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
he
