Exhibit 10.12(b)


 


SECOND
AMENDED AND RESTATED SEVERANCE AGREEMENT


 


THIS SECOND AMENDED AND
RESTATED SEVERANCE AGREEMENT (the “Agreement”) is made and entered into as of
this 15th day of March, 2005 (the “Effective Date”), by and between FLYi, INC.,
a Delaware corporation (“FLYi”) and INDEPENDENCE AIR, a California corporation
(“IA”) (FLYi and IA are herein collectively referred to as the “Company”) and
THOMAS J. MOORE (“Moore”).


 


Witnesseth That:


 


Whereas,
Moore is currently employed by the Company as Chief Operating Officer and
President, and in connection with such employment entered into a Severance
Agreement dated as of December 28, 1999 (which was restated as of December 28,
2001) (the “Prior Severance Agreement”) with the Company; and


 


Whereas,
the Company wishes to assure itself of the continued services of Moore; and


 


Whereas,
to promote the Company’s efforts to reduce its costs on both a cash and
accounting basis, the Company and Moore have agreed to certain modifications to
the Prior Severance Agreement to defer or reduce certain significant
compensation benefits provided for under the Prior Severance Agreement; and


 


Whereas,
the Board of Directors of the Company has determined that the best interests of
the Company would be served by entering into this amended and restated
Agreement with Moore;


 


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 Moore and Moore 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.


 


2.             Duties 
Moore shall serve the Company in the capacities of Chief Operating
Officer and President.  Moore shall be
responsible for supervising and directing all operations of the Company and of
any other entity(ies) to which the Company’s obligations under this Agreement
shall be assigned pursuant to Paragraph 12. 
Moore shall otherwise be responsible for carrying out all such other
duties and services for the Company commensurate with Moore’s position, as may
be designed from time to time by the Chief Executive Officer of the Company (the
“CEO”).


 





















 


3.             Term of Employment  Moore’s term of employment under this Agreement shall
commence on the Effective Date and shall terminate on the last day of the
calendar month which is twelve (12) calendar months after the Effective Date,
unless further extended as hereinafter set forth.  Commencing on each successive anniversary of
the Effective Date, the Agreement shall automatically be extended for an
additional twelve (12) months without further action by either party unless
Moore’s employment has previously been terminated or unless Moore or the
Company has provided notice of intention to terminate Moore’s employment
pursuant to the terms of Paragraph 10 below, in which case Moore’s term of
employment under this Agreement will be extended to the pending Termination
Date.


 


4.             Extent of Service 
Moore 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 the CEO.


 


5.             Compensation 
During the term of this Agreement, Company agrees to pay to Moore, and
Moore agrees to accept from Company, in full payment for services rendered by
Moore and work to be performed by him under the terms of this Agreement, the
following:


 


A.            Salary. 
An annual base salary of Two Hundred Forty-Seven Thousand Five Hundred
Dollars ($247,500).  Commencing on
October 1, 2005 and on each October 1 thereafter, the amount of Moore’s base
salary shall be increased as determined by the Compensation Committee of the
Board of Directors of the Company (the “Compensation Committee”).  Moore’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. 
Moore shall participate in the Company’s Management Incentive Program,
or any successor bonus plan or program for management employees.


 


C.            Executive Bonuses. 
Moore shall be eligible for an additional annual bonus under an
executive performance bonus plan currently known as Senior Management Incentive
Plan (“SMIP”) for so long as the Board of Directors determines to maintain such
plan.  Under such plan, each calendar
year, Moore shall be entitled to receive a bonus equal to a specified
percentage of base salary upon the attainment of certain pre-established goals.  Such goals and percentage of salary shall be
determined by the Compensation Committee. 
The bonus amount each year shall be paid in cash, stock, options or such
other form as the Compensation Committee provides, paid at the time period
provided under such plan, at the same time and in the same form as paid
generally to other eligible employees, except to the extent that this Agreement
provides otherwise.


 


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D.            Deferred Compensation.


 


(i)                            Notwithstanding
anything to the contrary in the Prior Severance Agreement, Deferred
Compensation (as defined below) shall be provided as described in this
Paragraph 5.D., which shall supercede and control over all prior deferred
compensation arrangements.  As of the
Effective Date, the Company has credited amounts of deferred compensation under
an unfunded and non-tax qualified arrangement (“Deferred Compensation”)
pursuant to the Prior Severance Agreement. 
The amounts credited as Deferred Compensation are recorded as a
bookkeeping entry representing a general unsecured obligation of the Company
and Moore shall not have a claim to any specific assets of the Company in
satisfaction of the amounts, if any, payable as Deferred Compensation.  As of the Effective Date, the balance in the Deferred
Compensation account recorded for Moore equals $1,747,250, which is the amount
of the Company’s Deferred Compensation “contributions” under the Prior
Severance Agreement between the Company and Moore, as such was amended from
time to time, through the Effective Date. 
As of and after the Effective Date, (A) the Company’s obligation under
the prior Severance Agreement to credit Deferred Compensation for the benefit
of Moore at the rate of one hundred percent (100%) of Moore’s annual base
salary shall terminate and (B) the Company shall have no further obligation to
accrue any additional Deferred Compensation for the benefit of Moore, other
than as a result of additional vesting as provided for in Paragraph 5.D.(ii)
below.  No interest or rate of return or
other appreciation or depreciation of value shall accrue or be payable on
amounts credited to Moore as Deferred Compensation pursuant to this Paragraph
5.D. unless the Company elects otherwise.


 


(ii)           Vesting of
Deferred Compensation will be based upon “Years of Service,” with Moore to be credited
with one Year of Service for completion of each twelve (12) consecutive month
period of employment with the Company beginning January 1, 1997 and ending on
the Deferred Compensation Ending Date (as defined below).  (That is, Moore will continue to be credited
with Years of Service during any applicable Severance Period, as further
provided in Paragraph 10.E.(iv) hereof.) 
Moore will become vested in the Deferred Compensation based on the
following schedule, with the effect that no later than January 1, 2006, Moore
shall be 100% vested:


 


	
  YEARS OF SERVICE

  	
   

  	
  PERCENTAGE

  VESTED

  	
   

  
	
  Less than 4

  	
   

  	
  0

  	
  %

  
	
  At least 4 but
  less than 5

  	
   

  	
  25

  	
  %

  
	
  At least 5 but
  less than 6

  	
   

  	
  35

  	
  %

  
	
  At least 6 but
  less than 7

  	
   

  	
  50

  	
  %

  
	
  At least 7 but
  less than 8

  	
   

  	
  65

  	
  %

  
	
  At least 8 but
  less than 9

  	
   

  	
  80

  	
  %

  
	
  At least 9

  	
   

  	
  100

  	
  %

  



 


In the event of a Change
in Control (as defined and determined under Paragraph 8.C.(ii) of this
Agreement) of the Company, Moore shall become immediately 100% vested in his
Deferred Compensation amount notwithstanding the above vesting schedule.


 


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(iii)          The
“Deferred Compensation Ending Date” shall mean the earliest
of (a) January 1, 2006, (b) the Termination Date (as defined below)
if Moore’s employment with the Company is terminated at any time under
circumstances that do not entitle him to Severance Compensation pursuant to
Paragraph 10 of this Agreement, and (c) the last day of the Severance Period
(as defined in Paragraph 10) if Moore is entitled to Severance Compensation.  If Moore is entitled to Severance
Compensation, he shall vest in the Deferred Compensation to the extent provided
pursuant to the terms of Paragraph 10.E.(iv) hereof.  Upon the Deferred Compensation Ending Date,
the Company shall pay to Moore in cash whatever Deferred Compensation amount is
equal to the applicable vested percentage of the total amount then credited to
his account pursuant to this Paragraph 5.D., provided that the Company
shall have a right of set-off against, and may reduce the amount payable as
Deferred Compensation by, any amount owed or payable by Moore to the Company,
including as provided in Paragraph 5.E.


 


E.             Split Dollar Life Insurance.  Notwithstanding anything to the contrary in
the Prior Severance Agreement, the Company shall maintain a split dollar life
insurance arrangement covering Moore as described in this Paragraph 5.E, which
shall supercede and control over all prior deferred compensation
arrangements.  As of the Effective Date,
the Company has paid $1,747,250 to fund payment of the premiums under a split
dollar life insurance arrangement covering Moore as provided in Paragraph 5.E.
of the Prior Severance Agreement As of the date hereof, the split dollar life
insurance arrangement is provided under a policy or policies with Phoenix Home
Life Mutual (such policies and agreements related thereto, the “Split Dollar
Agreement”).  The Company shall continue
to abide by the terms of the Split Dollar Agreement with Moore in force on the
date of this Agreement.


 


(i)            Moore
shall be the owner of the policy under the Split Dollar Agreement and will have
the right to designate his beneficiary with respect to proceeds of the policy
payable upon his death; provided, however, that notwithstanding the foregoing,
the Company shall have a collateral assignment of the policy as security for
the repayment of the amounts paid by the Company toward the premiums for the
policy.


 


(ii)           As of and
after the Effective Date, (A) the Company’s obligation under the Prior
Severance Agreement to pay the annual premium due on the policy in an amount
equal to one hundred percent (100%) of Moore’s annual base salary shall
terminate and (B) the Company shall have no further obligation to fund any
premium payments in excess of the amount funded as of the Effective Date, which
amount is set forth in the first paragraph of this Section 5.E.


 


(iii)          The
“Split Dollar Release Date” shall mean the Deferred Compensation Ending
Date.  The Company shall fund payment of
the premiums as provided in the Paragraph 5.E. in each year until the Split
Dollar Release Date.  Upon the Split
Dollar Release Date, the following shall occur:


 


(a)           If the Company elects pursuant to
Paragraph 5.D.(iii) to offset its obligation to pay the Deferred Compensation
against Moore’s obligation to pay the total of all premiums paid by the Company
on the split dollar policy(ies) acquired pursuant to Moore’s employment with
the Company then, in complete satisfaction of the Company’s obligation to pay


 


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the Deferred Compensation to Moore, the Company shall
release its entire interest in the policy on Moore’s life acquired pursuant to
the terms of the Split Dollar Agreement. 
Moore hereby agrees that such action shall satisfy the Company’s
obligation with respect to the Deferred Compensation.  The Company agrees that the amount of any
such release of interest by the Company shall satisfy in full the amount of “Liabilities”
(as such term is defined in the Agreement of Assignment of Life Insurance Death
Benefit As Collateral entered into between Moore and the Company in connection
with the Split Dollar Agreement) owed to the Company in connection with the
Split Dollar Agreement and related Collateral Assignment Agreement.  Accordingly, the Company also agrees as of such
date to release in full its interest as acquired by collateral assignment of
the policy pursuant to the Split Dollar Agreement and related Collateral
Assignment Agreement.


 


(b)           The Split
Dollar Agreement shall continue in full force and effect and survive separate
and apart from this Agreement; provided, however, that the Company shall have
no further obligation to pay any premium on the policy under the Split Dollar
Agreement which has a due date after the Split Dollar Release Date and such
obligation shall be transferred to Moore.


 


F.             Discretionary
Compensation.  The Company may pay Moore 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.


 


G.            Compensation Upon a
Change in Control.  Upon a Change in Control, whether or not
Moore’s employment has terminated, Moore shall receive all of the following
compensation, paid at the time of the Change in Control:


 


(i)            Salary. A payment in the amount of 300% of Moore’s
annual base salary in effect at the time of the Change in Control.


 


(ii)           Bonus. 
For all bonus plans in which Moore is participating as of a Change in
Control, the Company shall pay to Moore 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 Moore’s base salary earned in the year from January 1 to the
date of the Change in Control, (y) is the amount which is three times Moore’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 Moore 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 5.G.(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 Moore 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 5.G.(iv)
below.  Notwithstanding the above, any
bonus due to Moore for years (or any other applicable bonus period) completed
prior to the date on


 


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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, to the time of Moore’s reaching age 65, the
premiums due on any disability insurance policy as was provided to Moore 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 Benefits Upon a Change in
Control.  Moore shall receive all of the other benefits
separately provided herein or in other agreements as occurring upon a Change in
Control.  These include vesting of
unvested stock options and restricted stock. 
In the event a Change in Control occurs, Moore shall be entitled to the
insurance benefits provided upon Change in Control per Paragraph 10.E.(v) and
the travel benefits, per Paragraph 10.E.(viii), as provided upon a Change in
Control.  These benefits will apply at
the time of termination of Moore’s employment, even if Moore’s employment is
subsequently terminated in a fashion that does not give rise to Severance
Compensation.


 


(v)           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 Moore under any other agreement in connection
with a Change in Control, any state, local or federal taxing authority imposes
any taxes on Moore 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
Moore 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 Moore  (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 Moore 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 Moore as a
result of the Parachute Tax Reimbursement being paid or payable to Moore and/or
as a result of the additional amounts paid or payable to Moore pursuant to this
sentence, such that after payment of such additional taxes Moore 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 Moore.


 


H.            Employment or
Termination Following a Change in Control. Provided that he remains employed and the parties
have not otherwise agreed to amend this Agreement, following a Change in
Control Moore’s employment shall continue on the terms set


 


6





















 


forth in this Agreement and Moore shall remain subject
to this Agreement, and be entitled to receive the compensation, payments and
benefits provided for in this Agreement. 
In the event that Moore’s employment is terminated upon or within one
year following the Change in Control, such that Moore would be entitled to
Severance Compensation, any amounts due at the time of termination as Severance
Compensation under Paragraphs 10.E.(i) and 10.E.(ii) herein shall be reduced by
any amounts paid under Paragraph 5.G.(i) and 5.G.(ii) at the time of Change in
Control  (under no circumstances would
Moore be required to repay the amounts paid to Moore under Paragraph 5.G(i) and
5.G.(ii)), but Moore will be entitled to all other Severance Compensation as
provided in Paragraph 10.E. herein. In the event that Moore’s employment is
terminated more than one year following the Change in Control, Moore will be
entitled to all payments and benefits provided for herein with respect to such
termination of employment.


 


6.             Benefits


 


A.            The Company shall pay for or provide
Moore 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 executive employees of Company
generally (and, to the extent provided by such policies, to Moore’s
dependents).


 


B.            The Company agrees to promptly reimburse
Moore 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 Moore and other key executive
employees.  If such payments are taxable
to Moore, the Company shall pay Moore 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.            Moore shall be eligible to participate in
any profit sharing plan, employee stock ownership plan or other qualified
retirement plan adopted by Company to the same extent as other executive
employees of Company.  Moore shall also
be eligible to participate in any stock option, restricted stock, stock
appreciation rights or stock purchase plans or programs of Company, which
participation shall be at levels as may be determined appropriate by the
Compensation Committee.


 


D.            The Company agrees to reimburse Moore for
the cost of investment and tax planning services up to $5,000 incurred during
each calendar year.  If such payments are
taxable to Moore, the Company shall pay Moore 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 Moore, 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 Moore in performing his duties pursuant to this Agreement.


 


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8.             Stock Options


 


A.            Mandatory Stock Options. 
Company agrees to continue in force a stock option plan or one which is
substantially similar to the existing plan (“Stock Option Plan”), which has
been approved by the shareholders of the Company, and, on the first business
day in each October commencing in October 2002 and (subject to the provisions
of Paragraph 10.E.(iii)) continuing so long as Moore is employed by the Company
to grant Moore options under the Stock Option Plan to purchase not less than
100,000 shares of the common stock of FLYi (such number to be adjusted to
reflect any stock splits or other adjustments after the Effective Date) at the
price per share at the opening of the trading market on the date of such
grant.  The Company also agrees to
approve the issuance of such additional shares as are necessary to enable Moore
to exercise such options.  The Company
will not be required to reserve shares from existing plans to cover future
obligations under this Paragraph, but will use reasonable efforts to obtain
shareholder approval as necessary from time to time to make a sufficient number
of additional shares available on a timely basis, and will provide Moore with
equivalent alternative compensation should approval not be obtained.  The terms of the grant of such options shall
be consistent with the terms of the Stock Option Agreement being utilized at
the time of the grant for stock options granted to other senior executive
officers at or below Moore’s position with the Company. The Compensation
Committee retains full discretion of whether to grant any additional stock
options other than those required as provided above, and to change the terms of
the Stock Option Agreement for any such additional stock options.


 


B.            Acceleration of Stock Options
upon a Change in Control.  If the Company experiences a
Corporate Change, the exercisability and vesting of all Stock Options held by
Moore as of the date of the Corporate Change shall accelerate as of the date of
such Corporate Change.  The Compensation
Committee of the Company’s Board of Directors shall provide that if a Corporate
Change occurs, then effective as of a date selected by the Compensation
Committee, the Compensation Committee (which for purposes of the Corporate
Changes described in clauses (iii) and (v) of the definition of Corporate
Change below shall be the Compensation Committee as constituted prior to the
occurrence of such Corporate Change) acting in its sole discretion without the
consent or approval of Moore, will effect one or more of the following
alternatives or combination of alternatives with respect to all outstanding
Stock Options (which alternatives may be conditional on the occurrence of such
of the Corporate Change specified in clause (i) through (v) of the definition
of Corporate Change below which gives rise to the Corporate Change):  (1) in the case of a Corporate Change
specified in clauses (i), (ii) or (iv) of the definition thereof, provide that
exercisable options (including any options exercisable pursuant to the first
sentence of this Paragraph 8.B.) then outstanding may be exercised in full for
a limited period of time on or before a specified date (which will permit Moore
to participate with the Common Stock received upon exercise of such option in
the event of a Corporate Change specified in clauses (i), (ii) or (iv) of the
definition of Corporate Change below, as the case may be) fixed by the
Compensation Committee, after which specified date all unexercised options and
all rights of Moore thereunder shall terminate, (2) provide that
exercisable options (including any options exercisable pursuant to the first
sentence of this Paragraph 8.B.) then outstanding may be exercised so that such
options may be exercised in full for their then remaining term, or
(3) require the mandatory surrender to the Company of outstanding options
held by Moore (including any options exercisable pursuant to the first


 


8





















 


sentence of this Paragraph 8.B.) as of a date, before
or not later than sixty days after such Corporate Change, specified by the
Compensation Committee, and in such event the Compensation Committee shall
thereupon cancel such options and the Company shall pay to Moore an amount of
cash equal to the excess of the fair market value of the aggregate shares
subject to such option over the aggregate option price of such shares;
provided, however, the Compensation Committee shall not select an alternative
(unless consented to by Moore) that, if Moore exercised his accelerated options
pursuant to alternative 1 or 2 and participated in the transaction
specified in clause (i), (ii) or (iv)  of
the definition of Corporate Change below or received cash pursuant to
alternative 3, would result in Moore’s owing any money by virtue of
operation of Section 16(b) of the Exchange Act.  If all such alternatives have such a result,
the Compensation Committee shall take such action, which is hereby authorized,
to put Moore in as close to the same position as Moore would have been in had
alternative 1, 2 or 3 been selected but without resulting in any payment
by Moore pursuant to Section 16(b) of the Exchange Act.  Notwithstanding the foregoing, with the
consent of Moore, the Compensation Committee may in lieu of the foregoing make
such provision with respect of any Corporate Change as it deems appropriate.


 


C.            Definitions.  For purposes of this Agreement:


 


(i)            “Stock
Options” shall mean any grant to
Moore by the Company, pursuant to a Stock Option Plan, of the right and option
to purchase from the Company a specified number of shares of Atlantic Coast
Airlines Holdings, Inc. common stock under certain terms and conditions.


 


(ii)           “Change
in Control” and “Corporate Change” shall each 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.


 


D.            Amendment to Existing
Option Agreements.  The provisions of Paragraph 8.B. and 8.C
herein shall apply to all Stock Options or restricted stock previously granted
to Moore, and this Agreement shall be deemed to be a restatement of the
previous amendment to all Stock Option or Restricted Stock Agreements presently
in existence between the Company and Moore, and will supercede any language to
the contrary contained in said agreements. 
These terms will also apply to mandatory Stock Options granted as
provided in subparagraph A above.  The
Compensation Committee retains full discretion of whether to grant


 


9





















 


any additional Stock Options in the future, and if so
whether the terms provided herein will apply to said Stock Options.


 


E.             Moore and the Company agree that,
effective as of March 15, 2005, the stock options set forth on Attachment A to
this Agreement, which were previously granted by FLYi to Moore, shall be
cancelled and of no further effect and Moore shall have no further rights or claims
with respect thereto.


 


9.             Deductions 
Deductions shall be made from any component of Moore’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 
Moore’s employment with the Company shall be terminated only in
accordance with the following provisions:


 


A.            Disability.


 


(i)            In the event Moore shall become mentally
or physically disabled so as to have been unable to perform his duties
hereunder for six (6) consecutive months, subject to Moore’s right to
return to work as provided below, Company shall have the right to terminate
Moore’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 Moore with Severance Compensation as provided in Paragraph
10.E. herein.  Such six-month period
shall be deemed to have commenced on the date when Moore 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 Moore 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 Moore on the basis of disability,
it shall give written notice to him. 
Moore’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)           Nothing contained herein shall be
construed to affect Moore’s rights under any disability insurance or similar
policy, whether maintained by the Company, Moore or another party.  The Company may utilize a disability policy
to fund, in whole or in part, the compensation that would be due to Moore
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
Moore.


 


(iii)          For purposes of this Agreement, Moore
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.  In the
event of a dispute as to whether Moore is disabled, the issue of the
determination of disability shall be submitted to a Board of Arbiters for a
binding decision under the procedures set forth in Paragraph 10.A.(v) below.


 


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(iv)          At the end of any disability (other than
a disability that results in the termination of Moore’s employment with the
Company), Moore shall return to work and this Agreement shall continue as
though such disability had not occurred.


 


(v)           If there is a dispute as to whether Moore
is subject to any disability, the issue shall be submitted to a Board of
Arbiters (whose decision shall be binding on the Company and Moore) consisting
of three persons: one physician who specializes in the physical or mental
disability in dispute (hereinafter referred to as a “Specialist”)
shall be appointed on behalf of Company by the Chairman of the Board, or by the
Compensation Committee; a second Specialist shall be appointed by Moore and a
third Specialist shall be appointed by the two Specialists so appointed.  The decision of a majority of such
Specialists shall be binding upon the parties hereto.  If a majority of the Specialists determines
that Moore is not subject to any disability for purposes of this Agreement,
Moore shall return to work under the provisions hereof.  Such Specialists may physically examine
Moore, who hereby consents to such examination and to make available any
pertinent medical records.  The cost of
such Specialists shall be paid by Company.


 


(vi)          If it is determined that Moore can return
to work hereunder on a part-time basis, the parties agree to use good faith
efforts to negotiate the terms of Moore’s return to work.


 


(vii)         During any period in which Moore is disabled
but his employment shall not have been terminated, Moore 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 Moore.  Any mandatory option grants as
provided herein shall be deferred until such time as the disability period
ends.


 


(viii)        During any period in which Moore is
disabled but his employment shall not have been terminated, Moore shall
continue to be credited with Years of Service for purposes of vesting of
Deferred Compensation as set forth in Paragraph 5.D.


 


B.            Death.


 


(i)            Moore’s employment with Company shall
terminate immediately upon Moore’s death; provided, however, that Company shall
be obligated to provide the Severance Compensation as specified in Paragraph
10.E. herein to Moore’s estate, heirs or beneficiaries.


 


(ii)           Nothing contained herein shall be
construed to affect Moore’s rights under any life insurance or similar policy,
whether maintained by Company, Moore 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 Moore’s death, in which case the proceeds of any such policy
other than the Split Dollar Agreement would not be in addition to any Severance
Compensation otherwise payable under this Paragraph 10.B.


 


11





















 


C.            Termination by Moore.


 


(i)            Other than Following a Change in
Control.  Moore may terminate his
employment by delivering to Company sixty (60) days’ written notice, and such
termination shall be effective on the sixtieth (60th) day following the date of
receipt of such notice (the “Termination Date”).  In such event, Moore (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.  Moore 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 Moore’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 Moore of his employment with the Company which is effected
within twelve (12) months following a Change
in Control as defined and determined under Paragraph 8.C. of this
Agreement, Company shall be obligated to provide Moore with Severance
Compensation as provided in Paragraph 10.E. herein; provided that payments made
as separately provided in Paragraph 5.H. of this Agreement shall be deducted
from Severance Compensation due in this event. 
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.  Company may, without cause, terminate Moore’s
employment under this Agreement at any time by giving Moore 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 Moore’s employment with Company is terminated without
cause, Company shall be obligated to provide Moore with Severance Compensation
as provided in Paragraph 10.E. herein. 
At the option of Company, Moore’s employment shall be immediately
terminated upon the Company giving such notice, in which case Moore 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 Moore’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 8.C. 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 5.H.  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 Moore’s employment
under this Agreement immediately for “cause”.  In such event, the Company shall not be
liable to Moore 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


 


12





















 


material performance of Moore’s duties hereunder, (ii)
commission of an act of theft, fraud, dishonesty or personal misconduct by
Moore, which act is harmful to Company, (iii) breach of any provision of this
Agreement if such breach has not been cured by Moore (or if Moore 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 Moore written notice of such breach.  Any termination under this Paragraph
10.D.(ii) shall take effect immediately upon the Company giving Moore written
notice thereof.


 


E.             Severance Compensation.  “Severance Compensation” is defined as all of the
compensation and benefits described in this Paragraph 10.E.  It will be provided to Moore upon the
occurrence of any of the events described elsewhere in this Agreement as
providing for Moore’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 Moore’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 two years following the
Termination Date. Benefits extending to Moore’s spouse shall refer to Moore’s
spouse as of the date such benefits are extended or, after Moore’s death, to
Moore’s spouse as of the date of his death. 
The compensation and benefits to be provided as Severance Compensation
are as follows:


 


(i)            Severance Pay. 
Throughout the Severance Period, Moore 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.  In the event that a
Termination Date occurs on or before December 31, 1999 such that Moore is
entitled to Severance Compensation as provided herein, severance pay will be at
the rate of 100% of his annual base salary that would have been in effect
beginning January 1, 2000 as provided herein.


 


(ii)           Bonus. For all bonus plans in which Moore is
participating as of the Termination Date, the Company shall pay to Moore 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 Moore’s base salary earned in the year from January 1 to the
Termination Date, (y) is the amount which is two times Moore’s annual base
salary in effect at the time of Termination, and (z) is the percentage which
under each plan is the highest percentage of base salary that Moore was paid
during any one of the five years immediately preceding the year in which the
Termination Date occurred, but which shall not be greater than the maximum
percentage of base salary that Moore was eligible to earn during the year in
which the Termination Date occurred assuming all targets were met in full,
whether or not said targets actually were met. 
The payments provided for under this Paragraph 10.E.(ii) will be paid
within thirty days following the Termination Date 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 Moore 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,


 


13





















 


any bonus due to Moore 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, Moore 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
Moore 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 (including options that are accelerated
following a Change in Control pursuant to Paragraph 8 above), the terms of
exercise, payment, and expiration, shall be as provided in each option
agreement.  All options that would have
been granted to Moore in the future pursuant to Paragraph 8.A. hereof shall not
be granted if the date on which they would have been granted occurs after the
Termination Date, even though said date may occur during the Severance Period.


 


(iv)          Deferred Compensation. 
The Deferred Compensation will fully vest upon a termination of
employment that entitles Moore to severance benefits pursuant to this Paragraph
10.E. or, if later, on January 1, 2006.


 


(v)           Insurance Programs. 
Coverage under the Company’s major medical, accident, health, dental,
disability and life insurance plans as from time to time provided to other
executive employees of the Company (and, to the extent provided by such
policies, to Moore’s dependents) shall continue to be paid for by the Company
during the Severance Period or, in the event of Moore’s termination upon or
following a Change of Control of the Company as defined in Paragraph 8.C., for
the longer of the Severance Period or the remainder of Moore’s and his spouse’s
life, and including children to age 21 as per coverage provided prior to the
Change in Control.  Provided, however, if
such coverage cannot be continued during the Severance Period or until Moore’s
and his spouse’s death, as the case may be, under the terms of such policies or
plans, the Company shall reimburse Moore for the cost of comparable coverage
under individually obtained policies or for COBRA coverage, or shall make other
arrangements to assure that Moore has comparable coverage.


 


(vi)          Vacation. 
Vacation shall not continue to accrue after the Termination Date under
any circumstances.


 


(vii)         Executive Medical Reimbursement
Plan and Investment and Tax Planning.  Throughout the
Severance Period, the Company will continue to promptly reimburse Moore for any
otherwise unreimbursed health and medical insurance premiums and/or uncovered
medical expenses up to $10,000 per calendar year under a written medical
reimbursement plan maintained for the Company’s key executive employees, and
for the $5,000 per year investment and tax planning service expenses, incurred
during each calendar year, including the tax gross-up, if applicable.


 


14





















 


(viii)        Travel Benefits. The Atlantic Coast Airlines Holdings,
Inc. and its subsidiaries flight pass privileges currently granted to Moore
will continue for the Severance Period. 
Moore and his wife shall be provided with free travel on the Company’s
planes or on the planes of any successor in interest to the Company on a
positive space basis, and his children shall be provided free travel on a space
available basis.  Moore shall not be entitled
to travel benefits on any other airline.


 


(ix)           Deductions for Taxes. Subject to Paragraph 5.G.(v), any
compensation due to Moore 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.


 


F.             Deferral of
Payments.  Notwithstanding any other provision of
this Agreement to the contrary, all payments pursuant to this Section 10 shall
be deferred until six months after Moore’s termination of employment to the
extent necessary to avoid the application of the excise tax under Section 409A
of the Code.


 


11.          Nonsolicitation,
Non-Competition, and Confidentiality


 


A.            Nonsolicitation and
Non-Competition.  For so long as Moore is an employee of the
Company, and continuing thereafter for twelve months following any termination
of Moore’s employment, or with respect to the provisions of (i), below, for the
longer of such twelve month period or for such period as Moore is receiving
Severance Compensation, Moore 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.  Moore 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 terms of this Paragraph 11.A will not
apply following any termination of Moore’s employment that was effected as a
result of, in connection with or within twelve (12) months following a Change
in Control.  The provisions of clause
(ii) above of this Paragraph 11.A will not apply following any termination of
Moore’s employment by the Company other than for cause.  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.


 


15





















 


B.            Confidentiality. 
Moore 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 Moore in violation of his agreements
under this Paragraph 11.B or (ii) Moore 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. 
Moore 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 Moore 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 Moore.


 


D.            Injunctive Relief. 
Without intending to limit the remedies available to the Company, Moore
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 Moore 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.          Assignment 
This Agreement, as it relates to the employment of Moore, is a personal contract
and the rights and interests of Moore 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.  At any time prior to a Change in Control,
Company may provide, without the prior written consent of Moore, that Moore
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


 


16





















 


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 Moore pursuant to this Agreement.


 


13.          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.


 


14.          Specific Performance 
The parties hereby agree that any violation by Moore 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 Moore by process issued out of a court of competent jurisdiction, in
addition to any other remedies that said court may see fit to award.


 


15.          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.


 


16.          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.


 


17.          Entire Agreement; Law Governing 
This Agreement supercedes in its entirety the terms of the Severance
Agreement between the parties dated as of December 28, 1999 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 Moore, and
contains all the covenants and agreements among the parties with respect to
such subject matter. Notwithstanding the foregoing, to the extent that the
Company’s Deferred Compensation contributions or any other 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.  Moore 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.


 


18.          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.


 


17





















 


19.          Release by Moore 
In the event of a termination of employment by Moore 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, Moore 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.


 


20.          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 20, 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 Moore, to the most
recent address indicated for Moore’s residence in the personnel records of
Company, unless Moore gives written notice that such notices are to be
delivered to another address.


 


If to IA or FLYi:


 


FLYi, Inc.


Independence Air


45200 Business Court


Dulles, VA  20166


Attention:  General Counsel or Corporate Secretary


Fax No. (703) 650-6294


 


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.


 


18





















 


In
Witness Whereof, the Company has hereunto caused this
Agreement to be executed by a duly authorized officer and Moore has hereunto
set his hand as of the day and year first above written.


 


 


	
  WITNESS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Thomas Moore

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  FLYi, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
   

  	
   

  	
   

  
	
  Richard J. Kennedy,

  	
   

  	
  Caroline M. Devine,

  	
   

  
	
  Secretary

  	
   

  	
   

  	
  Chairman of the
  Compensation

  	
   

  
	
   

  	
   

  	
  Committee of the Board
  of Directors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  INDEPENDENCE AIR

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
   

  	
   

  	
   

  
	
  Richard J. Kennedy,

  	
   

  	
  Caroline M. Devine,

  	
   

  
	
  Secretary

  	
   

  	
   

  	
  Chairman of the
  Compensation

  	
   

  
	
   

  	
   

  	
  Committee of the Board
  of Directors

  	
   

  



 





















 


Attachment A

Stock Options Surrendered and Cancelled on March 15, 2005


 


	
  Date of

  Grant

  	
   

  	
  Number

  of

  Shares

  	
   

  	
  Strike

  Price

  	
   

  
	
  5/5/1998

  	
   

  	
  20,000

  	
   

  	
  14.96

  	
   

  
	
  9/18/2001

  	
   

  	
  171,837

  	
   

  	
  13.95

  	
   

  
	
  6/26/2000

  	
   

  	
  75,000

  	
   

  	
  13.75

  	
   

  
	
  3/23/1999

  	
   

  	
  73,308

  	
   

  	
  12.12

  	
   

  
	
  7/21/1999

  	
   

  	
  100,000

  	
   

  	
  10.00

  	
   

  
	
  6/2/2003

  	
   

  	
  137,000

  	
   

  	
  9.47

  	
   

  
	
  10/1/2002

  	
   

  	
  100,000

  	
   

  	
  9.25