Unassociated Document


    
      Exhibit
10.35

    

     

    THIRD
AMENDED AND RESTATED

    EMPLOYMENT
AGREEMENT

     

    THIS
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into as of November 2, 2010, by and between REPUBLIC AIRWAYS HOLDINGS
INC., a Delaware corporation (the “Company”), and WAYNE C. HELLER (the
“Executive”).

     

    R
E C I T A L S

     

    WHEREAS,
the Executive is party to the Second Amended and Restated Employment Agreement
dated as of August 1, 2003, as amended (the “Prior Agreement”); and

     

    WHEREAS,
the Company and the Executive desire to amend certain provisions of the Prior
Agreement and to enter into this Agreement.

     

    NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:

     

    1.           Employment.  The
Company agrees to continue to employ the Executive, and the Executive agrees to
render his services to the Company, as its Executive Vice President and Chief
Operating Officer, during the Term (as defined below).  In connection
with his employment as Executive Vice President and Chief Operating Officer, the
Executive shall serve without additional payment or compensation of any kind as
an officer of any other direct or indirect subsidiary or affiliate of the
Company designated by the Company’s Chief Executive Officer (collectively, the
“Subsidiaries”).  The Executive shall render his services at the
direction of the Company’s Chief Executive Officer at the Company’s offices in
Indianapolis, Indiana.  The Executive agrees to use his best efforts
to promote and further the business, reputation and good name of the Company and
the Subsidiaries (collectively, the “Company Group”) and the Executive shall
promptly and faithfully comply with all instructions, directions, requests,
rules and regulations made or issued from time to time by the
Company.

     

    2.           Term.

     

    (a)           The
term of employment pursuant to this Agreement (the “Term”) shall continue until
December 31, 2013; provided that (i) the Company may terminate this Agreement
for any reason or no reason by providing the Executive with 30 days prior
written notice of such termination and (ii) the Executive may terminate this
Agreement for any reason or no reason by providing the Company with 180 days
prior written notice of such termination (90 days prior written notice if Bryan
Bedford is not then serving as the Company’s Chief Executive Officer), which
notice in either case may not be given prior to June 30, 2011.

     

    (b)           Notwithstanding
the foregoing, this Agreement may be terminated by the Company in the event that
“Cause” for such termination exists as provided in Section 8(a) below or by the
Executive for Good Reason as provided in Section 8(b) below.  If this
Agreement is terminated by the Company for “Cause”, the Executive shall not be
entitled to any Severance Compensation or other compensation of any kind
following the effective date of such termination.  If this Agreement
is terminated by the Executive other than for Good Reason, the Company shall pay
to the Executive his Base Salary through December 31, 2013.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (c)           In
the event (i) the Company terminates this Agreement or the Executive’s
employment other than for Cause, or (ii) the Executive terminates this Agreement
or the Executive’s employment for Good Reason, the Company shall pay the
Executive Severance Compensation as provided in Section 4 hereof.  If
this Agreement is terminated by the Company other than for Cause, options
granted to the Executive to purchase shares of the Company’s common stock and
restricted shares covering shares of the Company’s common stock shall
immediately become fully vested and exercisable in accordance with the
agreements evidencing such awards.

     

    (d)           The
Term shall automatically renew for successive one year periods unless either
party shall have given notice to terminate this Agreement no later than ninety
(90) days prior to the end of the then current Term.

     

    3.           Compensation.  As
full and complete compensation for all the Executive’s services hereunder, the
Company shall pay the Executive the compensation described below.

     

    (a)           Base
Salary.  During the Term, the Company shall pay the Executive
an annual base salary of $300,000 (“Base Salary”). The Board of Directors of the
Company (the “Board”) shall review the Executive’s Base Salary each year and
shall have the right in its discretion to increase such Base
Salary.  In the event this Agreement is terminated prior to the
expiration of the Term, the Company shall pay to the Executive, in addition to
any Severance Compensation payable under Section 4, any accrued but unpaid Base
Salary through the termination date.

     

    (b)           Annual Incentive
Plan.  In addition to the Base Salary, during the Term, the
Executive will have an annual bonus opportunity target equal to 75% of the
Executive’s salary for the year.  The amount of the annual bonus
(“Bonus”) for any year may be more or less than the target amount, but not more
than 150% of the Executive’s salary for the year, and will be determined, in its
sole discretion, by the Compensation Committee based upon certain performance
measures which shall be determined by the Board in its discretion and
communicated to the Executive by the end of each September of the prior year
during the Term.  The Bonus for a year will be determined and payable
by March 15 of the following year.  In the event this Agreement or the
Executive’s employment is terminated by the Company for Cause or by the
Executive other than for Good Reason, the Executive shall not be entitled to any
Bonus Compensation for such year or any subsequent period.

     

    4.           Severance
Compensation.

     

    (a)           Termination Upon Death, or
by the Company for Disability or Without Cause.  In the event
of the Executive’s death or in the event the Company terminates this Agreement
as a result of the Executive’s inability, with reasonable accommodation, to
perform the essential functions of his position, by reason of physical or mental
incapacity, for a total period of 90 days in any 360-day period (“Executive’s
Disability”) or other than for Cause, the Company shall pay to the Executive or
his estate as the case may be as severance compensation two times the
Executive’s Base Salary as then in effect plus two times the Executive’s bonus
paid for the Company’s last calendar year.  The severance compensation
shall be paid in a lump sum by the end of the following month following
termination of this Agreement, provided that the Company receives a release
within 30 days following termination of this Agreement signed by the Executive,
substantially in the form attached hereto as Exhibit A, that is no
longer revocable.  The Executive agrees that the Company may satisfy
its obligations to provide severance compensation pursuant to this Section 4(a)
by purchasing and maintaining one or more insurance policies payable to either
the Executive or his designees or to the Company (with further payment to the
Executive or such designees) upon the Executive’s death or as a result of the
Executive’s Disability.  The Executive agrees to cooperate with the
Company in obtaining such insurance, including by participating in such physical
examinations and providing such personal information as may be requested by the
Company’s insurers.

     

    
      
         

      

      
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    (b)           Occurrence of a Change in
Control.  In the event of a Change of Control (provided that
after such Change of Control, the Executive’s employment is terminated (x) by
the Company without Cause or (y) by the Executive for Good Reason), the Company
shall pay to the Executive as severance compensation two times the Executive’s
Base Salary as then in effect plus two times the Executive’s bonus paid for the
Company’s last calendar year.  The severance compensation shall be
paid in a lump sum by the end of the following month following a qualifying
event.  “Change of Control” shall mean that after the date hereof, (i)
any person or group of affiliated or associated persons acquires a majority or
more of the voting power of the Company; (ii) the consummation of a sale of all
or substantially all of the assets of the Company; (iii) the dissolution of the
Company or (iv) the consummation of any merger, consolidation, or reorganization
involving the Company in which, immediately after giving effect to such merger,
consolidation or reorganization, less than majority of the total voting power of
outstanding stock of the surviving or resulting entity is then “beneficially
owned” (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) in the aggregate by the stockholders of the Company
immediately prior to such merger, consolidation or reorganization.

     

    (c)           Termination by the Executive
for Good Reason.  If the Executive terminates this Agreement
for Good Reason, the Company shall pay to the Executive as severance
compensation two times the Executive’s Base Salary as then in effect plus two
times the Executive’s bonus paid for the Company’s last calendar
year.  The severance compensation shall be paid in a lump sum within
ten (10) days following termination.

     

    (d)           Failure to
Renew.  If either the Executive or the Company gives notice to
terminate this Agreement at the end of the stated Term, the Company shall make a
payment to the Executive equal to one times the Executive’s Base Salary as in
effect at the end of the Term plus one times the Executive’s target bonus as in
effect at the end of the Term.  Such payment shall be made in a lump
sum within ten (10) days following the end of the stated Term of this Agreement,
provided that the Company receives a release within 30 days following
termination of this Agreement signed by the Executive, substantially in the form
attached hereto as Exhibit
A.  In addition, upon delivery of such release, all remaining
unvested shares of restricted stock granted to the Executive shall immediately
vest.

     

    
      
         

      

      
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    (e)           Continuation of
Benefits.

     

    (i)           Medical
Benefits.  If (A) the Company terminates the Executive’s
employment for any reason other than for Cause at any time or (B) if the
Executive’s employment terminates for any reason on or after December 31, 2013,
then in either such event the Company shall pay the Executive $2,500.00 each
month for the lifetime of the Executive, subject to an annual upward inflation
adjustment, for the cost of health insurance from a source other than the
Company for himself, his spouse and his eligible dependents, provided that the
Executive presents evidence of such insurance to the Company.  The
Company will begin the monthly payments to the Executive 30 days after the
termination of the Executive’s employment and thereafter on the 15th day of
each subsequent month during the Executive’s lifetime.

     

    (ii)           Travel
Privileges.  If (A) the Company terminates the Executive’s
employment for any reason other than for Cause at any time or (B) if the
Executive’s employment terminates for any reason on or after December 31, 2013,
then in either such event during each year of the Executive’s lifetime, the
Company shall provide the Executive with a Universal Air Travel Plan, Inc.
(UATP) card in the amount of $15,000 annually that the Executive, his spouse and
his dependents can use for travel.  The Executive shall be responsible
for any applicable taxes associated with such benefit.  The Company
will provide the UATP card to the Executive within 30 days of the termination of
the Executive’s employment and thereafter each year on the anniversary of such
date during the lifetime of the Executive.

     

    5.           No Other
Compensation.  Except as otherwise expressly provided herein,
or in any other written document executed by the Company and the Executive, no
other compensation or other consideration shall become due or payable to the
Executive on account of the services rendered to the Company
Group.  The Company shall have the right to deduct and withhold from
the compensation payable to the Executive hereunder any amounts required to be
deducted and withheld under the provisions of any statute, regulation,
ordinance, order or any other amendment thereto, heretofore or hereafter
enacted, requiring the withholding or deduction of compensation.

     

    6.           Medical & 401K
Benefits.  The Company agrees that the Executive shall be
entitled to participate in any retirement, 401K, disability, medical, pension,
profit sharing, group insurance, or any other plan or arrangement, or in any
other benefits now or hereafter generally available to executives of the
Company, in each case to the extent that the Executive shall be eligible under
the general provisions thereof.

     

    7.           Vacation.  The
Executive shall be entitled to take three weeks of paid vacation which shall
accrue monthly during each 12 months of the Executive’s employment hereunder,
and which vacation shall be taken on dates to be selected by mutual agreement of
the Company and the Executive.

     

    8.           Termination for Cause or
Good Reason.

     

    (a)           Termination for Cause by the
Company.  The Company, by written notice to the Executive, may
immediately terminate this Agreement and the Executive’s employment hereunder
for Cause.  As used herein, a termination by the Company “for Cause”
shall mean that the Executive has (i) willfully or materially refused to perform
a material part of his duties hereunder, (ii) materially breached the provisions
of Sections 9, 10 or 11 hereof, (iii) acted fraudulently or dishonestly in his
relations with the Company, (iv) committed larceny, embezzlement, conversion or
any other act involving the misappropriation of Company funds or assets in the
course of his employment, or (v) been indicted or convicted of any felony or
other crime involving an act of moral turpitude.

     

    
      
         

      

      
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    (b)           Termination for Good Reason
by the Executive.  The Executive, by 20 business days prior
written notice to the Company, may terminate this Agreement and his employment
hereunder for Good Reason, provided that the Company shall have the right to
cure such Good Reason within such 20 business day period.  As used
herein, a termination by the Executive “for Good Reason” shall mean that (i) the
Company has materially diminished the duties and responsibilities of the
Executive with respect to the Company, (ii) the Company has relocated its
principal offices more than 25 miles from Indianapolis to another location
without the consent of the Executive or (iii) the Company has materially
breached the terms of this Agreement.

     

    9.           Confidential
Information.  The Executive recognizes and acknowledges that he
shall receive in the course of his employment hereunder certain confidential
information and trade secrets concerning the Company Group’s business and
affairs which may be of great value to the Company Group.  The
Executive therefore agrees that he will not disclose any such information
relating to the Company Group, the Company Group’s personnel or their operations
other than in the ordinary course of business or in any way use such information
in any manner which could adversely affect the Company Group’s
business.  For purposes of this Agreement, the terms “trade secrets”
and “confidential information” shall include any and all information concerning
the business and affairs of the Company Group and any division or other
affiliate of the Company Group that is not generally available to the
public.

     

    10.           Non-Competition.  The
Executive agrees that without the prior written consent of the Company’s Chief
Executive Officer during the Term and for a period of 12 months following the
termination or expiration of this Agreement, he will not participate as an
advisor, partner, joint venturer, investor, lender, consultant or in any other
capacity in any business transaction or proposed business transaction (a) with
respect to which the Executive had a material personal involvement on behalf of
the Company Group during the last 12 months of his employment with the Company,
or (b) that could reasonably be expected to compete with the Company Group’s
business or operations or proposed or contemplated business or transactions of
the Company Group that are (I) known by the Executive as of the date of such
termination or expiration, and (II) contemplated by the Company Group to proceed
during the 12 month period following such termination or
expiration.  For these purposes, the mere ownership by the Executive
of securities of a public company not in excess of 2% of any class of such
securities shall not be considered to be competition with the Company
Group.

     

    11.           Non-Solicitation.  The
Executive agrees that during the Term, and for a period of 12 months following
the termination or expiration of this Agreement, he shall not, without the prior
written consent of the Company, directly or indirectly, employ or retain, or
have or cause any other person or entity to employ or retain, any person who was
employed by the Company Group or any of its divisions or affiliates while the
Executive was employed by the Company.

     

    12.           Breach of this
Agreement.  If the Executive commits a breach, or threatens to
commit a breach, of any of the provisions of Sections 9, 10 or 11 of this
Agreement, then the Company shall have the right and remedy to have those
provisions specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed by the Executive that the rights and privileges of
the Company granted in Sections 9, 10 and 11 are of a special, unique and
extraordinary character and any such breach or threatened breach will cause
great and irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company.

     

    
      
         

      

      
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    13.           Notices.  All
notices and other communications required or permitted hereunder shall be in
writing (including facsimile, telegraphic, telex or cable communication) and
shall be deemed to have been duly given when delivered by hand, or mailed,
certified or registered mail, return receipt requested and postage
prepaid:

     

    If to the
Company:             Republic
Airways Holdings, Inc.

    8909
Purdue Road

    Suite
300

    Indianapolis,
IN  46268

    Attn:  President
and Chief Executive Officer

     

    With a
copy to each member of the Board

     

    If to the
Executive:             Wayne
C. Heller

    2115
Burning Tree Drive

    Carmel,
IN  46032

     

    14.           Applicable
Law.  This Agreement was negotiated and entered into within the
State of Indiana.  All matters pertaining to this Agreement shall be
governed by the laws of the State of Indiana applicable to contracts made and to
be performed wholly therein.  Nothing in this Agreement shall be
construed to require the commission of any act contrary to law, and wherever
there is any conflict between any provision of this Agreement and any material
present or future statute, law, governmental regulation or ordinance as a result
of which the parties have no legal right to contract or perform, the latter
shall prevail, but in such event the provision(s) of this Agreement affected
shall be curtailed and limited only to the extent necessary to bring it or them
within the legal requirements.

     

    15.           Entire Agreement;
Modification; Consents and Waivers.  This Agreement contains
the entire agreement of the parties with respect to the subject matter hereof
and supersedes any and all prior agreements or understandings, written or oral,
between the parties with respect to the subject matter hereof.  No
interpretation, change, termination or waiver of or extension of time for
performance under any provision of this Agreement shall be binding upon any
party unless in writing and signed by the party intended to be bound
thereby.  Except as otherwise provided in this Agreement, no waiver of
or other failure to exercise any right under or default or extension of time for
performance under any provision or this Agreement shall affect the right of any
party to exercise any subsequent right under or otherwise enforce said provision
or any other provision hereof or to exercise any right or remedy in the event of
any other default, whether or not similar.

     

    16.           Severability. The
parties acknowledge that, in their view, the terms of this Agreement are fair
and reasonable as of the date signed by them, including as to the scope and
duration of post-termination activities.  Accordingly, if any one or
more of the provisions contained in this Agreement shall for any reason, whether
by application of existing law or law which may develop after the date of this
Agreement, be determined by an arbitrator or court of competent jurisdiction to
be excessively broad as to scope of activity, duration or territory, or
otherwise unenforceable, the parties hereby jointly request such court to
construe any such provision by limiting or reducing it so as to be enforceable
to the maximum extent in favor of the Company compatible with then-applicable
law.  If any one or more of the terms, provisions, covenants or
restrictions of this Agreement shall nonetheless be determined by an arbitrator
or court of competent jurisdiction to be invalid, void or unenforceable, then
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.

     

    
      
         

      

      
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    17.           Assignment.  The
Company may, at its election, assign this Agreement or any of its rights
hereunder.  This Agreement may not be assigned by the
Executive.

     

    18.           Counterparts.  This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.

     

    19.           Arbitration.  Each
of the parties hereby irrevocably and unconditionally consents to arbitrate any
dispute arising out of or relating in any manner to this Agreement or the
employment relationship contemplated hereby or the termination thereof, or any
alleged breach of any term or provision of this Agreement.  Such
arbitration shall be conducted in Marion County, Indiana by a single arbitrator
in accordance with the employment dispute resolution rules of the American
Arbitration Association then in effect.  Judgment may be entered on
the arbitrator’s award in any federal or state court in Indiana (and the parties
expressly consent to the jurisdiction of such court), or in any other court
having jurisdiction.  The Company shall be responsible for, and shall
pay, 75% of all costs and expenses of any arbitration hereunder, including,
without limitation, all costs, fees and expenses of the American Arbitration
Association and arbitrator.  The Executive shall be responsible for,
and shall pay, 25% of all costs and expenses of any arbitration hereunder,
including, without limitation, all costs, fees and expenses of the American
Arbitration Association and arbitrator.  Each of the Parties agrees
that in any arbitration arising out of or relating to this Agreement or the
employment relationship contemplated hereby or the termination thereof, or any
alleged breach of any term or provision of this Agreement or in any action to
enter judgment on an award in such arbitration each party shall bear its own
fees and expenses.

     

    20.           Survival.  The
provisions of Sections 9 through 19 of this Agreement shall survive any
expiration or termination of this Agreement.

     

    21.           Equity
Commitment.  Upon executing this Agreement, the Executive shall
be issued options to purchase 80,000 shares of common stock of the Company,
one-third of which shall vest on each of the next three (3) anniversaries of the
date hereof, such options to be evidenced by a Stock Option Agreement
substantially in the form attached hereto as Exhibit B pursuant to
the Republic Airways Holdings Inc. 2007 Equity Incentive Plan, by and between
the Company and the Executive.  The options shall expire ten (10)
years following voluntary separation or termination of the Agreement or the
Executive’s employment with the Company other than for Cause.  Upon
executing this Agreement, the Executive also shall be granted 40,000 shares of
restricted stock at a price per share equal to the par value thereof, which
shall vest on each of the next three (3) anniversaries of the date hereof, such
restricted stock grants to be evidenced by a Restricted Stock Purchase Agreement
substantially in the form attached hereto as Exhibit C pursuant to
the Republic Airways Holdings Inc. 2007 Equity Incentive Plan, by and between
the Company and the Executive.

     

    
      
         

      

      
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    22.           Options Under Prior
Agreement.  The vesting of any options to purchase stock of the
Company previously granted to the Executive under the terms of the Prior
Agreement or any agreement entered into contemporaneously with the Prior
Agreement shall be governed by the terms of such agreement notwithstanding any
provision of this Agreement.

     

    23.           Indemnification.  The
Company shall, to the fullest extent allowed by law, defend, indemnify and hold
harmless the Executive from and against any and all demands, claims, suits,
liabilities, actions asserted or brought against the Executive or in which the
Executive is made a party, including, without limitation, all litigation costs
and attorneys’ fees incurred by the Executive or judgments rendered against the
Executive, in connection with any matter arising within the course and scope of
Executive’s employment with the Company or service as an officer, director or
manager of the Company or any of the Subsidiaries.  The right of the
Executive to indemnification hereunder shall vest at the time of occurrence or
performance of any event, act or omission giving rise to any demand, claim,
suit, liability, action or legal proceeding of the nature referred to in this
Section 23 and, once vested, shall survive the termination of Executive’s
employment with the Company for any reason.

     

    24.           Section 409A
Compliance.

     

    (a)           Any
payments conditioned upon a termination of the Executive’s employment will be
deemed to be conditioned upon the Executive’s separation from service within the
meaning of Treasury Regulation Section 1.409A-1(h) and will be construed and
interpreted accordingly.  If the Executive is a “specified employee”
within the meaning of Treasury Regulation Section 1.409A-1(i) as of the date of
the Executive’s separation from service, then the Executive shall not be
entitled to any severance payments or other benefits pursuant to this Agreement
until the earlier of (i) the date which is six months after the date of the
Executive’s separation from service, or (ii) the date of the Executive’s
death.  This paragraph shall only apply if, and to the extent required
in order to comply with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and Treasury Regulation Section
1.409A-3(i)(2).  Any amounts otherwise payable to the Executive upon
or in the six-month period following the Executive’s separation from service
that are not so paid by reason of this paragraph shall be paid to the Executive
(or the Executive’s estate, as the case may be) as soon as practicable (and in
all events within twenty days) after the expiration of such six-month period or
(if applicable, the date of the Executive’s death).

     

    (b)           Any
taxable reimbursement of expenses payable to the Executive shall be paid to the
Executive on or before the last day of the Executive’s taxable year following
the taxable year in which the related expense was incurred.  Expense
reimbursements and in-kind benefits provided to the Executive shall not be
subject to liquidation or exchange for another benefit and the amount of such
reimbursements or in-kind benefits that the Executive receives in one taxable
year shall not affect the amount of such reimbursements or benefits that the
Executive may receive in any other taxable year.

     

    
      
         

      

      
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    (c)           It
is intended that any amounts payable under this Agreement and the Company’s and
the Executive’s exercise of any authority or discretion hereunder shall comply
with, and avoid the imputation of any tax, penalty or interest under Section
409A of the Code.  This Agreement shall be construed and interpreted
consistent with that intent.  Should the Company pay the Executive
contrary to clause (i) or (ii) of Section 24(a) above, the Company shall
indemnify the Executive for any taxes due thereon as a result.

     

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    IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the date first above written.

     

    
      
        	 	REPUBLIC
      AIRWAYS HOLDINGS, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	   	 
	 	 	Name:
      David N. Siegel	 
	 	 	      
                Title:   Chairman
      of the Compensation Committee of the Board of
    Directors

              	 
	 	 	 	 


      

    

    
      
        	 	
              	 
	 	 	WAYNE
      C. HELLER	 
	
              	
              	   	 
	 	 	 	 
	 	 	 	 
	 	 	 	 


      

    

     

    
      
         

      

      
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    EXHIBIT
A

     

    FORM
OF RELEASE

     

    In
exchange for the payments and benefits set forth in the Third Amended and
Restated Employment Agreement between Republic Airways Holdings Inc. (the “Company”) and me
dated November 2, 2010 (the “Agreement”), and to
be provided following the Effective Date (as defined below) of this General
Release and subject to the terms of the Agreement, and my execution (without
revocation) and delivery of this General Release:

     

    1.           (a)           On
behalf of myself, my agents, assignees, attorneys, heirs, executors and
administrators, I hereby release the Company and its predecessors, successors
and assigns, their current and former parents, affiliates, subsidiaries,
divisions and joint ventures (collectively, the “Company Group”) and
all of their current and former officers, directors, employees, and agents, in
their capacity as Company Group representatives (individually and collectively,
“Releasees”)
from any and all controversies, claims, demands, promises, actions, suits,
grievances, proceedings, complaints, charges, liabilities, damages, debts,
taxes, allowances, and remedies of any type, including but not limited to those
arising out of my employment with the Company Group (individually and
collectively, “Claims”) that I may
have by reason of any matter, cause, act or omission.  This release
applies to Claims that I know about and those I may not know about occurring at
any time on or before the date of execution of this General
Release.

     

    (b)           This
General Release includes a release of all rights and Claims under, as amended,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act of 1967, the Rehabilitation Act of 1973, the Civil Rights Acts of 1866 and
1991, the Americans with Disabilities Act of 1990, the Employee Retirement
Income Security Act of 1974, the Equal Pay Act of 1963, the Family and Medical
Leave Act of 1993, the Older Workers Benefit Protection Act of 1990, the
Occupational Safety and Health Act of 1970, the Worker Adjustment and Retraining
Notification Act of 1989 and the Sarbanes-Oxley Act of 2002, as well as any
other federal, state, or local statute, regulation, or common law regarding
employment, employment discrimination, termination, retaliation, equal
opportunity, or wage and hour.  I specifically understand that I am
releasing Claims based on age, race, color, sex, sexual orientation or
preference, marital status, religion, national origin, citizenship, veteran
status, disability and other legally protected categories.

     

    (c)           This
General Release also includes a release of any Claims for breach of contract,
any tortious act or other civil wrong, attorneys’ fees, and all compensation and
benefit claims including without limitation Claims concerning salary, bonus, and
any award(s), grant(s), or purchase(s) under any equity and incentive
compensation plan or program.

     

    (d)           In
addition, I am waiving my right to pursue any Claims against the Company Group
and Releasees under any applicable dispute resolution procedure, including any
arbitration policy.

     

    I
acknowledge that this General Release is intended to include, without
limitation, all Claims known or unknown that I have or may have against the
Company Group and Releasees through the Effective Date of this General
Release.  Notwithstanding anything herein, I expressly reserve and do
not release pursuant to this General Release (and the definition of “Claims”
will not include) (i) my rights with respect to the enforcement of the
Agreement, including but not limited to the right to receive Severance
Compensation (as defined in the Agreement), if any, and other payments, benefits
and indemnifications specified in the Agreement, (ii) any rights or interest
under any Benefit Plans (as defined in the Agreement), (iii) any right to
indemnification pursuant to the Company’s Certificate of Incorporation or
By-laws as in effect on the date hereof, (iv) the protections of the Company
Group’s directors and officers liability insurance, if any, in each case, to the
same extent provided to other senior executives of the Company, (v) any claims
and rights that cannot be waived by law, (vi) the vesting and exercise of any
equity grant pursuant to the terms of the applicable equity award agreement or
the applicable equity incentive plan, (vii) any rights as a stockholder of the
Company, and (viii) any rights under Sections 12 and 13 of the Agreement
following termination of employment.

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

     

    2.           I
acknowledge that I have had at least 21 calendar days from the date of my
termination of employment with the Company (the “Termination Date”) to
consider the terms of this General Release, that I have been advised to consult
with an attorney regarding the terms of this General Release prior to executing
it, that I have consulted with my attorney, that I fully understand all of the
terms and conditions of this General Release, that I understand that nothing
contained herein contains a waiver of claims arising after the date of execution
of this General Release, and I am entering into this General Release knowingly,
voluntarily and of my own free will.  I further understand that my
failure to sign this General Release and return such signed General Release to
the Company, 8909 Purdue Road, Suite 300, Indianapolis, IN 46268 by 5:00 pm on
the 22nd day
after the Termination Date will render me ineligible for the payments and
benefits described herein and in the Agreement.

     

    3.           I
understand that once I sign and return this General Release to the Company, I
have 7 calendar days to revoke it.  I may do so by delivering to the
Company, 8909 Purdue Road, Suite 300, Indianapolis, IN 46268 written notice of
my revocation within the 7-day revocation period (the “Revocation
Period”).  This General Release will become effective on the
8th
day after I sign and return it to the Company (“Effective Date”);
provided that I have not revoked it during the Revocation Period.

     

    YOU ARE
HEREBY ADVISED BY THE COMPANY TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS
GENERAL RELEASE.

     

    I HAVE
READ THIS GENERAL RELEASE AND UNDERSTAND ALL OF ITS TERMS. I SIGN AND ENTER THIS
GENERAL RELEASE KNOWINGLY AND VOLUNTARILY, WITH FULL KNOWLEDGE OF WHAT IT
MEANS.

     

    WAYNE C. HELLER

     

    


     

    __________________________________________

     

    Date:
_____________________________________

     

    
      
         

      

      
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    EXHIBIT
B

     

    FORM
OF STOCK OPTION AGREEMENT

     

    
      
         

      

      
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    EXHIBIT
C

     

    FORM
OF RESTRICTED STOCK PURCHASE AGREEMENT

     

    
      
         

      

      
        14