Unassociated Document


    AMENDMENT
NO. 5 TO

    SECOND
AMENDED AND RESTATED

    EMPLOYMENT
AGREEMENT

     

    THIS
AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED AGREEMENT, dated as of October
29, 2009 (the “Amendment”), amends the Second Amended and Restated Agreement,
made and entered into as of July 1, 2003, and amended as of December 27, 2004,
further amended as of February 20, 2007,  further amended as of
September 5, 2007 and further amended as of June 22, 2009 (the “Agreement”), by
and between REPUBLIC AIRWAYS HOLDINGS INC. (the “Company”), a Delaware
corporation, and WAYNE C. HELLER (the “Executive”).

     

    RECITALS

     

    WHEREAS,
the Company and the Executive entered into the Agreement; and

     

    WHEREAS,
the Company and the Executive desire to amend the Agreement as and to the extent
provided for herein.

     

    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.           Severance
Compensation.  Section 4 of the Agreement is hereby amended and
restated in its entirety as follows:

     

    4.           
Severance
Compensation.

     

    (a)           Termination Upon Death, or
by the Company for Disability or Without Cause.  In the event
of Executive’s death or in the event the Company terminates this Agreement as a
result of 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 within ten (10) days following termination of the
Agreement.  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. If the Executive terminates this Agreement or his employment
with the Company other than for Cause, the Company shall pay to the Executive
his Base Salary for the remainder of the Term.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (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 compensation is decreased, his
duties are diminished or he is asked to relocate more than 25 miles from his
then current place of employment), 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 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 Executive for
Cause.    If Executive terminates this Agreement for
Cause, 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 elects not to
renew this Agreement at the end of the stated Term, the Company shall pay to the
Executive one times the Executive’s Base Salary 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.

     

    (e)           Continuation of Medical
Benefits.  Upon termination of this Agreement for any reason by
Executive or the Company, Executive, Executive’s spouse, and Executive’s
dependents will continue to be eligible for coverage under the Company’s group
health plan or any successor plan on the same basis as active executive
employees of the Company, their spouses, and their dependents for the greater of
(i) the balance of the stated Term of this Agreement or (ii) 12
months.    Upon the failure to renew this Agreement by the
Company or by Executive, Executive’s spouse, and Executive’s dependents will
continue to be eligible for coverage under the Company’s group health plan or
any successor plan on the same basis as active executive employees of the
Company, their spouses, and their dependents for 12 months.  If and
when group health coverage under another group health  plan first
becomes  available thereafter to Executive, Executive’s spouse, or
Executive’s dependents (as applicable), the Company’s obligations under this
paragraph will cease with respect to each person to whom such coverage
becomes  available,  and such person shall have such “COBRA”
benefit continuation rights as may then be available under relevant law,
treating Executive’s employment termination date as the date of such person’s
“qualifying event.”

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (f)           Gross-Up.  In
the event that Executive shall become entitled to any amounts, whether pursuant
to the terms of this Agreement or any other plan, arrangement or agreement with
the Company (the “Regular Amounts”) that are determined to  be subject
to the tax (the “Excise Tax”) imposed by IRC Section 4999  as amended
(and any similar tax that may hereafter be imposed), the Company shall pay to
Executive an additional amount (the “Gross-up Payment”) such that the net amount
retained by Executive after payment of all applicable federal and state taxes on
the sum of the Regular Amount plus the Gross-up Payment, is equal to the net
amount that would have been retained by Executive after payment of all
applicable federal and state taxes on the Regular Amount if it had not been
subject to the Excise Tax.

     

    2.           Termination for Cause by the
Executive.  Section 8(b) of the Agreement is hereby amended and
restated in its entirety as follows:

     

    (b)  Termination for Cause by the
Executive. The Executive, by 20 business days prior written notice to the
Company, may terminate this Agreement and his employment hereunder for Cause,
provided that the Company shall have the right to cure such Cause within such 20
business day period. As used herein, a termination by the Executive “for Cause”
shall mean that (i) the Company has materially diminished the duties and
responsibilities of the Executive with respect to the Company or (ii) the
Company has required the Executive to relocate his residence from Indianapolis
to another location without the consent of the Executive.

     

    3.           Defined
Terms.  All capitalized terms used herein shall have the
respective meanings ascribed to such terms in the Agreement unless otherwise
defined herein.

     

    4.           Counterparts.  This
Amendment 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.

     

    5.           Miscellaneous.  Except
as amended herein, the Agreement shall remain in full force and
effect.

     

    [Remainder
of page intentionally left blank]

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

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

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 
      	
                                REPUBLIC
      AIRWAYS HOLDINGS, INC.

                              
	 
      	 
      
	 
      	
                                By:

                              	/s/
      Bryan K. Bedford
	 
      	 
      	
                                Name:
      Bryan K. Bedford

                              
	 
      	 
      	
                                Title:
      President and Chief Executive Officer

                              
	 
      	 
      
	 	

                                /s/
      WAYNE C. HELLER

                              
	 
      	
                                WAYNE
      C. HELLER

                              
	 	 
	 	 


                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        4