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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[ X ] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year ended December 31, 1996 or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from ________________________ to
_______________________
Commission file number 0-26914
VALUJET, INC.
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(Exact name of registrant as specified in its charter)
NEVADA 58-2189551
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1800 Phoenix Boulevard, Atlanta, Georgia 30349
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(Address of principal executive offices) (Zip Code)
(770) 907-2580
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Registrant's telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
which registered
None None
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Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
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(Title of class)
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
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As of March 10, 1997, the aggregate market value of voting stock held
by non-affiliates of the Registrant, based on the closing sales price of such
stock in the NASDAQ Stock Market on March 10, 1997, was approximately
$340,000,000. As of March 10, 1997, the Registrant had 54,878,322 shares of
Common Stock outstanding.
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Documents Incorporated by Reference
-----------------------------------
Portions of the Proxy Statement to be used in connection with the
solicitation of proxies to be voted at the Registrant's annual meeting of
Stockholders to be held on May 21, 1997, to be filed with the Commission, are
incorporated by reference into Part III of this Report on Form 10-K.
Exhibit Index is located on pages 33 - 34.
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PART I
ITEM 1. BUSINESS
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HISTORY
ValuJet Airlines, Inc. was organized as a Nevada corporation in July 1992.
In October 1995, ValuJet Airlines, Inc. became a wholly-owned subsidiary of
ValuJet, Inc. (the "Company") as a result of a merger. The consolidated
financial information contained herein or incorporated herein by reference
reflects the financial information regarding the Company and its subsidiaries,
before and after such merger.
THE COMPANY
The Company, through its wholly owned subsidiary, ValuJet Airlines, Inc.,
operates an affordable, no frills, limited frequency, scheduled airline serving
short haul markets primarily in the eastern United States. The Company believes
that its low cost, no frills philosophy allows it to offer among the lowest
fares in its markets and generate its own traffic by stimulating incremental
demand with price-conscious travelers. Prior to June 17, 1996, the Company
offered service to 31 cities from Atlanta and the Company's three "focus
cities," Washington DC (Dulles Airport), Boston and Orlando. The Company's
operations were interrupted by the suspension of the Company's service on June
17, 1996, pursuant to a consent order entered into with the FAA following the
accident involving Flight 592 on May 11, 1996, and the ensuing extensive media
and FAA scrutiny. As of September 30, 1996, the Company resumed operations with
service between Atlanta and four other cities. As of March 21, 1997, the FAA
has approved 24 of the Company's DC-9-32 aircraft for flight and the Company
operates 144 flights per peak day between Atlanta and 20 other cities. In the
short term, the Company does not expect to recommence service to all markets
previously served by the Company. There can be no assurance as to when the
Company will be able to reestablish its profitable operations, if at all, or to
resume its previous levels of service and growth strategy.
STRATEGY
The Company's strategy is to provide a safe, reliable, customer friendly
alternative for affordable air transportation. The Company's operating strategy
is based on its commitment to offer everyday low fares that stimulate demand
from leisure and fare conscious business travelers. The key elements in this
strategy are a simple fare structure and an efficient cost structure which is
achieved through a highly productive and efficient work force, a ticketless
distribution technology and a fleet of DC-9 aircraft.
For the customer, "simple" means the service is easy to understand and use,
including a simplified fare structure, with everyday low prices, simplified
reservations and check-in procedures and a ticketless process. In contrast,
today's airline industry is characterized by complex fares, schedules,
reservations, check-in procedures and ticketing.
The Company's service is intended to satisfy the basic air transportation
needs of the Company's targeted customers who are short haul travelers visiting
friends and relatives, vacationing or involved with fare conscious businesses.
The Company believes that the basic air transportation needs of its targeted
customers can be satisfied by providing a limited number of flights per day
(currently up to seven frequencies), baggage service, in-flight beverages and
the ability to make advance reservations. The Company avoids what it believes to
be unnecessary and nonproductive costs such as meals, a frequent flyer program,
advance seat assignment, airport clubs or other amenities offered by many of its
competitors.
The Company's pricing structure and affordable fares are intended to
stimulate new demand for air travel by leisure customers and fare conscious
business travelers who would have otherwise used ground transportation or
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not have traveled. The Company's simple fare system incorporates a predictable,
"everyday low pricing" fare structure designed to provide its customers with
substantial savings over its competitors based on walk up fares and further
savings by purchasing seats in advance or by flying during off peak times. In
the first six months of 1996, the Company's average fare in its markets was
$72.75, substantially less than the average fare in those markets prior to the
Company's commencement of operations. The Company generates its own traffic
through low fare market stimulation rather than pursuing the more traditional
airline approach of competing for market share with existing carriers.
IMPACT OF ACCIDENT AND SUSPENSION OF OPERATIONS
On May 11, 1996, ValuJet tragically lost its flight 592 en route from Miami
to Atlanta. There were no survivors. The accident resulted in extensive media
coverage calling into question the safety of low-fare airlines in general and
the Company in particular. In response to the accident, the FAA announced an
extraordinary review of the Company's operations.
On June 17,1996, the Company entered into a consent order with the FAA under
which: (i) the Company agreed to suspend operations until such time as the
Company was able to satisfy the FAA as to various regulatory compliance concerns
identified by the FAA as a result of its intensive inspections of the Company's
operations, (ii) the FAA agreed to work with the Company in order to reestablish
operations with up to 15 aircraft initially, and (iii) the Company paid $2
million to the FAA to compensate it for the costs of the special inspections
conducted. In order to reduce costs, the Company furloughed approximately 90%
of its personnel in June 1996.
On August 29, 1996, the FAA returned the Company's operating certificate and
the Department of Transportation ("DOT") issued a "show cause" order regarding
the Company's fitness as an air carrier. The DOT gave its final approval on
September 26, 1996, and the Company resumed operations with service between
Atlanta and four other cities on September 30, 1996.
As of March 21, 1997, the FAA has approved 24 of the Company's 43 aircraft
for flight operations.
Other effects of the accident, ensuing FAA inspections, media coverage and
suspension of operations include:
1. The suspension of operations has resulted in the failure of the Company to
meet certain financial covenants under certain of the Company's secured
debt. See Management's Discussion and Analysis of Financial Condition and
Results of Operatons - Liquidity and Capital Resources in Item 7 of this
Report on Form 10-K for further discussion.
2. The expansion of the Company's operations will likely be subject to FAA and
DOT approval for an indefinite period of time.
3. The Company is unable to predict how significantly the accident and
suspension of operations will affect load factors and yield or the length
of time load factors and yield will be impacted.
4. The Company has sold certain of its aircraft and has assigned its rights to
purchase certain aircraft previously under contract for delivery in 1996.
In addition, the Company may lease out or sell some of its other aircraft.
5. In 1996, the Company refunded fares paid by customers affected by the
Company's changing schedules and by those who otherwise chose to change
their travel plans.
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6. The Company's cost per ASM has increased and is likely to remain inflated
to some extent to reflect the cost of additional maintenance procedures and
infrastructure adopted by the Company and lower aircraft utilization
levels.
7. The Company may reduce its workforce permanently if reduced traffic levels
continue and the Company is unable to reestablish its previous service
levels.
8. The aircraft lost was insured for $4.0 million which is in excess of book
value. The Company carries $750 million of liability insurance. Although
the Company believes that such insurance will be sufficient to cover all
claims arising from the accident, there can be no assurance that all claims
will be covered or that the aggregate of all claims will not exceed such
insurance limits.
9. Several stockholder lawsuits have been filed against the Company and
certain of its officers and directors alleging, among other things,
violation of federal securities laws. While the Company denies that it has
violated any of its obligations under the federal securities laws and
believes that the lawsuits do not have any merit, there can be no assurance
that the Company will not sustain material liability under such or related
lawsuits.
10. Various governmental authorities are conducting investigations of the
circumstances surrounding the accident. The Company is cooperating with the
authorities in connection with these investigations.
In light of these factors, persons investing in securities of the Company
should be apprised of the following additional risks:
1. The suspension of operations has resulted in the failure of the Company to
meet certain financial covenants (the fixed charge coverage ratio) under
certain of the Company's secured debt. This could result in the
acceleration of such debt and a reduction in the Company's cash position.
If the Company does not timely repay all indebtedness accelerated or if the
Company's other secured lenders or the holders of the Company's 10 1/4%
senior notes seek to accelerate their debt as a result of such
accelerations, then a substantial portion or all of the Company's debt
could be accelerated. For a further discussion, see Management's Discussion
and Analysis of Financial Condition and Results of Operations in Item 7 of
this Report on Form 10-K.
2. There is no assurance that the Company will recover sufficient customer
acceptance in order to regain profitability.
3. If the Company regains profitability, there may be reduced customer support
which could decrease the Company's profitability indefinitely.
4. The expansion of the Company's operations will likely be subject to FAA and
DOT approval for an indefinite period of time.
5. Although preliminary information indicates no connection, if the National
Transportation Safety Board (NTSB) were to determine that the Company's
maintenance procedures or aging aircraft contributed to the cause of the
accident, such determination could have a substantial adverse effect on the
Company's future operations.
6. The occurrence of one or more subsequent incidents or accidents by the
Company's aircraft could likely have a substantial adverse effect on the
Company's public perception and future operations.
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GEOGRAPHIC MARKET
The Company's markets are located predominantly in the eastern United States.
These markets are attractive to the Company due to the concentration of major
population centers within relatively short distances from Atlanta, historically
high air fares and the potential for attracting leisure customers who would
otherwise use ground transportation.
During 1996, the Atlanta Airport was the second busiest airport in the United
States, enplaning over 30 million passengers. Additionally, the Company will
offer service to Florida markets as the Company believes that more than 20
million people visit the Florida markets by automobile every year from Atlanta
and other points in the eastern United States.
In the Company's city selection process, the Company considers the amount of
airport charges, incentives offered by communities to be served, the ability to
stimulate air travel and competitive factors.
FARES, ROUTE SYSTEM AND SCHEDULING
The Company serves short haul markets (up to 1,000 miles) from Atlanta, with
a limited number of flights (up to seven round trips per destination per day)
offering basic air transportation at affordable fares.
The Company offers a range of fares based on advance purchases of 14 days, 7
days, 2 days and "walk-up" fares. Within the 14 and 7 day fare types, the
Company offers off-peak and peak fares which are $10 to $30 higher based on day
of week and time of day traveled. Peak travel times are those designated by
flight by the Company; peak times are generally portions of the day or all day
on Thursdays, Fridays, Saturdays and Sundays. All the Company's fares are
nonrefundable, but can be changed prior to departure for a $30 fee. The
Company's fares are always purchased on a one-way basis. The Company's fares do
not require any minimum, maximum or day of week (e.g., Saturday night) stay.
The Company's simplified fare offerings, all for a single class of service, are
in direct contrast to prevalent pricing policies in the industry where there are
typically many different price offerings and restrictions for seats on any one
flight.
The Company's published Atlanta fares for non-stop service range from $39 to
$89 for off-peak one-way travel on a 14 day advance purchase basis and $119 to
$149 for one-way travel on a "walk-up" basis. During the reintroduction of the
Company's service to markets previously served and during the introduction of
service to new markets, the Company generally offers introductory one-way fares
for all flights to or from Atlanta.
A majority of the Company's customers originate or terminate their travel on
the Company's non-stop service. One-stop connecting service is provided through
Atlanta between certain of the other cities served by the Company.
The following table sets forth certain information with respect to the
Company's route system based on the Company's schedule in effect or announced as
of March 6, 1997.
Round Trip
Service Flights
Commencement Scheduled
Airport Served Date (a) On Peak Day (b)
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Atlanta-
Akron/Canton, OH........ March 1997 3
Boston, MA.............. February 1997 1(c)
Chicago, IL (Midway).... October 1996 4
Columbus, OH............ October 1996 3
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Dallas/Fort Worth, TX... April 1997 4
Fort Lauderdale, FL..... September 1996 5
Fort Myers, FL.......... January 1997 2
Fort Walton Beach, FL... October 1996 2
Jacksonville, FL........ October 1996 3
Louisville, KY.......... October 1996 3
Memphis, TN............. October 1996 3
Mobile, AL.............. October 1996 2
New Orleans, LA......... October 1996 4
Newport News, VA........ October 1996 3
Orlando, FL............. September 1996 6
Philadelphia, PA........ October 1996 4
Raleigh/Durham, NC...... October 1996 4
Savannah, GA............ October 1996 2
Tampa, FL............... September 1996 5
Washington DC (Dulles).. September 1996 7
West Palm Beach, FL..... December 1996 3
Washington, DC (Dulles)-
Atlanta, GA............. September 1996 7
Boston, MA.............. February 1997 4
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(a) For markets served by the Company prior to the suspension of its
operations, the date indicated is the date the Company recommenced
service.
(b) Peak day refers to the days of the week on which the Company provides the
greatest number of flights for the route shown.
(c) Does not include one-stop service through Washington, DC (Dulles) (up to
four round trips per peak day).
Subject to the FAA's approval, the Company will consider the addition of
other markets and the provision of service between cities other than Atlanta.
There can be no assurance as to the timing of approvals of additional aircraft
by the FAA which will depend upon the FAA's review of the Company's operations.
Service is provided on all routes every day although more frequent service may
be provided on peak travel days.
The Company's aircraft scheduling strategy is directly related to the
perceived needs of its target market segments and the low fixed ownership costs
of its aircraft fleet. The Company's target customers are travelers visiting
friends and relatives, vacationers and small business travelers who are more
price sensitive than schedule or frequency sensitive. As a result, the
Company's schedule has provided for one to seven frequencies per peak travel day
in any given market.
The Company's low fixed aircraft ownership costs (depreciation plus
interest expense) provide the Company with flexibility to tailor capacity to
demand. As a result, on low demand travel days such as Tuesday and Wednesday,
the Company reduces total costs by operating a reduced schedule with fewer
frequencies per market. Conversely on peak days, the Company may add more
frequency to accommodate higher demand. The Company generally keeps a number of
its aircraft out of scheduled service in order to provide operating spares and
to rotate aircraft into routine scheduled maintenance.
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AIRCRAFT
As of March 21, 1997, the Company owned 43 DC-9-30 series aircraft with 113
to 115 seats. All of the Company's aircraft are configured with a single class
of service. In order to simplify its operations and in light of the limited
number of aircraft the Company is authorized to operate, the Company intends to
sell or lease out up to 13 of its DC-9-30 aircraft. Aircraft in excess of the
number the Company is authorized to operate will be stored until the Company
receives authorization to operate from the FAA or until a sale or lease
arrangement is consummated.
As of March 21, 1997, the FAA has approved 24 aircraft for operation by the
Company. The addition of aircraft to the Company's operating specifications is
subject to FAA and DOT approval. There can be no assurance as to the timing or
extent of any such subsequent approvals. The Company's expansion is subject to
FAA approval and could be affected by heightened FAA scrutiny and the Company's
ability to regain customer acceptance.
The Company has entered into a contract with McDonnell Douglas to purchase
50 new MD-95 aircraft, to be delivered from 1999 through 2002, with options to
purchase an additional 50 aircraft. The MD-95 will have 129 seats in a single
class configuration. The Company estimates that the MD-95 aircraft, with a
slightly larger capacity, increased fuel efficiency and lower maintenance costs,
will provide a cost per ASM lower than its existing DC-9 fleet, even after
including its higher acquisition cost. The Company is the "launch" customer of
the MD-95 aircraft. The Company became the launch customer for the MD-95
aircraft because (i) the availability of DC-9's in large numbers was becoming
increasingly uncertain, and (ii) the MD-95 purchase terms presented the Company
with the most attractive DC-9 replacement alternative in comparison with other
manufacturers' products. Further, as the MD-95 aircraft is an extension of the
original DC-9 family of aircraft, the Company believes it will realize
substantial savings in training and parts as well as having the advantage of
being able to carry a greater number of customers.
According to FAA rules, before January 1, 1997, each new entrant airline
must have at least 50% of its fleet in compliance with the FAA's Stage 3 noise
level requirements. The balance of such airlines' fleets must be brought into
compliance with Stage 3 noise level requirements in phases: 75% by December 31,
1998 and full compliance required by December 31, 1999. As of March 21, 1997,
15 of the Company's 24 aircraft on its operating specifications complied with
these requirements. Of the Company's remaining 19 aircraft, three comply with
Stage 3 as of the date of this report. The Company intends to meet the Stage 3
requirements by installing hush kits on certain of its Stage 2 aircraft, by
disposing of other Stage 2 aircraft and by acquiring Stage 3 aircraft.
SAFE HARBOR STATEMENTS
Statements made by the Company in this report regarding the Company's
ability to increase its service levels,to maintain its low cost structure and to
become profitable again are forward-looking statements and are not historical
facts. Instead they are estimates or projections involving numerous risks and
uncertainties including but not limited to governmental approval of increases in
service by the Company, the Company's ability to dispose of certain aircraft,
the utilization level of the Company's aircraft, the level of those costs which
are beyond the Company's control, the effect of the Company's accounting
policies, the Company's ability to hire and retain qualified personnel under its
new compensation program and results of pending lawsuits. These risks and
uncertainties could potentially cause the Company's implementation of additional
service to be delayed or the Company's costs to exceed present estimates. The
Company disclaims any obligation to update or correct any of its forward-looking
statements.
MAINTENANCE AND REPAIRS
Since the Company's fleet of DC-9 aircraft are all more than 20 years old,
it is likely that they will require higher maintenance expenses than newer
aircraft. The Company believes that its aircraft are mechanically
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reliable and that the estimated cost of maintenance to fly such aircraft is and
will continue to be within industry norms. Included in these maintenance expense
estimates are current requirements to comply with existing FAA Aging Aircraft
Airworthiness Directives ("ADs"). Amendments to FAA regulations have been
proposed and are currently pending administrative approval which would require
certain heavy maintenance checks and other maintenance requirements for aircraft
operating beyond certain operational limits. The Company will be required to
comply with such proposals, if adopted, and with any other aging aircraft
issues, regulations or ADs, that may be promulgated in the future. There can be
no assurance that the Company's costs of maintenance (including costs to comply
with aging aircraft requirements) will fall within industry norms.
Various incidents involving the Company's aircraft prior to May 1996, the
accident involving Flight 592 and the suspension of the Company's operations
have contributed to a negative public perception as to the safety of the
Company's aircraft and operations.
Extraordinary regulatory review of the Company's operations by the FAA
followed the May 1996 accident and various FAA findings ultimately resulted in
the consent order under which the Company's operations were suspended on June
17, 1996. The Company has subsequently satisfied the FAA's requirements
outlined in the consent order and the FAA returned the Company's operating
certificate to it on August 29, 1996. The Company is likely to be subject to
increased and continuing regulatory scrutiny which could affect the Company's
operations, acquisition program and expansion plans indefinitely.
Aircraft maintenance and repair consists of routine daily or "turn-around"
maintenance and major overhaul. Routine daily maintenance is performed at
Atlanta by the Company's employees or contract employees and by contractors at
the other cities served by the Company. Major overhauls or heavy checks are
performed by a contractor at the contractor's own maintenance base. In response
to FAA concerns, the Company has decided to limit to two the number of outside
contractors performing heavy maintenance on the Company's aircraft. At this
time, these contractors are Zantop of Macon, Georgia, and Aero Corp. of Lake
City, Florida. The Company may replace these contractors or add additional
contractors subject to FAA approval. Other routine daily maintenance
contractors are either other airlines which operate DC-9-30 series aircraft or
other maintenance companies approved by the FAA, who in either case have
employees qualified in DC-9-30 series aircraft maintenance.
The addition of MD-95 aircraft will require greater inventories of spare
parts and associated costs.
FUEL
The cost of jet fuel is an important expense for the Company. Jet fuel
costs are subject to wide fluctuations as a result of sudden disruptions in
supply, such as the effect of the invasion of Kuwait by Iraq in August 1990.
Due to the effect of world and economic events on the price and availability of
oil, the future availability and cost of jet fuel cannot be predicted with any
degree of certainty. Increases in fuel prices or a shortage of supply could
have a material adverse effect on the Company's operations and operating
results. The Company has not entered into any agreement which fixes the price of
fuel over any period of time.
The Company's fleet of DC-9 Series 30 aircraft are relatively fuel
inefficient compared to newer aircraft and industry averages. The primary
reasons for this inefficiency are the aircraft size, engine technology and short
trip length operations. In management's opinion, the lower ownership costs of
the DC-9 aircraft more than compensate for this relative fuel inefficiency.
A significant increase in the price of jet fuel would result in a
disproportionately higher increase in the Company's average total costs than its
competitors using more fuel efficient aircraft and whose fuel costs represent a
smaller portion of total costs. The Company would possibly seek to pass such a
cost increase to the Company's customers through a fare increase. There can be
no assurance that any such fare increase would not reduce the competitive
advantage the Company seeks by offering affordable fares.
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The MD-95 aircraft to be acquired by the Company are expected to be more
fuel efficient and should make the Company relatively less susceptible to
adverse effects attributable to fuel price changes.
DISTRIBUTION AND MARKETING
The Company's marketing efforts are vital to its success as it seeks to
stimulate new customer demand, sell outside of the conventional distribution
systems and forgo traditional amenities such as a frequent flyer program. The
Company has targeted short haul travelers visiting friends and relatives,
vacationing or involved with fare conscious businesses. These are market
segments which the Company believes offer the greatest opportunity for
stimulating new demand, selling direct and not requiring traditional amenities.
Based on a survey conducted by the Company in 1994, a substantial majority of
the Company's customers were traveling for pleasure.
The primary objectives of the Company's marketing activities are to develop
a brand identity or personality which is visibly unique and easily contrasted
with its competitors and to communicate its service directly to potential
customers. When initiating service to a new market or restarting flights to
previously served markets, the Company typically makes extensive use of
billboard, radio and newspaper advertising, as well as active public relations
efforts, and focuses on the affordable fares to be offered on an everyday basis.
Company Personality
The Company has sought to establish consumer recognition of the Company as
a small vibrant company, where customers receive affordable airline
transportation which exceeds their expectations. The Company attempts to portray
a fun and friendly personality in contrast to the image portrayed by many other
airlines.
To achieve this personality, the Company has developed a color scheme for
its aircraft and station facilities designed to be striking and bold, the
"Critter" cartoon airplane logo and tag lines designed to be friendly and fun,
casual attire for employees (including leather jackets for pilots, varsity
jackets for flight attendants and casual sportswear) and a variety of
promotional materials such as ValuJet shirts, sweaters, bumper stickers and
license plates. Additionally, the Company's Atlanta gate areas are furnished
with brightly colored plastic playground equipment reinforcing the Company's
family orientation.
Customer Communication
The Company communicates regularly and frequently with potential customers
through the use of advertisements in newspapers, on radio and on billboards.
These communications feature the Company's destinations, everyday affordable
fares, ease of use (including its simplified fare structure and ticketless
travel process) and the Company's reservations phone number. The Company uses
tag lines such as "Good Times, Great Fares", "Wherever We Fly, You Win" and "Low
Fares Everyday, Everywhere We Fly" to reinforce its identity. The Company offers
a toll-free telephone number (1-800-VALUJET) for reservations from outside
Atlanta and its reservations number in the Atlanta area is 770-994-VALU.
The Company seeks to sell seats directly to the customer whenever possible.
The Company also sells a smaller percentage of seats through travel agents and
pays customary sales commissions, but without volume override increases. Sales
are not as of the date of this report made through the conventional CRSs.
Management believes that although travel agents have become accustomed to making
reservations through the CRSs, the cost savings and direct communication with
customers that the Company achieves by not participating in such systems
justifies the Company's decision not to participate in the CRSs. The Company
reviews this decision from time to time. Information on its customers' needs,
travel patterns and identity is collected, organized and stored by the Company's
automated reservation system and can be used at a future time for direct
marketing efforts.
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The Company performs public relations and promotional activities in house.
Advertising is handled by an outside advertising agency.
The Company and The Hertz Corporation operate a joint program under which
the Company's customers are able to reserve a Hertz rental car outside of
Florida at discounted rates when making a reservation for the Company's flights.
Alamo Rent A Car offers discounted car rental rates to the Company's customers
in Florida.
Air travel in the Company's markets tends to be seasonal, with the highest
levels occurring during the winter months to Florida and the summer months to
the midwest/northeastern U.S. Advertising and promotional expenses may be
greater in lower traffic periods, as well as when entering a new market, in an
attempt to stimulate further air travel.
AUTOMATION
Automation is a key component of the Company's strategy. The Company's
UNIX based computer system has been specifically designed to implement the
Company's simplified, ticketless service and is an important component of the
Company's attempt to maintain its low cost structure, particularly as the
Company grows.
The Company has designed its computer system to capture information in the
computer at its source, eliminating paper records whenever possible. These
entries are made by the reservation agents, eliminating subsequent data
processing entries. Once the initial data has been entered into the system, the
system updates various affected files and reports. The Company's software
supports all of the Company's operational areas (e.g., flight operations,
maintenance, accounting, marketing and personnel). As airline computer
applications change constantly, the Company from time to time reviews various
software and hardware applications which, coupled with the existing computer
system, are intended to improve the Company's competitive posture.
A key component of this system and the Company's low cost structure is the
"ticketless" environment. At the time of a sale/reservation, the Company
provides its customers with a confirmation number, similar to the systems used
by hotels and car rental agencies. At the airport, this information is
available for customer check-in, which typically requires only two to three key
strokes by the gate agent and helps to alleviate long lines and achieve a
quicker turnaround of aircraft. After the flight has departed, the computer
posts passenger revenue from the passenger manifest information. Unlike most of
the Company's competitors, the Company has no tickets to be accounted for and
processed.
Furthermore, the Company does not participate in the ARC, the airline
industry collection agent for travel agency sales. At the time of the
reservation, the Company identifies the travel agency making the booking and
takes credit card information. Each agency then receives a statement
summarizing these transactions. Although management believes that travel
agencies are accustomed to doing business through ARC, management believes that
the cost savings realized by avoiding the fees and revenue accounting costs
inherent in the ARC system justify not participating in ARC.
Because of its ticketless system and its non-participation in ARC, the
Company's customers are not able to transfer their reservations from the Company
to other airlines, for example in the event of an interruption of a Company
flight or a last minute change in their travel plans.
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EMPLOYEES
As of March 21, 1997, the Company employed approximately 2,000 people.
Additional employees will be hired as the Company increases the number of
aircraft operated subject to FAA approval.
The Company has modified its compensation program, increasing employee base
pay for most work groups and reducing reliance on the payment of variable
performance bonuses as a major component of the overall compensation package.
Regular, periotic bonuses will be eliminated.
Training, both initial and recurrent, is required for most employees. The
average training period for all new employees is approximately two weeks. Both
pilot training and mechanic training are provided by professional training
organizations, which may include other airlines. New hire pilots pay for their
own initial training which includes an airline transport pilot rating. The
Company generally pays for recurrent training.
FAA regulations require pilots to be licensed as commercial pilots, with
specific ratings for aircraft to be flown, and to be medically certified as
physically fit. Licenses and medical certification are subject to periodic
continuation requirements including recurrent training and recent flying
experience. Mechanics, quality-control inspectors and flight dispatchers must be
licensed and qualified for specific aircraft. Flight attendants must have
initial and periodic competency fitness training and certification. Training
programs are subject to approval and monitoring by the FAA. Management personnel
directly involved in the supervision of flight operations, training, maintenance
and aircraft inspection must meet experience standards prescribed by FAA
regulations. All of these employees are subject to pre-employment and subsequent
drug testing.
The Company believes that current conditions in the airline industry have
created a sufficient pool of qualified, licensed pilots, dispatchers and
mechanics to fill the Company's needs in the flight operations, maintenance and
quality control areas, and that the Company will have little difficulty in
hiring and continuing to employ the required personnel. There can be no
assurance that these conditions will remain favorable.
The Company's flight attendants have elected the Association of Flight
Attendants ("AFA") and the Company's mechanics have elected the Teamsters to
represent them in negotiating a contract with the Company. The Company does not
expect that the unionization of flight attendants or mechanics will have a
material effect on its operating costs or performance. However, until union
contracts are negotiated, there can be no assurance that this will be the case.
The Company is unable to predict whether any of its other employees will
elect to be represented by a labor union or other collective bargaining unit.
The election by the Company's employees for representation in such an
organization could result in employee compensation and working condition demands
that may affect operating performance or expenses.
The AFA has filed a lawsuit against the Company relating to the termination
of certain former flight attendants. See "Legal Proceedings" in Item 3 of this
Report on Form 10-K.
The Company from time to time considers alternative means of providing
compensation to its employees and the Company's method of determining
compensation is subject to possible change in the future.
AIRPORT OPERATIONS
Ground handling services typically can be placed in three categories--
public contact, underwing and complete. Public contact services involve
meeting, greeting and serving the Company's customers at the check-in counter,
gate and baggage claim area. Underwing ground handling services include, but
are not limited to, marshalling the aircraft into and out of the gate, baggage
and mail loading and unloading, as well as lavatory and
-11-
<PAGE>
water servicing, anti-icing and deicing and certain services provided to the
aircraft overnight. Complete ground handling consists of public contact and
underwing services combined.
All of the Company's ground handling services in Atlanta are conducted by
the Company's employees. At other airports, Company operations not conducted by
the Company's employees are contracted to other air carriers, ground handling
companies or fixed base operators.
INSURANCE
The Company carries customary levels of passenger liability insurance,
aircraft insurance for aircraft loss or damage and other business insurance.
The Company is exposed to potential catastrophic losses that may be incurred in
the event of an aircraft accident. Any such accident could involve not only
repair or replacement of a damaged aircraft and its consequent temporary or
permanent loss from service, but also significant potential claims of injured
passengers and others. The Company is required by the DOT to carry liability
insurance on each of its aircraft. The Company currently maintains liability
insurance in the amount of $750 million per occurrence. Although the Company
currently believes its insurance coverage is adequate, there can be no assurance
that the amount of such coverage will not be changed or that the Company will
not be forced to bear substantial losses from accidents. Substantial claims
resulting from an accident in excess of related insurance coverage or not
covered by the Company's insurance could have a material adverse effect on the
Company. Moreover, any aircraft accident, even if fully insured, could cause
and has caused a public perception that some of the Company's aircraft are less
safe or reliable than other aircraft, which could have and has had a material
adverse effect on the Company's business.
SEASONALITY AND CYCLICALITY
The Company's operations are primarily dependent upon passenger travel
demand and, as such, may be subject to seasonal variations. Management believes
that the weakest travel periods will generally be during the months of January,
May and September. Leisure travel generally increases during the summer months
and at holiday periods.
The airline industry is highly volatile. General economic conditions
directly affect the level of passenger travel. Leisure travel is highly
discretionary and varies depending on economic conditions. While business travel
is not as discretionary, business travel generally diminishes during unfavorable
economic times as businesses tend to tighten cost controls.
COMPETITION
The following table identifies airlines which provide non-stop service to
and from Atlanta and the cities indicated and the approximate number of daily
round trip flights scheduled to be flown by those other airlines as of April
1997.
DAILY NON-STOP ROUND TRIPS
--------------------------
American/Northwest/
ATLANTA TO/FROM Delta USAir Others(a)
- --------------------------- -------- ----- ---------
Akron/Canton, OH...........
Boston, MA................. 8.5 -- --
Chicago, IL (Midway)(b).... -- -- 1
Columbus, OH............... 5 -- --
Dallas/Fort Worth, TX...... 15 11.5 --
Fort Lauderdale, FL........ 9.5 -- --
Fort Myers, FL............. 7.5 -- --
-12-
<PAGE>
Fort Walton Beach, FL...... -- -- 9
Jacksonville, FL........... 8 -- 2
Louisville, KY............. 7.5 -- 1
Memphis, TN................ 9.5 6 --
Mobile, AL................. 8 -- --
New Orleans, LA............ 9 -- --
Newport News, VA........... 5(c) -- --
Orlando, FL................ 14 -- --
Philadelphia, PA........... 9.5 7 --
Raleigh/Durham, NC......... 9.5 -- --
Savannah, GA............... 9 -- --
Tampa, FL.................. 10 -- --
Washington DC (Dulles)(d).. 6 -- 1
West Palm Beach, FL........ 9 -- 1
----- ----- --
Total...................... 159.5 24.5 15
===== ===== ==
- ---------------------
(a) Includes Air South and Kiwi. Also includes commuter affiliates of major
airlines which generally provide service with turboprop aircraft.
(b) Several major airlines operate daily flights to Chicago's O'Hare Airport
which are not reflected in the table above.
(c) Service provided by Delta to Norfolk, VA.
(d) Delta operates daily flights to Washington DC's National Airport which are
not reflected in the table above.
The Company currently intends to provide service between Atlanta and other
markets generally within a 1,000 mile radius. In the future, the Company may
add additional service between cities already served by the Company or may add
service to new markets. The Company's selection of markets depends on a number
of factors existing at the time service to such market is being considered.
Consequently, there can be no assurance that the Company will continue to
provide service to all of the markets listed above or that the Company will not
provide service to any other particular market.
With respect to the Company's one-stop service provided between markets
served on a connecting basis through Atlanta, the Company faces competition from
numerous airlines with varying degrees of flight frequency and marketing
approaches. In addition, the Company competes with numerous nonstop flights to
many of its cities from other airports in the same metropolitan areas as served
by the Company (such as Washington's National Airport and Chicago's O'Hare
Airport).
Delta Air Lines implemented a low cost operation, Delta Express, in October
1996. The initial service provided by Delta Express does not include Atlanta,
but does provide nonstop service between Orlando and markets north of Atlanta.
The identity of competing airlines and the number and character of the
flights flown changes from month to month, and while management believes
published schedules for the month of April 1997, upon which the foregoing
information was based, are representative of the competition the Company may
face, competing airlines and their flight schedules are subject to frequent
change.
The Company may also face competition from other airlines which may begin
serving any of the markets it serves or plans to serve, from new low cost
airlines that may be formed to compete in the low fare market (including any
that may be formed by other major airlines) and from ground transportation
alternatives.
-13-
<PAGE>
The most significant competitive factors among airlines are price (fare
levels), convenient departure times, flight frequency and the availability of
incentives such as a frequent flyer program. The Company currently does not
offer a frequent flyer program and typically offers limited flight frequencies.
There can be no assurances that the Company will not choose to develop a
frequent flyer program or join an existing program for competitive reasons.
Additionally, competitive factors include access to computerized reservation and
ticketing systems used by travel agents, dependability of service, name
recognition, airports served and the availability, quality and convenience of
other passenger services.
GOVERNMENT REGULATION
U.S. Department of Transportation
All interstate air carriers are subject to regulation by the DOT and the
FAA under the Federal Aviation Act of 1958, as amended (the "Aviation Act").
The DOT's jurisdiction extends primarily to the economic aspects of air
transportation, while the FAA's regulatory authority relates primarily to air
safety, including aircraft certification and operations, crew licensing and
training and maintenance standards.
In general, the amount of economic regulation over interstate air carriers
in terms of market entry and exit, pricing and inter-carrier acquisitions and
agreements has been greatly reduced subsequent to enactment of the Deregulation
Act. As a result of that change in the regulatory structure, any company's
entry into the domestic air transportation business has been greatly simplified,
and the level of post-entry regulation to which an airline is subject has been
greatly reduced.
The Company has obtained a Certificate of Public Convenience and Necessity
issued by the DOT pursuant to Section 401 of the Aviation Act. Each United
States carrier must qualify as a United States citizen, which requires that it
be organized under the laws of the United States or a state, territory or
possession thereof, that its President and at least two-thirds of its Board of
Directors and other managing officers must be comprised of United States
citizens, that not more than 25% of its voting stock may be owned by foreign
nationals, and that the carrier not be otherwise subject to foreign control.
As a result of the Company's suspension of operations on June 17, 1996, the
Company was required to apply for recertification by the DOT. The DOT issued a
"show cause" order on August 29, 1996, reflecting its preliminary determination
that the Company had satisfied the DOT requirements and issued its final order
on September 26, 1996, approving its return to service.
In January 1996, the Department of Transportation requested comments on the
application of air carrier passenger notice requirements to ticketless air
travel. Comments were sought on whether passengers who do not receive a ticket
should nonetheless receive a document containing various notices, including
oversales and denied boarding compensation, domestic and international baggage
liability, contract of carriage terms, refund penalties and international
death/injury liability limitations, that are currently provided with, and most
commonly printed on the back of, passengers' tickets. If adopted, such a
requirement could increase the cost and adversely affect the operational
efficiency of the Company's ticketless travel approach.
U.S. Federal Aviation Administration
The Company has also obtained an operating certificate issued by the FAA
pursuant to Part 121 of the Federal Aviation Regulations. The Company's
operating certificate was surrendered to the FAA in connection with the consent
order dated June 17, 1996 and returned to the Company on August 29, 1996, after
the Company satisfied the requirements of the FAA in the consent order. Under
the consent order, increases in the number of aircraft are subject to FAA
approval.
The FAA has jurisdiction over the regulation of flight operations
generally, including the licensing of pilots and maintenance personnel, the
establishment of minimum standards for training and maintenance and
-14-
<PAGE>
technical standards for flight, communications and ground equipment. As
required, the Company has effective FAA certificates of airworthiness for all of
its aircraft. The Company's flight personnel, flight and emergency procedures,
aircraft and maintenance facilities are subject to periodic inspections and
tests by the FAA. The Company's director of safety and regulatory compliance
acts as a liaison between the Company and the FAA, implementing any changes
requested by the FAA with respect to operating procedures or training programs
and generally ensuring proper compliance with aviation regulations applicable to
the Company.
The DOT and FAA also have authority under the Aviation Safety and Noise
Abatement Act of 1979, as amended, under the Airport Noise and Capacity Act of
1990 ("ANCA") and, along with the Environmental Protection Agency, under the
Clean Air Act to monitor and regulate aircraft engine noise and exhaust
emissions. To the Company's knowledge, the Company's aircraft comply with all
applicable FAA noise control regulations (except as indicated below) and with
current emissions standards.
ANCA requires the phase-out of Stage 2 airplanes (which meet less stringent
noise emission standards than later Stage 3 airplanes) in the contiguous 48
states by December 31, 1999. In September 1991, the FAA promulgated final rules
establishing interim compliance dates of December 31, 1994, December 31, 1996
and December 31, 1998 for phasing out Stage 2 aircraft. As of March 21, 1997,
the Company's aircraft on its operating specifications consisted of 24 aircraft,
15 of which comply with Stage 3. Therefore, the Company must take action to
continually assure that its fleet will be in compliance with ANCA.
Miscellaneous
All international service is subject to the regulatory requirements of the
appropriate authorities of the other country involved. The Company does not
currently provide any international service.
All air carriers are subject to certain provisions of the Communications
Act of 1934, as amended, because of their extensive use of radio and other
communication facilities, and are required to obtain an aeronautical radio
license from the Federal Communications Commission ("FCC"). To the extent the
Company is subject to FCC requirements, it has taken and will continue to take
all necessary steps to comply with those requirements.
The Company's operations may become subject to additional federal
regulatory requirements in the future under certain circumstances. The
Company's labor relations are covered under Title II of the Railway Labor Act of
1926, as amended, and are subject to the jurisdiction of the National Mediation
Board. During a period of past fuel scarcity, air carrier access to jet fuel
was subject to allocation regulations promulgated by the Department of Energy.
To the extent the Company seeks to provide international air transportation in
the future, it will be required to obtain additional authority from the DOT and
become subject to regulatory requirements imposed by affected foreign
jurisdictions. The Company is also subject to state and local laws and
regulations at locations where it operates and the regulations of various local
authorities that operate the airports it serves.
ITEM 2. PROPERTY
--------
The Company leases approximately 40,500 square feet of office space at its
principal address for general corporate and operational use (including Atlanta
reservations) under a lease which expires September 30, 1999 and the Company
also leases approximately 15,000 square feet of space for use as a training
center under a lease that expires August 31, 1999. The Company has signatory
status on a lease of facilities at the Atlanta Airport, which lease expires in
the year 2010. The Company also maintains a separate reservations center in
leased premises in Savannah, Georgia (approximately 7,000 square feet) which
lease expires in January 2000 and leases additional space in Newport News,
Virginia (approximately 20,000 square feet) which lease expires in the year
2001. The Company is not currently using its leased premises in Newport News,
Virginia, and is seeking to sublease such space.
-15-
<PAGE>
The check-in counters, gates and airport office facilities at each of the
airports the Company serves are leased from the appropriate airport authority or
subleased from other airlines. Such arrangements may include baggage handling,
station operations, cleaning and other services. If such facilities at any
additional cities to be served by the Company are not available to the Company
at acceptable rates, or if such facilities become no longer available to the
Company at acceptable rates, then the Company may choose not to service such
markets.
ITEM 3. LEGAL PROCEEDINGS
-----------------
Several stockholder class action suits have been filed against the Company and
certain of its executive officers ("Defendants"). The consolidated lawsuits
discussed below seek class certification for all purchasers of stock in the
Company during periods beginning on or after June 1995 and ending on or before
June 18, 1996, and are based on allegedly misleading public statements made by
the Company or omission to disclose material facts in violation of federal
securities laws. A total of 14 stockholder lawsuits have been filed against and
served upon the Company between May 30, 1996 and July 26, 1996. Of these suits,
11 have been filed in the United States District Court for the Northern District
of Georgia and these suits have been consolidated into a single action (In re
-----
ValuJet, Inc.). Another lawsuit filed in the United States District Court for
- -------------
the Middle District of Florida has been transferred to the Northern District of
Georgia and has been consolidated into In re ValuJet, Inc. One additional class
-------------------
action stockholder lawsuit possibly has been filed but not served upon the
Defendants. All of the Defendants filed a joint Motion to Dismiss the
Consolidated Amended Complaint on December 23, 1996. The Plaintiffs' response
to this motion to Dismiss is due on May 9, 1997. On November 25, 1996,
Plaintiffs filed their Motion for Class Certification. On January 14, 1997,
Defendants filed a "Notice of Stay of Discovery and Other Proceedings", in which
Defendants state that the filing of their Motion to Dismiss has stayed the issue
of class certification pursuant to the Private Securities Litigation Reform Act.
By consent of the parties, Defendants are not currently obligated to respond to
Plaintiffs' Motion for Class Certification, and if the Court decides that the
issue of class certification is not stayed by the Private Securities Litigation
Reform Act, the Defendants have 30 days from the date of such decision to
respond to Plaintiffs' Motion for Class Certification. Two suits (Cohen et al.
------------
v. ValuJet, Inc., et al. and Hepler et al. v. ValuJet, Inc. et al.) have been
- ------------------------ -------------------------------------
filed in the State Court of Fulton County, Georgia. On December 23, 1996, all
Defendants in both actions, other than SabreTech, Inc., answered the Complaint
and filed a Motion to Dismiss the Complaint. Additionally, Defendant Timothy
Flynn filed a Motion to Dismiss for lack of personal jurisdiction. By consent
of the parties, the Plaintiffs have until May 9, 1997, to respond to these
motions to dismiss. Although the Company denies that it has violated any of its
obligations under the federal securities laws and believes that meritorious
defenses exist in the lawsuits, there can be no assurance that the Company will
not sustain material liability under such or related lawsuits.
Numerous lawsuits have been filed against the Company seeking damages
attributable to the deaths of those on Flight 592, and additional lawsuits are
expected. Thus far,approximately 50 such lawsuits have been filed against
ValuJet Airlines, Inc. prior to March 15, 1997. Most of the cases were
initially removed to the federal court. That court, however, remanded the
majority of the actions to the state courts from which they originated and
retained jurisdiction over only seven cases. As a consequence, most of the
cases will proceed in state courts in Florida and Georgia. In 36 of these
lawsuits, SabreTech, Inc. has been named as a co-defendant as a result of the
role that the maintenance contractor played in the accident. The Company's
insurance carrier has assumed defense of these suits under a reservation of
rights and has settled and paid approximately 15 claims as of March 21, 1997,
and is pursuing settlements in the balance of the claims. The Company maintains
a $750 million policy of liability insurance per occurrence. The Company
believes that the coverage will be sufficient to cover all claims arising from
the accident.
On August 30, 1996, Metropolitan Nashville Airport Authority filed suit
against the Company in State Court in Tennessee for breach of contract and a
declaratory judgment for an anticipatory breach. The Nashville Airport
Authority seeks damages of approximately $2.6 million. The dispute involves
whether the Company was entitled to exercise a termination right contained in
its lease agreement.
-16-
<PAGE>
Kiwi Airlines has brought suit against ValuJet Airlines, Inc. in the
Bankruptcy Court in the District of New Jersey claiming damages attributable to
the breach by ValuJet Airlines, Inc. of certain obligations under an agreement
under which Kiwi was to operate certain flights on behalf of the Company in
December 1996 and January 1997. The parties have agreed to a settlement of the
dispute, subject to Bankruptcy Court approval.
On October 21, 1995, the Association of Flight Attendants ("AFA") filed suit
in federal court alleging that the Company had violated the Railway Labor Act by
terminating between 20 and 40 flight attendants for engaging in protected union
activities associated with the AFA's organizing drive. The Company believes
that it has not wrongfully terminated any of these flight attendants. By order
dated January 30, 1996, the court struck AFA's demands for jury trial, punitive
damages and attorneys' fees. During the course of discovery, the number of
plaintiffs in the case has been reduced to the AFA and five individuals.
In November 1995, the Company filed suit against Delta and TWA in federal
district court alleging violations of the antitrust laws and, regarding TWA,
breaches of contract, arising from the Company's attempt to obtain slots to
conduct flight operations at New York's LaGuardia Airport. Preliminary
injunctive relief was denied, and the parties have since been involved in
discovery. The court granted TWA's motion for summary judgment on contract and
conspiracy claims, but has not entered such judgment, and TWA has remained a
party. Trial is currently set for fall 1997.
From time to time, the Company is engaged in litigation arising in the
ordinary course of its business. The Company does not believe that any such
pending litigation will have a material adverse effect on its results of
operations or financial condition.
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
-------------------------------------------------
No matter was submitted during the fourth quarter of the fiscal year covered
by this Report to a vote of security holders of the Company through the
solicitation of proxies or otherwise.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
-------------------------------------------------
STOCKHOLDER MATTERS
-------------------
Market Information
- ------------------
The Company's Common Stock, $.001 par value, is traded on the NASDAQ Stock
Market under the symbol "VJET." As of March 19, 1997, there were approximately
4,294 holders of record of the Company's Common Stock. The following table sets
forth the reported high and low sale prices for the Common Stock for each fiscal
quarter since January 1, 1995.
Fiscal year ended
December 31, 1995 High Low
----------------- ------ ------
Quarter Ending March 31, 1995 $12.63 $ 4.75
Quarter Ending June 30, 1995 $17.94 $12.00
Quarter Ending September 30, 1995 $18.06 $13.31
Quarter Ending December 31, 1995 $34.75 $15.94
-17-
<PAGE>
Fiscal year ended
December 31, 1996 High Low
----------------- ------ ------
Quarter Ending March 31, 1996 $27.63 $18.50
Quarter Ending June 30, 1996 $27.50 $ 4.50
Quarter Ending September 30, 1996 $14.00 $ 8.38
Quarter Ending December 31, 1996 $12.25 $ 5.94
As of March 10, 1997, the closing price of the Common Stock was $8.375.
All stock prices have been adjusted to give effect to the two separate 2-for-
1 stock splits paid in April 1995 and November 1995.
Dividends
- ---------
No cash dividends have ever been declared by the Company on its Common Stock.
The Company intends to retain earnings to finance the development and growth of
its business. Accordingly, the Company does not anticipate that any dividends
will be declared on its Common Stock for the foreseeable future. Future
payments of cash dividends, if any, will depend on the Company's financial
condition, results of operations, business conditions, capital requirements,
restrictions contained in agreements, future prospects and other factors deemed
relevant by the Company's Board of Directors.
ITEM 6. SELECTED FINANCIAL DATA
-----------------------
The information required by this Item is as follows:
(in thousands except per share data)
<TABLE>
<CAPTION>
1996 1995 1994 1993
--------------------------------------------------
<S> <C> <C> <C> <C>
Operating revenues $219,636 $367,757 $133,901 $ 5,811
Net income (loss) (41,469) 67,763 20,732 (894)
Earnings (loss) per
share * (0.76) 1.13 0.44 (0.03)
Total assets 417,187 346,741 173,039 30,264
Long-term debt including current
maturities 244,706 109,038 46,965 10,398
</TABLE>
* See Note 1 of Notes to Consolidated Financial Statements
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS
---------------------
RESULTS OF OPERATIONS
The following chart indicates the service offered by the Company from January
1995 through December 1996:
-18-
<PAGE>
<TABLE>
<CAPTION>
Number/
As of Total Number Number of Peak Cities
Quarter End of Aircraft Day Flights Served
----------- ------------ ------------- --------------------------------------
<S> <C> <C> <C>
March 1995 27 184 23
June 1995 28 208 24
September 1995 34 228 26
December 1995 42 268 26
March 1996 47 286 28
June 1996 51 0 Service suspended to all markets as of
June 17, 1996
September 1996 46* 16 Service resumed on September 30, 1996
to Atlanta, Fort Lauderdale, Orlando,
Tampa, Washington, D.C.
December 1996 43** 124 18
</TABLE>
* Of which 4 had been approved for service by the FAA
** Of which 15 had been approved for service by the FAA
On May 11, 1996, ValuJet tragically lost its flight 592 en route from Miami
to Atlanta. There were no survivors. The accident resulted in extensive media
coverage calling into question the safety of low-fare airlines in general and
the Company in particular. In response to the accident, the FAA conducted an
extraordinary review of the Company's operations.
On June 17, 1996, the Company entered into a consent order with the FAA under
which: (i) the Company agreed to suspend operations until such time as the
Company was able to satisfy the FAA as to various regulatory compliance concerns
identified by the FAA as a result of its intensive inspections of the Company's
operations, (ii) the FAA agreed to work with the Company in order to reestablish
operations with up to 15 aircraft initially, and (iii) the Company paid $2
million to the FAA to compensate it for the costs of the special inspections
conducted. In order to reduce costs while the Company prepared its plan to
restore service, the Company furloughed more than 90% of its personnel
(approximately 3,600 of 4,000) for several weeks.
On August 29, 1996, the FAA returned the Company's operating certificate and
the Department of Transportation ("DOT") issued a "show cause" order regarding
the Company's fitness as an air carrier. The DOT gave its final approval on
September 26, 1996, and the Company resumed operations with service between
Atlanta and four other cities on September 30, 1996.
Other effects of the accident, ensuing FAA inspections, media coverage and
suspension of operations include:
1. The suspension of operations has resulted in the failure of the Company
to meet certain financial covenants under certain of the Company's secured debt.
See Liquidity and Capital Resources below for further discussion.
-19-
<PAGE>
2. The expansion of the Company's operations will likely be subject to FAA
and DOT approval for an indefinite period of time.
3. The Company is unable to predict how significantly the accident and
suspension of operations will affect load factors and yield or the length of
time load factors and yield will be impacted.
4 The Company has sold certain of its aircraft and has assigned its
rights to purchase certain aircraft previously under contract. In addition, the
Company plans to lease out or sell some of its other aircraft.
5. In 1996, the Company refunded fares paid by customers affected by the
Company's changing schedules and by those who otherwise chose to change their
travel plans.
6. The Company's cost per ASM has increased and is likely to remain
inflated to some extent to reflect the cost of additional maintenance procedures
and infrastructure adopted by the Company and lower aircraft utilization levels.
7. The Company may reduce its workforce permanently if reduced traffic
levels continue and the Company is unable to reestablish its previous service
levels.
8. The aircraft lost was insured for $4.0 million which was in excess of
book value. The Company carries $750 million of liability insurance. Although
the Company believes that such insurance will be sufficient to cover all claims
arising from the accident, there can be no assurance that all claims will be
covered or that the aggregate of all claims will not exceed such insurance
limits.
9. Several stockholder lawsuits have been filed against the Company and
certain of its officers and directors alleging, among other things, violation of
federal securities laws. While the Company denies that it has violated any of
its obligations under the federal securities laws and believes that the lawsuits
do not have any merit, there can be no assurance that the Company will not
sustain material liability under such or related lawsuits.
10. Various governmental authorities are conducting investigations of the
circumstances surrounding the accident. The Company is cooperating with the
authorities in connection with these investigations.
In light of these factors, persons investing in the securities of the Company
should be apprised of the following additional risks:
1. The suspension of operations has resulted in the failure of the Company
to meet certain financial covenants (the fixed charge coverage ratio) under
certain of the Company's secured debt. This could result in the acceleration of
such debt and a reduction in the Company's cash position. If the Company does
not timely repay all indebtedness accelerated or if the Company's other secured
lenders or the holders of the Company's 10 1/4 % senior notes seek to accelerate
their debt as a result of such accelerations, then a substantial portion or all
of the Company's debt could be accelerated. The Company does not have
sufficient cash to satisfy all of its debt at this time.
2. There is no assurance that the Company will recover sufficient customer
acceptance in order to regain profitability.
3. If the Company regains profitability, there may be reduced customer
support which could decrease the Company's profitability indefinitely.
4. The expansion of the Company's operations will likely be subject to FAA
and DOT approval for an indefinite period of time.
-20-
<PAGE>
5. Although preliminary information indicates no connection, if the
National Transportation Safety Board (NTSB) were to determine that the Company's
maintenance procedures or aging aircraft contributed to the cause of the
accident, such determination could also have a substantial adverse effect on the
Company's future operations.
6. The occurrence of one or more subsequent incidents by the Company's
aircraft could likely have a substantial adverse effect on the Company's public
perception and future operations.
As a result of the accident, the ensuing extraordinary review of the
Company's operations by the FAA and the suspension of operations in June 1996
and the current and prospective FAA imposed limitation on the number of aircraft
that may be operated by the Company, the Company's results for periods prior to
May 11, 1996 are not necessarily reflective of the results to be expected in
future periods. The Company's operations for 1996 are also not reflective of
future operations as a result of the suspension of operations for a significant
portion of 1996. The following is a description of the costs incurred by
category for the year ended December 31, 1996 compared to year-ends December 31,
1995 and 1994.
<TABLE>
<CAPTION>
Year Ended December 31, 1994 Year Ended December 31, 1995
---------------------------------- --------------------------------
% of % of
Amount revenues Per ASM Amount revenues Per ASM
-------- -------- ------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
OPERATING REVENUES $133,901 100.0% 9.05c $367,757 100.0% 9.62c
EXPENSE CATEGORY
Flight Operations $ 6,967 5.2% 0.47 $ 16,273 4.4% 0.42
Aircraft Fuel 21,775 16.3% 1.47 55,813 15.2% 1.46
Maintenance 14,862 11.1% 1.00 47,330 12.9% 1.24
Station Operations 20,198 15.1% 1.37 49,931 13.6% 1.31
Passenger Services 3,942 2.9% 0.27 10,363 2.8% 0.27
Marketing and Advertising 6,546 4.9% 0.44 8,989 2.4% 0.23
Sales and Reservations
General and Administrative 11,325 8.5% 0.77 31,156 8.5% 0.81
Employee Bonuses 5,146 3.8% 0.35 14,382 3.9% 0.38
Depreciation 3,555 2.7% 0.24 15,147 4.1% 0.40
Other expenses (income),
net 965 0.7% 0.06 (70) 0.0% (0.00)
Shutdown and Other
Nonrecurring 0 0.0% 0.00 0 0.0% 0.00
-------- -------- ----- -------- ----- -----
Total Expenses $100,320 75.0% 6.78c $259,931 70.7% 6.80c
</TABLE>
-21-
<PAGE>
Year Ended December 31, 1996
-----------------------------
% of
Amount revenues Per ASM
------ -------- -------
OPERATING REVENUES $219,636 100.0% 8.12c
EXPENSE CATEGORY
Flight Operations $ 16,479 7.5% 0.61
Aircraft Fuel 46,691 21.3% 1.73
Maintenance 49,500 22.5% 1.83
Station Operations 42,018 19.1% 1.55
Passenger Services 8,879 4.0% 0.33
Marketing and Advertising 8,426 3.8% 0.31
Sales and Reservations 18,378 8.4% 0.68
General and Administrative 13,659 6.2% 0.51
Employee Bonuses 1,245 0.6% 0.05
Depreciation 17,551 8.0% 0.65
Other expenses (income), net (5,252) -2.4% (0.19)
Shutdown and Other Nonrecurring 67,994 31.0% 2.51
-------- ------- -----
Total Expenses $285,568 130.0% 10.57c
Operating revenues
Total operating revenues for the year ended December 31, 1996 were
approximately $219.6 million as compared to $367.8 million and $133.9 million
for the years ending December 31, 1995 and 1994, respectively. The decrease from
1995 to 1996 is a result of the Company's reduced service level and suspension
of operations during the second and third quarters of 1996. The increase over
1994 is due to the Company flying more available seat miles (ASMs) during 1996.
The Company flew 2.7 billion ASMs in 1996 as compared to 3.8 billion and 1.5
billion in 1995 and 1994, respectively. The Company's load factors for 1996,
1995 and 1994 were 57.1%, 68.8% and 64.0%, respectively. The lower load factor
in 1996 is due to the accident and ensuing circumstances. The Company's average
fare was $69.81 for 1996, $68.10 for 1995 and $63.48 for 1994 due to the absence
of the 10% federal excise tax for a substantial part of 1996.
Expenses
Flight operations expenses include all expenses related directly to
the operation of the aircraft other than aircraft fuel, maintenance expenses and
passenger services expenses. Expenses for hull insurance and compensation of
pilots (exclusive of bonuses) are included in flight operations. Flight
operations expenses were higher, on a per ASM basis, for year ended December 31,
1996 than the previous two years due to the extended period of time that the
Company's operations were suspended, the additional training costs incurred at
restart and the change in the Company's compensation structure in September 1996
which reduced the percentage of compensation represented by bonuses and shifted
this cost to base pay charged to each department. The cost of hull insurance
also increased substantially as of October 1, 1996. Certain flight operations
administrative costs were also incurred during the period of the suspension with
no ASMs being generated over which to spread these costs.
Aircraft fuel expenses include both the direct cost of the fuel as
well as the costs of delivering fuel into the aircraft. Fuel expense, on a per
ASM basis was higher for 1996 than either of the previous two years due to an
-22-
<PAGE>
increase in the average cost of fuel. The average cost for fuel increased from
$0.58 per gallon for 1994 to $0.60 per gallon for 1995 to $0.71 per gallon for
1996. This approximate 20% increase in the price per gallon in fuel accounts
for the 18% increase in fuel cost per ASM.
Maintenance expenses include all administrative costs of the
maintenance department as well as normal recurring maintenance performed during
the year. Expenses for engine overhaul and certain scheduled heavy maintenance
procedures are included in this cost. Most non-routine maintenance costs
performed during the suspension of operations are included in the nonrecurring
expense line item. Maintenance expenses for the year ended December 31, 1996
were higher, on a per ASM basis, than both 1995 and 1994 due to the suspension
of operations during the second and third quarters of 1996 and the reduced level
of service once the Company was able to resume operations. The Company also had
a lower utilization rate on the aircraft it operated which results in the
spreading of certain fixed costs over fewer ASMs or block hours. The Company
maintained or paid storage costs on many more aircraft than it was allowed to
operate. Certain maintenance administrative costs were also incurred during the
period of the suspension of operations with no ASMs being generated over which
to spread these costs.
Station operations expense includes all expenses incurred at the
airports, as well as station operations administration and liability insurance.
Certain facility rental expense related to non-operating stations as a result of
the suspension of operations are included in shutdown and other nonrecurring
expenses. Stations operations expenses were higher, on a per ASM basis, for the
year ended December 31, 1996 than in 1995 and 1994 due to the shutdown and the
inefficiencies generated from restarting operations on a limited basis. Many of
the station facilities were not fully utilized during the fourth quarter due to
the limited operation. Another factor which contributed to a higher 1996
station operations expense was an increase in insurance costs as of October 1,
1996. Certain station operations administrative costs were also incurred during
the period of the suspension of operations with no ASMs being generated over
which to spread these costs.
Passenger services expenses include flight attendant wages and
benefits and catering expenses. Also included are the costs for flight
attendant training and flight attendant overnight expenses. The increase in
passenger services expenses for 1996, on a per ASM basis, over 1995 and 1994 is
due to the restructuring of the compensation policy as it relates to flight
attendants. The flight attendants' salary levels were adjusted upward and the
regular quarterly bonus portion of their compensation was eliminated. This
shift caused the department expense to be higher while reducing the amount of
bonus expense.
Marketing and advertising expenses include all advertising expenses
and wages and benefits for the marketing department. Marketing and advertising
expenses for 1996, as a percentage of revenue, were higher than 1995 and lower
than 1994. These expenses were higher in 1996 than 1995 due to the additional
advertising costs incurred at the resumption of operations being spread over a
reduced revenue base caused by lower service levels and load factors. Certain
marketing administrative costs were also incurred during the period of the
suspension of operations with no ASMs being generated over which to spread these
costs.
Sales and reservations expenses include all of the costs related to
recording a sale or reservation. These expenses include wages and benefits for
reservationists, rent, telecommunication charges, credit card fees and travel
agency commissions. Sales and reservations expenses for the year ended December
31, 1996 were 8.4% of revenue as compared to 8.5 % for each of 1995 and 1994.
General and administrative expenses include the wages and benefits for
the Company's executive officers and various other administrative personnel.
Also included are costs for office supplies, legal expenses, bad debts,
accounting and other miscellaneous expenses. General and administrative costs
for 1996 were higher than each of 1995 and 1994 due to the shift in compensation
structure to one based to a larger extent on base salaries and also due to
increased legal fees.
The amount of bonus expense for the year ended December 31, 1996
reflects the change in salary structure as of September 1996 to less of a bonus
based structure and the fact that the Company had a net loss from the second
quarter 1996 through the end of the year. The amount charged to 1996
approximates the amount paid out
-23-
<PAGE>
to those employees in the quarterly pool for the first quarter of 1996. The
actual amount to be paid out and the form of such pay-out are at the sole
discretion of the Company's Board of Directors.
Depreciation expense includes depreciation on aircraft and ground
equipment, but does not include any amortization of start-up and route
development costs as all of these costs are expensed as incurred. Depreciation
expense for the year ended December 31, 1996 was higher than each of the
pervious two years as additional aircraft and other property have been acquired.
During 1996, the Company made the decision to dispose of certain idled aircraft.
Subsequent to the decision to sell or lease out such aircraft, no depreciation
was recorded on aircraft held for sale. Depreciation on aircraft idled as a
result of the suspension of operations and reduced operations and not yet
returned to service has been recorded in shutdown and other nonrecurring
expenses.
Shutdown and other nonrecurring expenses include costs associated with
the loss of Flight 592 and excess operating costs related to the reduced
schedule from May 19, 1996 to June 17, 1996, the suspension of operations from
June 17, 1996 to September 29, 1996 and the reduced schedule from September 30,
1996 to December 31, 1996. Such costs consist of expenses directly related to
the accident and the ensuing extensive FAA review of the Company's operations
including legal fees, payments to the FAA, inspection related costs and unusual
maintenance in excess of normal recurring maintenance. In addition,
depreciation on grounded aircraft, rental of abandoned or idled facilities and
costs of personnel idled as a result of the reduced and suspended operations
from May through December, 1996 are included in shutdown and other nonrecurring
expenses. Personnel costs include full wages, salaries and benefits that were
provided to idled employees during the reduction and suspension of operations.
A summary of such costs is as follows:
Maintenance $27,750,000
Legal and other consulting 8,843,000
Facilities rental 6,114,000
Wages, salaries and benefits, excluding maintenance 4,895,000
Depreciation 11,054,000
FAA remediation 2,000,000
Other 7,338,000
-----------
$67,994,000
===========
The Company also expects to incur additional shutdown and nonrecurring
expenses in the first and second quarters of 1997 as a result of idled aircraft
and facilities due to the reduced level of service attributable to the Company's
agreement with the FAA.
No accrual was provided for costs to be incurred in future periods related to
aircraft depreciation and maintenance and rental costs associated with
temporarily idled facilities as such costs will be recognized as they are
incurred. There was no accrual for salaries and wages in connection with the
furlough of employees at December 31, 1996 as such employees were paid through
June 30, 1996 with no additional severance benefits provided.
Other expenses (income), net includes interest income and interest expense as
well as certain property transactions. During the year ended December 31, 1996,
interest expense exceeded interest income by approximately $14,534,000 due to
increasing debt levels attributable to the acquisition of aircraft and the
completion of the issuance of $150 million 10 1/4 % Senior Notes due 2001.
During 1996, the Company also recognized $13.0 million of income as an
arrangement fee for aircraft transfers, a $2.8 million gain from insurance
recovery and a $3.9 million gain on the sale of aircraft.
-24-
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
For the year ended December 31, 1996, the Company used cash flow from
operations of approximately $80.4 million, used cash of approximately $127.6
million to acquire property and equipment and generated cash flow from the
disposal of property and equipment of $97.6 million. Approximately $224.5
million of cash was generated from the issuance of debt which was partially
offset by debt repayments of approximately $93.0 million.
As of December 31, 1996, the Company had cash and cash equivalents of
approximately $150.0 million and working capital of approximately $168.6
million.
As of December 31, 1996, the Company's fleet consisted of 43 DC-9-30
aircraft. During the third quarter 1996, the Company sold three of its four MD-
80 aircraft and all four of its DC-9-21 aircraft, purchased two DC-9-30 aircraft
under contract and assigned its purchase rights with respect to the remaining
DC-9-30 aircraft and MD-80 aircraft under contract. The Company sold its last
remaining MD-80 aircraft and two DC-9-30 aircraft during the fourth quarter of
1996 and is actively pursuing the sale or lease of up to 13 of its surplus DC-9-
30 aircraft.
The Company has contracted with McDonnell Douglas for the purchase of 50 MD-
95 aircraft, at a cost of approximately $1.0 billion (subject to adjustments for
inflation), for delivery in 1999 to 2002. Approximately $40 million of this
amount will be paid in progress payments during 1997 and 1998. The balance of
the purchase price after all progress payments will need to be paid or financed
upon delivery of each aircraft. If the Company exercises its option to acquire
up to an additional 50 MD-95 aircraft, additional payments could be required
beginning in this period. The Company expects to finance at least 80% of the
cost of each of these aircraft. Although McDonnell Douglas has agreed to
provide assistance with respect to the financing of aircraft to be acquired, the
Company will be required to obtain the financing from other sources. The
Company believes that with the assistance to be provided by McDonnell Douglas,
aircraft related debt financing should be available when needed. There is no
assurance that the Company will be able to obtain sufficient financing on
attractive terms. If it is unable to do so, the Company could be required to
modify its aircraft acquisition plans or to incur higher than anticipated
financing costs, which could have a material adverse effect on the Company's
results of operations and cash flows.
The Company's compliance with Stage 3 noise requirements will require
substantial additional capital expenditures over the next several years. By
December 31, 1999, all of the Company's aircraft must be brought into compliance
with Stage 3 requirements. The Company intends to meet its Stage 3 noise
requirement obligations by installing hush kits on Stage 2 aircraft, disposing
of Stage 2 aircraft and acquiring Stage 3 aircraft. The Company expects that FAA
certified hush kits will cost approximately $2.2 million per aircraft or
approximately $55.0 million for a fleet of 25 non-hushed DC-9-32 aircraft as of
December 31, 1996. Any disposition of Stage 2 aircraft would reduce this
obligation. The Company may be able to finance a portion of the cost of these
hush kits and plans to make the balance of payments on these hush kits out of
its working capital. The Company expects to pay the debt service on such loans
out of cash flow generated from operations during the term of the financing.
The phase in period for full compliance with Stage 3 (until December 31, 1999)
and the expected terms of financing, if available, should allow the Company to
spread the payments for Stage 3 compliance over a number of years.
As of December 31, 1996, the Company's debt related to asset financing
totaled $94.7 million, with respect to which the Company's aircraft and certain
other equipment are pledged as security. The Company has purchased all of its
aircraft and, consequently, has no lease commitments relating to its aircraft
fleet. In addition, the Company has $150 million of 10 1/4 % senior unsecured
notes outstanding. The principal balance of the senior notes is due in 2001 and
interest is payable semi-annually. All of the Company's debt has final
maturities ranging from 1998 to 2006 with scheduled debt amortization
(calculated without giving effect to any prepayment that may be required as a
result of any covenant violations or sale of assets) as follows:
-25-
<PAGE>
1997--$21.5 million, 1998--$23.1 million, 1999--$20.6 million, 2000--$15.5
million, 2001--$162.9 million, 2002 and after --$1.1 million. These notes
provide for acceleration of their maturities upon certain defaults, including a
payment default or defaults resulting in an acceleration of other debt of the
Company and its subsidiaries.
Certain debt bears interest at fixed rates ranging from 7.43% to 10.18% per
annum and is repayable in consecutive monthly or quarterly installments over a
four- to five-year period. Certain other notes with an aggregate unpaid
principal balance of approximately $14.3 million as of December 31, 1996 have a
variable rate of interest based on the London interbank offered rate (LIBOR)
plus 1.85% to 3% (1.85% at December 31, 1996 and December 31, 1995) based on the
Company's compliance with specific financial ratios concerning leverage and
fixed charge coverage. Certain other notes have a variable rate of interest
based on LIBOR plus 1.20% to 2.75%.
A substantial portion of the secured notes require prepayment if specific
financial ratios (concerning debt to equity, net worth, fixed charge coverage
and current ratio) are not maintained. Of the $94.7 million principal amount of
secured debt as of December 31, 1996, there is debt with a principal balance of
approximately $66.1 million subject to loan agreements with financial covenants.
As of December 31, 1996, the Company was in violation of the fixed charge
coverage ratio with seven lenders on approximately $66.1 million of debt. The
Company has subsequently executed agreements with six of the seven affected
lenders for the waiver or reset of this financial test for the fourth quarter of
1996 and each quarter in 1997. The remaining lender represents approximately
$19.0 million in outstanding debt, which has been classified as current
maturities or debt on assets held for disposition, where appropriate, until such
time as an agreement is completed. The Company expects to continue negotiations
with this lender in an effort to reach a waiver agreement and avoid a prepayment
event or acceleration of debt. There can be no assurance that such negotiations
will be successful. The Company continues to meet all of its debt payment
obligations on time.
If the Company is unable to successfully negotiate waivers or forbearance
from its secured lender with financial covenants who has yet to agree to a
waiver and if such lender demands prepayment of debt, then the Company will be
required to prepay such debt within a short period of time. If the Company
fails to do so, then such secured lender would have the right to foreclose upon
the aircraft securing such debt and other debt holders of the Company (including
holders of the unsecured Company's 10 1/4 % senior notes) would have the right
to accelerate the Company's debt. Based on the language of the Indenture
governing the Company's 10 1/4 % senior notes, the Company believes that the
holders of the senior notes would not have the right to accelerate the senior
notes if the Company pays off debt within the time provided after acceleration
upon the occurrence of a prepayment event (such as the failure to satisfy a
financial covenant).
Although the Company has sufficient cash assets to pay its recurring
obligations and debt service for an extended period of time, the Company's
failure to resume profitable operations may result in defaults under the
Company's secured debt and the acceleration of the Company's debt. In such
event, there can be no assurance that the Company would be able to satisfy all
of its obligations on a timely basis.
As a result of the accident and suspension of operations, several class
action suits have been filed by stockholders against the Company and various
officers and directors alleging, among other things, misrepresentations under
applicable securities laws. The plaintiffs seek unspecified damages based upon
the decrease in market value of shares of the Company's stock. Although
management of the Company intends to defend these actions vigorously and
believes that the suits are without merit, any litigation contains elements of
uncertainty and there can be no assurance that the Company will not sustain
material liability under such or related lawsuits.
Numerous lawsuits have also been filed against the Company seeking damages
attributable to the deaths of those on Flight 592, and additional lawsuits are
expected. The Company's insurance carrier has assumed defense of these lawsuits
under a reservation of rights. As all claims are handled independently by the
Company's insurance carrier, the Company cannot reasonably estimate the amount
of liability which might finally exist. As a result, no accruals for losses and
the related claim for recovery from the Company's insurance carrier have been
reflected in the Company's financial statements. The Company maintains $750
-26-
<PAGE>
million of liability insurance per occurrence with a major group of independent
insurers that provide facilities for all forms of aviation insurance for many
major airlines. Although the Company believes, based on the information
currently available to it, that such coverage is sufficient to cover claims
associated with this accident and that the insurers have sufficient financial
strength to pay claims, there can be no assurance that the total amount of
judgments and settlements will not exceed the amount of insurance available
therefore or that all damages awarded will be covered by insurance.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
-------------------------------------------
The response to this Item is submitted as a separate section of this report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
------------------------------------------------
ACCOUNTING AND FINANCIAL DISCLOSURE
-----------------------------------
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
--------------------------------------------------
The information required by this Item is incorporated herein by reference to
the data under the heading "ELECTION OF DIRECTORS" in the Proxy Statement to be
used in connection with the solicitation of proxies for the Company's annual
meeting of Stockholders to be held May 21, 1997, which Proxy Statement is to be
filed with the Commission.
ITEM 11. EXECUTIVE COMPENSATION
----------------------
The information required by this Item is incorporated herein by reference to
the data under the heading "EXECUTIVE COMPENSATION" in the Proxy Statement to be
used in connection with the solicitation of proxies for the Company's annual
meeting of Stockholders to be held May 21, 1997, which Proxy Statement is to be
filed with the Commission.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
--------------------------------------------------------------
The information required by this Item is incorporated herein by reference to
the data under the heading "VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF" in
the Proxy Statement to be used in connection with the solicitation of proxies
for the Company's annual meeting of Stockholders to be held May 21, 1997, which
Proxy Statement is to be filed with the Commission.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
----------------------------------------------
The information required by this Item is incorporated herein by reference to
the data under the heading "CERTAIN TRANSACTIONS" in the Proxy Statement to be
used in connection with the solicitation of proxies for the Company's annual
meeting of Stockholders to be held May 21, 1997, which Proxy Statement is to be
filed with the Commission.
-27-
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
----------------------------------------------------------------
(a)
l. The response to this portion of Item 14 is submitted as a
separate section of this report.
2. The response to this portion of Item 14 is submitted as a
separate section of this report.
3. Filing of Exhibits:
Exhibit 11 - Statement Re: Computation of Per Share Earnings
Exhibit 23 - Consent of Independent Auditors
Exhibit 27 - Financial Data Schedule
(b) The Registrant did not file any current reports on Form 8-K during the
fourth quarter 1996.
(c) The following exhibits are filed herewith or incorporated by reference as
indicated. Exhibit numbers refer to Item 60l of Regulation S-K.
Exhibit No. and Description
---------------------------
3.1 Articles of Incorporation. (1)
3.2 Bylaws. (As amended on December 12, 1996).
3.3 Agreement and Plan of Merger among the Registrant, ValuJet
Airlines, Inc. and VJET Acquisition, Inc. (1)
4.1 See the Articles of Incorporation filed as Exhibit 3.1 and Bylaws
filed as Exhibit 3.2. (1)
4.2 Form of Unit Purchase Agreement signed by investors in Preferred
Stock private placement. (2)
4.3 Form of Unit Purchase Agreement signed by investors in Common
Stock private placement. (2)
4.4 Investor Rights Agreement dated September 30, 1993 among ValuJet
Airlines, Inc. and investment funds managed by Montgomery Asset
Management, L.P. (1)
10.1 Aircraft Sale and Loan Agreement dated August 25, 1993, between
ValuJet Airlines, Inc. and McDonnell Douglas Corporation. (2)
10.2 Employment Agreement dated September 1, 1993, between ValuJet
Airlines, Inc. and Robert L. Priddy. (2)(3)
10.3 Employment Agreement dated June 1, 1993, between ValuJet Airlines,
Inc. and Lewis H. Jordan. (2)(3)
10.4 Letter Agreement dated July 26, 1993, between ValuJet Airlines,
Inc. and Lewis H. Jordan amending Employment Agreement. (2)(3)
10.5 Incentive Stock Option Agreement dated June 1, 1993, between
ValuJet Airlines, Inc. and Lewis H. Jordan. (2)(3)
10.6 ValuJet Airlines, Inc. 1993 Incentive Stock Option Plan. (2)(3)
10.7 ValuJet Airlines, Inc. 1994 Stock Option Plan. (2)(3)
10.8 Agreement dated May 5, 1994, between ValuJet Airlines, Inc. and
McDonnell Douglas Corporation. (2)
10.9 Director Noncompete Agreement dated as of May 18, 1994, between
ValuJet Airlines, Inc. and Timothy P. Flynn. (2)(3)
10.10 Director Noncompete Agreement dated as of May 18, 1994, between
ValuJet Airlines, Inc. and Don L. Chapman. (2)(3)
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<PAGE>
10.11 Hush Kit Purchase and Aircraft Modification Contract dated as of
June 1, 1994, between ABS Partnership and ValuJet Airlines,
Inc. (4)
10.12 DC-9-32 Hushkit Financing Facility dated December 2, 1994. (5)
10.13 Form of Debt Participation Agreement among ValuJet Airlines,
Inc., McDonnell Douglas Finance Corporation, SouthTrust Bank of
Georgia, N.A. and First Security Bank of Utah, N.A. (5)
10.14 Form of Debt Participation Agreement among ValuJet Airlines,
Inc., McDonnell Douglas Finance Corporation, NationsBank of
Georgia, N.A. and First Security Bank of Utah, N.A. (5)
10.15 Form of Debt Participation Agreement among ValuJet Airlines,
Inc., McDonnell Douglas Finance Corporation, certain lenders
and First Security Bank of Utah, N.A. (5)
10.16 ValuJet Airlines, Inc. 401(k) Plan Adoption Agreement. (5)
10.17 ValuJet Airlines, Inc. 1995 Employee Stock Purchase Plan. (6)
10.18 Purchase Agreement between McDonnell Douglas Corporation and
ValuJet Airlines, Inc. dated December 6, 1995. (7)
10.19 Agreement and Lease of Premises Central Passenger Terminal
Complex Hartsfield Atlanta International Airport. (7)
10.20 Indenture dated as of April 17, 1996, among the Company, its
subsidiaries and Bank of Montreal Trust Company, as Trustee. (8)
10.21 Exchange and Registration Rights Agreement dated as of April 17,
1996, between the Company and Goldman, Sachs & Co. (8)
10.22 Consent Order in the Matter of ValuJet Airlines, Inc. with
United States Department of Transportation, Federal Aviation
Administration. (9)
10.23 ValuJet, Inc. 1996 Stock Option Plan.
10.24 Employment letter dated October 28, 1996, between ValuJet
Airlines, Inc. and D. Joseph Corr. (3)
21 Subsidiaries of the Registrant.
- ---------------------
(1) Incorporated by reference to the Company's Registration Statement on Form
S-4, registration number 33-95232, filed with the Commission on August 1,
1995, and amendments thereto.
(2) Incorporated by reference to the Company's Registration Statement on Form
S-1, registration number 33-78856, filed with the Commission on May 12,
1994, and amendments thereto.
(3) Management contract or compensation plan or arrangement required to be
filed as an exhibit to this Report on Form 10-K pursuant to Item 14(c) of
Form 10-K.
(4) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1994, Commission file number 0-24164, filed
with the Commission on August 4, 1994.
(5) Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994, Commision file No. 0-24164, filed with
the Commision on March 31, 1995, and amendment thereto.
(6) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995, Commision file No. 0-24164, filed with
the Commision on August 11, 1995.
(7) Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, Commission File No. 0-26914, filed with
the Commission on March 29, 1996.
(8) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1996, Commission file No. 0-26914, filed
with the Commission on May 3, 1996.
-29-
<PAGE>
(9) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, Commission file No. 0-26914, filed
with the Commission on August 14, 1996.
(d) Financial Statement Schedules - The response to this portion of Item 14
is submitted as a separate section of this report.
-30-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section l3 or l5(d) of the Securities
Exchange Act of l934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
VALUJET, INC.
By: /s/ Robert L. Priddy
-----------------------------------------
Robert L. Priddy, Chairman of the Board
Date: March 28, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
/s/ Robert L. Priddy March 28, 1997
- ----------------------------------------------
Robert L. Priddy, Chairman of the Board (Chief
Executive Officer) and Director
/s/ Lewis H. Jordan March 28, 1997
- -----------------------------------------------
Lewis H. Jordan, President (Chief Operating Officer)
and Director
/s/ Stephen C. Nevin March 28, 1997
- -----------------------------------------------
Stephen C. Nevin, Senior Vice President - Finance
(Principal Financial Officer)
/s/ Michael D. Acks March 28, 1997
- -----------------------------------------------
Michael D. Acks, Controller (Principal
Accounting Officer)
[SIGNATURES CONTINUED ON NEXT PAGE]
-31-
<PAGE>
/s/ Maurice J. Gallagher, Jr. March 28, 1997
- -----------------------------------------------
Maurice J. Gallagher, Jr., Director
/s/ Timothy P. Flynn March 28, 1997
- -----------------------------------------------
Timothy P. Flynn, Director
March __, 1997
- -----------------------------------------------
Don L. Chapman, Director
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<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. and Description
---------------------------
3.1 Articles of Incorporation. (1)
3.2 Bylaws. (As amended on December 12, 1996).
3.3 Agreement and Plan of Merger among the Registrant, ValuJet
Airlines, Inc. and VJET Acquistion, Inc. (1)
4.1 See the Articles of Incorporation filed as Exhibit 3.1 and Bylaws
filed as Exhibit 3.2. (1)
4.2 Form of Unit Purchase Agreement signed by investors in Preferred
Stock private placement. (2)
4.3 Form of Unit Purchase Agreement signed by investors in Common
Stock private placement. (2)
4.4 Investor Rights Agreement dated September 30, 1993 among ValuJet
Airlines, Inc. and investment funds managed by Montgomery Asset
Management, L.P.(1)
10.1 Aircraft Sale and Loan Agreement dated August 25, 1993, between
ValuJet Airlines, Inc. and McDonnell Douglas Corporation. (2)
10.2 Employment Agreement dated September 1, 1993, between ValuJet
Airlines, Inc. and Robert L. Priddy. (2)(3)
10.3 Employment Agreement dated June 1, 1993, between ValuJet Airlines,
Inc. and Lewis H. Jordan. (2)(3)
10.4 Letter Agreement dated July 26, 1993, between ValuJet Airlines,
Inc. and Lewis H. Jordan amending Employment Agreement. (2)(3)
10.5 Incentive Stock Option Agreement dated June 1, 1993, between
ValuJet Airlines, Inc. and Lewis H. Jordan. (2)(3)
10.6 ValuJet Airlines, Inc. 1993 Incentive Stock Option Plan. (2)(3)
10.7 ValuJet Airlines, Inc. 1994 Stock Option Plan. (2)(3)
10.8 Agreement dated May 5, 1994, between ValuJet Airlines, Inc. and
McDonnell Douglas Corporation. (2)
10.9 Director Noncompete Agreement dated as of May 18, 1994, between
ValuJet Airlines, Inc. and Timothy P. Flynn. (2)(3)
10.10 Director Noncompete Agreement dated as of May 18, 1994, between
ValuJet Airlines, Inc. and Don L. Chapman. (2)(3)
10.11 Hush Kit Purchase and Aircraft Modification Contract dated as of
June 1, 1994, between ABS Partnership and ValuJet Airlines,
Inc.(4)
10.12 DC-9-32 Hushkit Financing Facility dated December 2, 1994. (5)
10.13 Form of Debt Participation Agreement among ValuJet Airlines,
Inc., McDonnell Douglas Finance Corporation, SouthTrust Bank of
Georgia, N.A. and First Security Bank of Utah, N.A. (5)
10.14 Form of Debt Participation Agreement among ValuJet Airlines,
Inc., McDonnell Douglas Finance Corporation, NationsBank of
Georgia, N.A. and First Security Bank of Utah, N.A. (5)
10.15 Form of Debt Participation Agreement among ValuJet Airlines,
Inc., McDonnell Douglas Finance Corporation, certain lenders and
First Security Bank of Utah, N.A. (5)
10.16 ValuJet Airlines, Inc. 401(k) Plan Adoption Agreement. (5)
10.17 ValuJet Airlines, Inc. 1995 Employee Stock Purchase Plan. (6)
10.18 Purchase Agreement between McDonnell Douglas Corporation and
ValuJet Airlines, Inc. dated December 6, 1995. (7)
10.19 Agreement and Lease of Premises Central Passenger Terminal
Complex Hartsfield Atlanta International Airport. (7)
-33-
<PAGE>
10.20 Indenture dated as of April 17, 1996, among the Company, its
subsidiaries and Bank of Montreal Trust Company, as Trustee. (8)
10.21 Exchange and Registration Rights Agreement dated as of April 17,
1996, between the Company and Goldman, Sachs & Co. (8)
10.22 Consent Order in the Matter of ValuJet Airlines, Inc. with
United States Department of Transportation, Federal Aviation
Administration. (9)
10.23 ValuJet, Inc. 1996 Stock Option Plan.
10.24 Employment letter dated October 28, 1996, between ValuJet
Airlines, Inc. and D. Joseph Corr. (3)
11 Statement Re: Computation of Per Share Earnings.
21 Subsidiaries of the Registrant.
23 Consent of Independent Auditors.
27 Financial Data Schedule
___________________________________
(1) Incorporated by reference to the Company's Registration Statement on Form
S-4, registration number 33-95232, filed with the Commission on August 1,
1995, and amendments thereto.
(2) Incorporated by reference to the Company's Registration Statement on Form
S-1, registration number 33-78856, filed with the Commission on May 12,
1994, and amendments thereto.
(3) Management contract or compensation plan or arrangement required to be
filed as an exhibit to this Report on Form 10-K pursuant to Item 14(c) of
Form 10-K.
(4) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1994, Commission file number 0-24164, filed
with the Commission on August 4, 1994.
(5) Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994, Commision file No. 0-24164, filed with
the Commision on March 31, 1995, and amendment thereto.
(6) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995, Commision file No. 0-24164, filed with
the Commision on August 11, 1995.
(7) Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, Commission File No. 0-26914, filed with
the Commission on March 29, 1996.
(8) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1996, Commission file No. 0-26914, filed
with the Commission on May 3, 1996.
(9) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, Commission file No. 0-26914, filed
with the Commission on August 14, 1996.
-34-
<PAGE>
ANNUAL REPORT ON FORM 10-K
ITEM 8, ITEM 14(a)(1) and (2), (c) and (d)
LIST OF FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CERTAIN EXHIBITS
FINANCIAL STATEMENT SCHEDULE
YEAR ENDED DECEMBER 31, 1996
VALUJET, INC.
ATLANTA, GEORGIA
<PAGE>
ValuJet, Inc.
The following consolidated financial statements of ValuJet, Inc. are
included in Item 8:
Consolidated balance sheets - December 31, 1996 and 1995..........F-4
Consolidated statements of operations - Years
ended December 31, 1996, 1995, and 1994.........................F-5
Consolidated statements of stockholders' equity - Years ended
December 31, 1996, 1995, and 1994...............................F-6
Consolidated statements of cash flows - Years ended
December 31, 1996, 1995, and 1994...............................F-8
Notes to consolidated financial statements - December 31, 1996....F-9
The following consolidated financial statement schedule of ValuJet, Inc. is
included in Item 14(d):
Schedule II - Valuation and qualifying accounts
All other schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable and therefore have been omitted.
F-2
<PAGE>
Report of Independent Auditors
The Stockholders and Board of Directors
ValuJet, Inc.
We have audited the accompanying consolidated balance sheets of ValuJet, Inc. as
of December 31, 1996 and 1995, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the three years in
the period ended December 31, 1996. Our audits also included the financial
statement schedule listed in the Index at Item 14(a). These financial
statements and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of ValuJet, Inc. at
December 31, 1996 and 1995, and the consolidated results of its operations and
its cash flows for each of the three years in the period ended December 31,
1996, in conformity with generally accepted accounting principles. Also in our
opinion, the related financial statement schedule, when considered in relation
to the basic financial statements taken as a whole, presents fairly in all
material respects the information set forth therein.
ERNST & YOUNG LLP
Atlanta, Georgia
February 10, 1997, except for
Note 4 as to which the date
is March 27, 1997
F-3
<PAGE>
ValuJet, Inc.
Consolidated Balance Sheets
<TABLE>
<CAPTION>
DECEMBER 31
1996 1995
-----------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $150,012,695 $127,947,096
Accounts receivable, less allowance of
$838,000 and $405,000 at
December 31, 1996 and 1995,
respectively 7,014,702 12,074,394
Income tax receivable 36,440,653 -
Inventories of parts and supplies 6,607,307 4,016,266
Prepaid expenses 8,066,792 4,758,205
Deferred tax asset - 401,621
Assets held for disposition 42,060,242 -
Other current assets 839,040 589,986
--------------------------
Total current assets 251,041,431 149,787,568
Property and equipment:
Flight equipment 126,829,882 153,513,693
Other property and equipment 65,662,504 40,472,604
Deposits on flight equipment purchase 14,534,895 21,801,525
contracts
--------------------------
207,027,281 215,787,822
Less accumulated depreciation (44,455,397) (18,834,231)
--------------------------
162,571,884 196,953,591
Debt issuance costs 3,573,561 -
--------------------------
Total assets $417,186,876 $346,741,159
===========================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 3,221,542 $ 6,721,754
Accrued liabilities 22,718,555 35,866,095
Air traffic liability 3,813,583 22,221,133
Income taxes payable - 24,957
Deferred tax liability 1,298,400 -
Current maturities of long-term debt 33,246,302 21,430,984
Debt on assets held for disposition 18,188,222 -
--------------------------
Total current liabilities 82,486,604 86,264,923
Long-term debt less current maturities 193,271,800 87,607,149
Deferred income taxes payable 18,028,835 10,803,856
Stockholders' equity:
Convertible preferred stock, $.01 par
value:
Authorized shares - 5,000,000
Issued and outstanding shares - none at
December 31, 1996 and 1995 - -
Common stock, $.001 par value:
Authorized shares - 1,000,000,000
Issued and outstanding - 54,875,610 and
54,556,020 at December 31, 1996 and 54,876 54,556
1995, respectively
Additional paid-in capital 77,236,447 74,433,062
Retained earnings 46,108,314 87,577,613
--------------------------
Total stockholders' equity 123,399,637 162,065,231
--------------------------
Total liabilities and stockholders' $417,186,876 $346,741,159
equity
===========================
</TABLE>
See accompanying notes.
F-4
<PAGE>
ValuJet, Inc.
Consolidated Statements of Operations
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
1996 1995 1994
-------------------------------------------
Operating revenues:
<S> <C> <C> <C>
Passenger $209,707,346 $352,574,954 $129,551,344
Cargo 2,968,863 4,874,449 -
Other 6,960,023 10,307,975 4,349,966
-------------------------------------------
Total operating revenues 219,636,232 367,757,378 133,901,310
Operating expenses and other, net:
Flight operations 16,478,712 16,272,833 6,967,015
Aircraft fuel 46,691,296 55,812,838 21,774,936
Maintenance 49,500,163 47,330,009 14,862,239
Station operations 42,018,389 49,931,088 20,197,983
Passenger services 8,878,835 10,363,538 3,941,749
Marketing and advertising 8,426,358 8,988,656 6,546,043
Sales and reservations 18,377,843 31,155,592 11,325,162
General and administrative 13,659,237 10,617,312 5,038,897
Employee bonus 1,245,000 14,382,000 5,146,039
Depreciation 17,550,596 15,147,647 3,555,426
Arrangement fee for aircraft transfers (13,036,294) - -
Gain on insurance recovery (2,814,785) (1,093,527) -
Gain on sale of property (3,934,576) - -
Shutdown and other nonrecurring expenses 67,994,000 - -
-------------------------------------------
Total operating expenses and other, net 271,034,774 258,907,986 99,355,489
-------------------------------------------
Operating (loss) income (51,398,542) 108,849,392 34,545,821
Interest expense (income):
Interest expense 22,186,349 6,579,020 2,388,240
Interest income (7,652,592) (5,555,160) (1,422,955)
-------------------------------------------
Total interest expense, net 14,533,757 1,023,860 965,285
-------------------------------------------
(Loss) income before income taxes (65,932,299) 107,825,532 33,580,536
Income tax (benefit) expense (24,463,000) 40,062,934 12,848,556
-------------------------------------------
Net (loss) income $(41,469,299) $ 67,762,598 $ 20,731,980
===========================================
Net (loss) income per share $(0.76) $1.13 $0.44
============================================
Weighted average shares outstanding 54,702,000 59,793,000 47,620,000
============================================
</TABLE>
See accompanying notes.
F-5
<PAGE>
ValuJet, Inc.
Consolidated Statements of Stockholders' Equity
<TABLE>
<CAPTION>
CONVERTIBLE PREFERRED STOCK COMMON STOCK
--------------------------------------------------------------------- NOTES
ADDITIONAL ADDITIONAL RECEIVABLE RETAINED TOTAL
PAID-IN- PAID-IN FROM COMMON EARNINGS STOCKHOLDERS'
SHARES AMOUNT CAPITAL SHARES AMOUNT CAPITAL STOCK SALE (DEFICIT) EQUITY
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at
December 31, 1993 3,250,000 $ 32,500 $ 11,826,244 22,300,000 $ 223,000 $ 4,302,028 ($324,010) $ (916,965) $15,142,797
Payments on notes
receivable from
common stock sale
and offering
expenses related
to issuance of
common stock - - - - - (8,858) 124,000 - 115,142
Conversion of
preferred stock (3,250,000) (32,500) (11,826,244) 13,000,000 130,000 11,728,744 - - -
Issuance of common
stock to employees - - - 39,680 396 (396) - - -
Issuance of common
stock, net of
issuance costs - - - 6,000,000 60,000 16,904,743 - - 16,964,743
Exercise of warrants
for common stock - - - 1,000,000 10,000 1,190,000 - - 1,200,000
Issuance of common
stock for exercise
of options - - - 8,000 80 1,253 - - 1,333
Exercise of warrants
for common stock - - - 10,422,300 104,224 38,856,528 - - 38,960,752
Exchange of warrants
for common stock - - - 447,160 4,472 (4,472) - - -
Net income - - - - - - - 20,731,980 20,731,980
------------------------------------------------------------------------------------------------------------
Balance at
December 31, 1994 - - - 53,217,140 532,172 72,969,570 (200,010) 19,815,015 93,116,747
Issuance of common
stock for exercise
of options - - - 28,000 280 10,171 - - 10,451
Issuance of common
stock for exercise
of options - - - 1,309,000 13,090 373,111 - - 386,201
Issuance of common
stock under stock
purchase plan - - - 1,880 18 39,206 - - 39,224
Change in par value - - - - (491,004) 491,004 - - -
Accrued compensation
related to stock
options - - - - - 550,000 - - 550,000
Payments on notes
receivable from
common stock sale - - - - - - 200,010 - 200,010
Net income - - - - - - - 67,762,598 67,762,598
</TABLE>
F-6
<PAGE>
ValuJet, Inc.
Consolidated Statements of Stockholders' Equity (continued)
<TABLE>
<CAPTION>
CONVERTIBLE PREFERRED STOCK COMMON STOCK
--------------------------------------------------------------- NOTES
ADDITIONAL ADDITIONAL RECEIVABLE RETAINED TOTAL
PAID-IN- PAID-IN FROM COMMON EARNINGS STOCKHOLDERS'
SHARES AMOUNT CAPITAL SHARES AMOUNT CAPITAL STOCK SALE (DEFICIT) EQUITY
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at
December 31, 1995 - - - 54,556,020 54,556 74,433,062 - 87,577,613 162,065,231
Issuance of common stock
for exercise of options 310,810 311 835,862 - 836,173
Issuance of common stock
under stock purchase plan 8,770 9 113,493 - 113,502
Accrued compensation
related to stock options - - 1,854,030 - 1,854,030
Net loss - - - (41,469,299) (41,469,299)
-------------------------------------------------------------------------------------------------------
Balance at
December 31, 1996 - $ - $ - 54,875,600 $54,876 $77,236,447 $ - $46,108,314 $123,399,637
========================================================================================================
</TABLE>
See accompanying notes.
F-7
<PAGE>
ValuJet, Inc.
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
1996 1995 1994
----------------------------------------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net (loss) income $ (41,469,299) $ 67,762,598 $ 20,731,980
Adjustments to reconcile net (loss)
income to cash (used in) provided by
operating activities:
Depreciation and amortization 29,164,596 15,147,647 3,548,426
Provision for uncollectible accounts 3,637,589 3,159,935 1,043,902
Deferred income taxes 8,925,000 7,390,070 3,012,165
Gain on disposal of flight equipment (6,749,361) (1,093,527) -
Changes in operating assets and
liabilities:
Accounts receivable 1,422,103 (7,705,398) (6,285,616)
Other current assets (6,148,682) (6,644,002) (1,218,142)
Accounts payable and accrued
liabilities (14,354,877) 23,738,400 16,921,695
Air traffic liability (18,407,550) 12,614,252 7,361,035
Income taxes payable (36,465,610) (581,559) 606,516
-----------------------------------------------
Net cash (used in) provided by
operating activities (80,446,091) 113,788,416 45,721,961
INVESTING ACTIVITIES
Purchases of property and equipment (127,570,815) (142,128,206) (61,969,880)
Proceeds from disposal of equipment 97,598,198 3,000,000 -
-----------------------------------------------
Net cash used in investing activities (29,972,617) (139,128,206) (61,969,880)
FINANCING ACTIVITIES
Notes receivable - 5,500,000 (5,500,000)
Payment received on notes receivable
from common stock sale - 200,010 50,000
Issuance of long-term debt 224,497,189 73,707,688 40,612,884
Proceeds from sale of common stock 949,675 435,876 56,961,546
Payment of long-term debt (92,962,557) (11,634,230) (4,045,580)
-----------------------------------------------
Net cash provided by financing
activities 132,484,307 68,209,344 88,078,850
----------------------------------------------
Net increase in cash and cash
equivalents 22,065,599 42,869,554 71,830,931
Cash and cash equivalents at beginning
of year 127,947,096 85,077,542 13,246,611
-----------------------------------------------
Cash and cash equivalents at end of year $ 150,012,695 $ 127,947,096 $ 85,077,542
==============================================
Cash paid for income taxes $ 4,041,000 $ 32,770,000 $ 9,215,600
==============================================
Cash paid for interest $ 19,412,000 $ 6,592,000 $ 2,155,000
==============================================
</TABLE>
See accompanying notes.
F-8
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements
December 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
REORGANIZATION AND PRINCIPLES OF CONSOLIDATION
ValuJet Airlines, Inc. was originally incorporated on July 10, 1992 under the
name of Charter Way, Inc. In May 1993, the Company changed its name to ValuJet
Airlines, Inc. As a result of a merger between ValuJet Airlines, Inc. and VJET
Acquisition, Inc. on October 19, 1995, ValuJet Airlines, Inc. became a wholly-
owned subsidiary of ValuJet, Inc. ValuJet, Inc. was incorporated on July 17,
1995 by ValuJet Airlines, Inc. as its wholly-owned subsidiary.
ValuJet, Inc. formed VJET Acquisition, Inc. as its wholly-owned subsidiary.
Pursuant to a Plan and Agreement of Merger ("the Merger"), VJET Acquisition,
Inc. was merged into ValuJet Airlines, Inc. with ValuJet Airlines, Inc. being
the surviving corporation. In connection with the Merger, each outstanding
share of Common Stock, $.01 par value per share, of ValuJet Airlines, Inc. was
converted into and became the right to receive one share of Common Stock, $.001
par value per share, of ValuJet, Inc., and the shares of Common Stock of VJET
Acquisition, Inc. owned by ValuJet, Inc. were converted into shares of Common
Stock of ValuJet Airlines, Inc. The shares of Common Stock of ValuJet, Inc.
owned by ValuJet Airlines, Inc. were canceled. Therefore, the then current
stockholders of ValuJet Airlines, Inc. became stockholders of ValuJet, Inc. and
ValuJet Airlines, Inc. became a wholly-owned subsidiary of ValuJet, Inc. Each
of the former stockholders of ValuJet Airlines, Inc. has exactly the same
proportionate interest in ValuJet, Inc. as they had in ValuJet Airlines, Inc.
prior to the Merger.
The consolidated financial statements include the accounts of the Company and
its subsidiaries, all of which are wholly-owned. Significant intercompany
accounts and transactions have been eliminated in consolidation.
DESCRIPTION OF BUSINESS
The Company offers affordable, no-frills, point-to-point scheduled air
transportation and cargo service, serving short-haul markets primarily in the
eastern United States.
F-9
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
USE OF ESTIMATES
The preparation of consolidated financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the consolidated financial
statements and accompanying notes. Actual results inevitably will differ from
those estimates, and such differences may be material to the consolidated
financial statements.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
ACCOUNTS RECEIVABLE
Accounts receivable are due primarily from major credit card processors and
travel agents. These receivables are unsecured. The Company provides an
allowance for doubtful accounts equal to the estimated losses expected to be
incurred in the collection of accounts receivable.
INVENTORIES OF PARTS AND SUPPLIES
Inventories of flight equipment expendable parts, materials and supplies are
carried at the lower of cost or market using the first-in, first-out method
(FIFO). These items are charged to expense when issued for use. Allowances for
obsolescence are provided over the estimated useful life of the related aircraft
and engines, for spare parts expected to be on hand at the date aircraft are
retired from service.
PROPERTY AND EQUIPMENT
Property and equipment is stated on the basis of cost. Flight equipment is
depreciated to its residual values, estimated at 20%, using the straight-line
method over seven to ten years. Other property and equipment is depreciated
over three years.
F-10
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INTEREST CAPITALIZED
Interest attributable to funds used to finance the acquisition of new aircraft
is capitalized as an additional cost of the related asset. Interest is
capitalized at the Company's weighted average interest rate on long-term debt
or, where applicable, the interest rate related to specific borrowings.
Capitalization of interest ceases when the asset is placed in service. In 1996,
approximately $1,212,000 of interest cost was capitalized. No interest was
capitalized in 1995 or 1994.
AIRCRAFT AND ENGINE MAINTENANCE
The Company accounts for airframe and aircraft engine overhaul costs using the
direct-expensing method. Overhauls are performed on a continuous basis and the
cost of overhauls and routine maintenance costs for aircraft and engine
maintenance are charged to maintenance expense as incurred.
ADVERTISING COSTS
Advertising costs are charged to expense in the period the costs are incurred.
Advertising expense was approximately $6,261,000, $8,038,000 and $5,507,000 for
the years ended December 31, 1996, 1995 and 1994, respectively.
REVENUE RECOGNITION
Passenger and cargo revenue is recognized when transportation is provided.
Transportation purchased but not yet used is included in air traffic liability.
INCOME TAXES
The Company accounts for income taxes using the liability method in accordance
with Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes."
F-11
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
PREOPERATING COSTS
The cost of routine development of new routes and the preoperating cost
incurred in connection with aircraft acquisitions are charged to expense as
incurred.
STOCK-BASED COMPENSATION
The Company grants stock options for a fixed number of shares to officers,
directors, key employees and consultants of the Company with an exercise price
equal to or below the fair value of the shares at the date of grant. The
Company accounts for stock option grants in accordance with APB Opinion No. 25,
Accounting for Stock Issued to Employees, and accordingly, recognizes
compensation expense only if the market price of the underlying stock exceeds
the exercise price of the stock option on the date of grant.
In October 1995, the FASB issued Statement of Financial Accounting Standards No.
123, Accounting for Stock-Based Compensation, which provides an alternative to
APB Opinion No. 25 in accounting for stock-based compensation issued to
employees. However, the Company will continue to account for stock-based
compensation in accordance with APB Opinion No. 25.
NET INCOME (LOSS) PER SHARE
Net income (loss) per share is based on the weighted average number of common
and preferred shares outstanding and dilutive common stock equivalents during
the periods.
Pursuant to Securities and Exchange Commission Staff Accounting Bulletin No. 83,
common and preferred stock issued for consideration below the initial public
offering ("IPO") price of $3.125 per share and stock options and warrants
issued with exercise prices below the IPO price during the twelve-month period
preceding the initial filing of the Registration Statement ("Cheap Stock") have
been included in the calculation of common shares, using the treasury stock
method, as if they were outstanding for all periods prior to the effective date
of the IPO.
F-12
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
NET INCOME (LOSS) PER SHARE (CONTINUED)
In accordance with APB Opinion No. 15, supplemental income per share data for
1994 is presented for comparability purposes. The following income per share is
calculated excluding the effects of Cheap Stock issued during the twelve-months
immediately preceding the effective date of the Company's IPO.
YEAR ENDED
DECEMBER 31,
1994
--------------
Net income per share $0.42
==============
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In March 1995, the FASB issued Statement of Financial Accounting Standards No.
121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of, which requires impairment losses to be recorded on
long-lived assets used in operations when indicators of impairment are present
and the discounted cash flows estimated to be generated by those assets are less
than the assets' carrying amount. Statement 121 also addresses the accounting
for long-lived assets that are expected to be disposed of. The Company adopted
Statement 121 in the first quarter of 1996, and the effect of adoption was not
material.
During 1996, as a result of the accident involving Flight 592 and the consent
order with the FAA which requires the Company to reestablish operations with up
to 15 aircraft and subjects further expansion of the Company's operations to FAA
and DOT approval, the Company plans to sell certain of its aircraft with a
carrying amount of approximately $42 million. Those aircraft which the Company
has decided to sell have been classified in the balance sheet as assets held for
disposition and are stated at the lower of carrying amount or fair value less
cost to sell. The Company began marketing the aircraft to potential
F-13
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS (CONTINUED)
buyers and plans to sell the aircraft during 1997. At December 31, 1996, the
fair value, as estimated by the current market value, less cost to sell exceeded
the carrying amount of such aircraft.
RECLASSIFICATIONS
Certain amounts in the 1995 and 1994 financial statements have been reclassified
to conform to the current year presentation.
2. COMMITMENTS AND CONTINGENCIES
On May 11, 1996, the Company suffered a tragic loss involving Flight 592. The
accident resulted in extensive media coverage calling into question the safety
of low-fare airlines in general, and the Company in particular, despite the fact
that the cause of the accident is still under investigation by the National
Transportation Safety Board. In response to the accident, the Federal Aviation
Administration (FAA) conducted an extraordinary review of the Company's
operations. As a result, the Company significantly reduced its schedule between
May 19, 1996 and June 17, 1996, and on June 17, 1996 entered into a consent
order with the FAA under which the Company agreed to several matters including
the suspension of operations until such time as the Company was able to satisfy
the FAA as to its various regulatory compliance concerns and the payment of
$2,000,000 to the FAA to compensate it for the cost of the special inspections.
The Company satisfied the FAA's requirements and received FAA clearance during
August 1996. The Company received its determination of fitness from the
Department of Transportation on September 25, 1996 and restarted operations on
September 30, 1996. See Note 9 regarding charges associated with the accident
and related suspension of operations.
As a result of the above mentioned events, numerous lawsuits were filed against
the Company seeking damages attributable to the deaths of those on Flight 592.
Thus far, a total of approximately 50 such lawsuits have been filed against
ValuJet Airlines, Inc. Most of the cases were initially removed to the federal
court.
F-14
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
2. COMMITMENTS AND CONTINGENCIES (CONTINUED)
That court however, remanded the majority of the actions to the state courts
from which they originated and retained jurisdiction for only seven cases. As a
consequence, most of the cases will proceed in state courts in Florida and
Georgia. In 36 of these lawsuits, a third party maintenance contractor has been
named as a co-defendant. The Company's insurance carrier has assumed defense of
these suits under a reservation of rights. As all claims are handled
independently by the Company's insurance carrier, the Company cannot reasonably
estimate the amount of liability which might finally exist. As a result, no
accruals for losses and the related claim for recovery from the Company's
insurance carrier have been reflected in the Company's financial statements. The
Company maintains $750 million of liability insurance, per occurrence, with a
major group of independent insurers that provide facilities for all forms of
aviation insurance for many major airlines.
Although the Company believes, based on the information currently available to
it, that such coverage will be sufficient to cover all claims arising out of the
loss of Flight 592 and that the insurers have sufficient financial strength to
pay claims, there can be no assurance that the total amount of judgments and
settlements will not exceed the Company's insurance limit or that all damages
awarded will be covered by insurance.
Several stockholder class action suits have been filed against the Company and
certain of its executive officers ("Defendants"). The consolidated lawsuits seek
class certification for all purchasers of stock in the Company during periods
beginning on or after June 1995 and ending on or before June 18, 1996, and are
based on allegedly misleading public statements made by the Company or failure
to disclose material facts in violation of federal securities laws. A total of
14 stockholder lawsuits were filed against the Company. Of these suits, 11 were
filed in the United States District Court for the Northern District of Georgia
and these suits have been consolidated into a single action (In re: ValuJet,
---------------
Inc.). Another lawsuit filed in the United States District Court for the Middle
- ----
District of Florida has been transferred to the Northern District of Georgia and
has been consolidated into In re: ValuJet, Inc. All of the Defendants filed a
--------------------
joint Motion to Dismiss the Consolidated Amended Complaint on December 23, 1996.
The Plaintiffs' response to this motion to Dismiss is due on May 9, 1997. On
November 25, 1996, Plaintiffs filed their
F-15
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
2. COMMITMENTS AND CONTINGENCIES (CONTINUED)
Motion for Class Certification. On January 14, 1997, Defendants filed a "Notice
of Stay of Discovery and Other Proceedings", in which Defendants state that the
filing of their Motion to Dismiss has stayed the issue of class certification
pursuant to the Private Securities Litigation Reform Act. By consent of the
parties, Defendants are not currently obligated to respond to Plaintiffs' Motion
for Class Certification, and if the Court decides that the issue of class
certification is not stayed by the Private Securities Litigation Reform Act, the
Defendants have 30 days from the date of such decision to respond to Plaintiffs'
Motion for Class Certification. Two suits (Cohen et al. v. ValuJet, Inc., et
----------------------------------
al. and Hepler et al. v. ValuJet, Inc. et al.) have been filed in the State
- --- -------------------------------------
Court of Fulton County, Georgia. On December 23, 1996, all Defendants in both
actions, other than a third party contractor, answered the Complaint and filed a
Motion to Dismiss the Complaint. Additionally, a director named in the suits
filed a Motion to Dismiss for lack of personal jurisdiction. By consent of the
parties, the Plaintiffs have until May 9, 1997, to respond to these motions to
dismiss. The Company denies that it has violated any of its obligations under
the federal securities laws and believes that meritorious defenses exist in the
lawsuits.
On August 30, 1996, Metropolitan Nashville Airport Authority filed suit against
the Company in State Court in Tennessee for breach of contract and a declaratory
judgment for an anticipatory breach. The Nashville Airport Authority seeks
damages of approximately $2.6 million. The dispute involves whether the Company
was entitled to exercise a termination right contained in its lease agreement.
Management believes the ultimate resolution will not have a material adverse
effect on the Company's financial position or results of operations.
From time to time, the Company is engaged in litigation arising in the ordinary
course of business. The Company does not believe that any such pending
litigation will have a material adverse effect on its results of operations or
financial condition.
At December 31, 1996, the Company's contractual commitments consisted primarily
of scheduled aircraft acquisitions. The Company has entered into a contract
with a major aircraft manufacturer to purchase 50 new aircraft, to be delivered
from 1999 to 2002, with options to purchase another 50 aircraft. Aggregate
funding needed for these and all other aircraft commitments was approximately $1
billion at December 31, 1996. Approximately $162 million of this amount is
required to be paid in progress payments due from 1995 to 2001. After progress
payments, the balance of the total purchase price must be paid or financed upon
delivery of each aircraft. While the major aircraft manufacturer is required to
provide credit support for a
F-16
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
2. COMMITMENTS AND CONTINGENCIES (CONTINUED)
limited portion of third party financing, the Company will be required to obtain
financing from other sources relating to these deliveries. If the Company
exercises its option to acquire up to an additional 50 aircraft, additional
payments could be required beginning in 1997. In conjunction with these
contractual commitments, the Company has made refundable deposits of
approximately $13,008,000 at December 31, 1996.
Future required deposits for aircraft progress payments as of December 31, 1996
are as follows:
1997 $ 7,567,000
1998 31,655,000
1999 35,512,000
2000 44,874,000
2001 29,565,000
--------------
$149,173,000
==============
3. ACCRUED LIABILITIES
DECEMBER 31
1996 1995
---------------------------
Accrued bonuses $ - $12,017,001
Accrued maintenance 7,710,207 4,700,000
Other 15,008,348 19,149,094
---------------------------
$ 22,718,555 $35,866,095
===========================
F-17
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
4. LONG-TERM DEBT
DECEMBER 31
1996 1995
----------------------------
Senior notes $150,000,000 $ -
Promissory notes for aircraft and other
equipment 94,706,324 109,038,133
----------------------------
244,706,324 109,038,133
Less current maturities 33,246,302 21,430,984
Less debt on assets held for disposition
18,188,222 -
----------------------------
$193,271,800 $ 87,607,149
============================
During April 1996, the Company closed a private offering of $150,000,000
principal amount of 10 1/4% Senior Notes due 2001. In October 1996, the Company
exchanged the unregistered Notes for Registered 10 1/4% Senior Notes due 2001.
Interest on the Senior Notes is payable semi-annually on April 15 and
October 15.
The promissory notes relate to aircraft financing and bear interest at rates
ranging from 7.43% to 10.18% per annum, and principal and interest payments are
due in monthly or quarterly installments over four to seven year terms on a
mortgage-style amortization based on the delivery date of the aircraft. Certain
of these notes, with an aggregate unpaid principal balance of approximately
$14.3 million as of December 31, 1996, have a variable rate of interest based on
the London interbank offered rate (LIBOR) (5.5% at December 31, 1996) plus 1.85%
to 3% (1.85% at December 31, 1996) based on the Company's compliance with
specific financial ratios concerning leverage and fixed charge coverage. Certain
other of these notes have a variable rate of interest based on LIBOR plus a
range of 1.20% to 2.75%.
A substantial portion of the secured notes require prepayment if specific
financial ratios (concerning debt to equity, net worth, fixed charge coverage
and current ratio) are not maintained. At December 31, 1996, the Company was in
violation of the fixed charge coverage ratio covenant related to approximately
$66,103,000 of this secured debt. In March 1997, certain of the Company's
secured lenders agreed to waive the fixed charge coverage ratio covenant at
December 31, 1996 and to waive or reduce the required fixed charge coverage
ratio through December 31, 1997. As a result, management
F-18
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
4. LONG-TERM DEBT (CONTINUED)
believes it will meet all loan covenant requirements on such debt totalling
$47,151,000 through December 31, 1997. Accordingly, amounts payable under these
secured debt agreements, excluding current maturities and debt on assets held
for disposition, are classified as long-term in the accompanying consolidated
balance sheet. The Company remains in violation of the fixed charge coverage
ratio for $18,952,000 of secured debt. As a result, such debt has been
classified as current maturities or debt on assets held for disposition, where
appropriate, in the accompanying consolidated balance sheet. No prepayment
requests have been made related to such debt. The Company's aircraft, engines
and computer and telephone equipment totalling approximately $155,157,000 serve
as collateral on secured debt.
Future statutory long-term debt principal payments at December 31, 1996 were as
follows:
Year ending December 31,
1997 $ 21,457,302
1998 23,124,833
1999 20,552,472
2000 15,536,446
2001 162,885,469
Thereafter 1,149,802
------------
$244,706,324
==============
5. LEASES
The Company leases facilities from local airport authorities or other carriers,
as well as office space. These leases are operating leases and have terms from
one month to fourteen years.
Total rental expense charged to operations for facilities and office space for
the years ended December 31, 1996, 1995 and 1994 was approximately $15,824,000,
$12,516,000, and $4,726,000, respectively.
F-19
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
5. LEASES (CONTINUED)
Future minimum lease payments under non-cancelable operating leases with initial
terms in excess of one year at December 31, 1996 were as follows:
Year ending December 31,
1997 $ 5,076,000
1998 4,922,000
1999 4,750,000
2000 4,131,000
2001 3,954,000
Thereafter 34,597,000
-------------
$57,430,000
=============
6. STOCKHOLDERS' EQUITY
During 1993, the Company issued 1,200,000 shares of common stock to an officer
of the Company and 300,000 shares to a consultant in exchange for notes
receivable of $200,010 and $50,000, respectively. During 1996 and 1995, the
notes receivable were repaid in full.
In conjunction with a private placement offering during 1993, the Company issued
250,000 Preferred Stock purchase warrants to the placement agent which entitled
the holder to acquire shares of Preferred Stock at a price of $4.80 per share.
These warrants were exercised for common stock during the year ended December
31, 1994.
Also, during 1993, the Company issued 260 units ("Units"), each consisting of
12,500 shares of convertible Series A Preferred Stock ("Preferred Stock") and
warrants to purchase 50,000 shares of common stock, or 3,250,000 shares of
Preferred Stock and 13,000,000 warrants to purchase common stock, for
$11,858,744, net of issuance costs of $1,141,351. Each warrant entitled the
holder to purchase shares of common stock at a price of $3.75 per share on or
before December 31, 1995. The warrants were callable by the Company at $.0125
per share if the closing bid price of the Company's common
F-20
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
6. STOCKHOLDERS' EQUITY (CONTINUED)
stock was greater than or equal to $5 per share for a period of fifteen
consecutive trading days and if the common stock issuable upon exercise of
warrants was then covered by an effective registration statement filed with the
Securities and Exchange Commission. In addition, in conjunction with a sale of
common stock in 1993, the Company issued 1,000,000 warrants to purchase common
stock at a price of $3.75 per share. In October 1994, the Company called the
14,000,000 warrants outstanding at that date. Pursuant to the Company's exchange
offer, 10,422,300 warrants for common stock were exercised for $3.75 per share
resulting in proceeds of approximately $38,960,000, net of expenses. The
remaining 3,577,700 warrants for common stock were exchanged for 447,160 shares
of common stock, in accordance with the Company's exchange offer.
On July 6, 1994, the Company closed an IPO of 6,000,000 shares of its common
stock, generating proceeds of approximately $17 million, net of underwriting
discounts and commissions, and other expenses. Concurrent with the closing of
the Company's IPO all of the Company's Preferred Stock was automatically
converted into common stock on a one-for-four basis.
On June 28, 1994, the Company issued 39,680 shares of common stock to a trust
for the benefit of its employees at the IPO date. These shares were valued at
the IPO price of $3.12 per share and compensation expense related to these
shares will be recognized over the vesting period of three years from the
issuance date. At the end of the vesting term, the shares will be divided among
the employees employed at the IPO date remaining with the Company at the end of
the three year vesting period. Approximately 33,000 of these shares had been
earned as of December 31, 1996.
During 1995, the Company announced two separate two-for-one stock splits
effected in the form of stock dividends. The stock splits were payable on April
10, 1995 and November 21, 1995 to stockholders of record as of the close of
business on March 24, 1995 and November 6, 1995, respectively. All references
in the consolidated financial statements to shares, per share amounts and stock
plans have been retroactively restated to reflect the stock splits.
F-21
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
7. STOCK OPTION PLANS
In 1993, the Company established the ValuJet Airlines, Inc. 1993 Incentive
Stock Option Plan (the "1993 Plan") whereby up to 4,800,000 options may be
granted to officers, directors and key employees to purchase shares of common
stock at prices not less than the fair value of the shares on the dates of
grant. With respect to individuals owning more than 10% of the voting power of
all classes of the Company's stock, the exercise price per share shall not be
less than 110% of the fair value of the shares on the date of grant.
On March 31, 1994, the Company established the ValuJet Airlines, Inc. 1994 Stock
Option Plan (the "1994 Plan") whereby up to 4,000,000 incentive stock options or
non-qualified options may be granted to officers, directors, key employees and
consultants of the Company.
On January 30, 1996, the Company established the ValuJet, Inc. 1996 Stock Option
Plan (the "1996 Plan") whereby up to 5,000,000 incentive stock options or non-
qualified options may be granted to officers, directors, key employees and
consultants of the Company.
Vesting and term of all options is determined by the Board of Directors and may
vary by optionee; however, the term may be no longer than ten years from the
date of grant.
At December 31, 1996, the vesting of 1,504,000 stock options with a weighted
average exercise price of $0.85 granted to two executive officers was
accelerated such that they became fully vested on that date. Such stock options
represented all of the nonvested stock options held by the two executive
officers.
Pro forma information regarding net income (loss) and earnings (loss) per share
is required by Statement 123,which also requires that the information be
determined as if the Company has accounted for its employee stock options
granted subsequent to December 31, 1994 under the fair value method of that
Statement. The fair value for these options was estimated at the date of grant
using a Black-Scholes option pricing model with the following weighted-average
assumptions for 1996 and 1995, respectively: risk-free interest rates of 7.3%
and 6.4%; no dividend yields; volatility factors of the expected market price of
the Company's common stock of .625 for 1996 and 1995; and a weighted-average
expected life of the options of 5 years.
F-22
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
7. STOCK OPTION PLANS (CONTINUED)
The Black-Scholes option valuation model was developed for use in estimating the
fair value of traded options which have no vesting restrictions and are fully
transferable. In addition, option valuation models require the input of highly
subjective assumptions including the expected stock price volatility. Because
the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
A summary of stock option activity under the above-described plans is as
follows:
WEIGHTED
SHARES PRICE RANGE AVERAGE PRICE
--------------------------------------------
Balance at December 31, 1993 3,880,000 $ 0.17 $ 0.17
Granted 2,240,000 1.00 3.75 2.90
Exercised (8,000) 0.17 0.17
Canceled (92,000) 0.17 3.13 1.63
------------
Balance at December 31, 1994 6,020,000 0.17 3.75 1.16
Granted 1,175,600 3.75 23.19 5.67
Exercised (1,337,000) 0.17 3.13 0.33
Canceled (239,200) 0.17 12.19 3.42
------------
Balance at December 31, 1995 5,619,400 0.17 23.19 2.20
Granted 1,406,000 3.75 23.19 15.99
Exercised (310,010) 0.17 3.13 2.68
Canceled (91,860) 0.17 12.19 5.91
------------
Balance at December 31, 1996 6,623,530 0.17 23.19 5.06
============
Exercisable at December 31, 1996 4,336,430
============
F-23
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
7. STOCK OPTION PLANS (CONTINUED)
The following table summarizes information concerning currently outstanding and
exercisable options:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
- ------------------------------------------------------------------------------------------------------------------------------------
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
RANGE OF REMAINING AVERAGE AVERAGE
EXERCISE NUMBER CONTRACTUAL EXERCISE NUMBER EXERCISE
PRICES OUTSTANDING LIFE PRICE EXERCISABLE PRICE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$0.17 2,516,000 6.50 $ 0.17 2,452,000 $ 0.17
$1.00-$5.13 2,603,230 7.69 $ 3.52 1,315,230 $ 2.68
$8.50-$15.00 570,000 9.62 $10.23 15,600 $13.43
$18.38 - $23.19 934,300 8.82 $19.35 553,600 $18.40
---------------------------------------------------------------------------------------------------------
6,623,530 7.60 $ 5.06 4,336,430 $ 3.21
=========================================================================================================
</TABLE>
For purposes of pro forma disclosures, the estimated fair value of the options
is amortized to expense over the options' vesting period. The Company's pro
forma information follows:
1996 1995
----------------------------
Pro forma net income (loss) $(44,880,415) $67,193,721
Pro forma earnings (loss) per share: (0.82) 1.14
Because Statement 123 is applicable only to options granted subsequent to
December 31, 1994, its pro forma effect will not be fully reflected until 1999.
The weighted-average fair value of options granted during 1996 and 1995 with
option prices equal to the market price on the date of grant was $7.82 and
$4.00, respectively. The weighted average fair value of options granted during
1996 and 1995 with option prices less than the market price of the stock on the
date of grant was $10.13 and $2.73, respectively.
At December 31, 1996, the Company had reserved a total of 12,144,190 shares of
common stock for future issuance upon exercise of stock options.
F-24
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
8. INCOME TAXES
The income tax provision (benefit) consists of the following:
YEAR ENDED DECEMBER 31
1996 1995 1994
-----------------------------------------
Current:
Federal $(31,311,000) $30,389,736 $ 8,387,121
State (2,077,000) 2,283,128 1,449,270
-----------------------------------------
Total current (33,388,000) 32,672,864 9,836,391
Deferred:
Federal 10,614,000 6,313,839 2,694,773
State (1,689,000) 1,076,231 317,392
----------------------------------------
Total deferred 8,925,000 7,390,070 3,012,165
----------------------------------------
$(24,463,000) $40,062,934 $12,848,556
========================================
A reconciliation of the provision for income taxes (benefit) to the federal
statutory rate is as follows:
YEAR ENDED DECEMBER 31
1996 1995 1994
-----------------------------------------
Tax at statutory rate $(23,076,000) $37,738,937 $11,648,639
State taxes, net of federal benefit (2,448,000) 2,183,583 1,330,254
Other 1,061,000 140,414 233,576
Valuation reserve - - (363,913)
-----------------------------------------
$(24,463,000) $40,062,934 $12,848,556
=========================================
F-25
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
8. INCOME TAXES (CONTINUED)
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components
of the Company's deferred tax liabilities and assets are as follows:
DECEMBER 31
1996 1995
--------------------------
Deferred tax liabilities:
Prepaid insurance $ 2,687,180 $ 1,210,775
Depreciation 19,584,784 10,919,065
Gain on involuntary conversion 1,484,100 -
--------------------------
Total deferred tax liabilities 23,756,064 12,129,840
Deferred tax assets:
Accrued liabilities 770,463 1,181,489
State operating loss carryforwards 2,035,751 -
Non qualified stock options 929,956 -
Other 692,659 546,116
--------------------------
Total deferred tax assets 4,428,829 1,727,605
--------------------------
Net deferred tax liability $19,327,235 $10,402,235
==========================
Various subsidiaries of the Company have state operating loss carryforwards of
approximately $3,100,000 with expiration dates through the year 2011.
F-26
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
9. SHUTDOWN AND OTHER NONRECURRING EXPENSES
Shutdown and other nonrecurring expenses include costs associated with the loss
of Flight 592 and excess operating costs related to the reduced schedule from
May 19, 1996 to the June 17, 1996 shutdown, the suspension of operations from
June 17, 1996 to September 29, 1996 and the reduced schedule from September 30,
1996 to December 31, 1996. Such costs consist of expenses directly related to
the accident and the ensuing extensive FAA review of the Company's operations
including legal fees, payments to the FAA, inspection related costs and unusual
maintenance in excess of normal recurring maintenance. In addition,
depreciation on grounded aircraft, rental of abandoned or idled facilities and
costs of personnel idled as a result of the reduced and suspended operations
from May through December, 1996 are included in shutdown and other nonrecurring
expenses. Personnel costs include full wages, salaries and benefits that were
provided to idled employees during the reduction and suspension of operations.
A summary of such costs is as follows for the year ended December 31, 1996:
Maintenance $27,750,000
Legal and other consulting 8,843,000
Facilities rental 6,114,000
Wages, salaries and benefits, excluding
maintenance 4,895,000
FAA remediation 2,000,000
Depreciation 11,054,000
Other 7,338,000
-------------
$67,994,000
=============
No accrual was provided for costs to be incurred in future periods related to
aircraft depreciation and maintenance and rental costs associated with
temporarily idled facilities as such costs will be recognized as they are
incurred. There is no accrual for salaries and wages in connection with the
furlough of employees at December 31, 1996 as such employees were paid through
June 30, 1996 with no additional severance benefits provided.
F-27
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
10. RELATED PARTY TRANSACTIONS
The Company has utilized temporary employees provided by a temporary agency
which is partially owned by the daughter of one of the Company's officers. This
arrangement was terminated during 1996. Amounts recorded as expense related to
this agency were approximately $4,223,000, $12,663,000, and $5,140,000 for the
years ended December 31, 1996, 1995 and 1994, respectively. Accounts payable to
this agency was approximately $370,703 at December 31, 1995. No amounts were due
at December 31, 1996.
11. FINANCIAL INSTRUMENTS
Financial instruments that potentially subject the Company to significant
concentrations of credit risk consist principally of cash and cash equivalents
and accounts receivable. The Company maintains cash and cash equivalents with
various high credit-quality financial institutions or in short-duration high
quality debt securities. The Company periodically evaluates the relative credit
standing of those financial institutions that are considered in the Company's
investment strategy. Concentration of credit risk with respect to accounts
receivable is limited due to the large number of customers comprising the
Company's customer base.
The following methods and assumptions were used by the Company in estimating its
fair value disclosures for financial instruments:
Cash and cash equivalents: The carrying amount reported in the balance sheet
for cash and cash equivalents approximates its fair value.
Accounts receivable and accounts payable: The carrying amounts reported in
the balance sheet for accounts receivable and accounts payable approximate
their fair value.
Long-term debt: The fair values of the Company's long-term debt are estimated
using discounted cash flow analyses, based on the Company's current
incremental borrowing rates for similar types of borrowing arrangements.
F-28
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
11. FINANCIAL INSTRUMENTS (CONTINUED)
The carrying amounts and estimated fair values of the Company's financial
instruments are as follows:
<TABLE>
<CAPTION>
1996 1995
--------------------------------------------------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Cash and cash equivalents $150,012,695 $150,012,695 $127,947,096 $127,947,096
Accounts receivable, net of allowance 7,014,702 7,014,702 12,074,394 12,074,394
Accounts payable 3,221,036 3,221,036 6,721,754 6,721,754
Long-term debt 244,706,324 219,326,000 109,038,133 110,973,000
</TABLE>
12. EMPLOYEE BENEFIT PLANS
Effective April 1, 1995, the Company adopted the ValuJet Airlines, Inc. 401(k)
Plan (the "Plan"), a defined contribution benefit plan which qualifies under
Section 401(k) of the Internal Revenue Code. All employees of the Company are
eligible to participate in the Plan. Participants may contribute up to 15% of
their base salary to the Plan. Contributions to the Plan by the Company are
discretionary. No employer contributions were made in 1996 or 1995.
Effective May 16, 1995, the Company formed the 1995 Employee Stock Purchase Plan
(the "Stock Plan") whereby employees who complete twelve months of service are
eligible to make quarterly purchases of the Company's common stock at up to a
15% discount from the market value on the offering date. The discount rate is
determined by the Board of Directors before each offering date. The Company is
authorized to issue up to 4,000,000 shares of common stock under this plan.
During 1996 and 1995, the employees purchased a total of 8,770 and 1,880 shares
at an average price of $12.94 and $20.86 per share, respectively, which
represented a 5% discount from the market price on the offering dates.
F-29
<PAGE>
ValuJet, Inc.
Notes to Consolidated Financial Statements (continued)
13. QUARTERLY FINANCIAL DATA (UNAUDITED)
Summarized quarterly financial data for 1996 and 1995 is as follows (in
thousands, except per share data):
QUARTER
FIRST SECOND THIRD FOURTH
-----------------------------------------------
Fiscal 1996:
Operating revenues $109,995 $ 81,217 $ 311 $ 28,113
Operating income (loss)
17,525 (11,581) (29,946) (27,397)
Net income (loss) 10,667 (9,574) (21,945) (20,617)
Net income (loss) per share
.18 (.18) (.40) (.38)
QUARTER
FIRST SECOND THIRD FOURTH
----------------------------------------------
Fiscal 1995:
Operating revenues $ 60,747 $ 86,913 $109,296 $110,801
Operating income 14,581 27,086 36,672 30,511
Net income 9,071 16,860 22,661 19,171
Net income per share .15 .28 .38 .32
NOTE 14. SUPPLEMENTAL GUARANTOR FINANCIAL INFORMATION
The Company's $150,000,000 of 10 1/4% Senior Notes issued during 1996 are fully
and unconditionally guaranteed on a joint and several basis by ValuJet Airlines,
Inc., a wholly-owned subsidiary of the Company, and all its subsidiaries
("Guarantors"). All of the operations of the Company are conducted by ValuJet
Airlines, Inc. and its subsidiaries. All of the Guarantors are wholly-owned or
indirect subsidiaries of the Company, and there are no direct or indirect
subsidiaries that are not Guarantors. Separate financial statements of the
Guarantors are not presented because all of the Company's subsidiaries guarantee
the Senior Notes on a full, unconditional and joint and several basis.
Summarized financial information of ValuJet Airlines, Inc. and its subsidiaries
is as follows:
December 31, 1996
-----------------
Current assets $246,041,431
Non-current assets 162,571,884
Current liabilities 69,954,233
Non-current liabilities 218,956,474
Year Ended
December 31, 1996
-----------------
Operating revenues $219,636,232
Operating loss (51,398,542)
Loss before income taxes (65,932,299)
Net loss (41,469,299)
F-30
<PAGE>
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
VALUJET, INC.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
COL. A COL. B COL. C COL. D COL. E
- ------------------------------------------------------------------------------------------------------------------------------------
Additions
-------------------------------------
Balance at Charged to Costs Charged to Other Deductions- Balance at end
Description Beginning of Period and Expenses Accounts - Describe Describe of Period
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1996
Deducted from asset accounts:
Allowance for doubtful accounts $404,870 $3,637,589 $3,204,752/2/ $837,707
-----------------------------------------------------------------------------------------------
Total $404,870 $3,637,589 $3,204,752 $837,707
===============================================================================================
Year ended December 31, 1995
Deducted from asset accounts:
Allowance for doubtful accounts $949,870 $3,159,935 $3,704,935/2/ $404,870
-----------------------------------------------------------------------------------------------
Total $949,870 $3,159,935 $3,704,935 $404,870
===============================================================================================
Year ended December 31, 1994
Deducted from asset accounts:
Allowance for doubtful accounts $ 45,000 $ 904,870 $ 0 $949,870
Valuation allowance for deferred
tax assets 371,414 0 371,414/1/ 0
-----------------------------------------------------------------------------------------------
Total $416,414 $ 904,870 $ 371,414 $949,870
===============================================================================================
</TABLE>
/1/ Company met the "more likely than not" criterion to recognize the deferred
tax asset as of December 31, 1994.
/2/ Uncollectible accounts written off, net of recoveries.
S-1
<PAGE>
EXHIBIT 3.2
BY-LAWS
OF
VALUJET, INC.
ARTICLE ONE
OFFICES
Section 1.1 Registered Office and Agent. The corporation shall maintain
a registered office and shall have a registered agent whose business office is
identical with such registered office.
Section 1.2 Other Offices. The corporation may have offices at such
place or places, within or without the State of Nevada, as the Board of
Directors may, from time to time, appoint or as the business of the corporation
may require or make desirable.
ARTICLE TWO
CAPITAL STOCK
Section 2.1 Issuance and Notice. Certificates of each class of stock
shall be numbered consecutively in the order in which they are issued. They
shall be signed by the President and Secretary and the seal of the corporation
shall be affixed thereto. In an appropriate place in the corporate records there
shall be entered the name of the person owning the shares, the number of shares
and the date of issue. Certificates of stock exchanged or returned shall be
canceled and placed in the corporate records. Facsimile signatures may be
utilized in accordance with Section 2.2 of this Article.
Section 2.2 Transfer Agents and Registrars. The Board of Directors of
the corporation may appoint a transfer agent or agents and a registrar or
registrars of transfer (other than the corporation itself or an employee
thereof) for the issuance of shares of stock of the corporation and may require
that all stock certificates bear the signature of such transfer agent and
registrar. In the event a share certificate is authenticated by both the
transfer agent and registrar, any share certificate may be signed by the
facsimile of the signature of either or both of the President and Secretary
printed thereon. If the same is countersigned by the transfer agent and
registrar of the corporation, the certificates bearing the facsimile of the
signatures of the President and Secretary shall be valid in all respects as if
such person or persons were still in office even though such person or persons
shall have died or otherwise ceased to be officers.
Section 2.3 Transfer. Upon the surrender to the corporation or to the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of assignment of authority to transfer, it shall
be the duty of the corporation to issue a certificate to the person entitled
thereto, to cancel the surrendered certificate and to record the transaction
upon its books.
Section 2.4 Lost Certificates. Any person claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact and shall, if the Board of Directors so requires, comply with such other
conditions applicable to the circumstances as the Board of Directors may
require, including the delivery of a bond of indemnity, in form and with one or
more sureties satisfactory to the Board of Directors, in at least double the
value of the stock represented by said certificates; whereupon a new certificate
may be issued of the same tenor and for the same number of shares as the one
alleged to be lost or destroyed.
<PAGE>
Section 2.5 Shareholders of Record. The corporation shall be entitled
to recognize the exclusive right of a person registered on the books as the
owner of shares entitled to receive dividends or to vote as such owner and shall
not be bound to recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise expressly provided by law.
Section 2.6 Determining Shareholders of Record. The Board of Directors
shall have the power to close the stock transfer books of the corporation for a
period not exceeding sixty (60) days preceding the date of any meeting of
Shareholders or the date for payment of any dividend. Such date shall serve as
the record date for the determination of the Shareholders entitled to notice of
and to vote at such meeting or to receive payment of such dividend. When a
record date is so fixed, only Shareholders of record on that date shall be
entitled to notice of and to vote at the meeting or to receive payment of any
dividend, notwithstanding any transfer of any shares on the books of the
corporation after the record date.
Section 2.7 Voting. The holders of the common stock shall be entitled
to one vote for each share of stock standing in their name. The holders of any
class or series of preferred stock shall have the rights to vote specified in
the corporation's certificate of rights, preferences and privileges filed in
accordance with the laws of the State of Nevada.
Section 2.8 Statement of Rights of Holders of Stock. So long as the
corporation is authorized to issue more than one class of stock or more than one
series of any class, there shall be set forth on the face or back of each
certificate of stock, or the certificate shall have a statement that the
corporation will furnish to any Shareholder upon request and without charge, a
full or summary statement of the voting powers, designations, preferences,
limitations, restrictions and relative rights of the various classes of stock or
series thereof.
ARTICLE THREE
SHAREHOLDERS' MEETINGS
Section 3.1 Place of Meetings. All meetings of the Shareholders shall
be held at the registered office of the corporation or at such other place,
either within or without the State of Nevada, as the Board of Directors may,
from time to time, designate.
Section 3.2 Annual Meeting. An annual meeting of the Shareholders shall
be held each year at such time and date between January 1 and June 30 as shall
be designated by the Board of Directors and stated in the notice of the meeting.
If an annual meeting has not been called and held by June 30 of any year, such
meeting may be called by the holders of ten percent (10%) or more of the voting
power of the corporation outstanding and entitled to vote. At such annual
meeting, the Shareholders shall elect a Board of Directors by a plurality vote
and transact such other business as may properly be brought before the meeting.
Section 3.3 Special Meetings.
A. Calling of Special Meetings. Upon request in writing to the
President or Secretary, sent by registered mail or delivered to such Officer in
person, by any of the persons entitled to call a meeting of Shareholders, as
provided in Section 3.3B below, such Officer shall forthwith cause notice to be
given
-2-
<PAGE>
to the Shareholders entitled to vote at such meeting. If the notice is not
given within thirty (30) days after the date of delivery of the request, the
persons calling the meeting may fix the time of meeting and give the notice in
the manner provided in these By-laws.
B. Persons Entitled to Call Special Meetings. Special meetings of the
Shareholders, for any purpose whatsoever, may be called at any time by any of
the following: (1) a majority of the Board of Directors in office; and
(2) Shareholders holding not less than twenty-five percent (25%) of the voting
power of the corporation.
C. Permissible Matters. Business transacted at all special meetings
shall be confined to the objects stated in the call.
Section 3.4 Notice.
A. Notice of Meetings. Notice of all meetings of Shareholders shall be
given in writing to Shareholders entitled to vote signed by the Secretary or an
Assistant Secretary or other person charged with that duty, or, in case of his
neglect or refusal, or if there is no person charged with the duty of giving
notice, by any Director or Shareholder.
B. Method of Notice. A notice may be given by the corporation to any
Shareholder, either personally or by mail or other means of written
communication, charges prepaid, addressed to the Shareholder at his address
appearing on the books of the corporation. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail with first-class
postage thereon, prepaid and addressed to the Shareholder at his address as it
appears on the stock transfer books of the corporation.
C. Time of Notice. Notice of meeting of Shareholders shall be sent to
each Shareholder entitled thereto not less than ten (10) days nor more than
sixty (60) days before the meeting, except in the case of a meeting for the
purpose of approving a merger or consolidation agreement in which case the
notice must be given not less than twenty (20) days prior to the date of the
meeting.
D. Contents of Notice. Notice of any meeting of Shareholders shall
specify the place, the day and the hour of the meeting and the purpose for
calling the meeting.
Section 3.5 Waiver of Notice. Notice of a meeting need not be given to
any Shareholder who signs a waiver of notice, in person or by proxy, either
before or after the meeting; and a Shareholder's waiver shall be deemed the
equivalent of giving proper notice. Attendance of a Shareholder at a meeting,
either in person or by proxy, shall by itself constitute a waiver of notice and
a waiver of any and all objections to the time or place of the meeting or the
manner in which it has been called or convened, unless a Shareholder attends a
meeting solely for the purpose of stating, at the beginning of the meeting, any
such objection or objections to the transaction of business. Unless otherwise
specified herein, neither the business transacted nor the purpose of the meeting
need be specified in the waiver.
Section 3.6 Presence by Telephone. Shareholders may participate in a
meeting of the Shareholders by means of a conference telephone or similar
communications equipment by which all participants in the meeting can hear each
other, and participation in a meeting pursuant to this Section 3.6 shall
constitute presence in person at such meeting.
-3-
<PAGE>
Section 3.7 Quorum. The majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
Shareholders. If a quorum is present, action on a matter (other than the
election of Directors) by the Shareholders is approved if the votes cast by the
Shareholders favoring the action exceed the votes cast opposing the action
unless provided otherwise (i) under the corporation's articles of incorporation,
(ii) under the rights and preferences of any class or series of stock
authorized, or (iii) under Nevada law. When a quorum is once present to organize
a meeting, the Shareholders present may continue to do business at the meeting
until adjournment even though enough Shareholders withdraw to leave less than a
quorum.
Section 3.8 Adjournment. Any meeting of the Shareholders may be
adjourned by the holders of a majority of the voting shares represented at a
meeting, whether or not a quorum is present. Notice of the adjourned meeting or
of the business to be transacted at such meeting shall not be necessary,
provided the time and place to which the meeting is adjourned are announced at
the meeting at which the adjournment is taken. Notwithstanding the preceding
sentence, if the Board of Directors fixes a new record date for the adjourned
meeting with respect to who can vote at such meeting, then notice of the
adjourned meeting shall be given to each Shareholder of record on the new record
date who is entitled to vote at such meeting, which notice shall be given in
accordance with the provisions of Section 3.4 hereof. At an adjourned meeting at
which a quorum is present or represented, any business may be transacted which
could have been transacted at the meeting originally called.
Section 3.9 Voting Rights. Each Shareholder shall be entitled at each
Shareholders' meeting to one vote for each share of the capital stock having
voting power held by such Shareholder except as otherwise provided (i) under the
corporation's articles of incorporation, or (ii) the corporation's certificate
of rights, preferences and privileges filed in accordance with the laws of the
State of Nevada. Neither treasury shares nor shares held by a subsidiary of the
corporation shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time.
Section 3.10 Proxies. A Shareholder entitled to vote may vote in person
or by proxy executed in writing by the Shareholder or by his attorney-in-fact.
If any Shareholder designates two or more persons to act as proxies, a majority
of those present at the meeting, or if only one shall be present, then that one,
shall have and may exercise all of the powers conferred by such Shareholder upon
all of the persons so designated unless the Shareholder shall otherwise provide.
A proxy shall not be valid after six (6) months from the date of its execution
unless it is coupled with an interest, or unless a longer period is expressly
stated in such proxy, which may not exceed seven (7) years from the date of its
creation. Every proxy shall be revocable at the pleasure of the Shareholder
executing it except as may be otherwise provided in the Nevada Revised Statutes.
Section 3.11 Election Judges. The Board of Directors, or if the Board
shall not have made the appointment, the chairman presiding at any meeting of
Shareholders, shall appoint two or more persons to act as election judges to
receive, canvass, certify and report the votes cast by the Shareholders at such
meeting; but no candidate for the office of Director shall be appointed as an
election judge at any meeting for the election of Directors.
Section 3.12 Chairman of Meeting. The Chairman of the Board shall
preside at all meetings of the Shareholders; and, in the absence of the Chairman
of the Board, the President shall serve as chairman of the meeting.
Section 3.13 Secretary of Meeting. The Secretary of the corporation
shall act as secretary of all meetings of the Shareholders; and, in his absence,
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
-4-
<PAGE>
Section 3.14 Action by Consent of Shareholders. Any action required or
permitted to be taken at a meeting of the Shareholders may be taken without a
meeting if a written consent setting forth the action shall be signed by
Shareholders holding at least a majority of the voting power, unless a greater
vote is required (i) under the corporation's articles of incorporation, (ii)
under the corporation's certificate of rights, preferences and privileges filed
in accordance with the laws of the State of Nevada, or (iii) under Nevada law,
in which event, such greater proportion of written consent shall be required.
Any such consent shall be filed with the Secretary of the corporation and shall
have the same force and effect as a unanimous vote of the Shareholders.
ARTICLE FOUR
DIRECTORS
Section 4.1 Management of Business. Subject to these by-laws, the full
and entire management of the affairs and business of the corporation shall be
vested in the Board of Directors which shall have and which may exercise all of
the powers that may be exercised or performed by the corporation.
Section 4.2 Number, Qualification and Term of Office. The business and
affairs of the corporation shall be managed by a Board of Directors which shall
consist of such number of members, not less than three nor more than nine, as
shall be determined from time to time by resolution of the Board of Directors at
any meeting of the Board or by the unanimous written consent of the Board. Each
member of the Board of Directors of the corporation shall be elected by a
plurality of the votes cast by the shares entitled to vote for the election of
Directors. None of the Directors need be a resident of the State of Nevada or
hold shares of stock in the corporation. The Directors shall be elected at an
annual or special meeting of the Shareholders and shall serve for a term of one
(1) year or until their successors are elected and qualified.
Section 4.3 Vacancies.
A. When Vacancies Occur. Vacancies in the Board of Directors shall
exist in the case of happening of any of the following events: (1) the death,
resignation or removal of any Directors; (2) a declaration of vacancy by the
Board of Directors as provided in Paragraph B below; (3) the authorized number
of Directors is increased by resolution of the Board of Directors; or (4) at any
meeting of Shareholders at which the Directors are elected, the Shareholders
fail to elect the full authorized number of Directors to be voted for at that
meeting. A reduction of the authorized number of Directors does not remove any
Director prior to the expiration of his term in office.
B. Declaration of Vacancy. The Board of Directors may declare vacant
the office of any Director in either of the following cases: (1) if he is
declared of unsound mind by an appropriate court order or convicted of a felony;
or (2) if within sixty (60) days after notice of his election he does not accept
the office either in writing or by attending a meeting of the Board of
Directors.
C. Filling Vacancies. Unless the Articles of Incorporation or a
provision of these By-laws approved by the Shareholders provides otherwise, if a
vacancy occurs on the Board of Directors,
-5-
<PAGE>
including a vacancy resulting from an increase in the number of Directors, the
Board of Directors may fill the vacancy. If the Directors remaining in office do
not constitute a quorum of the Board, the Directors may fill the vacancy by
affirmative vote of a majority of all the Directors remaining in office. Such
appointment by the Shareholders or Directors shall continue until the expiration
of the term of the Director whose place has become vacant.
Section 4.4 Compensation. For their services as Directors, the
Directors may receive a fixed sum salary and reimbursement of expenses of
attendance at each meeting of the Board as approved by the Shareholders or Board
of Directors from time to time. A Director may serve the corporation in a
capacity other than that of Director and receive compensation for the services
rendered in such other capacity.
ARTICLE FIVE
DIRECTORS' MEETINGS
Section 5.1 Place of Meetings. The meetings of the Board of Directors
may be held at the registered office of the corporation or at any place, within
or without the State of Nevada, which a majority of the Board of Directors may,
from time to time, designate.
Section 5.2 Annual Meeting. The Board of Directors shall meet each year
immediately following the annual meeting of the Shareholders at the place such
Shareholders' meeting was held or at such other time, date and place as a
majority of the Board of Directors may designate. At such annual meeting,
Officers shall be elected and such other business may be transacted which is
within the powers of the Directors. Notice of the annual meeting of the Board of
Directors need not be given.
Section 5.3 Regular Meetings.
A. When Regular Meetings Held. Regular meetings of the Board of
Directors (which includes the annual meeting) shall be held not less than every
three (3) months.
B. Call of Regular Meetings. All regular meetings of the Board of
Directors of the Corporation shall be called by the Chairman of the Board or by
the President.
C. Notice of Regular Meetings. Written notice of the time and place of
the regular meetings of the Board of Directors shall be delivered personally to
each Director or sent to each Director by mail or by other form of written
communication (including facsimile transmission) at least two (2) business days
before the meeting.
Section 5.4 Special Meetings.
A. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or by any two Directors.
B. Notice of Special Meeting. Written notice of the time and place of
special meetings of the Board of Directors shall be delivered personally to each
Director or sent to each Director by mail or
-6-
<PAGE>
by other form of written communication (including facsimile transmission) at
least two (2) business days before the meeting.
Section 5.5 Waiver of Notice. A Director may waive in writing notice of
a special meeting of the Board, either before or after the meeting, and his
waiver shall be deemed the equivalent of giving notice. Attendance of a Director
at a meeting shall constitute a waiver of notice of that meeting unless he
attends for the express purpose of objecting to the transaction of business on
the grounds that the meeting has not been lawfully called or convened.
Section 5.6 Purpose of Meeting. Neither the business to be transacted
at a regular or special meeting, nor the purpose of such meeting, need be
specified in the notice or waiver of notice of such meeting.
Section 5.7 Presence by Telephone. Members of the Board of Directors
may participate in a meeting of the Board of Directors by means of a conference
telephone or similar communications equipment by which all Directors
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 5.7 shall constitute presence in person at such
meeting.
Section 5.8 Quorum. At meetings of the Board of Directors, a majority
of the Directors shall constitute a quorum for the transaction of business. Only
when a quorum is present may the Board of Directors continue to do business at
any such meeting. If a quorum is present, the acts of a majority of Directors in
attendance shall be the acts of the Board.
Section 5.9 Adjournment. A meeting of the Board of Directors may be
adjourned. Notice of the time and the place of the adjourned meeting and of the
business to be transacted thereat, other than by announcement at the meeting at
which the adjournment is taken, shall not be necessary. At an adjourned meeting
at which a quorum is present, any business may be transacted which could have
been transacted at the meeting originally called.
Section 5.10 Manifestation of Dissent. A Director of the corporation
who is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a
Director who voted in favor of such action.
Section 5.11 Action by Consent. If all of the Directors, severally or
collectively, consent in writing to any action taken or to be taken by the
corporation and the writing or writings evidencing their consent are filed with
the Secretary of the corporation, the action shall be as valid as though it had
been authorized at a meeting of the Board of Directors.
Section 5.12 Committees. The Board of Directors may from time to time,
by majority resolution of the full Board of Directors, appoint from among its
members such Committees as the Board may determine. The members of the Executive
Committee, if there is one, shall include the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer and such other persons designated by
the Board of Directors. If an Executive Committee is formed, such Committee
shall, during the interval between
-7-
<PAGE>
meetings of the Board, advise and aid the Officers of the corporation in all
matters in the corporation's interest and the management of its business and
generally perform such duties and exercise such powers as may be directed or
delegated by the Board of Directors from time to time. The Board may delegate to
the Executive Committee authority to exercise all powers of the Board, excepting
powers which may not be delegated to such Committee under Nevada law, while the
Board is not in session. Vacancies in the membership of any Committee which
shall be so appointed by the Board of Directors shall be filled by the Board of
Directors at a regular meeting or at a special meeting called for that purpose.
All committees shall keep regular minutes of their proceedings and report the
same to the full Board when requested or required.
ARTICLE SIX
OFFICERS
Section 6.1 Officers. The Officers of the corporation shall consist of
those Officers, if any, as the Board of Directors shall designate from time to
time. Upon such action by the Board of Directors, the officers of the
corporation may include a Chairman of the Board, a Vice Chairman of the Board, a
President, a Vice President or Vice Presidents, Secretary, Treasurer and
Assistants to the Vice President, Secretary or Treasurer. The Officers shall be
elected by and shall serve at the pleasure of the Board of Directors. The same
individual may simultaneously hold more than one office in the corporation. The
Board of Directors may designate one or more of the officers with the additional
titles of Chief Executive Officer, Chief Operating Officer and Chief Financial
Officer. The officers so designated shall have those duties incident to the
respective designations, in addition to the duties set forth herein.
Section 6.2 Duties of Officers. All Officers of the corporation, as
between themselves and the corporation, shall have such authority and perform
such duties in the management of the corporation as hereinafter provided in
these By-laws or as may be determined by action of the Board of Directors to the
extent not inconsistent with these By-laws.
Section 6.3 Chairman of the Board. The Chairman of the Board shall be a
member of the Board of Directors. He shall, when present, preside at all
meetings of the Board of Directors. He may execute any deeds, mortgages, bonds
or other contracts pursuant to authority (which may be general authority) from
the Board of Directors, except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these by-laws to some other
officer or agent of the corporation or shall be required by law to be otherwise
signed or executed; and in general shall perform all duties incident to the
office of Chairman of the Board and such other duties as may be prescribed by
the Board of Directors from time to time.
Section 6.4 Vice Chairman of the Board. The Vice Chairman of the Board,
if there is one, shall serve in the place of the Chairman of the Board in the
absence of the Chairman. The Vice Chairman of the Board shall perform such other
duties as may be prescribed by the Board of Directors from time to time.
Section 6.5 President. The President shall have the responsibility for
the general supervision of the day-to-day business affairs of the corporation.
He shall be responsible for the day-to-day administration of the corporation,
including general supervision of the implementation of the policies of the
corporation, general and active management of the financial affairs of the
corporation and may execute certificates for shares of the corporation, deeds,
mortgages, bonds or other contracts under the seal of the
-8-
<PAGE>
corporation pursuant to authority (which may be general authority) from the
Board of Directors except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these by-laws to some other
officer or agent of the corporation or shall be required by law to be otherwise
signed or executed. He shall preside at all meetings of the Directors and
Shareholders (except when there is a separately elected Chairman of the Board)
and shall discharge the duties of a presiding officer. He shall present at each
annual meeting of the Shareholders a report of the business of the corporation
for the preceding fiscal year. The President shall also perform whatever other
duties the Board of Directors may from time to time prescribe.
Section 6.6 Vice Presidents. The Vice President or Vice Presidents
shall perform such duties and have such powers as the Chairman of the Board or
the Board of Directors may from time to time prescribe. The Board of Directors
or the Chairman of the Board may designate the order of seniority of Vice
Presidents, in the event there is more than one, and may designate one or more
Vice Presidents as Senior Vice Presidents. The duties and powers of the
President shall disburse first to the Senior Vice President or to the Vice
Presidents in the order of seniority specified by the Board of Directors or the
Chairman of the Board.
Section 6.7 Secretary. The Secretary shall (i) keep minutes of all
meetings of the Shareholders and Directors, (ii) have charge of the minute
books, stock books and seal of the corporation, and (iii) perform such other
duties and have such other powers as may, from time to time, be delegated to him
by the Board of Directors or Chairman of the Board.
Section 6.8 Treasurer. The Treasurer shall:
(1) Funds - Custody and Deposit. Have charge and custody of,
and be responsible for, all funds and securities of the corporation and shall
deposit all such funds and other valuable effects in the name and to the credit
of the corporation in such depositories as shall be authorized by the Board of
Directors.
(2) Funds - Receipt. Give receipts for all moneys due and
payable to the corporation.
(3) Funds - Disbursement. Disburse the funds of the
corporation, keeping proper vouchers for such disbursements.
(4) Maintain Accounts. Keep and maintain adequate and correct
accounts of the corporation's properties and business transactions, including
accounts of its assets, liabilities, receipts, disbursements, gains, losses,
capital, surplus and shares.
(5) Other Duties. Perform all the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him by the Board of Directors or Chairman of the Board.
Section 6.9 Assistant Vice Presidents, Assistant Secretary and
Assistant Treasurer. Assistants to the Vice Presidents, Secretary and Treasurer
may be appointed and shall have such duties as shall be delegated to them by the
Board of Directors or Chairman of the Board.
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<PAGE>
Section 6.10 Delegation of Duties. In case of the absence of any
Officer of the corporation, or for any other reason and for any duration that
the Board of Directors may deem advisable, the Board of Directors may delegate
the powers or duties, or any of them, of such Officer to any other Officer, or
to any Director, provided a majority of the entire Board concurs therein.
Section 6.11 Removal of Officers. Any Officer elected or appointed by
the Board of Directors may be removed by the Board of Directors whenever, in the
judgment of a majority of the members of the Board of Directors, the best
interest of the corporation will be served thereby. The removal of any such
Officer shall be without prejudice to the contract rights, if any, of the person
so removed; however, the election or appointment of an Officer shall not in and
of itself create any contract rights.
Section 6.12 Vacancies. When a vacancy occurs in one of the executive
offices by death, resignation or otherwise, it shall be filled by the Board of
Directors. The Officer so elected shall hold office until his successor is
chosen and qualified.
Section 6.13 Compensation. The Board of Directors shall prescribe or
fix the salaries, bonuses, pensions, benefits under pension plans and profit
sharing plans, stock option plans and all other plans, benefits and compensation
to be paid or allowed to or in respect of (i) all Officers and any or all
employees of the corporation, including Officers and employees who may also be
Directors of the corporation and (ii) the Directors of the corporation, as such.
Directors of the corporation shall not be disqualified from voting on their own
or any other person's plan, benefit or compensation to be paid by the
corporation merely because they or such other person is a Director or an Officer
or an employee of the corporation. The Board of Directors may delegate these
functions to any Officer not a Director except those determinations involving an
Officer or Director.
ARTICLE SEVEN
SEAL
Section 7.1 Seal. The seal of the corporation shall be in such form as
the Board of Directors may, from time to time, determine. In the event it is
inconvenient to use such a seal at any time, the signature of the corporation
followed by the words "Corporate Seal" enclosed in parentheses or scroll shall
be deemed the seal of the corporation. The seal shall be in the custody of the
Secretary and affixed by him or any Assistant Secretary on the certificates of
stock and such other papers as may be directed by law, by these by-laws or by
the Chairman of the Board, President or Board of Directors.
ARTICLE EIGHT
AMENDMENTS
Section 8.1 Amendments. These by-laws may be amended at any meeting of
the Board of Directors by the affirmative vote of a majority of the Directors
except as otherwise provided herein or except as prohibited by law.
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ARTICLE NINE
INDEMNIFICATION
Section 9.1 Definitions. As used in this Article, the term:
A. "Corporation" means this corporation and includes any
domestic or foreign predecessor entity of this corporation in a merger or other
transaction in which the predecessor's existence ceased upon consummation of the
transaction.
B. "Director" means an individual who is or was a Director of
the Corporation or an individual who, while a Director of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise. A
Director is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Director" includes, unless the context requires
otherwise, the estate or personal representative of a Director.
C. "Expenses" includes attorneys' fees.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect to a
proceeding.
E. "Officer" means an individual who is or was an officer of
the Corporation or an individual who, while an officer of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
An officer is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Officer" includes, unless the context requires
otherwise, the estate or personal representative of an officer.
F. "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a proceeding.
G. "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal but shall include an action or suit
by or in the right of the Corporation only if such action or suit is to procure
a judgment in the Corporation's favor.
Section 9.2 Basic Indemnification Arrangement.
A. Except as provided in subsections 9.2D and 9.2E below, the
Corporation shall indemnify any Officer or Director in the event he is made a
party to a proceeding because he is or was a director or officer against
liability incurred by him in the proceeding if he acted in good faith and in a
manner he believed to be in or not opposed to the best interests of the
Corporation and, in the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
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B. An Officer's or Director's conduct with respect to an
employee benefit plan for a purpose he believed in good faith to be in the
interests of the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection 9.2A.
C. The termination of a proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, be determinative that any Officer or Director did not meet
the standard of conduct set forth in subsection 9.2A.
D. The Corporation shall not indemnify any Officer or Director
under this Article in connection with a proceeding by or in the right of the
Corporation in which such Officer or Director was adjudged liable to the
Corporation, unless and only to the extent the court in which the proceeding was
brought or other court of competent jurisdiction determines upon application
that in view of all circumstances of the case, the Officer or Director is fairly
and reasonably entitled to indemnity for such expenses as the court deems
proper.
E. Indemnification permitted under this Article in connection
with a proceeding is limited to liability and expenses actually and reasonably
incurred in connection with the proceeding.
Section 9.3 Advances for Expenses.
A. The Corporation shall pay for or reimburse the reasonable
expenses incurred by an Officer or Director as a party to a proceeding in
advance of final disposition of the proceeding if he furnishes the Corporation a
written undertaking (meeting the qualifications set forth below in subsection
9.3B), executed personally or on his behalf, to repay any advances if it is
ultimately determined that he is not entitled to any indemnification under this
Article or otherwise.
B. The undertaking required by subsection 9.3A above must be
an unlimited general obligation of such Officer or Director but need not be
secured and may be accepted without reference to financial ability to make
repayment.
Section 9.4 Authorization of and Determination of Entitlement to
Indemnification.
A. The Corporation shall not indemnify any Officer or Director
under Section 9.2 unless a separate determination has been made in the specific
case that indemnification of such Officer or Director is permissible in the
circumstances because he has met the standard of conduct set forth in subsection
9.2A or unless ordered by a court or advanced pursuant to Subsection 9.3;
provided, however, that regardless of the result or absence of any such
determination, to the extent that such Officer or Director has been successful,
on the merits or otherwise, in the defense of any proceeding to which he was a
party, or in defense of any claim, issue or matter therein, because he is or was
a Director or Officer, the Corporation shall indemnify such Officer or Director
against liability incurred by him in connection therewith.
B. The determination referred to in subsection 9.4A above
shall be made, at the election of the Board of Directors:
1. By the Board of Directors of the Corporation by
majority vote of a quorum consisting of Directors not at the time
parties to the proceeding;
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2. By special independent legal counsel:
(a) selected by the Board of Directors in the
manner prescribed in subparagraph 1 immediately above;
or
(b) if a quorum of the Board of Directors cannot
be obtained under subparagraph 1 immediately above,
selected by a majority vote of the full Board of
Directors (in which selection Directors who are parties
may participate); or
3. By the Shareholders provided that shares owned by
or voted under the control of Directors or Officers who are at
the time parties to the proceeding may not be voted on the
determination.
C. Evaluation as to reasonableness of expenses of an Officer
or Director in the specific case shall be made in the same manner as the
determination that indemnification is permissible, as described in subsection
9.4B above, except that if the determination is made by special legal counsel,
evaluation as to reasonableness of expenses shall be made by those entitled
under subsection 9.4B2 to select counsel.
Section 9.5 Limitations on Indemnification of Officers and Directors.
Nothing in this Article shall require or permit indemnification of an Officer or
Director for any liability if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or a knowing violation of law
and was material to the cause of action.
Section 9.6 Witness Fees. Nothing in this Article shall limit the
Corporation's power to pay or reimburse expenses incurred by an Officer or
Director in connection with his appearance as a witness in a proceeding at a
time when he has not been made a named defendant or respondent in the
proceeding.
Section 9.7 Non-exclusivity, Etc. The rights of an Officer or Director
hereunder shall be in addition to any other rights with respect to
indemnification, advancement of expenses or otherwise that such Officer or
Director may have under the Corporation's By-laws or the Nevada Revised Statutes
or otherwise.
Section 9.8 Intent. It is the intention of this corporation that this
Article of the By-laws of this Corporation and the indemnification hereunder
shall extend to the maximum indemnification possible under the laws of the State
of Nevada and if one or more words, phrases, clauses, sentences or sections of
this Article should be held unenforceable for any reason, all of the remaining
portions of this Article shall remain in full force and effect.
ARTICLE TEN
DEALINGS
Section 10.1 Related Transactions. No contract or other transaction
between this corporation and any other firm, association or corporation shall be
affected or invalidated by the fact that any of the members of the Board of
Directors of this corporation are interested in or are members, shareholders,
governors or directors of such firm, association or corporation; and no
contract, act or
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<PAGE>
transaction of this corporation with any individual firm, association or
corporation shall be affected or invalidated by the fact that any of the members
of the Board of Directors of this corporation are parties to or interested in
such contract, act or transaction or are in any way connected with such
individual, firm, association or corporation. Each and every individual who may
become a member of the Board of Directors of this corporation is hereby relieved
from any liability that might otherwise exist from contracting with this
corporation for the benefit of himself or herself or any firm, association or
corporation in which he or she may in any way be interested. Notwithstanding the
above, the provisions of this Section 10.1 shall be applicable only in the
absence of fraud and only where the interest in such transaction of an
interested party has been disclosed and the interested party, if a Director, has
abstained from a vote thereon.
ARTICLE ELEVEN
DIVIDENDS AND RESERVES
Section 11.1 Dividends. The Board of Directors of the corporation may
from time to time declare, and in such event the corporation shall pay,
dividends on the corporation's outstanding shares in cash, property or the
corporation's own shares, except when the corporation is insolvent or when the
declaration or payment thereof would be contrary to any restrictions contained
in the Articles of Incorporation or any applicable law, subject to the
following:
A. Dividends may be declared and paid in the corporation's own shares
out of any treasury shares that have been reacquired by the corporation.
B. Dividends may be declared and paid in the corporation's own
authorized but unissued shares, provided that such shares shall be issued at not
less than the par value thereof and there shall be transferred to stated capital
at the time such dividend is paid an amount at least equal to the aggregate par
value of the shares to be issued as a dividend.
C. The corporation shall have the use of any cash or property declared
as a dividend that is unclaimed until the time it escheats to the applicable
jurisdiction. Any stock declared as a dividend or unclaimed shall be voted by
the Board of Directors.
Section 11.2 Reserves. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the Directors, from time to time, in their absolute discretion, think
proper as a reserve fund to meet contingencies or for equalizing dividends or
for repairing or maintaining any property of the corporation or for such other
purpose as the Directors shall think conducive to the interest of the
corporation, and the Directors may modify or abolish any such reserve in the
manner by which it was created.
ARTICLE TWELVE
CORPORATE BOOKS AND RECORDS
Section 12.1 Minutes of Corporate Meetings. The corporation shall keep
at its principal office, or such other place as the Board of Directors may
order, a book of minutes of all meetings of its Directors and of its
Shareholders, with the time and place of holding, whether annual, regular or
special,
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and, if special, how authorized, the notice thereof given, the names of
those present at Directors' meetings, the number of shares present or
represented at Shareholders' meetings and the proceedings thereof.
Section 12.2 Share Register. The corporation shall keep at the
principal office, or at the office of the transfer agent, a share register
showing the names of the Shareholders and their addresses, the number of shares
held by each and the number and date of cancellation of every certificate
surrendered for cancellation. The above specified information may be kept by the
corporation on punch cards, magnetic tape or other information storage device
related to electronic data processing equipment provided that such card, tape or
other equipment is capable of reproducing the information in clearly legible
form.
ARTICLE THIRTEEN
GENERAL PROVISIONS
Section 13.1 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 13.2 Authority for Execution of Contracts and Instruments. The
Board of Directors, except as otherwise provided in these By-laws, may authorize
any Officer or Officers, agent or agents to enter into any contract or execute
and delivery any instrument in the name and on behalf of the corporation, and
such authority may be general or confined to specified instances; and, unless so
authorized, no Officer, agent or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or in any amount.
Section 13.3 Signing of Checks, Drafts, Etc. All checks, drafts or
other order for payment of money, notes or other evidences of indebtedness
issued in the name of or payable to the corporation shall be signed or endorsed
by such person or persons and in such manner as shall be determined from time to
time by resolution of the Board of Directors.
AS ADOPTED BY THE DIRECTORS OF THE CORPORATION ON JULY 20, 1995. AS AMENDED BY
THE DIRECTORS OF THE CORPORATION ON DECEMBER 12, 1996.
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EXHIBIT 10.23
VALUJET, INC.
1996 STOCK OPTION PLAN
1. PURPOSE AND EFFECT OF THE PLAN. This Stock Option Plan (the "Plan") is
------------------------------
intended to promote the interests of ValuJet, Inc., a Nevada corporation (the
"Company") and its stockholders by encouraging certain selected directors,
consultants and key employees (including officers of the Company) who will be
responsible for the future growth and continued development of the Company to
own, and to increase their ownership of, the Company's stock thereby giving
them, as shareholders, an increased personal interest in, and a greater concern
for, the Company's success and progress. The Plan is also intended to aid the
Company in competing with other enterprises for the services of new executives
and key employees needed to help insure continued development.
2. NAME. The Plan shall be known as "ValuJet, Inc. 1996 Stock Option
----
Plan."
3. DEFINITION OF TERMS. In addition to words and terms that may be
-------------------
defined elsewhere in the Plan, the following words and terms as used in the Plan
shall have the following meanings unless the context or use fairly indicates
another or different meaning or intent, which definitions shall be equally
applicable to both the singular and plural forms of such words and terms.
A. "Board" shall mean the Board of Directors of the Company.
B. "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
C. "Committee" shall have the meaning set forth in Item 5 hereof.
D. "Common Stock" shall mean the common stock of the Company,
$.001 par value per share.
E. "Disinterested Persons" shall mean disinterested persons within
the meaning of Rule 16b-3, as promulgated under the Securities and Exchange
Act of 1934, as amended.
F. "Employee" shall mean any employee of the Company, including
officers or directors of the Company who are employees of the Company.
G. "Fair Market Value" shall mean the fair market value of a share
of Common Stock on a particular date determined as follows. In the event the
Company's Common Stock is listed upon an established stock exchange, Fair
Market Value shall be deemed to be the closing price of the Company's Common
Stock on such stock exchange on such date or, if no sale of the Company's
Common Stock shall have been made on any stock exchange on that day, the Fair
Market Value shall be determined as such price for the next preceding day upon
which a sale shall have occurred. In the event the Company's Common Stock is
not listed upon an established exchange but is quoted on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"), the
Fair Market Value shall be deemed to be the closing sale price (if included in
the national market list) or the mean between the closing dealer "bid" and
"asked" prices for the Company's Common Stock as quoted on NASDAQ for such
date, and if no closing sale price or "bid" and "asked" prices are quoted for
that day, the Fair Market Value shall be determined by reference to such
prices on the next preceding day on which such prices are quoted. In the
<PAGE>
event the Company's said Common Stock is neither listed on an established
stock exchange nor quoted on NASDAQ, the Fair Market Value on such date shall
be determined by the Committee.
H. "ISO" shall mean any Option under this Plan which is intended
to be an incentive stock option under Code Section 422.
I. "Non-Employees" shall mean any consultant of the Company or
director of the Company who is not an employee of the Company.
J. "NQSO" shall mean any Option granted under this Plan which is
not intended to qualify as an incentive stock option under Code Section 422.
K. "Option" shall mean a stock option, whether an ISO or NQSO,
granted under the Plan.
L. "Option Price" shall mean the purchase price of a share of
Common Stock under an Option.
M. "Participant" shall mean an Employee or Non-Employee to whom an
Option is granted under the Plan.
N. "Parent" shall mean any corporation which at the time qualifies
as a parent of the Company under the definition of "parent corporation"
contained in Code Section 424(e).
O. "SEC" shall mean the Securities and Exchange Commission.
P. "Subsidiary" shall mean any corporation which at the time
qualifies as a subsidiary of the Company under the definition of "subsidiary
corporation" contained in Code Section 424(f).
4. CHARACTERIZATION OF OPTIONS. Options granted in accordance with the
---------------------------
terms hereof within the limits prescribed by Item 9A(iv) hereof and which are
specified in the option agreement as intended to be incentive stock options,
are to be incentive stock options as provided in Code Section 422. All other
Options granted hereunder shall be nonqualified options as provided in Code
Section 83.
5. ADMINISTRATION. The Plan shall be administered by a Stock Option
--------------
Committee (the "Committee") consisting of not less than two members all of
whom shall be Disinterested Persons.
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A. The Committee shall be appointed by the Board from its
membership. Until such time as the Committee is appointed, the entire Board
shall serve as the Committee. The members of the Committee shall serve at the
pleasure of the Board, which shall have the power, at any time and from time
to time, to remove members from the Committee or to add members thereto.
Vacancies on the Committee, however caused, shall be filled by the Board.
B. Except as provided in Item 7, members of the Committee shall
not include any person who is not, during the one (1) year preceding the date
on which such member is first appointed to the Committee and during the time
he serves on the Committee, granted or awarded equity securities or options
therefor under this Plan or any other plan of the Company or any of its
affiliates.
C. The Committee may interpret the Plan, prescribe, amend and
rescind any rules and regulations necessary or appropriate for the
administration of the Plan and make such other determinations and take such
other action as it deems necessary or desirable for the administration of the
Plan and the protection of the Company except as otherwise reserved to the
Board or the shareholders of the Company. Without limiting the generality of
the foregoing, the Committee, in its discretion, may treat all or any part of
any period during which a Participant is on military duty or on an approved
leave of absence from the Company as a period of employment of such
Participant by the Company for purposes of accrual of his rights under his
Option. In addition, the Committee shall have the specific authority to grant
Options with different terms to different Participants and shall further have
the specific authority to require a minimum holding period between the grant
and exercise of any Option, to determine that the Options granted to a
Participant may be exercised only in installments and to specify such
conditions precedent to the exercise of any Option as the Committee may deem
advisable. The Committee may at any time, with the consent of the
Participant, at its sole discretion, cancel any Option and issue to the
Participant a new Option for any equivalent or lesser number of shares of
Common Stock, and at a lesser Option Price. Any interpretation, determination
or other action made or taken by the Committee shall be final, binding and
conclusive.
D. No member of the Committee shall be liable for any action taken
or omitted or determination made in good faith with respect to the Plan or any
Option granted under the Plan.
6. SHARES SUBJECT TO PLAN. Options may be granted by the Company from
----------------------
time to time to purchase an aggregate of 5,000,000 shares of Common Stock
subject to adjustment as provided in Item 11 below. The shares issued upon
exercise of Options granted under the Plan may be authorized and unissued
shares or shares held by the Company as treasury stock. If any Option granted
under the Plan shall terminate, expire or, with the consent of the
Participant, be cancelled as to any shares, new Options may thereafter be
granted covering any such shares.
7. ELIGIBILITY. Options may be granted to those Employees and Non-
-----------
Employees of the Company selected by the Committee in its sole discretion from
time to time who have and exercise key management functions for the Company or
who discharge other responsibilities important to the success of the Company.
Notwithstanding anything to the contrary in this Plan, Options may be granted
to a director who is a member of the Committee if otherwise exempt from
Section 16(b) of the Securities Exchange Act of 1934 pursuant to Regulation
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<PAGE>
Section 240.16b-3, SEC interpretations thereof or any subsequently promulgated
rule or regulation. The granting of an Option to any Participant shall
neither entitle such Participant to, nor disqualify such Participant from,
participation in any future Option grants.
8. GRANT OF OPTIONS. The Committee shall have the authority, subject
----------------
to the terms of the Plan, to: (a) determine and designate from time to time
those directors, consultants and key employees (including officers) to whom
Options are to be granted; (b) determine the number of shares subject to each
Option; (c) determine the duration of the exercise period for any Option; (d)
determine that the Options granted to a Participant may be exercised only in
installments; and (e) specify such other terms and conditions of each Option
as the Committee in its sole discretion deems advisable. The date of grant of
an Option under the Plan will be the date on which the Option is awarded by
the Committee.
9. TERMS AND CONDITIONS OF OPTIONS. Each Option shall be evidenced by
-------------------------------
an Option Agreement which shall contain such terms and conditions consistent
with the provisions of the Plan as may be approved by the Committee and shall
be signed by an executive officer of the Company and the Participant. Each
Option granted under the Plan shall be subject to such terms and conditions as
follows:
A. Terms of ISO's. ISO's granted hereunder shall be subject to
--------------
the terms and conditions contained in subparagraphs (i)-(viii) below and to
such other terms and conditions as the Committee may deem appropriate;
provided, however, that no Option that is intended to qualify as an ISO shall
be subject to any condition that is inconsistent with the provisions of Code
Section 422(b). In the event that any condition imposed hereunder on an
Option intended to qualify as an ISO is at any time determined by the Internal
Revenue Service or a court of competent jurisdiction to be inconsistent with
Code Section 422, then such Option shall be deemed to have been granted
without such condition and such Option shall continue in effect under such
remaining terms and conditions as may be applicable as if the invalid
condition had not been included.
(i) Option Period. Each ISO Option Agreement shall specify the period
-------------
during which the ISO thereunder is exercisable (which shall not exceed ten
years from the date of grant) and shall provide that the ISO shall expire at
the end of such period.
(ii) Option Price. The Option Price per share shall be determined by
------------
the Committee at the time any ISO is granted and shall not be less than one
hundred percent (100%) of the Fair Market Value of a share of Common Stock on
the day that the ISO is granted. Such price shall be subject to adjustment as
provided in Item 11.
(iii) Ten Percent Stockholders. ISO's shall not be granted to any
------------------------
Employee who, immediately before the ISO is granted, owns stock possessing
more than ten percent (10%) of the total combined voting power of all classes
of stock of the Company or of its Parent or Subsidiary; provided, however,
that this prohibition shall not apply if at the time such ISO is granted the
Option Price is at least one hundred ten percent (110%) of the Fair Market
Value of the Common Stock and such ISO is not exercisable after the expiration
of five (5) years from the date such ISO is granted.
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(iv) Limit on Incentive Stock Options. To the extent the aggregate
--------------------------------
Fair Market Value of the shares (valued at the time of grant in accordance
with subparagraph 2 above) with respect to which ISO's (determined without
regard to this subparagraph 4) are exercisable for the first time by any
individual during any calendar year (under all incentive stock option plans of
the Company and any Parent and Subsidiary) exceeds $100,000, such ISO's in
excess of $100,000 shall be treated as Options which are NQSO's. This
subparagraph (iv) shall be applied by taking ISO's into account in the order
in which they were granted.
(v) Termination of Employment other than as a Result of Death or
------------------------------------------------------------
Disability. An ISO of any Participant who shall cease to be an Employee other
----------
than as a result of his death or disability (as defined in (vi) below) shall
be exercisable only to the extent exercisable on the date of termination of
employment and must be exercised on or before the option expiration date
specified in the Option Agreement but in no event later than the date that is
three (3) months following the date of termination of employment. To the
extent any ISO is not exercisable on the date of termination of employment,
such ISO shall terminate on the date of termination of employment. To the
extent any ISO is not exercised within the time period provided, such ISO
shall terminate as of the date of expriation of such time period. Nothing in
the Plan shall be construed as imposing any obligation on the Company to
continue the employment of any Participant or shall interfere or restrict in
any way the rights of the Company to discharge any Employee at any time for
any reason whatsoever, with or without cause.
(vi) Termination of Employment as a Result of Death or Disability. In
------------------------------------------------------------
the event of the death or disability of the Participant while in the employ of
the Company, the personal representative of the Participant (in the event of
his death) or the Participant (in the event of his disability) may, subject to
the provisions hereof and before the date (the "Option Termination Date")
specified in the ISO Option Agreement, which date is not later than the
earlier of the ISO's expiration date or the expiration of one (1) year after
the date of such death or disability, exercise the ISO granted to such
Participant to the same extent the Participant might have exercised such ISO
on the date of his death or disability, but, unless otherwise provided in the
ISO Option Agreement, not further or otherwise. To the extent any ISO is not,
and does not in accordance with the terms of the Option Agreement become,
exercisable as of the date of the death or disability of a Participant, such
ISO shall terminate on the date of death or disability. To the extent any ISO
is not exercised within the time period provided, such ISO shall terminate as
of the date of expiration of such time period. For purposes of this
subparagraph (vi), a Participant shall be considered to be subject to a
disability when such Participant is disabled within the meaning of Code
Section 22(e)(3), and the date of any such disability shall be deemed to be
the day following the last day the Participant performed services for the
Company.
(vii) Period to Exercise Option. Any ISO granted hereunder may,
-------------------------
prior to its expiration or termination, be exercised from time to time, in
whole or in part, up to the total number of shares with respect to which it
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<PAGE>
shall have then become exercisable. An ISO granted hereunder may become
exercisable in installments as determined by the Committee; provided, however,
that if the Committee grants an ISO or ISO's exercisable in more than one
installment, and if the employment of a Participant holding such ISO is
terminated, then unless the ISO Option Agreement provides otherwise, the ISO
shall be exercisable in accordance with the terms of subparagraph (v) or (vi)
only as to such number of shares as to which the Participant had the right to
exercise the ISO on the date of termination of employment.
(viii) Non-Employees. No ISO may be granted to any person who is a
-------------
Non-Employee.
B. Terms of NQSO's. NQSO's granted hereunder shall be subject to
---------------
the terms and conditions contained in subparagraphs (i)-(iii) below and to
such other terms and conditions as the Committee may deem appropriate.
(i) Option Period. Each NQSO Option Agreement shall specify the period
-------------
during which the NQSO thereunder is exercisable (which shall not exceed ten
years from the date of grant) and shall provide that the NQSO shall expire at
the end of such period.
(ii) Option Price. The Option Price per share shall be determined by
------------
the Committee at the time any NQSO is granted. Such price shall be subject to
adjustment as provided in Item 11.
(iii) Period to Exercise Option. Any NQSO granted hereunder may,
-------------------------
prior to its expiration or termination, be exercised from time to time, in
whole or in part, up to the total number of shares with respect to which it
shall have then become exercisable. An NQSO granted hereunder may become
exercisable in installments as determined by the Committee and reflected in
the NQSO Option Agreement.
10. EXERCISE OF OPTION. The exercise of any Option under the Plan shall be
------------------
subject to the provisions of Paragraphs A, B and C below.
A. Method of Exercising Option. Any Option granted hereunder or
---------------------------
any portion thereof (in whole shares only) may be exercised by the Participant
by (i) delivering to the Company at its main office (attention its Secretary,
Assistant Secretary or Chief Financial Officer) written notice which shall set
forth the Participant's election to exercise a portion of all of his Option,
the number of shares with respect to which the Option rights are being
exercised, and such other representations and agreements as may be required by
the Company to comply with applicable securities laws, and (ii) paying in full
the Option Price of the shares purchased. Upon receipt of such notice and
payment, the Company shall issue and deliver to the Participant a certificate
for the number of shares of Common Stock with respect to which Options were so
exercised. In the Option Agreement, the Committee may require the exercise of
Options by any Participant to comply with the requirements of the SEC.
-6-
<PAGE>
B. Payment of Option Price. The Option Price of the shares as to
-----------------------
which an Option is exercised shall be paid in full to the Company at the time
of exercise. The payment may be made either in cash or its equivalent or,
where permitted by law and approved by the Committee in its sole discretion:
(i) by delivery of a promissory note on terms and conditions acceptable to the
Committee; (ii) by cancellation of indebtedness of the Company to the
Participant; (iii) by surrender of shares of Common Stock of the Company
having a Fair Market Value equal to the exercise price of the Option; (iv) by
instructing the Company to withhold shares otherwise issuable pursuant to an
exercise of an Option having a Fair Market Value equal to the exercise price
of the Option (including withheld shares); (v) by waiver of compensation due
or accrued to the Participant for services rendered; or (vi) by any
combination of the foregoing. Participants who are not Employees shall not be
entitled to purchase shares of Common Stock with a promissory note unless the
note is adequately secured by collateral other than the shares so purchased.
Notwithstanding anything to the contrary above, the Committee, in
its discretion, may suspend or terminate the right of Participants to pay in a
form other than cash should the Committee deem such action to be in the best
interests of the Company.
C. Withholding Taxes. The Company may, in its discretion, require
-----------------
a Participant to pay to the Company at the time of exercise the amount that
the Company deems necessary to satisfy its obligation to withhold federal,
state or local income or other taxes incurred by reason of the exercise. Upon
the exercise of an Option requiring tax withholding, a Participant may make a
written election to have shares of Common Stock withheld by the Company from
the shares otherwise to be received. The number of shares so withheld shall
have an aggregate Fair Market Value on the date of exercise sufficient to
satisfy the applicable withholding taxes. The acceptance of any such election
by a Participant shall be at the sole discretion of the Committee. Where the
exercise of an Option does not give rise to an obligation to withhold federal
income taxes on the date of exercise, the Company may, in its discretion,
require a Participant to place shares of Common Stock purchased under the
Option in escrow for the benefit of the Company until such time as federal
income tax withholding is required on amounts included in the gross income of
the Participant as a result of the exercise of an Option or the disposition of
shares of Common Stock acquired pursuant thereto. At such time, the Company,
in its discretion, may require the Participant to pay to the Company the
amount that the Company deems necessary to satisfy its obligation to withhold
federal, state or local income or other taxes incurred by reason of the
exercise of the Option or the disposition of shares of Common Stock, in which
case the shares of Common Stock will be released from escrow to the
Participant. Alternatively, subject to acceptance by the Committee, in its
sole discretion, a Participant may make a written election to have shares of
Common Stock held in escrow applied toward the Company's obligation to
withhold federal, state or local income or other taxes incurred by reason of
the exercise of the Option or the disposition of shares of Common Stock based
on the Fair Market Value of the shares on the date of the termination of the
escrow arrangement. Upon application of such shares toward the Company's
withholding obligation, any shares of Common Stock held in escrow and not, in
the judgment of the Committee, necessary to satisfy such obligation shall be
released from escrow to the Participant.
D. No Fractional Shares. Notwithstanding anything herein to the
--------------------
contrary, no fractional shares may be issued under the Plan.
-7-
<PAGE>
11. CAPITAL ADJUSTMENTS. The number and price of shares of Common Stock
-------------------
covered by each Option, the number of shares that become exercisable at any
one time and the total number of shares that may be optioned and sold under
the Plan shall be proportionately adjusted to reflect any stock dividend,
stock split or share combination of the Common Stock or any recapitalization
of the Company. In the event of any merger, consolidation, reorganization,
liquidation or dissolution of the Company or any exchange of shares involving
the Common Stock, any Option granted under the Plan shall automatically be
deemed to pertain to the securities and other property which a holder of the
number of shares of Common Stock covered by the Option would have been
entitled to receive in connection with any such event. No Option granted
pursuant to this Plan which was intended to be an incentive stock option at
the time of grant shall be adjusted in a manner that causes the Option to fail
to qualify as an incentive stock option within the meaning of Code Section
422. Except as expressly provided in this Item 11, the Participant shall have
no rights by reason of any change in the Common Stock of the Company. The
grant of an Option pursuant to this Plan shall not affect in any way the right
or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge,
consolidate, dissolve, liquidate, sell or transfer all or any part of its
business or assets. The Committee shall have the sole discretion to make all
interpretations and terminations required under this Item to the extent it
deems equitable and appropriate.
12. RESERVATION OF SHARES. The Company, during the term of any Options
---------------------
granted hereunder, will at all times reserve and keep available, and will seek
to obtain from any regulatory body having jurisdiction any requisite authority
in order to issue and sell such number of shares of Common Stock as shall be
sufficient to satisfy the requirements of the Options granted under the Plan.
If, in the opinion of the Company's counsel, the issuance or sale of any
shares of the Company's stock hereunder shall not be lawful for any reason,
including the inability of the Company to obtain from any regulatory body
having jurisdiction authority deemed by such counsel to be necessary for such
issuance or sale, the Company shall not be obligated to issue or sell any such
shares.
13. SECURITIES LAWS. Upon the exercise of an Option at a time when there
---------------
is not in effect under the Securities Act of 1933, as amended (the "Act"), a
current registration statement relating to the shares of Common Stock to be
received upon such exercise, the Participant shall represent and warrant in
writing to the Company that the shares purchased are being acquired for
investment and not with a view to the distribution thereof and shall agree to
the imposition of a legend on the certificate or certificates representing
said shares in substantially the following form and such other restrictive
legends as are required or advisable under the provisions of any applicable
laws:
This stock certificate and the shares represented hereby have not been
registered under the Securities Act of 1933, as amended (the "Act"),
nor under the securities laws of any state and shall not be transferred
at any time in the absence of (i) an effective registration statement
under the Act and any other applicable state law with respect to such
shares at such time; or (ii) an opinion of counsel satisfactory to the
Company and its counsel to the effect that such transfer at such time
will not violate the Act or any applicable state securities laws; or
(iii) a "no action" letter from the Securities and Exchange Commission
and a comparable ruling from any applicable state agency with respect
to such state's securities laws.
-8-
<PAGE>
No shares of Common Stock shall be issued or sold upon the exercise of any
Option unless and until (i) the full amount of the purchase price has been
paid as provided in Item 10 hereof and (ii) the then applicable requirements
of the Act, the applicable securities laws of any other jurisdiction, as any
of the same may be amended, the rules and regulations of the SEC and any other
regulations of any securities exchange on which the Common Stock may be listed
shall have been fully complied with and satisfied.
14. TRANSFERABILITY OF OPTIONS. No Option shall be assignable or
--------------------------
transferable by a Participant except by will or by the laws of descent and
distribution. Any distributee by will or by the laws of descent and
distribution shall be bound by the provisions of the Plan. During the life of
a Participant, the Option shall be exercisable only by such Participant. Any
attempt to assign, pledge, transfer, hypothecate or otherwise dispose of an
Option and any levy of execution, attachment or similar process on an Option
shall be null and void.
15. NO RIGHTS AS STOCKHOLDERS. A Participant shall not have any rights as
-------------------------
a stockholder with respect to any shares covered by any Option granted
hereunder until the issuance of a stock certificate for such shares. No
adjustment shall be made on the issuance of a stock certificate to a
Participant as to any dividends or other rights for which the record date
occurred prior to the date of issuance of such certificate.
16. INDEMNIFICATION AND EXCULPATION. Each person who is or shall have been
-------------------------------
a member of the Board or of the Committee shall be indemnified and held
harmless by the Company against and from any and all loss, costs, liability or
expense that may be imposed upon or reasonably incurred by him in connection
with or resulting from any claim, action, suit or proceeding to which he may
be or become involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him in settlement
thereof (with the Company's written approval) or paid by him in satisfaction
of a judgment in any such action, suit or proceeding, except a judgment in
favor of the Company based upon a finding of his lack of good faith; subject,
however, to the condition that upon the institution of any claim, action, suit
or proceeding against him, he shall in writing give the Company an
opportunity, at its expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive of any other right to which such person
may be entitled as a matter of law or otherwise, or any power that the Company
may have to indemnify him or hold him harmless. Each member of the Board or
of the Committee and each officer and employee of the Company shall be fully
justified in relying or acting in good faith upon any information furnished in
connection with the administration of the Plan by any appropriate person or
persons other than himself. In no event shall any person who is or shall have
been a member of the Board or of the Committee, or an officer or employee of
the Company, be held liable for any determination made, or other action taken,
or any omission to act in reliance upon any such information as referred to in
the preceding sentence, or for any action (including the furnishing of
information) taken, or any omission to act, when any such determination,
action or omission is made in good faith.
-9-
<PAGE>
17. USE OF PROCEEDS. Proceeds from the sale of stock pursuant to Options
---------------
granted under the Plan shall constitute general funds of the Company.
18. AMENDMENT AND DISCONTINUANCE. The Board of the Company may terminate
----------------------------
or amend the Plan in any respect at any time, except that no action of the
Board may alter or impair a Participant's rights under any outstanding Option
without his consent and, without the prior approval of the shareholders: (i)
the total number of shares that may be optioned and sold under the Plan may
not be increased (except by adjustment pursuant to Item 11); (ii) the price at
which shares may be purchased pursuant to Options granted hereunder may not be
reduced (except by adjustment pursuant to Item 11); (iii) the expiration date
of the Plan may not be extended; (iv) the class or persons eligible to
participate in the Plan may not be changed; (v) the benefits accruing to the
Participants under the Plan may not be materially increased, and (vi) the
requirements for eligibility to participate in the Plan may not be materially
modified.
19. TERM OF PLAN. The Plan shall be effective as of the date of the
------------
adoption of the Plan by the Board and the shareholders of the Company and
shall expire on March 31, 2004, unless sooner terminated as provided in Item
18 hereof.
20. GENERAL. Except as the same may be governed by the Code and any
-------
applicable federal securities laws, the Plan and any Options granted hereunder
shall be governed by and construed in accordance with the laws of the State of
Georgia. The granting of an Option shall impose no obligation upon the
Participant to exercise such Option. As herein used, the singular number
shall include the plural, the plural the singular, and the use of any gender
shall be applicable to all genders, unless the context or use shall fairly
require a different construction. Section or paragraph headings are employed
herein solely for convenience of reference, and such headings shall not affect
the validity, meaning or enforceability of any provision of the Plan. All
references herein to "Item" or "paragraph" shall mean the appropriately
numbered Item or paragraph of the Plan except where reference is made to the
Code or any other specified law or instrument.
AS APPROVED BY THE DIRECTORS OF THE COMPANY ON JANUARY 30, 1996.
-10-
<PAGE>
EXHIBIT 10.24
[ON VALUJET LETTERHEAD]
October 28, 1996
Mr. D. Joseph Corr
3 Windermere
Houston, TX 77063
Dear Joe:
On behalf of the Board of Directors and ValuJet, Inc., it is my pleasure to
confirm our offer for you to join our company as President and Chief Executive
Officer of ValuJet Airlines, Inc.
The following terms and conditions would apply:
- You would join ValuJet as soon as practical, preferably November 1 or
November 4.
- It is understood that you have matters in progress which would require
your attention during transition. With due consideration for ValuJet's needs
for your services, a reasonable number of days off would be allowed to
facilitate your early acceptance of this position and resolution of your other
open matters.
- You would receive base compensation of $250,000 per annum paid bi-weekly.
You would be eligible for a bonus amount up to $250,000 based upon a defined
incentive plan. This plan would be developed and established in conjunction
with a business plan for ValuJet Airlines, subject to Board approval by December
1, 1996, unless otherwise delayed with prior Board approval.
- You would be eligible for benefits consistent with those provided other
senior members of management.
- You would receive options to purchase 450,000 shares of ValuJet stock.
The shares would fully vest in three equal installments at the end of months 12,
24, and 36. The beginning date for these periods would be the date of your
acceptance of this offer. The strike price for purchase of the options would be
set at the price of the stock at close of business on the day of acceptance as
reported in the next edition of the Wall Street Journal. The options would be
subject to terms and conditions of ValuJet's current Stock Option Plan or
equivalent. Options would be "non-qualified" based upon certain Internal
Revenue Service rules and regulations.
- You would, after an initial 90-day period, be eligible for severance pay
if your employment were to be terminated by the Company for other than cause.
Upon such termination, you would receive a single lump sum payment equal to your
annual base salary. Any stock options which would have become vested during the
next 12 month period would become fully vested on the date of termination by the
Company for other than cause.
<PAGE>
Mr. Joe Corr
October 28, 1996
Page two
- This agreement would be effective for a contract term of three years.
- You would be reimbursed for reasonable and actual housing expense during
your first 90-day period. You would receive a one-time lump sum payment
thereafter of $20,000 to assist you in the cost of relocating to the Atlanta
area.
- For the purposes of this agreement "cause" shall mean your conviction of
any felony or a material breach of your obligations hereunder.
- ValuJet shall provide you indemnification throughout the term of your
employment for your acts in your capacity as an officer and director of the
Company to such extent as exists on the date hereof, provided, however, that if
such indemnification is diminished or is required to be diminished under any
applicable law, statute or other governmental regulation, such diminution shall
not constitute a violation of this provision.
Joe, we are enthusiastic about your joining our team and playing such an
important role in building our airline to the next level of great success. We
look forward to your early reply and hope you will choose to accept this offer.
If by November 1 the above agreement is acceptable, please sign and date one
original and return it to me as soon as possible. The other original is for
your records.
/s/ Robert L. Priddy
------------------------------------
Robert L. Priddy
Chairman and C.E.O.
/s/ D. Joseph Corr
------------------------------------
Agreed
D. Joseph Corr
October 29, 1996
------------------------------------
Date
<PAGE>
<TABLE>
<CAPTION>
Exhibit 11
VALUJET, INC.
COMPUTATION OF EARNINGS PER SHARE (1)
Year Ended December 31,
--------------------------------------------
1994 1995 1996
--------------------------------------------
<S> <C> <C> <C>
PRIMARY:
Weighted average common and common equivalent shares outstanding during 40,943,908 54,493,801 54,701,949
the period
Net effect of dilutive stock options and stock warrants - based on the treasury
stock method using the average market price 4,454,604 5,299,199 -
Effect of Common and Preferred Stock issued and stock options and warrants
granted subsequent to May 12, 1993 computed in accordance with the
treasury stock method as required by the SEC (2) 2,221,364 - -
--------------------------------------------
Total common and common equivalent shares 47,619,876 59,793,000 54,701,949
============================================
Net income (loss) $20,731,980 $67,762,598 $(41,469,299)
Plus: Reduction in interest expense from reduction of debt (3) 208,703 - -
Plus: Additional interest income received from excess funds invested in short-
term securities (3) 2,097 - -
--------------------------------------------
Adjusted Net income (loss) $20,942,780 $67,762,598 $(41,469,299)
============================================
Net income (loss) per share $ 0.44 $ 1.13 $ (0.76)
============================================
FULLY DILUTED:
Weighted average common and common equivalent shares outstanding during
the period 40,943,908 54,493,801 54,701,949
Net effect of dilutive stock options and stock warrants - based on the treasury
stock method using the ending market price, if higher than the average market
price 4,476,556 5,375,290 -
Effect of Common and Preferred Stock issued and stock options and warrants
granted subsequent to May 12, 1993 computed in accordance with the
treasury stock method as required by the SEC (2) 2,221,364 - -
--------------------------------------------
Total common and common equivalent shares 47,641,828 59,869,091 54,701,949
============================================
Net income (loss) $20,731,980 $67,762,598 $(41,469,299)
Plus: Reduction in interest expense from reduction of debt (3) 193,195 - -
Plus: Additional interest income received from excess funds invested in short-
term securities (3) - - -
--------------------------------------------
Adjusted Net income (loss) $20,925,175 $67,762,598 $(41,469,299)
============================================
Net income (loss) per share $ 0.44 $ 1.13 $ (0.76)
============================================
</TABLE>
(1) All share information has been adjusted to reflect two two-for-one stock
splits effected in the form of stock dividends which were payable on March
24, 1995 and November 21, 1995.
(2) Pursuant to Securities and Exchange Commission Staff Accounting Bulletin
No. 83, Common and Preferred Stock issued and stock options and warrants
granted at prices below the initial public offering price of $3.125 per
share during the 12-month period immediately preceding the initial filing
date of the Company's Registration Statement for its initial public
offering have been included as outstanding for all periods presented using
the treasury stock method.
(3) In accordance with APB 15, for periods in which the number of shares of
common stock obtainable on exercise of options and warrants in the
aggregate exceed 20 percent of the number of common shares outstanding at
the end of the period for which the computation was being made, the
treasury stock method was modified in determining the dilutive effect of
the options and warrants on earnings per share data. In those
circumstances, all options and warrants were assumed to have been exercised
and the aggregate proceeds therefrom to have been applied in two steps:
a. First, as if the funds obtained were first applied to the repurchase
of outstanding common shares at the average market price during the
period (treasury stock method) but not to exceed 20 percent of
outstanding shares.
b. Second, as if the balance of the funds were applied first to reduce
short-term or long-term borrowings and any remaining funds were
invested in U.S. Government securities or commercial paper, with
appropriate recognition of any income tax effect.
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
ValuJet Airlines, Inc., a Nevada corporation
ValuJet Investment Corp., a Nevada corporation
ValuJet Management Corp., a Nevada corporation
ValuJet Capital Corp., a Nevada corporation
ValuJet I, Ltd., a Nevada corporation
ValuJet II, Ltd., a Nevada corporation
ValuJet Reservation Partners, L.P., a Georgia limited partnership
ValuJet Corporate Partners, L.P., a Georgia limited partnership
<PAGE>
EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-87658) pertaining to the ValuJet Airlines, Inc. 1993 Incentive Stock
Option Plan and the ValuJet Airlines, Inc. 1994 Stock Option Plan, in the
Registration Statement (Form S-8 No. 33-91624) pertaining to the ValuJet
Airlines, Inc. 1995 Employee Stock Purchase Plan and in the Registration
Statement (Form S-3 No. 33-83048) of ValuJet Airlines, Inc. of our report dated
February 10, 1997, except for Note 4, as which the date is March 27, 1997, with
respect to the consolidated financial statements and schedule of ValuJet, Inc.
included in the Annual Report (Form 10-K) for the year ended December 31, 1996.
ERNST & YOUNG LLP
Atlanta, Georgia
March 27, 1996
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 150,012,695
<SECURITIES> 0
<RECEIVABLES> 44,293,355
<ALLOWANCES> 838,000
<INVENTORY> 6,607,307
<CURRENT-ASSETS> 251,041,431
<PP&E> 207,027,281
<DEPRECIATION> 44,455,397
<TOTAL-ASSETS> 417,186,876
<CURRENT-LIABILITIES> 82,486,604
<BONDS> 193,271,800
0
0
<COMMON> 54,876
<OTHER-SE> 123,344,761
<TOTAL-LIABILITY-AND-EQUITY> 417,186,876
<SALES> 219,636,232
<TOTAL-REVENUES> 219,636,232
<CGS> 271,034,774
<TOTAL-COSTS> 271,034,774
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,533,757
<INCOME-PRETAX> (65,932,299)
<INCOME-TAX> (24,463,000)
<INCOME-CONTINUING> (41,469,299)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (41,469,299)
<EPS-PRIMARY> (0.76)
<EPS-DILUTED> (0.76)
</TABLE>
