean any notice given within twelve
months following a Change in Control where an actual termination
occurs within sixty days following said notice.
D. Termination by Company.
(i) Without Cause. The Company may, without
cause, terminate Employee's employment under this Agreement at
any time by giving Employee fifteen (15) days' written notice
thereof, and such termination shall be effective on the fifteenth
day following the date such notice is given (said 15th day, the
"Termination Date"). In the event Employee's employment with
Company is terminated without cause, Company shall be obligated
to provide Employee with Severance Compensation as provided in
Paragraph 10.E. herein. At the option of Company, Employee's
employment shall be immediately terminated upon the Company
giving such notice, in which case Employee shall continue to
receive his full base salary and related fringe benefits through
the Termination Date. Notwithstanding any provision of this
Agreement to the contrary, any termination of Employee's
employment by the Company, for any reason or no reason, effected
as a result of, in connection with or within twelve (12) months
following a Change in Control, as defined and determined under
Paragraph 12 of this Agreement, shall automatically be deemed to
be a termination without cause provided that any amounts due as
Severance Compensation shall be reduced as provided in Paragraph
12.C. The twelve month period will be deemed to mean any notice
given within twelve months following a Change in Control
regardless of when actual termination occurs following said
notice.
(ii) For Cause. Company may terminate
Employee's employment under this Agreement immediately for
"cause". In such event, the Company shall not be liable to
Employee for any compensation, bonus or benefits after the date
of termination of employment. Cause shall be defined as any of
the following: (i) willful unauthorized misconduct in the
material performance of Employee's duties hereunder, (ii)
commission of an act of theft, fraud, dishonesty, or personal
misconduct by Employee, which act is harmful to Company, (iii)
breach of any provision of this Agreement if such breach has not
been cured by Employee (or if Employee has not compensated the
Company for such breach by payment of an amount deemed reasonable
by the Company if the breach cannot be cured) within fifteen (15)
days after the Company gives Employee written notice of such
breach. Any termination under this Paragraph 10.D.(ii) shall
take effect immediately upon the Company giving Employee written
notice thereof.
▇. ▇▇▇▇▇▇▇▇▇ Compensation. "Severance
Compensation" is defined as all of the compensation and benefits
described in this Paragraph 10.E. It will be provided to
Employee upon the occurrence of any of the events described
elsewhere in this Agreement as providing for Employee's receipt
of Severance Compensation, but not in any other circumstances
except to the extent that individual components of Severance
Compensation may be separately provided pursuant to the terms of
this Agreement. "Termination Date" is defined as the last day of
Employee's employment with the Company. "Severance Period" is
defined as the period beginning on the day following the
Termination Date and ending on the day which is one year
following the Termination Date. Should a termination occur upon
or within twelve months following a Change in Control, the
Severance Period will end on the day which is two years following
the Termination Date. The compensation and benefits to be
provided as Severance Compensation are as follows:
(i) Severance Pay. Throughout the Severance
Period, Employee will receive severance pay at the rate of 100%
of his annual base salary in effect at the time of his
termination, to be paid on the Company's regular payroll payment
dates at the same time and in the same fashion as the Company's
regular payroll payments.
(ii) Bonus. The Company shall pay to
Employee a prorated portion of any annual bonus amount accrued
through the Termination Date, provided, however, that such bonus
amount will be paid at the time that such bonus amounts are
normally paid by the Company. Proration shall be calculated by
the Compensation Committee based on the percentage of the number
of days in the bonus period to the actual number of days in the
bonus period, times the total bonus that would have been paid for
the entire bonus period had the termination not occurred. This
prorated bonus payment shall be considered to be full
compensation for all amounts due to Employee for bonus plans in
which he was participating as of the Termination Date, and he
shall not be entitled to any further payments under any of said
plans during the Severance Period or thereafter. Notwithstanding
the above, any bonus due to Employee for years (or any other
applicable bonus period) completed prior to the Termination Date
but not yet paid shall be paid in addition to the bonus described
herein. If such bonus for prior years is in the form of
restricted stock, such bonus will be considered earned to the
extent that applicable vesting targets have been met as of the
Termination Date, whether the confirmation that the targets have
been met occurs before or after the Termination Date. If such
targets have been met but the stock has not yet been distributed,
Employee will be entitled to receive the stock, or, at the option
of the Company, the cash equivalent thereof, no later than the
date the stock was due to be distributed had the termination not
occurred. Any such stock for which targets have not been met
will be forfeited.
(iii) Stock Options. All options to
purchase shares of FLYI stock that have been granted to Employee
and that are not exercisable as of the Termination Date shall
terminate as of said date. For all options that are exercisable
as of said date, provided no Change in Control has occurred prior
to that date, the terms of exercise, payment, and expiration,
shall be as provided in each option agreement. For all options
that are exercisable as of said date, provided that a Change in
Control has occurred on or prior to that date, the terms of
exercise, payment, and expiration, shall be applicable through
the end of the Severance Period.
(iv) Insurance Programs. In the event
Employee's employment with the Company is terminated upon or
within twelve months following a Change in Control, coverage
under the Company's major medical, dental, and disability
insurance plans as from time to time provided to other executive
employees of the Company (including Employee's dependents) shall
continue to be paid for by the Company during the Severance
Period in the same fashion as prior to the Termination Date.
Provided, however, if such coverage cannot be continued during
the Severance Period under the terms of such policies or plans,
the Company shall reimburse Employee for the cost of comparable
coverage under individually obtained policies or for COBRA
coverage, or shall make other arrangements to assure that
Employee has comparable coverage.
(v) Vacation. Vacation shall not continue
to accrue after the Termination Date under any circumstances.
(vi) Executive Medical Reimbursement Plan.
Reimbursement under the Executive Medical Reimbursement Plan will
terminate as of the Termination Date. Employee will be entitled
to reimbursement for expenses incurred prior to the Termination
Date if submitted within three months following the Termination
Date.
(vii) Travel Benefits. Flight pass
privileges currently granted to Employee for travel on the
Company's aircraft will continue for the Severance Period.
Employee shall not be entitled to travel benefits on any other
airline.
(viii) Deductions for Taxes. Subject to
Paragraph 12.D., any compensation due to Employee hereunder will
be subject to deductions for social security, federal and state
withholding taxes, and any other such taxes as may from time to
time be required by governmental authority.
11. Nonsolicitation, Non-Competition, and
Confidentiality
A. Nonsolicitation and Non-Competition. For so
long as Employee is an employee of the Company, and continuing
thereafter for twelve months following any termination of
Employee's employment, Employee shall not, without the prior
written consent of the Company, directly or indirectly, as a sole
proprietor, member of a partnership, stockholder or investor,
officer or director of a corporation, or as an employee,
associate, consultant or agent of any person, partnership,
corporation or other business organization or entity other than
the Company: (i) solicit or endeavor to entice away from the
Company or any of its subsidiaries any person or entity who is,
or, during the then most recent 12 month period, was employed by,
or had served as an agent of, the Company or any of its
subsidiaries; or (ii) engage in or contract with others to engage
in any business enterprise, line of work consulting contract,
joint venture or other arrangement which conducts a business or
businesses substantially similar to the business conducted by
Company in any area in which Company or any of its affiliates or
subsidiaries provides or plans to provide air transportation to
the public. Employee acknowledges that the geographic area
covered hereby, and the period and nature of the agreed
restrictions are reasonable and necessary for the protection of
the business of the Company. All provisions of this Paragraph
concerning non-competition are severable; and while it is the
intention of the parties that all of said provisions shall be
enforceable, if any one of the same shall be held to be
unenforceable in whole or in part, the remainder shall continue
to be in full force and effect. The provisions of clause (ii)
above of this Paragraph 11.A will not apply following any
termination of Employee's employment by the Company other than
for cause. The terms of this Paragraph 11.A will not apply
following any termination of Employee's employment that was
effected as a result of, in connection with or within twelve (12)
months following a Change in Control. The twelve month period
will be deemed to mean any notice given within twelve months
following a Change in Control regardless of when actual
termination occurs following said notice.
B. Confidentiality. Employee covenants and
agrees with the Company that he will not at any time, except in
performance of his obligations to the Company hereunder or with
the prior written consent of the Company, directly or indirectly,
disclose any secret or confidential information that he may learn
or has learned by reason of his association with the Company or
any of its subsidiaries and affiliates. The term "confidential
information" includes information not previously disclosed to the
public or to the trade by the Company's management, or otherwise
in the public domain, with respect to the Company's or any of its
affiliates' or subsidiaries', products, facilities, applications
and methods, trade secrets and other intellectual property,
systems, procedures, manuals, confidential reports, price lists,
customer lists, technical information, financial information
(including the revenues, costs or profits associated with the
Company), business plans, prospects or opportunities, but shall
exclude any information which (i) is or becomes available to the
public or is generally known in the industry or industries in
which the Company operates other than as a result of disclosure
by Employee in violation of his agreements under this Paragraph
11.B or (ii) Employee is required to disclose under any
applicable laws, regulations or directives of any government
agency, tribunal or authority having jurisdiction in the matter
or under subpoena or other process of law.
C. Exclusive Property. Employee confirms that
all confidential information is and shall remain the exclusive
property of the Company. All business records, papers and
documents kept or made by Employee relating to the business of
the Company shall be and remain the property of the Company,
except for such papers customarily deemed to be the personal
copies of Employee.
D. Injunctive Relief. Without intending to
limit the remedies available to the Company, Employee
acknowledges that a breach of any of the covenants contained in
this Paragraph 11 may result in material and irreparable injury
to the Company or its affiliates or subsidiaries for which there
is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the
event of such a breach or threat thereof, the Company shall be
entitled to seek a temporary restraining order and/or a
preliminary or permanent injunction restraining Employee from
engaging in activities prohibited by this Paragraph 11 or such
other relief as may be required specifically to enforce any of
the covenants in this Paragraph 11. If for any reason, it is
held that the restrictions under this Paragraph 11 are not
reasonable or that consideration therefor is inadequate, such
restrictions shall be interpreted or modified to include as much
of the duration and scope identified in this Paragraph 11 as will
render such restrictions valid and enforceable.
12. Change in Control.
A. Definition. As used in this Agreement,
"Change in Control" shall mean (i) any merger or consolidation in
which the Company shall not be the surviving entity (or survives
only as a subsidiary of another entity), unless the stockholders
of Company immediately before such merger or consolidation own,
directly or indirectly immediately following such merger or
consolidation, substantially all of the combined voting power of
the surviving entity in substantially the same proportion as
their ownership immediately before such merger or consolidation,
(ii) the sale of all or substantially all of the Company's assets
to any other person or entity (other than a wholly-owned
subsidiary), (iii) the acquisition of beneficial ownership or
control of (including, without limitation, power to vote) more
than 50% of the outstanding shares of Common Stock by any person
or entity (including a "group" as defined by or under Section
13(d)(3) of the Exchange Act), (iv) the dissolution or
liquidation of the Company, (v) a contested election of
directors, as a result of which or in connection with which the
persons who were directors of the Company before such election or
their nominees cease to constitute a majority of the Board, or
(vi) any other event specified by the Compensation Committee.
The Compensation Committee reserves the right to adopt a
different definition of Change in Control for stock options
granted subsequent to the date hereof or for any other purposes
not described herein.
B. Compensation Upon a Change in Control. Upon
a Change in Control, whether or not Employee's employment has
terminated, Employee shall receive all of the following
compensation, paid at the time of the Change in Control:
(i) Salary. A payment in the amount of 200%
of Employee's annual base salary in effect at the time of the
Change in Control.
(ii) Bonus. For all bonus plans in which
Employee is participating as of a Change in Control, the Company
shall pay to Employee a lump sum bonus payout. This payout
shall consist of a payment in the amount calculated by the
formula [(x + y) * z] where (x) is Employee's base salary earned
in the year of the Change in Control from January 1 to the date
of the Change in Control, (y) is the amount which is two times
Employee's annual base salary in effect at the time of the Change
in Control, and (z) is the percentage which under each plan is
the maximum percentage of base salary that Employee was eligible
to earn during the year in which the Change in Control occurred
assuming all targets were met in full, whether or not said
targets actually were met. The payments provided for under this
Paragraph 12.B.(ii) will be paid within thirty days following the
Change in Control in cash or in such other form as bonus amounts
generally are paid to eligible employees, or in a combination
thereof, as determined by the Compensation Committee, whose
determination and valuation of any non-cash compensation shall be
final and binding and shall be considered to be full compensation
for all amounts due to Employee for bonus plans in which he was
participating as of the Change in Control, and he shall not be
entitled to any further payments under any of said plans during
the year of participation, other than pursuant to any
arrangements as provided in Paragraph 12.B.(iv) below.
Notwithstanding the above, any bonus due to Employee for years
(or any other applicable bonus period) completed prior to the
date on which the Change of Control occurs but not yet paid shall
be paid in addition to the bonus described herein.
(iii) Disability Insurance. The Company
will prepay, for two full years following the Change of Control,
the premiums due on any disability insurance policy as was
provided to Employee as of the time of Change in Control. In the
event that the Company discontinued or reduced the amount of
coverage of any disability insurance within one year preceding a
Change in Control, the Company shall at the time of the Change in
Control re-establish disability insurance to the amount
previously provided and with equivalent coverage, and shall
prepay future premiums as provided herein.
(iv) Other Compensation. All other
compensation separately provided in this Agreement or in other
agreements as occurring upon a Change in Control, including,
without limitation, vesting of unvested stock options and
restricted stock.
C. Subsequent Termination Following a Change in
Control. In the event that Employee's employment is terminated
upon or within one year following the Change in Control such that
Employee would be entitled to Severance Compensation, any amounts
due at the time of termination as Severance Compensation under
10.E.(i) and 10.E.(ii) herein shall be reduced by any amounts
paid under Paragraph 12.B.(i) and 12.B.(ii) at the time of Change
in Control (under no circumstances would Employee be required to
repay the amounts paid to Employee under Paragraph 12.B.(i) or
12.B.(ii)), but Employee will be entitled to all other Severance
Compensation as provided in Paragraph 10.E. herein. In the event
that Employee's employment is terminated more than one year
following the Change in Control, Employee will be entitled to the
benefits provided in Paragraphs 10.E.(i) and 10.E.(ii) herein.
D. Certain Adjustments. If, as a result of
payments provided for under or pursuant to this Agreement
together with all other payments in the nature of compensation
provided to or for the benefit of Employee under any other
agreement in connection with a Change in Control, any state,
local or federal taxing authority imposes any taxes on Employee
that would not be imposed on such payments but for the occurrence
of a Change in Control, including any excise tax under Section
4999 of the Internal Revenue Code and any successor or comparable
provision, then, in addition to any other benefits provided under
or pursuant to this Agreement or otherwise, the Company
(including any successor to the Company) shall pay to Employee at
the time any such payments are made under or pursuant to this or
the other agreements, an amount equal to the amount of any such
taxes imposed or to be imposed on Employee (the amount of any
such payment, the "Parachute Tax Reimbursement"). In addition,
the Company (including any successor to the Company) shall "gross
up" such Parachute Tax Reimbursement by paying to Employee at the
same time an additional amount equal to the aggregate amount of
any additional taxes (whether income taxes, excise taxes, special
taxes, employment taxes or otherwise) that are or will be payable
by Employee as a result of the Parachute Tax Reimbursement being
paid or payable to Employee and/or as a result of the additional
amounts paid or payable to Employee pursuant to this sentence,
such that after payment of such additional taxes Employee shall
have been paid on a net after-tax basis an amount equal to the
Parachute Tax Reimbursement. The amount of any Parachute Tax
Reimbursement and of any such gross-up amounts shall be
determined by the Company's independent auditing firm, whose
determination, absent manifest error, shall be treated as
conclusive and binding absent a binding determination by a
governmental taxing authority that a greater amount of taxes are
payable by Employee.
13. Assignment This Agreement, as it relates to the
employment of Employee, is a personal contract and the rights and
interests of Employee hereunder may not be sold, transferred,
assigned, pledged or hypothecated. However, this Agreement shall
inure to the benefit of and be binding upon Company and its
successors and assigns including, without limitation, any
corporation or other entity into which Company is merged or which
acquires all or substantially all of the outstanding common stock
or assets of Company. Company may provide, without the prior
written consent of Employee, that Employee shall be employed
pursuant to this Agreement by any of its affiliates instead of or
in addition to Company, and in such case all references herein to
the "Company" shall be deemed to include any such entity,
provided that such action shall not relieve Company of its
obligation to make or cause an affiliate to make or provide for
any payment to or on behalf of Employee pursuant to this
Agreement.
14. Invalid Provisions The invalidity of any one or
more of the paragraphs or provisions of this Agreement shall not
affect the reasonable enforceability of the remaining paragraphs
or provisions of this Agreement, all of which are inserted herein
conditionally upon being valid in law; and in the event one or
more of the paragraphs or provisions contained herein shall be
invalid, this instrument shall be construed as if such invalid
paragraphs or provisions had not been inserted or, alternatively,
said paragraphs or provisions shall be reasonably limited to the
extent that the applicable court interpreting the provisions of
this Agreement considers to be reasonable.
15. Specific Performance The parties hereby agree
that any violation by Employee of the covenants and agreements
contained herein shall cause irreparable damage to the Company,
and the Company may, as a matter of course, enjoin and restrain
said violation by Employee by process issued out of a court of
competent jurisdiction, in addition to any other remedies that
said court may see fit to award.
16. Binding Effect All the terms of this Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and
assigns.
17. Waiver of Breach or Violation Not Deemed
Continuing The waiver by the Company of any provision of this
Agreement may be effected only by a written waiver duly executed
on behalf of the Company and except to the extent specifically
provided in such waiver shall not operate as, or be construed to
be, a waiver of any subsequent breach hereof.
18. Entire Agreement; Law Governing This Agreement
supersedes and any and all other agreements, either oral or in
writing, between the parties hereto with respect to the subject
matter hereof, by and between the Company and Employee, and
contains all the covenants and agreements among the parties with
respect to such subject matter. Notwithstanding the foregoing,
to the extent that any compensation or benefit provided for
hereunder was paid, granted, credited or funded under and
pursuant to an earlier version of this Agreement with respect to
service prior to the Effective Date and at rates provided for
under such earlier version, then such compensation or benefit
need not be again paid, granted or funded, respectively, pursuant
to this Agreement. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Virginia, without
regard to principles of conflicts of law. Employee hereby
acknowledges that he was given the opportunity to be represented
by counsel of his choosing in the drafting and negotiation of
this Agreement and that he reviewed this Agreement. In
interpreting this Agreement, a court shall not treat either party
as the draftsman of the Agreement.
19. Paragraph Headings The Paragraph headings
contained in this Agreement are for convenience only and shall in
no manner be construed as a part of this Agreement.
20. Release by Employee In the event of a termination
of employment by Employee that results in the payment of
Severance Compensation to him pursuant to the terms of this
Agreement, in consideration for such Severance Compensation and
as a condition precedent to the payment thereof, Employee hereby
agrees to execute a full and complete release to the Company
releasing any and all claims that he may have against the Company
including any claims relating to his termination of employment.
21. Notices All notices permitted or required to be
given pursuant to this Agreement shall be in writing and shall be
deemed to have been sufficiently given, subject to the further
provisions of this Paragraph 21, for all purposes when presented
personally to such party (which in the case of notice to the
Company, shall be presented to the person holding the office or
offices identified below) or sent by facsimile transmission, any
national overnight delivery service, or certified or registered
mail, to such party at its address set forth below:
If to Employee, to the most recent address indicated
for Employee's residence in the personnel records of Company,
unless Employee gives written notice that such notices are to be
delivered to another address.
If to Independence Air or the Company:
FLYi, Inc.
Independence Air, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel or Corporate
Secretary
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Such notice shall be deemed to be given and received
when delivered if delivered personally, upon electronic or other
confirmation of receipt if delivered by facsimile transmission,
the next business day after the date sent if sent by a national
overnight delivery service, or five (5) business days after the
date mailed if mailed in the continental United States by
certified or registered mail. Any notice of any change in such
address shall also be given in the manner set forth above.
Whenever the giving of notice is required, the giving of such
notice may be waived in writing by the party entitled to receive
such notice.
In Witness Whereof, the Company has hereunto caused this
Agreement to be executed by a duly authorized officer and
Employee has hereunto set his hand as of the day and year written
below, with such Agreement to be effective as of the Effective
Date set forth herein.
WITNESS:
________________________________
_____________________________
Dated: December 30, 2004
COMPANY:
ATTEST: FLYI, INC.
_______________________________ BY:
____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Secretary Chairman & Chief
Executive Officer
Dated: December 30, 2004
ATTEST: INDEPENDENCE AIR, INC.
_______________________________ BY:
____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Secretary Chairman & Chief
Executive Officer
Dated: December 30, 2004
