AMENDED AND RESTATED SEVERANCE AGREEMENT

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Exhibit 10.12(c)

AMENDED AND RESTATED SEVERANCE AGREEMENT

THIS AMENDED AND RESTATED SEVERANCE AGREEMENT (the "Agreement") was executed by the parties as of the date set forth on the signature page (the "Signature Date") and was authorized and effective as of November 17, 2003 (the "Effective Date"), by and between FLYi, Inc., a Delaware corporation ("FLYi") and Independence Air, Inc., a California corporation, and Xxxxxxx X. Xxxxxxx ("Xxxxxxx").

WITNESSETH THAT:

WHEREAS, Xxxxxxx is currently employed by the Company as Executive Vice President, Chief Financial Officer, Treasurer and Assistant Secretary, and in connection with such employment entered into a Severance Agreement (last restated as of December 28, 2001) with the Company; and

WHEREAS, the Company wishes to assure itself of the continued services of Xxxxxxx; and

WHEREAS, on November 17, 2003, the Compensation Committee of the Board of Directors of FLYi determined that the best interests of the Company would be served by amending and restating the terms and conditions of and benefits provided under the then-existing Amended and Restated Severance Agreement with Xxxxxxx;

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 Xxxxxxx and Xxxxxxx hereby accepts employment by Company and agrees to perform his duties and responsibilities hereunder upon all of the terms and conditions as are hereinafter set forth. For purposes of this Agreement, as used in the definition of Change in Control, "Company" shall mean FLYi, Inc., and as used elsewhere in this Agreement shall mean FLYi, Inc. and its subsidiaries, and shall also mean any successor to FLYi, Inc., including without limitation any corporation or other entity into which it is merged or which acquires all or substantially all of its outstanding common stock or assets.

2. Duties Xxxxxxx shall serve the Company in the capacities of Executive Vice President, Chief Financial Officer, Treasurer and Assistant Secretary. Xxxxxxx shall generally be responsible for supervising and directing the financial affairs 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. Xxxxxxx shall otherwise be responsible for carrying out all such other duties and services for the Company commensurate with Xxxxxxx'x position, as may be designed from time to time by the Chief Executive Officer of the Company (the "CEO").

3. Term of Employment Xxxxxxx'x term of employment under this Restated 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 Xxxxxxx'x employment has previously been terminated or unless Xxxxxxx or the Company has provided notice of intention to terminate Xxxxxxx'x employment pursuant to the terms of Paragraph 10 below, in which case Xxxxxxx'x term of employment under this Agreement will be extended to the pending Termination Date.

4. Extent of Service Xxxxxxx 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 Xxxxxxx, and Xxxxxxx agrees to accept from Company, in full payment for services rendered by Xxxxxxx and work to be performed by him under the terms of this Agreement, the following:

A. Salary. An annual base salary as of the Effective Date of onehundred ninety-three thousand five hundred dollars ($193,500), which as of April 1, 2004 was increased to an annual base salary of two hundred fifteen thousand dollars ($215,000). Commencing on October 1, 2005 and on each October 1 thereafter, the amount of Xxxxxxx'x base salary shall be increased as determined by the Compensation Committee of the Board of Directors of the Company (the "Compensation Committee"). Xxxxxxx'x 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. Xxxxxxx shall participate in the Company's Management Incentive Program, or any successor bonus plan or program for management employees.

C. Executive Bonuses. Xxxxxxx 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, Xxxxxxx 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 prior to the commencement of each plan year. 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.

D. Deferred Compensation.

(i) Xxxxxxx will be entitled to deferred compensation under an unfunded and non-tax qualified arrangement ("Deferred Compensation") as described in this Paragraph 5.D., which shall supercede and control over all prior deferred compensation arrangements. The amounts credited as Deferred Compensation will be recorded as a bookkeeping entry representing a general unsecured obligation of the Company and Xxxxxxx 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 Xxxxxxx equaled $429,900 and as of the Signature Date the balance in the Deferred Compensation account recorded for Xxxxxxx equaled $591,150, which is the amount of the Company's Deferred Compensation "contributions" under the Severance Agreement between the Company and Xxxxxxx, as such was amended from time to time, through such respective dates. After the Signature Date, the Company will credit Deferred Compensation at the rate of seventy-five percent (75%) of Xxxxxxx'x annual base salary. Deferred Compensation will be based on Xxxxxxx'x annual base salary in effect on January 1 in each year, and will be credited as of January 1 in each year. The Company may provide the Deferred Compensation through a benefit plan so long as (1) the amount credited by the Company on Xxxxxxx'x behalf equals the amount set forth herein, and (2) the vesting schedule, credit for Years of Service, and terms of distribution are all at least as favorable to Xxxxxxx as set forth herein. No interest or rate of return or other appreciation or depreciation of value shall accrue or be payable on amounts credited to Xxxxxxx 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 Xxxxxxx to be credited with one Year of Service for completion of each twelve (12) consecutive month period of employment with the Company beginning on the first day of Xxxxxxx'x

employment with the Company and ending on the Deferred Compensation Ending Date (as defined below). (That is, Xxxxxxx will continue to be credited with Years of Service during any applicable Severance Period, as further provided in Paragraph 10.E.(iv) hereof.) Xxxxxxx will become vested in the Deferred Compensation based on the following schedule:

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.B.(ii) of this Agreement) of the Company, Xxxxxxx shall become immediately 100% vested in his Deferred Compensation amount notwithstanding the above vesting schedule.

(iii) The "Deferred Compensation Ending Date" shall mean the Termination Date (as defined below) if Xxxxxxx'x 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, or shall mean the last day of the Severance Period (as defined in Paragraph 10) if Xxxxxxx is entitled to Severance Compensation. During a Severance Period, Deferred Compensation shall continue to accrue and vest pursuant to the terms of Paragraph 10.E.(iv) hereof. Upon the Deferred Compensation Ending Date, the Company shall pay to Xxxxxxx 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 if Xxxxxxx'x employment with the Company is terminated under circumstances in which he is entitled to Severance Compensation other than termination upon or within twelve months following a Change in Control, the Company shall pay to Xxxxxxx as of the Split Dollar Release Date an interim payment of 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. and thereafter at the Deferred Compensation Ending Date shall pay to Xxxxxxx whatever additional Deferred Compensation amounts that are or have been credited to and vested in his account. The Company shall make any payment required under this Paragraph 5.D. in cash within thirty (30) days following the date such payment is due 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 Xxxxxxx to the Company.

E. Split Dollar Life Insurance. The following provisions maintain and continue the split dollar life insurance funding commitments of the Company as provided in Paragraph 5.D of Xxxxxxx'x prior Severance Agreement entered into as of December 28, 2001. The Company shall advance amounts to fund payment of the premiums under a split dollar life insurance arrangement covering Xxxxxxx as provided in this Paragraph 5.E. 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 Xxxxxxx in force on the date of this Agreement, but, subject to the foregoing, the Company may implement a substitute Split Dollar Agreement so long as the amount of premiums funded by the Company on Xxxxxxx'x behalf equals the amount set forth herein.

(i) Xxxxxxx 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) The Company shall pay the annual premium due on the policy in an amount specified in this Agreement, as amended from time to time. From and after the Effective Date, the amount of the annual premium the Company pays shall equal $146,250 (which is seventy-five percent (75%) of Xxxxxxx'x annual base salary in effect on July 29, 2002) in each year the Company is obligated to fund the premium as described herein. Provided that Xxxxxxx remains employed with the Company as of January 1 in a year, the Company shall, except as provided in Paragraph 5.E.(iii) below, for such year pay, on or before the due date(s) under the terms of the policy, the entire amount of the annual premium due on the policy acquired pursuant to this Paragraph 5.E. During any Severance Period, the Company's obligation to pay the annual premium due on the split dollar insurance policy shall end on the Termination Date unless Xxxxxxx'x employment is terminated upon or within twelve months following a Change in Control, in which case said payments will continue through the Severance Period.

(iii) The "Split Dollar Release Date" shall mean (a) the Termination Date (as defined below, except that for purposes of this provision, if Xxxxxxx'x employment with the Company is terminated under the circumstances set forth in Paragraph 10(C)(i) hereof, then notwithstanding anything in that paragraph the Split Dollar Release Date shall be the thirtieth (30th) day following the date of receipt of the notice provided for therein) except where Xxxxxxx'x employment with the Company is terminated upon or within twelve months following a Change in Control, or (b) the last day of the Severance Period (as defined in Paragraph 10), if Xxxxxxx'x employment with the Company is terminated upon or within twelve months following a Change in Control. 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) Xxxxxxx shall pay to the Company an amount equal to the total of all premiums paid by the Company on the split dollar policy(ies) acquired pursuant to his employment with the Company to the date hereof or subsequently pursuant to this Paragraph 5.E., without interest thereon. The Company may, at its option, collect such amount from any amounts it or any of its affiliates owes to Xxxxxxx and/or from any amounts it or any of its affiliates are obligated to pay Xxxxxxx in the future pursuant to this Agreement. Upon receipt of such payment the Company shall release its interest in the policy, or a portion thereof, on Xxxxxxx'x life acquired pursuant to the terms of the Split Dollar Agreement, or any or all of the paid up additions standing to the credit of such policy, if any, such that the released interest equals the total of all premiums paid by the Company on the split dollar policy(ies) acquired pursuant to this Paragraph 5.E. The Company agrees that the amount of any such release of interest by the Company shall reduce the amount of "Liabilities" (as such term is defined in the Agreement of Assignment of Life Insurance Death Benefit As Collateral entered into between Xxxxxxx 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 to reduce to such extent 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 Xxxxxxx.

F. Discretionary Compensation. The Company may pay Xxxxxxx 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 Xxxxxxx'x employment has terminated, Xxxxxxx 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 Xxxxxxx'x annual base salary in effect at the time of the Change in Control.

(ii) Bonus. For all bonus plans in which Xxxxxxx is participating as of a Change in Control, the Company shall pay to Xxxxxxx 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 Xxxxxxx'x 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 Xxxxxxx'x 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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx for years (or any other applicable bonus period) completed prior to the date on which the Change of Control occurs but not yet paid shall be paid in addition to the bonus described herein.

(iii) Disability Insurance. The Company will prepay, to the time of Xxxxxxx'x reaching age 65, the premiums due on any disability insurance policy as was provided to Xxxxxxx 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. Xxxxxxx shall receive all of the other benefits separately provided herein or in other agreements as occurring upon a Change in Control. These include, without limitation, vesting of unvested stock options and restricted stock. In the event a Change in Control occurs, Xxxxxxx 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 Xxxxxxx'x employment, even if Xxxxxxx'x 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 Xxxxxxx under any other agreement in connection with a Change in Control, any state, local or federal taxing authority imposes any taxes on Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx (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 Xxxxxxx 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 Xxxxxxx as a result of the Parachute Tax Reimbursement being paid or payable to Xxxxxxx and/or as a result of the additional amounts paid or payable to Xxxxxxx pursuant to this sentence, such that after payment of such additional taxes Xxxxxxx 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 Xxxxxxx.

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 Xxxxxxx'x employment shall continue on the terms set forth in this Agreement and Xxxxxxx 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 Xxxxxxx'x employment is terminated upon or within one year following the Change in Control, such that Xxxxxxx 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 Xxxxxxx be required to repay the amounts paid to Xxxxxxx under Paragraph 5.G(i) and 5.G.(ii)), but Xxxxxxx will be entitled to all other Severance Compensation as provided in Paragraph 10.E. herein. In the event that Xxxxxxx'x employment is terminated more than one year following the Change in Control, Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx'x dependents).

B. The Company agrees to promptly reimburse Xxxxxxx 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 Xxxxxxx and other key executive employees. If such payments are taxable to Xxxxxxx, the Company shall pay Xxxxxxx 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.

X. Xxxxxxx 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. Xxxxxxx shall also be eligible to participate in any stock option, restricted stock, stock appreciation rights or stock purchase plans or programs or nonqualified deferred compensation arrangements of Company, which participation shall be at levels as may be determined appropriate by the Compensation Committee.

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

8. Stock Options The Company may from time to time grant to Xxxxxxx options under FLYi's stock option plan to purchase shares of the common stock of FLYi at the price per share at the closing of the trading market on the last business date prior to such grant. Any such grant will be pursuant to the terms of the Stock Option Agreement being utilized at the time of the grant for stock options granted to Executive Vice Presidents of the FLYi, except that options granted to Xxxxxxx shall contain terms relating to the consequences of a Change in Control that are no less favorable to Xxxxxxx than the terms contained in the form of Stock Option Agreement granted to Xxxxxxx on June 26, 2000. The Compensation Committee retains full discretion of whether to grant any stock options.

9. Deductions Deductions shall be made from any component of Xxxxxxx'x 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 Xxxxxxx'x employment with the Company shall be terminated only in accordance with the following provisions:

A. Disability.

(i) In the event Xxxxxxx shall become mentally or physically disabled so as to have been unable to perform his duties hereunder for six (6) consecutive months, subject to Xxxxxxx'x right to return to work as provided below, Company shall have the right to terminate Xxxxxxx'x employment with Company upon the expiration of such six month period; provided, however, that upon any such termination Company shall be obligated to provide Xxxxxxx with Severance Compensation as provided in Paragraph 10.E. herein. Such six-month period shall be deemed to have commenced on the date when Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx on the basis of disability, it shall give written notice to him. Xxxxxxx'x 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 Xxxxxxx'x rights under any disability insurance or similar policy, whether maintained by the Company, Xxxxxxx or another party. The Company may utilize a disability policy to fund, in whole or in part, the compensation that would be due to Xxxxxxx 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 Xxxxxxx.

(iii) For purposes of this Agreement, Xxxxxxx 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 Xxxxxxx 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.

(iv) At the end of any disability (other than a disability that results in the termination of Xxxxxxx'x employment with the Company), Xxxxxxx 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 Xxxxxxx is subject to any disability, the issue shall be submitted to a Board of Arbiters (whose decision shall be binding on the Company and Xxxxxxx) 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 Xxxxxxx 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 Xxxxxxx is not subject to any disability for purposes of this Agreement, Xxxxxxx shall return to work under the provisions hereof. Such Specialists may physically examine Xxxxxxx, 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 Xxxxxxx can return to work hereunder on a part-time basis, the parties agree to use good faith efforts to negotiate the terms of Xxxxxxx'x return to work.

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

(viii) During any period in which Xxxxxxx is disabled but his employment shall not have been terminated, Xxxxxxx 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) Xxxxxxx'x employment with Company shall terminate immediately upon Xxxxxxx'x death; provided, however, that Company shall be obligated to provide the Severance Compensation as specified in Paragraph 10.E. herein to Xxxxxxx'x estate, heirs or beneficiaries.

(ii) Nothing contained herein shall be construed to affect Xxxxxxx'x rights under any life insurance or similar policy, whether maintained by Company, Xxxxxxx 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 Xxxxxxx'x 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.

C. Termination by Xxxxxxx.

(i) Other than Following a Change in Control. Xxxxxxx 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, Xxxxxxx (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. Xxxxxxx 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 Xxxxxxx'x 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 Xxxxxxx 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.B. of this Agreement, Company shall be obligated to provide Xxxxxxx 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 Xxxxxxx'x employment under this Agreement at any time by giving Xxxxxxx 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 Xxxxxxx'x employment with Company is terminated without cause, Company shall be obligated to provide Xxxxxxx with Severance Compensation as provided in Paragraph 10.E. herein. At the option of Company, Xxxxxxx'x employment shall be immediately terminated upon the Company giving such notice, in which case Xxxxxxx 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 Xxxxxxx'x 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.B. 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 Xxxxxxx'x employment under this Agreement immediately for "cause". In such event, the Company shall not be liable to Xxxxxxx for any compensation, bonus or benefits after the date of termination of employment. Cause shall be defined as any of the following: (i) willful unauthorized misconduct in the material performance of Xxxxxxx'x duties hereunder, (ii) commission of an act of theft, fraud, dishonesty or personal misconduct by Xxxxxxx, which act is harmful to Company, (iii) breach of any provision of this Agreement if such breach has not been cured by Xxxxxxx (or if Xxxxxxx 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 Xxxxxxx written notice of such breach. Any termination under this Paragraph 10.D.(ii) shall take effect immediately upon the Company giving Xxxxxxx written notice thereof.

X. Xxxxxxxxx Compensation. "Severance Compensation" is defined as all of the compensation and benefits described in this Paragraph 10.E. It will be provided to Xxxxxxx upon the occurrence of any of the events described elsewhere in this Agreement as providing for Xxxxxxx'x 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 Xxxxxxx'x 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 Xxxxxxx'x spouse shall refer to Xxxxxxx'x spouse as of the date such benefits are extended or, after Xxxxxxx'x death, to Xxxxxxx'x 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, Xxxxxxx will receive severance pay at the rate of 100% of his annual base salary in effect at the time of his termination, to be paid on the Company's regular payroll payment dates at the same time and in the same fashion as the Company's regular payroll payments.

(ii) Bonus. For all bonus plans in which Xxxxxxx is participating as of the Termination Date, the Company shall pay to Xxxxxxx 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 Xxxxxxx'x base salary earned in the year from January 1 to the Termination Date, (y) is the amount which is two times Xxxxxxx'x 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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx for bonus plans in which he was participating as of the Termination Date, and he shall not be entitled to any further payments under any of said plans during the Severance Period or thereafter. Notwithstanding the above, any bonus due to Xxxxxxx 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, Xxxxxxx 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 Xxxxxxx 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), the terms of exercise, payment and expiration shall be as provided in each option agreement.

(iv) Deferred Compensation. The Deferred Compensation program will continue throughout the Severance Period, including Xxxxxxx'x accumulation of Years of Service for vesting purposes, and including the Company's continuation of contributions. Alternatively, the Company may elect to pay such amounts to Xxxxxxx as would be payable during the Severance Period by the Company under the Deferred Compensation program in a single lump sum payment within fifteen (15) days after the Termination Date. At the end of the Severance Period, the Company shall pay Xxxxxxx an amount equal to his vested interest under the Deferred Compensation as provided in Paragraph 5.D.(iii), reduced for any interim payments made pursuant to such Paragraph. Notwithstanding the foregoing, 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 Xxxxxxx to the Company.

(v) Insurance Programs. In the event Xxxxxxx'x employment with the Company is terminated upon or within twelve months following a Change in Control, the Split Dollar Agreement shall continue in full force and effect through the Severance Period and shall survive separate and apart from this Agreement, and the Company's obligation to pay all premiums pursuant to this Agreement shall continue in accordance with the terms of this Agreement for the Severance Period. On the Termination Date (except that for purposes of this provision, if Xxxxxxx'x employment is terminated under the circumstances set forth in Paragraph 10(C)(i) hereof, then notwithstanding anything in that provision, the Termination Date for purposes of this Paragraph shall be the thirtieth (30th) day following the date of receipt of the notice provided for therein), or, if Xxxxxxx'x employment with the Company is terminated upon or within twelve months following a Change in Control, at the end of the Severance Period, Xxxxxxx shall pay to the Company an amount equal to the total of all premiums paid by the Company on the split dollar policy(ies) acquired pursuant to Paragraph 5.E., without interest thereon, and upon receipt of such payment the Company shall release its interest in the policy, or a portion thereof, on Xxxxxxx'x life acquired pursuant to the terms of the Split Dollar Agreement, or any or all of the paid up additions standing to the credit of such policy, if any, such that such released interest equals the total of all premiums paid by the Company on the split dollar policy(ies) acquired pursuant to Paragraph 5.E. Alternatively, if the Company elects to pay the Deferred Compensation to Xxxxxxx within fifteen (15) days after the Termination Date pursuant to Paragraph 10.E.(iv) above, the Company at the time of such payment may demand payment from Xxxxxxx of an amount equal to the total of all premiums paid by the Company on the split dollar policy(ies) acquired pursuant to Paragraph 5.E., without interest thereon, and upon receipt of such payment release its interest in the policy, or portion thereof, acquired pursuant to the terms of the Split Dollar Agreement, and any or all of the paid up additions standing to the credit of such policy, if any, and thereafter the Company shall be under no obligation to pay any further premiums under the Split Dollar Agreement. 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

Xxxxxxx'x dependents) shall continue to be paid for by the Company during the Severance Period or, in the event of Xxxxxxx'x termination upon or following a Change of Control of the Company as defined in Paragraph 8.B., for the longer of the Severance Period or the remainder of Xxxxxxx'x 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 Xxxxxxx'x and his spouse's death, as the case may be, under the terms of such policies or plans, the Company shall reimburse Xxxxxxx for the cost of comparable coverage under individually obtained policies or for COBRA coverage, or shall make other arrangements to assure that Xxxxxxx 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 Xxxxxxx 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.

(viii) Travel Benefits. The FLYi, Inc. and its subsidiaries flight pass privileges currently granted to Xxxxxxx will continue for the Severance Period. Xxxxxxx 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. Xxxxxxx 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 Xxxxxxx hereunder will be subject to deductions for social security, federal and state withholding taxes, and any other such taxes as may from time to time be required by governmental authority.

11. Nonsolicitation, Non-Competition, and Confidentiality

A. Nonsolicitation and Non-Competition. For so long as Xxxxxxx is an employee of the Company, and continuing thereafter for twelve months following any termination of Xxxxxxx'x employment, or with respect to the provisions of (i), below, for the longer of such twelve month period or for such period as Xxxxxxx is receiving Severance Compensation, Xxxxxxx 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. Xxxxxxx 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 Xxxxxxx'x 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 Xxxxxxx'x 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.

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

D. Injunctive Relief. Without intending to limit the remedies available to the Company, Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx, is a personal contract and the rights and interests of Xxxxxxx 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 Xxxxxxx, that Xxxxxxx shall be employed pursuant to this Agreement by any of its affiliates instead of or in addition to Company, and in such case all references herein to the "Company" shall be deemed to include any such entity, provided that such action shall not relieve Company of its obligation to make or cause an affiliate to make or provide for any payment to or on behalf of Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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 supersedes in its entirety the terms of the Severance Agreement between the parties dated as of December 28, 2001 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 Xxxxxxx, 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. Xxxxxxx 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.

19. Release by Xxxxxxx In the event of a termination of employment by Xxxxxxx 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, Xxxxxxx 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 Xxxxxxx, to the most recent address indicated for Xxxxxxx'x residence in the personnel records of Company, unless Xxxxxxx gives written notice that such notices are to be delivered to another address.

If to Independence Air or the Company:

FLYi, Inc.
Independence Air, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel or Corporate Secretary
Fax No. (000) 000-0000

Such notice shall be deemed to be given and received when delivered if delivered personally, upon electronic or other confirmation of receipt if delivered by facsimile transmission, the next business day after the date sent if sent by a national overnight delivery service, or five (5) business days after the date mailed if mailed in the continental United States by certified or registered mail. Any notice of any change in such address shall also be given in the manner set forth above. Whenever the giving of notice is required, the giving of such notice may be waived in writing by the party entitled to receive such notice.

IN WITNESS WHEREOF, the Company has hereunto caused this Agreement to be executed by a duly authorized officer and Xxxxxxx has hereunto set his hand as of the day and year written below, with such Agreement to be effective as of the Effective Date set forth herein.

WITNESS:
	Xxxxxxx X. Xxxxxxx Dated: December , 2004
	COMPANY:
ATTEST:	FLYI, INC.
Xxxxxxx X. Xxxxxxx, Secretary	BY:	Xxxxx X. Xxxxx, Chairman & Chief Executive Officer
	Dated: December , 2004
ATTEST:	INDEPENDENCE AIR, INC.
Xxxxxxx X. Xxxxxxx, Secretary	BY:	Xxxxx X. Xxxxx, Chairman & Chief Executive Officer
	Dated: December , 2004

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Exhibit 10.12(c)

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AMENDED AND RESTATED SEVERANCE AGREEMENT

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