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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
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SEPTEMBER 23, 1997
(Date of Report (Date of earliest event reported))
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COMMISSION FILE NO: 0-26432
AIRWAYS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 59-3315474
(State or other Jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
6280 HAZELTINE NATIONAL DRIVE
ORLANDO, FLORIDA 32822
(Address of principal executive offices)
(407) 859-1579
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed since last report)
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Item 5. Other Events.
AirTran Airways, Inc. ("AirTran"), a wholly owned subsidiary of Airways
Corporation (the "Registrant"), and ValuJet Airlines, Inc. ("ValuJet"), a
wholly owned subsidiary of ValuJet, Inc., have entered into a Code Share
Agreement dated September 23, 1997 (the "Agreement"), a copy of which is
attached to this Report. AirTran and ValuJet have also entered into a License
Agreement dated September 23, 1997 (the "License Agreement") included as
Exhibit A to the Agreement.
Under the Agreement, ValuJet will use AirTran's "FL" designator code and
flight numbers within a range provided by AirTran for all ValuJet flight
listings in the Official Airline Guide and in computerized reservation systems.
The parties will perform certain reservation services on each other's behalf,
including booking reservations, processing credit card transactions, collecting
credit card payments and remitting various fees, commissions and charges
related to the reservations. On a weekly basis, the parties will reconcile
inter-company accounts to determine the net amount due to a party in payment
for reservation services.
The Agreement provides that each party is solely responsible for every aspect
of its operations, including scheduling, pricing, planning of flight
itineraries and routing, reservations, dispatch, yield management, maintenance
and flight operations. Each party is also responsible for the cost of its own
advertising and promotions, although the parties have agreed to coordinate
activities in common cities.
Under the Agreement, each party is required to procure and maintain
comprehensive airline liability insurance coverage for its operations and
assumes full responsibility for its employer's and Workers' Compensation
liability and insurance premiums. Each party has also agreed to indemnify the
other party and its officers, directors, agents, and employees harmless from
and against any and all liabilities by reason of any injuries to or deaths of
persons or the loss of, damage to, or destruction of property, including the
loss of use thereof, related to any act, error, omission, operation,
performance or failure of performance by the indemnifying party relating in any
way to the services contemplated or provided by the indemnifying party under
the Agreement.
The Agreement has a term of one year and may be terminated by either party
not less than 180 days from receipt of a written notice to terminate by the
non-terminating party. A party may also declare all amounts owed to such party
under the Agreement immediately due and payable, cease performance of all
services required to be performed under the Agreement, and terminate the
Agreement on the effective date set forth in any notice of termination if the
other party (i) fails to pay any amounts due under the Agreement, and such
failure shall continue for a period of 10 days following written notice, (ii)
fails to perform or defaults in any provision of the Agreement, or any other
contract or agreement between the parties, and such default shall continue for
a period of more than 30 days after written notice is received, (iii) fails to
provide the insurance required under the Agreement, or (iv) becomes insolvent
or seeks protection, voluntarily or involuntarily, under any bankruptcy,
reorganization, receivership or similar statute or law applicable to such party.
Under the License Agreement, AirTran has granted to ValuJet a non-perpetual,
non-exclusive license to use certain of AirTran's trademarks, service marks,
the name "AirTran AirWays, Inc." and AirTran's "FL" designator code in
connection with commercial passenger airline service. In the event that the
proposed merger between the Registrant and ValuJet, Inc. is not consummated by
November 30, 1997, ValuJet is required to pay AirTran $1.00 for each revenue
passenger carried by Valujet during the period from January 15, 1998 through
May 31, 1998, as payment for the license. The term of the License Agreement
shall extend from year to year and may be renewed at the option of AirTran. In
the event that the proposed merger is not consummated by November 30, 1997, the
term of the License Agreement shall only extend until May 31, 1998.
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ITEM 7. Financial Statements and Exhibits.
The following are exhibits to this Current Report:
10.1 Code Share Agreement between AirTran Airways, Inc. and ValuJet
Airlines, Inc. dated September 23, 1997.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
AIRWAYS CORPORATION
Date: September 30, 1997
By: /s/ Mark B. Rinder
--------------------------------
Mark B. Rinder
Vice President of Finance and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
10.1 Code Share Agreement between AirTran Airways, Inc. and ValuJet
Airlines, Inc. dated September 23, 1997.
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EXHIBIT 10.1
CODE SHARE AGREEMENT
BETWEEN
AIRTRAN AIRWAYS, INC.
AND
VALUJET AIRLINES, INC.
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This Agreement ("AGREEMENT"), made and entered into this 23rd day of
September, 1997, by and between AirTran Airways, Inc. ("AIRTRAN"), having its
principal mailing address at 6280 Hazeltine National Drive, Orlando, FL 32822,
and ValuJet Airlines, Inc. dba AirTran Airlines, ("VALUJET") having it
principal mailing address at 1800 Phoenix Blvd., Suite 126, Atlanta, GA 30349
and referred to collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, AirTran holds a Certificate of Public Convenience and
Necessity issued by the U.S. Department of Transportation ("DOT") authorizing
AirTran to engage in air transportation of persons, property and mail, and is
currently providing scheduled interstate air service and ValuJet also holds a
Certificate of Public Convenience and Necessity issued by the DOT authorizing
ValuJet to engage in air transportation of persons, property and mail, and is
currently providing scheduled interstate air service; and
WHEREAS, in anticipation of a merger of the carriers, the parties
desire to provide seamless, affordable air service to as many member of the
traveling public as possible who do not currently have such opportunity, the
parties commit to jointly coordinate certain fares, schedules and advertising;
and
WHEREAS, Pursuant to the License Agreement ("LICENSE AGREEMENT"),
attached hereto as Exhibit, A, AirTran has provided ValuJet with a
non-exclusive license to use AirTran's Marks, Name and Designator Code ( as
are defined in the License Agreement), in connection with its scheduled air
transportation services; and.
WHEREAS, the parties desire to enter into an agreement to operate
under AirTran's Designator Code ("CODE SHARE").
NOW, THEREFORE, in consideration of the foregoing promises, mutual
covenants and obligations hereinafter contained and subject to securing any and
all necessary corporate, Federal, State and local regulatory approvals, and
where necessary, airport consents or approvals, the parties agree as follows:
1. DEFINITIONS
- - "EFFECTIVE DATE" means the day and year set forth in the initial
paragraph of this agreement.
- - "IMPLEMENTATION DATE" means that certain day and year mutually agreed
to by the Parties, upon which ValuJet shall commence operations
as an AirTran code share connection carrier under the terms,
conditions and provisions of this Agreement.
- - "JOINT LOCATION" means any airport where ValuJet and AirTran operate
concurrent
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services. The Market and Airports served by the Parties are listed
on Exhibit B, attached hereto.
- - "OPEN SKIES" means the reservation software and system utilized by
each Party.
- - "SETTLEMENT" means the weekly process of reconciling inter-company
accounts to determine the net amount due to a Party in payment for
the Reservation Services for the preceding week, as is more fully
described in Paragraph 3D.
- - "SETTLEMENT AMOUNT"means the amount due and payable to a Party from
the weekly Settlement. The Settlement Amount will be due and
payable within fourteen (14) days of the Settlement, as is more fully
described in Paragraph 3D.
- - "STANDARD OF SERVICE" means that level and quality of service
currently provided by the Parties to their respective passengers.
- - "RESERVATION SERVICES" means those activities set forth in Paragraph
3A.
2. SCOPE, TERM AND RENEWAL
A. The scope of the Agreement pertains to the entire operations
of ValuJet and AirTran, except for AirTran's Code Share
arrangement with Comair, Inc., and may be modified from time
to time by written agreement of the parties.
B. This Agreement shall become effective on the Effective Date,
and continue for one (1) year unless and until terminated at
an earlier date pursuant to one or more of the provisions of
this Agreement.
C. The Parties agree to use their best efforts to fairly
calculate the Settlement and the Settlement amount, and
neither party intends to profit unnecessarily at the expense
of the other.
D. THE PARTIES AGREE THAT THIS IS NOT A FRANCHISE AGREEMENT.
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3. SUPPORT SERVICES
A. Reservation Services
In conjunction with the Code Share, the Parties will perform
certain Reservation Services on each other's behalf, including but not
limited to booking reservations, processing credit card transactions,
collecting credit card payments and remitting various fees, commissions
and charges related to the reservations. In order to monitor the cash
flow related to the reservation services, the Parties will maintain
inter-company accounts to reflect Reservation Services performed on
behalf of each other. On a weekly basis, the Parties will perform a
Settlement by reconciling inter-company accounts to determine the net
amount due to a Party in payment for the Reservation Services, a
process which is more fully described in Paragraph 3D, below.
B. Operations
(1) The Parties shall be solely and independently
responsible for, and shall have no obligations or
duties with respect to the dispatch of the flights of the
other Party. For the purposes of this Agreement, the term
flight dispatch shall include, but shall not be limited to,
all planning of flight itineraries and routings, fueling and
flight release.
(2) The Parties hereby represent and warrant, that all
air transportation services performed by each of them
Pursuant to this Agreement or otherwise shall be conducted in
full compliance with all applicable statutes, orders rules and
regulations, whether now in effect or hereafter promulgated,
of all governmental agencies having jurisdiction over the
operations of each of the Parties, including, but not limited
to, the Federal Aviation Administration ("FAA") and the DOT.
(3) The Parties shall have sole responsibility for each
and every aspect of their respective operations,
including without limitation scheduling, pricing, planning of
flight itineraries and routing, reservations, dispatch, yield
management, maintenance and flight operations.
(4) The Parties shall perform the services in this Agreement in a
timely, expert and quality manner, in accordance with
the standard in the industry.
C Tariffs and Schedule Publication
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(1) General - ValuJet and AirTran shall comply with governmental
regulations for public disclosure of it tariffs.
(2) Timetables - The parties shall develop a joint use timetable.
The cost of such timetables shall be pro-rated based upon the
relative number of passengers carried by the Parties.
D. Settlement
As stated, on a weekly basis the Parties will perform a Settlement to determine
the Settlement Amount due to a Party. ValuJet will maintain an account
entitled "Due to AirTran" which will reflect Reservation Services performed by
ValuJet on AirTran's behalf. AirTran will maintain a corresponding account to
reflect Reservation Services performed by AirTran on ValuJet's behalf. These
inter-company liability accounts will be reconciled by the Parties on a weekly
basis, and the reconciled balances will then be compared to determine which
Party has the largest outstanding liability. The balances in the inter-company
liability accounts will then be off set against one another, and the excess
will be the Settlement Amount due to a Party. Thus, as an example, if after
the weekly reconciliation ValuJet has an outstanding liability due to AirTran
of $40,000, and AirTran has an outstanding liability due to ValuJet of $30,000,
ValuJet will be obligated to pay the net amount of $10,000 to AirTran.
Settlement Amounts will be paid by wire transfer within fourteen (14) days of
the Settlement. Additional details related to the Settlement and the
calculation of the Settlement Amount are described on Exhibit C, attached
hereto.
The Parties acknowledge that they may experience delays in cash flow receipts
from First Bank in the processing of ARC sales as well as some direct credit
card sales. The Parties agree to jointly monitor expected cash flow from ARC
sales and direct credit card sales to determine if it will be necessary to
extend the period for the payment of the Settlement Amount beyond fourteen
days. The Parties acknowledge and agree that any decision to extend the period
for payment of the Settlement Amount will not serve as a waiver of the any
liabilities related to the Settlement.
As a part of the Settlement, either Party may conduct on-site audits of Open
Skies reports, tickets, exchange orders, refunds and other records relating to
sales and refund activity pertaining to the Code Share, during normal working
hours, or at other times by mutual agreement. The scope and reconciliation
during any such audit will be limited to the preceding ninety (90) days.
AirTran Airways will conduct an audit of each month's coupons from ARC
processed sales and will determine the total amount of revenue from flown
passengers for each Settlement period. The audited revenue amount will then
be compared to the Settlement
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Amounts and any required adjustments to the next Settlement Amount payment will
be made. In this regard, ValuJet will endeavor to send all ticket coupons to
AirTran's offices in Orlando within three (3) business days of flight.
Each Party agrees to be responsible for the remittance of taxes, fees and
passenger facility charges for the Reservation Services performed on behalf of
the other party.
E. Advertising and Promotions
(1) Each Party will be responsible for the cost of its
own advertising and promotions. Both Parties agree
to coordinate activities in common cities to avoid
duplication and maintain a common theme.
(2) AirTran shall not use any ValuJet trade name or
service mark without ValuJet's express written
consent.
(3) ValuJet will be solely responsible for
advertising expenses related to the launch of the
Code Share.
(4) ValuJet agrees to provide advance copies of
advertising, promotions, press releases and collateral
documents for AirTran's review and discussion.
F. Assistance
The Parties shall furnish each other with all information as
they may require to carry out the services and functions contemplated
by the Agreement.
4. VALUJET'S USE OF AIRTRAN'S DESIGNATOR CODE
A. General
In conjunction with the License Agreement, all ValuJet
reservations will be under AirTran's Designator Code. As such,
all of ValuJet's flights shall be displayed in any system used
by AirTran, the Official Airline Guide ("OAG"), all other
computerized reservations systems, and all other publication in
which AirTran publishes its entire domestic flight schedule,
using the AirTran Designator Code, "FL", and flight numbers
within a range of flight numbers provided by AirTran.
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B. Operation of Additional Services
Notwithstanding anything to the contrary contained in
this Agreement, AirTran shall be entitled to operate additional
services outside the scope of this Agreement and under it own
name, or any other name.
5. ADDITIONAL UNDERTAKINGS
A. Each Party shall grant the employees of the other Party travel
privileges in accordance with the existing Pass Agreements as
modified from time to time by either of the Parties in
accordance with their standard policies.
B. A soon as reasonably practicable after the Implementation
Date, ValuJet shall display signage advertising its operations
as AirTran in all ValuJet locations (at its cost and expense)
and in Joint Locations.
C. AirTran shall file schedules and fares for the Code Share
service. However, each Party shall be solely responsible for
setting their own fares.
6. INSURANCE
During the term of the Agreement and any renewal thereof, each
Party agrees to procure and maintain in full force and effect, at its
own expense, a policy or policies of insurance with an insurance
company or companies satisfactory to the other party which provides at
a minimum, the following insurance:
A. Comprehensive Airline Liability Insurance, including but not
limited to Aircraft Liability, Passenger Liability,
contractual liability, specifically insuring the liabilities
assumed under this Agreement, Comprehensive General Liability
Insurance and Cargo and Baggage Liability Insurance, with
combined single limits for each and every loss and each
aircraft of not less than U.S. $350,000,000. Any policies of
insurance carried in accordance with this Agreement shall also
contain or be endorsed to contain those provisions acceptable
to the Parties.
B. On or before the Implementation Date of this Agreement, and
not less that thirty (30) days before any cancellation or
renewal of any insurance required to be maintained under this
Agreement, each Party shall furnish the other Party with
certificates of insurance as evidence of compliance with the
foregoing requirements.
C. In the event that either Party shall fail to maintain
insurance as herein provided,
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the other Party may at its option provide such
insurance and, in such event, the other party shall, upon
demand, reimburse the other Party for the cost thereof.
7. LIABILITY AND INDEMNIFICATION
A. Each Party hereto assumes full responsibility for its
employer's liability and Workers Compensation liability to it
own officers, directors, employees or agents on account of
injury, or death resulting from or sustained in the
performance of their respective service under this Agreement.
Each Party, with respect to its own employees, accepts full
and exclusive liability for the payment of worker's
compensation and employer's liability insurance premiums with
respect to such employees, and for the payment of all taxes,
contributions or other payments for unemployment compensation
or old age benefits, pensions or annuities now or hereafter
imposed upon employers by the government of the United States
or by any state or local governmental body with respect to
such employees measured by the wages, salaries, compensation
or other remuneration paid to such employees, measured by the
wages, salaries, compensation or other remuneration paid to
such employees, or otherwise, and each Party further agrees to
make such payments and to make such payments and to make and
file all reports and returns, and to do everything to comply
with the laws imposing such taxes, contributions or other
payments.
B. ValuJet hereby assumes liability for and agrees to indemnify,
release, defend, protect save and hold AirTran, its
officers, directors, agents, and employees harmless from and
against any and all liabilities, damages, expenses, losses,
claims, demands, suits, fines, or judgements, including but
not limited to, attorneys' and witnesses' fees, costs and
expenses incident thereto, which may be suffered by, accrue
against, be charged to or be recovered from AirTran, its
officers, directors, employees or agents, by reason of any
injuries to or deaths of persons or the loss of, damage to, or
destruction of property, including the loss of use thereof,
arising out of, in connection with, in any way related to any
act, error, omission, operation, performance or failure or
performance of ValuJet or its officers, directors, employees
or agents, or any combination thereof, which is in any way
related to the services contemplated by or provided by ValuJet
pursuant to this Agreement. AirTran shall give ValuJet prompt
and timely notice of any claim made or suit instituted against
AirTran which in any way results in indemnification hereunder,
and ValuJet shall have the right to compromise or participate
in the defense of same to the extent of its own interest.
C. AirTran hereby assumes liability for and agrees to indemnify,
release, defend, protect save and hold ValuJet, its officers,
directors, agents, and employees harmless from and against any
and all liabilities, damages, expenses, losses,
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claims, demands, suits, fines, or judgements, including
but not limited to, attorneys' and witnesses' fees, costs and
expenses incident thereto, which may be suffered by, accrue
against, be charged to or be recovered from ValuJet, its
officers, directors, employees or agents, by reason of any
injuries to or deaths of persons or the loss of, damage to, or
destruction of property, including the loss of use thereof,
arising out of, in connection with, in any way related to any
act, error, omission, operation, performance or failure or
performance of AirTran or its officers, directors, employees
or agents, or any combination thereof, which is in any way
related to the services of AirTran contemplated by or provided
pursuant to their Agreement. ValuJet shall give AirTran
prompt and timely notice of any claim made or suit instituted
against AirTran which in any way results in indemnification
hereunder, and AirTran shall have the right to compromise or
participate in the defense of same to the extent of its own
interest.
D. As used in this Agreement, all references to AirTran or
ValuJet include the Parties' parent companies, any subsidiary
of affiliate of the Parties or its parent company, and their
respective employees, officers, directors and agents.
8. CHARGES
For and in consideration of the Reservation Services performed
by the Parties, each will be entitled to receive a Reservation Fee
(RESERVATION FEE"), to be calculated as described on Exhibit B,
attached hereto. Additionally, in consideration of revenue accounting
services for travel agencies performed by AirTran on behalf of ValuJet,
AirTran will be entitled to receive a Revenue Accounting Fee ("REVENUE
ACCOUNTING FEE"), to be calculated as described on Exhibit C, attached
hereto.
9. REPORTS
The Parties will utilize reports generated through Open Skies
and ticket lift data at reasonable times to the extent necessary to
verify the accuracy and legitimacy of such data and to the extent
necessary to supplement incomplete or missing data required under this
Agreement.
10. INDEPENDENT CONTRACTORS AND WAIVER OF CONTROL
A. The employees, agents, and independent contractors of ValuJet
engaged in performing any of the services ValuJet is to
perform pursuant to this Agreement are employees, agents, and
independent contractors of ValuJet for all purposes, and under
no circumstances shall they be deemed to be employees, agents
or
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independent contractors of AirTran. In its performance
under this Agreement, ValuJet shall act, for all purposes, as
an independent contractor and not as an agent for AirTran.
AirTran shall have no supervisory power or control over any
employees, agents or independent contractors engaged by
ValuJet in connection with its performance hereunder, and all
complaints or requested changes in procedures made by AirTran
shall, in all events, be transmitted by AirTran to ValuJet's
designated representative. Nothing contained in this
Agreement is intended to limit or condition ValuJet's control
over its operations or the conduct of its business as an air
carrier, and ValuJet and its principals assume all risks of
financial losses which may result from the operation of the
air services to be provided by ValuJet hereunder.
B. The employees, agents, and independent contractors of AirTran
engaged in performing any of the service AirTran is to
perform pursuant to this Agreement are employees, agents, and
independent contractors of AirTran for all purposes and under
no circumstances shall be deemed to be employees, agents or
independent contractors of ValuJet. ValuJet shall have no
supervision or control over any such AirTran employees,
agents, or independent contractors and any complaint or
requested change in procedure made by ValuJet shall be
transmitted by ValuJet to AirTran's designated representative.
In its performance under this Agreement, AirTran shall act,
for all purposes, as an independent contractor and not as an
agent for ValuJet.
C. (1) Nothing in this Agreement authorizes AirTran to make
any contract, agreement, warranty, or representation
of ValuJet's behalf, or to incur any debt or
obligation in ValuJet's name ("unauthorized
obligation") and AirTran hereby agrees to defend,
indemnify, save, release and hold ValuJet, its
officers, directors, employees and agents harmless
from any all liabilities, claims, judgements and
obligations which arise as a result of or in
connection with, or by reason on any such
unauthorized obligation made by AirTran, its
officers, directors, employees, agents or independent
contractors in the conduct of AirTran operations.
(2) Nothing in this Agreement authorizes ValuJet to make
any contract, agreement, warranty, or representation
of AirTran's behalf, or to incur any debt or
obligation in AirTran's name ("unauthorized
obligation") and ValuJet hereby agrees to defend,
indemnify, save, release and hold AirTran, its
officers, directors, employees and agents harmless
from any all liabilities, claims, judgements and
obligations which arise as a result of or in
connection with, or by reason on any such
unauthorized obligation made by ValuJet, its
officers, directors, employees, agents or independent
contractors in the conduct of ValuJet's operations.
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D. The fact that all of ValuJet's operations are conducted under
AirTran's Marks and listed under the "FL" designator code
shall not affect their status as flight operated by ValuJet
for purpose of this agreement or any other agreement between
the Parties, and the Parties agree to advise all third
parties, including passengers, of this fact where such notice
is required.
11. TERMINATION
A. Notwithstanding any other provision of this Agreement,
except in those circumstances described in Article 12
of this Agreement, either of the Parties may terminate the
Agreement upon not less than 180 days FROM receipt of a
written notice to terminate by the non-terminating party.
However, on a best efforts basis, the passengers booked prior
to the notice of termination will be carried by the Parties.
12. DEFAULT AND REMEDIES
A. If either party shall:
1. Fail to pay any amounts due hereunder, and
such failure shall continue for a period of ten
days following written notice.
2. Either Party shall fail to perform or default
in any provision of this Agreement, or any
other contract or agreement between the Parties, and
such default shall continue for a period of more than
thirty (30) days after written notice is received;
3. Either Party fails to provide the insurance
required pursuant to Section 8 hereof,
4. Either Party becomes insolvent or seeks
protection, voluntarily or involuntarily, under
any bankruptcy, reorganization, receivership or
similar statute or law applicable to such party.
B. Upon the occurrence of the foregoing event, the other party
may:
1. Declare all amounts owed to such party hereunder to
be immediately due and payable;
2. Cease performance of all services required to be
performed hereunder;
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3. Terminate and cancel this agreement on the
effective date set forth in any such notice of
termination or cancellation.
C. All of the rights and remedies of the parties hereto shall be
cumulative and in addition to all other rights and
remedies available to the parties at law or in equity, and no
right or remedy hereunder is intended or shall be deemed to be
exclusive.
13. ASSIGNMENT
No party shall assign his or its rights and/or obligations hereunder
without the prior written consent of each other party to this
Agreement.
14. CHANGE OF LAW
Notwithstanding anything herein to the contrary, in the event
there is any change in the statutes governing the economic regulations
or orders of interpretation of any such rule, regulation or orders of
interpretation of any such rule, regulation or order of the DOT or
other department of the government having jurisdiction over air
transportation, which change or changes materially affect the rights
or obligations of either party hereto under the terms of this
Agreement, then the parties hereto shall consult, not later than
thirty (30) days after any of the occurrences described herein, in
order to determine what, if any, changes to this Agreement are
necessary or appropriate, including but not limited to the early
termination of this Agreement. If the parties hereto are unable to
agree whether any change or changes to this Agreement are necessary
and proper, or as to the terms of such changes, or whether this
Agreement should be terminated in light of the occurrences described
above, and such failure to reach agreement shall continue for a period
or thirty (30) days following the commencement of the consultations
provided for by this Article 18, then this Agreement may be terminated
by either party upon providing the other party thirty (30) days prior
written notice of such termination. Any such termination shall be
without additional obligation or liability to both parties except that
such termination shall not relieve either party of any debt or
obligation, monetary or otherwise, accruing hereunder prior to the
effective date or termination.
15. TAXES, PERMITS, ETC.
The parties shall comply with all international, U.S. federal,
U.S. state, and U.S. local laws, rules and regulations, shall timely
obtain and maintain any and all permits, certificates, or licenses
necessary for the full and proper conduct of its operations, and shall
pay all fees assessed from airport use including by not limited to,
landing fees, user airport fees, and prorated airport facility fees.
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16. NOTICES
Any and all notices, approvals, requests or demands required to
be given in writing by the parties hereto shall be sufficient if sent
by certified mail, postage prepaid, and addressed to:
Office of the President
AirTran Airways
Main Hangar Base - 4170 Wiley Drive
Orlando, FL 32827
and to:
ValuJet Airlines, Inc.
1800 Phoenix Boulevard
Suite 126
Atlanta, GA 30349
or to such other addresses in the continental United States as
the parties may specify in writing. Notices may be sent by telex,
telegram or facsimile to the above addresses and shall be deemed to be
received eight (8) hours after the time of their proper transmission.
17. APPROVALS AND WAIVERS
A. Whenever this Agreement requires the prior approval or
consent, the requesting party shall make a timely
request to the other Party and the consent shall be obtained
in writing.
B. Neither party to this Agreement assumes any liability
or obligation to the other party by providing any
waiver, approval, consent or suggestion to the other party in
connection with this Agreement or by reason of any neglect,
delay or denial of any request therefor.
C. No failure by either party to exercise any power
reserved to it by this Agreement, or to insist upon
strict compliance by the other party with any obligation or
condition hereunder, and no custom or practice of the parties
at variance with the terms hereof, shall constitute a waiver
of such party's right to demand exact compliance with any of
the terms herein. Waiver by such party of any particular
default by the other party shall not affect or impair such
party's rights with respect to any subsequent default of the
same, similar or different nature, nor shall any delay,
forbearance or emission of such party to exercise any power
or right arising out of any breach or default by the other
party of any of the terms, provisions or
12
<PAGE> 14
covenants hereof, affect or impair such party's right
to exercise the same nor shall such constitute a waiver by
such party of any right hereunder, or the right to declare
any subsequent breach or default and to terminate this
license prior to the expiration of its term. Subsequent
acceptance by such party of any payments due to it hereunder
shall not be deemed to be a waiver by such party of any
preceding breach by the other party of any terms, covenants
of this Agreement.
18. GOVERNING LAW
This Agreement and any dispute arising thereunder, including
any act in tort, shall be governed by and construed and enforced in
accordance with the internal laws of the State of Florida. The parties
agree that disputes arising under this Agreement shall first be
subject to resolution by non-binding mediation, the mediator being
mutually agreed to by the parties.
19. CUMULATIVE REMEDIES
No right or remedy conferred upon or reserved to ValuJet or
AirTran by this Agreement is intended to be nor shall be deemed,
exclusive of any other right or remedy herein or by law or equity
provided or permitted, but each shall be cumulative of every other
right or remedy.
20. FORCE MAJEURE
A. Except for any payments due hereunder, neither party
shall be liable for delays or failure in performance
hereunder caused by acts of God, acts of terrorism or
hostilities, war, strike, labor dispute, work stoppage, fire,
act of government court order, or any other cause, whether
similar or dissimilar, beyond the control of that party. The
duties and obligations of the parties shall be suspended for
the duration of the event preventing proper performance,
provided, however, that if, in the event of a work stoppage,
such suspension shall continue in excess of thirty (30) days,
the parties shall meet and attempt to arrive at a mutually
acceptable compromise within the spirit and intent of this
Agreement, failing which, either party may terminate this
Agreement on sixty (60) days' prior written notice to the
other party.
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<PAGE> 15
21. SEVERABILITY AND CONSTRUCTION
A. Each term or provision of this Agreement shall be considered
severable; and if, for any reason, any such term or
provision herein is determined to be invalid and contrary to,
or in conflict with any existing or future law or regulation
by a court or agency having valid jurisdiction, such shall
not impair the operation of, or have any other effect upon
other terms or provisions of this Agreement as may remain
otherwise intelligible, and the latter shall continue to be
given full force and effect and bind the parties hereto; and
said invalid terms or provisions shall be deemed not to be a
part of this Agreement.
B. The captions appearing in this Agreement have been
inserted for convenience only and shall not control, define,
limit, enlarge or affect the meaning of this Agreement or
any of its provisions.
22. ACKNOWLEDGMENT
A. Each party expressly disclaims the making of, and
acknowledges that it has not received, any warranty or
guarantee, express or implied, as to the potential volume,
profits or success of the business venture contemplated by
this Agreement.
B. Each party acknowledges that it has received, read and
understood this Agreement and Appendices hereto.
23. CONFIDENTIALITY
A. Except in any proceeding to enforce the provisions of
this Agreement or hereafter provided AirTran and
ValuJet hereby agree not to publicize or disclose to any
third party, except those attorneys, accountants or
consultants representing the parties, or in any regulatory
filing or notice, or in response to any request from any
governmental authority to which such party reasonably
believes it is obligated to respond, the terms or conditions
of this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably
withheld.
B. Except in any proceeding to enforce the provisions of
this Agreement or hereafter provided herein, AirTran
and ValuJet hereby agree not to disclose to any third party
any confidential information or data, both oral and written,
received from the other and designated as such by the other
without the prior written consent of the party providing such
confidential information or data.
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<PAGE> 16
C. If either party is served with a subpoena or other
process requiring the production or disclosure of any
of the agreements, information or data described in this
Agreement, then the party receiving such subpoena or other
process, before complying with such subpoena or other
process, shall promptly notify the other party of same and
use best efforts to permit said other party a reasonable
period of time to intervene and contest disclosure or
production.
D. Upon termination of this Agreement, each party must return
to the other any confidential information or data received
from the other and designated as such by the party providing
such confidential information or data is still in the
recipient's possession or control.
24. ENTIRE AGREEMENT
This Agreement, including Exhibits A through C inclusive,
contains the complete, final and exclusive agreement between the
parties hereto with respect to the subject matter hereof, and
supersedes all previous agreements and understandings with respect to
such specific subject matter, and said Agreement shall not be
modified, amended or terminated by mutual agreement or in any manner
except by an instrument in writing, executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have by their duly
authorized officers caused this Agreement to be entered into and
signed as of the day and year first above written.
VALUJET AIRLINES, INC. AIRTRAN AIRWAYS, INC.
By: D. Joseph Corr By: Robert D. Swenson
--------------------- ------------------------
Its: President/CEO Its: President/CEO
-------------------- ----------------------
Date: 9/23/97 Date: 9/23/97
------------------- ---------------------
15
<PAGE> 17
EXHIBIT A to Code Share Agreement
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("AGREEMENT") is made and entered into this 5th
day of September, 1997, by between AIRTRAN AIRLINES, INC., a corporation
organized and existing under the laws of the State of Delaware, whose principal
place of business is located in Orlando, Florida, (hereinafter called
"AIRTRAN"), and VALUJET AIRLINES, INC., a corporation organized and existing
under the laws of the State of Nevada, whose principal place of business is
located in Atlanta, Georgia (hereinafter called "VALUJET").
W I T N E S S E T H:
WHEREAS, the Parties are in the business of providing commercial
passenger airline service; and
WHEREAS, the parent companies of the parties, AirWays Corporation,
ValuJet, Inc., respectively, have executed a Plan of Reorganization and
Agreement of Merger dated July 10, 1997 to effectuate a Merger between the
parent companies (the "MERGER"); and
WHEREAS, in anticipation of the Merger, the Parties intend to execute
a Code Share Agreement (the"CODE SHARE AGREEMENT"); and
WHEREAS, AirTran is the owner of the entire right, title and interest
in certain trademarks and service marks (hereinafter the "MARKS"), as well as
the name "Air Tran AirWays, Inc. (the "NAME"), and AirTran's Designator Code
(the "DESIGNATOR CODE"), all of which are listed on Exhibit "A", attached
hereto; and
WHEREAS, ValuJet desires a non-exclusive license to use AirTran's
Marks, Name and Designator Code; and
WHEREAS, AirTran is willing to grant a non-perpetual, non-exclusive
license to ValuJet for use of AirTran's Marks, Name, and Designator Code;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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<PAGE> 18
1. RECITALS INCORPORATED.
The aforesaid recitals are expressly incorporated herein as an
essential part of this Agreement.
2. TERM.
The term of this License Agreement shall extend from year to year and
may be renewed at the option of Licensor. In the event that the Merger is not
consummated by November 30, 1997, the term of this License Agreement shall only
extend until May 31, 1998.
3. AIRTRAN'S REPRESENTATIONS AND WARRANTIES.
AirTran intends to register or make applications in respect of, or
heretofore has registered or made application in respect of, each of the Marks
listed on Exhibit A. AirTran represents and warrants that it is the sole and
exclusive owner of the AirTran Marks (except the FL mark), the Name and the
Designator Code, and has the full authority to enter into this Agreement and
license the use of the AirTran Marks (except the FL mark), the Name and the
Designator Code to ValuJet hereunder, and that such license is legal, valid and
binding against AirTran.
4. GRANT OF LICENSE.
AirTran does hereby grant to ValuJet the non-exclusive right to use
AirTran's Marks, Name and Designator Code in connection with commercial
passenger airlines service. The non-exclusive license granted to ValuJet shall
be personal to ValuJet and to its successors, and shall not be transferred by
AirTran either voluntarily or by operation of law. Any such attempted
sublicense, sale, assignment or transfer shall be void. ValuJet shall conduct
all operations hereunder, and any additional operations undertaken by
subsequent amendment hereto, under the Marks Name and Designator Code set forth
in Appendix A. AirTran hereby grants to ValuJet, upon the terms and conditions
herein contained a nonexclusive, nontransferable right and license to use
AirTran's Marks Name and Designator Code and related rights pursuant to the
terms of this Agreement, and ValuJet hereby undertakes the obligation to use
the license, in connection with the services to be rendered by ValuJet under
this Agreement.
5. PAYMENT.
In the event that the Merger is not consummated by November 30, 1997,
ValuJet shall pay to AirTran the sum of One Dollar ($1.00) for each Revenue
Passenger carried by ValuJet during the period November 30, 1997 through
January 14, 1998, and the sum of Two Dollars ($2.00) for each Revenue Passenger
carried by ValuJet during the period January 15, 1998 through May 31, 1998, as
payment for the non-exclusive license granted by AirTran for the use of the
Marks, Name and Designator Code. For purposes of this Agreement, Revenue
Passenger is defined as
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<PAGE> 19
any non-airline passenger who holds a ticket, coupon, voucher, confirmation
number or other for of documentation which entitles that passenger to board an
aircraft. Revenue Passenger includes passengers traveling on a purchased
ticket (paper or electronic).
6. TERMS AND CONDITIONS GOVERNING LICENSE
(A) ValuJet hereby acknowledges AirTran's ownership of
AirTran's Marks, Name and Designator Code, further
acknowledges the validity of AirTran's Marks, and agrees that
it shall not do anything in any way to infringe or abridge
AirTran's rights in its Marks, Name and Designator Code or
directly or indirectly to challenge the validity of AirTran's
Marks, Name and Designator Code.
(B) Nothing in this Section is intended to nor shall be
construed so as to relieve ValuJet of any liability or
to impose any liability on AirTran for ValuJet's operations
by virtue of any of AirTran's rights under this Agreement,
whether exercised or not.
(C) Nothing in this Agreement is intended nor shall be
construed to give ValuJet the exclusive right to use
AirTran's Marks, Name and Designator Code, or to abridge
AirTran's right to use or to license its Marks, Name and
Designator Code. AirTran hereby reserves the right to
continue use of AirTran's Marks, Name and Designator Code to
license such other uses of such Marks, Name and Designator
Code as AirTran may desire.
7. NOTICES.
All notices, requests, demands or other communications hereunder shall
be in writing and shall be deemed to have been properly given or served by
personal delivery or by depositing in the United States mail, postage prepaid
and registered or certified, return receipt requested, and addressed to the
addressee set forth below. Each notice shall be effective upon being personally
delivered or upon the third business day after same is deposited in the United
States mail.
TO LICENSOR: AirTran AirWays, Inc.
Main Hangar Base
4170 Wiley Drive
Orlando, Florida 32827
TO LICENSEE: ValuJet Airlines, Inc.
1800 Phoenix Boulevard, Suite 126
Atlanta, Georgia 30349
This Agreement shall be governed by the internal laws of the state of
Georgia, without
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<PAGE> 20
regard to principles of conflicts of laws.
IN WITNESS WHEREOF, Licensor has caused this License to be executed
as of this 23rd day of September, 1997.
LICENSOR:
AIRTRAN AIRWAYS, INC.
By: /s/ Larry Brinker
---------------------------------
Its: General Counsel
---------------------------------
LICENSEE:
VALUJET AIRLINES, INC.
By: /s/ D. Joseph Corr
---------------------------------
Its: President/ CEO
---------------------------------
4
<PAGE> 21
EXHIBIT A - LICENSE AGREEMENT
MARKS
[AirTran Airlines]
NAME
AirTran Airlines, Inc.
DESIGNATOR CODE
FL
<PAGE> 22
EXHIBIT B
MARKETS/AIRPORT PAIRS
<TABLE>
<CAPTION>
AIRTRAN AIRLINES AIRTRAN AIRWAYS
- ---------------- ---------------
<S> <C>
Atlanta, GA/Akron-Canton, OH Akron-Canton, OH/Albany, NY
Boston, MA/*Chattanooga, TN Allentown, PA/Bloomington-Normal, IL
*Dalton, GA/Flint, MI/Fort Lauderdale, FL Boston, MA/Buffalo, NY
Fort Myers, FL/Fort Walton Beach, FL Cincinnati, OH/Dayton, OH
Houston, TX/Jacksonville, FL/*Macon, GA Des Moines, IA
Memphis, TN/Mobile, AL/New Orleans, LA Greensboro-High Point-Winston Salem, NC
Newport News-Norfolk, VA Greenville-Spartanburg, SC/Islip, NY
Orlando, FL/Philadelphia, PA Kansas City, MO/Knoxville, TN
Raleigh-Durham, NC/Savannah, GA Newburgh, NY/Norfolk, VA
Tampa, FL/Washington, D.C. Omaha, NE/Quad Cities-Moline, IL
West Palm Beach, FL Richmond, VA/Rochester, NY
Syracuse, NY/Toledo, OH
</TABLE>
*Served by AirTran Flightlink
<PAGE> 23
EXHIBIT C
ADDITIONAL ACCOUNTING ISSUES
1. The Parties will utilize Open Skies accounting reports as a basis for
reconciling the Inter-Company accounts. When necessary, the Parties will
request that Open Skies develop additional reports to facilitate the
inter-company account reconciliations and the Settlement.
2. The Settlement Amount will be estimated each Friday, and any discrepancies
between Inter-Company accounts will be resolved by the Parties during the
ensuing week.
3. Credit Card Discounts, Travel Agent's Commissions and CRS fees will be
accounted for on a weekly basis and included in the Settlement.
4. Reservation Fees and Revenue Accounting Fees will be accounted for on a
monthly basis and will only be included in the Settlement every fourth week.
5. For purposes of calculating ValuJet's "Due to Air Tran Account", ValuJet
will use the following amounts and percentages for fees and discounts:
Credit Card Discounts - 2.5%
Reservation Fees - $2.33 per passenger
6. For purposes of calculating AirTran's "Due to ValuJet Account", AirTran
will use the following amounts and percentages for commissions, fees and
discounts:
Travel Agent Commissions - 10%
CRS Fees - $1.30 per travel agent passenger
Credit Card Discounts - 2.7%
Reservation Fees - $2.33 per passenger
Revenue Accounting Fees - $.40
7. On a weekly basis, ValuJet will calculate the balance in its "Due to
AirTran Account," as follows: Credit(Debit)
Direct Credit Card Reservations
Direct Cash Reservations
(Credit Card Discounts)
(Reservation Fees)
<PAGE> 24
8. On a weekly basis, AirTran will calculate the balance in its"Due to
ValuJet Account," as follows: Credit(Debit)
Travel Agent Reservations
Direct Credit Card Reservations
Direct Cash Reservations
(Travel Agent Commissions)
(CRS Fees)
(Credit Card Discounts)
(Reservation Fees)
(Revenue Accounting Fees)
9. Each Party agrees to be responsible for the remittance of taxes, fees and
passenger facility charges for the Reservation Services performed on behalf of
the other party.
