x
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the fiscal year ended December 31, 2008 | ||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to |
Delaware
|
87-0617894 | |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer Identification No.) |
Name of each exchange
|
||
Title of each class
|
on which registered
|
|
Common Stock, $0.01 par value
|
The NASDAQ Global Select Market | |
Participating Preferred Stock Purchase Rights
|
Large accelerated filer
|
x | Accelerated filer | o | |||
Non-accelerated filer
|
o | Smaller reporting company | o | |||
(Do not check if a smaller reporting company)
|
i
ii
ITEM 1.
BUSINESS
1
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High aircraft utilization.
By scheduling and
operating our aircraft efficiently, we are able to spread our
fixed costs over a greater number of flights and available seat
miles. For the year ended December 31, 2008, our aircraft
operated an average of 12.1 hours per day, which we believe
is the highest among all major U.S. airlines. Our airport
operations allow us to schedule our aircraft with minimum ground
time.
Low distribution costs.
Our distribution costs
are low for several reasons. We use only electronic tickets,
which saves paper, postage, employee time and back-office
processing expense. For the year ended December 31, 2008,
77% of our sales were booked on
www.jetblue.com
, our
least expensive form of distribution, while 10% were booked
through our home-based reservation agents.
Productive workforce.
Our employee efficiency
results from flexible and productive work rules, effective use
of part-time employees and the use of technology to automate
tasks. For example, most of our reservation agents work from
their homes, providing better scheduling flexibility and
allowing employees to customize their desired schedules. We are
continually looking for ways to make our workforce more
efficient through the use of technology without compromising our
commitment to customer service.
New and efficient aircraft.
We maintain a
fleet consisting of only two types of aircraft, the Airbus A320
and the EMBRAER 190, which, with an average age of only
3.6 years, is the youngest fleet of
2
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any major U.S. airline. We believe that operating a young
fleet, which employs the latest technologies, results in our
aircraft being more efficient and dependable than older
aircraft. We operate the worlds largest fleet of Airbus
A320 aircraft, and have the best dispatch reliability of all U.S
major Airbus A320 aircraft operators. Operating only two types
of newer aircraft types results in cost savings over our
competitors who operate more aircraft types as maintenance
processes are simplified, spare parts inventory requirements are
reduced, scheduling is simplified and training costs are lower.
3
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4
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Year Ended December 31,
2008
2007
2006
41.5
%
47.4
%
51.7
%
33.9
31.8
31.8
3.0
2.8
1.3
7.6
7.4
6.6
14.0
10.6
8.6
100.0
%
100.0
%
100.0
%
5
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Destination
Service Commenced
January 2008
January 2008
January 2009
Destination
Service Discontinued
January 2008
January 2008
May 2008
September 2008
6
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7
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Year Ended December 31,
2008
2007
2006
453
444
377
$
1,352
$
929
$
752
$
2.98
$
2.09
$
1.99
41.2
%
34.8
%
33.6
%
8
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9
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10
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ITEM 1A.
RISK
FACTORS
11
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12
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impact our ability to obtain additional financing to support
capital expansion plans and for working capital and other
purposes on acceptable terms or at all;
divert substantial cash flow from our operations and expansion
plans in order to service our fixed obligations;
require us to incur significantly more interest or rent expense
than we currently do, since a large portion of our debt has
floating interest rates and five of our aircraft leases have
variable-rate rent; and
place us at a possible competitive disadvantage compared to less
leveraged competitors and competitors that have better access to
capital resources.
13
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14
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15
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16
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ITEM 1B.
UNRESOLVED
STAFF COMMENTS
17
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ITEM 2.
PROPERTIES
Seating
Capital
Operating
Average Age
Capacity
Owned
Leased
Leased
Total
in Years
150
79
4
24
107
4.0
100
4
31
35
2.2
83
4
55
142
3.6
Firm
Option
Airbus
EMBRAER
Airbus
EMBRAER
A320
190
Total
A320
190
Total
3
8
11
3
3
6
8
8
5
4
9
3
11
14
13
10
23
4
12
16
13
12
25
7
14
21
12
12
24
4
21
25
9
11
20
4
20
24
10
10
58
70
128
22
86
108
18
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ITEM 3.
LEGAL
PROCEEDINGS
19
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ITEM 4.
SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS
20
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24
58
77
78
79
80
81
82
83
84
85
86
87
88
89
90
ITEM 5.
MARKET
FOR REGISTRANTS COMMON EQUITY; RELATED STOCKHOLDER MATTERS
AND ISSUER PURCHASES OF EQUITY SECURITIES
High
Low
$
17.02
$
11.33
12.08
9.72
11.99
8.53
9.98
5.90
$
7.33
$
4.30
5.99
3.52
6.75
3.04
7.20
3.09
21
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12/31/03
12/31/04
12/31/05
12/31/06
12/31/07
12/31/08
$
100
$
88
$
87
$
80
$
33
$
38
100
109
112
128
132
81
100
98
89
95
56
40
22
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ITEM 6.
SELECTED
FINANCIAL DATA
Year Ended December 31,
2008
2007
2006
2005
2004
(in millions, except per share data)
$
3,388
$
2,842
$
2,363
$
1,701
$
1,265
1,352
929
752
488
255
694
648
553
428
337
199
180
158
112
92
205
176
151
115
77
129
124
103
74
70
151
121
104
81
63
127
106
87
64
45
422
389
328
291
215
3,279
2,673
2,236
1,653
1,154
109
169
127
48
111
(185
)
(128
)
(118
)
(72
)
(36
)
(76
)
41
9
(24
)
75
23
10
(4
)
29
$
(76
)
$
18
$
(1
)
$
(20
)
$
46
$
(0.34
)
$
0.10
$
$
(0.13
)
$
0.30
$
(0.34
)
$
0.10
$
$
(0.13
)
$
0.28
3.2
%
6.0
%
5.4
%
2.8
%
8.8
%
(2.2
)%
1.4
%
0.4
%
(1.4
)%
5.9
%
1.6
x
$
(17
)
$
358
$
274
$
170
$
199
(247
)
(734
)
(1,307
)
(1,276
)
(720
)
635
556
1,037
1,093
437
(1)
In 2005, we recorded $7 million in non-cash stock-based
compensation expense related to the acceleration of certain
employee stock options.
(2)
In 2008, we wrote-off $8 million related to our temporary
terminal facility at JFK.
(3)
In 2008, 2007, and 2006, we sold nine, three, and five Airbus
A320 aircraft, respectively, which resulted in gains of
$23 million, $7 million, and $12 million,
respectively. In 2005, we wrote-off $6 million in
development costs relating to a maintenance and inventory
tracking system that was not implemented
(4)
In 2008, we recorded $13 million in additional interest
expense related to the early conversion of a portion of our 5.5%
convertible debentures due 2038 and $18 million in interest
income related to the gain on extinguishment of debt. In
December 2008, we recorded an other-than-temporary impairment of
$53 million related to the write-down of the value our
auction rate securities.
(5)
Earnings were inadequate to cover fixed charges by
$122 million, $1 million, $17 million and
$39 million for the years ended December 31, 2008,
2007, 2006, and 2005, respectively.
23
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As of December 31,
2008
2007
2006
2005
2004
(in millions)
$
561
$
190
$
10
$
6
$
19
254
644
689
478
431
6,023
5,598
4,843
3,892
2,797
3,155
3,048
2,840
2,326
1,545
1,261
1,036
952
911
754
Year Ended December 31,
2008
2007
2006
2005
2004
21,920
21,387
18,565
14,729
11,783
26,071
25,737
23,320
20,200
15,730
32,442
31,904
28,594
23,703
18,911
80.4
%
80.7
%
81.6
%
85.2
%
83.2
%
84.2
%
80.7
%
81.4
%
86.1
%
77.9
%
12.1
12.8
12.7
13.4
13.4
$
139.40
$
123.23
$
119.73
$
110.03
$
103.49
11.72
10.24
9.53
8.02
7.75
9.42
8.26
7.77
6.84
6.45
10.44
8.91
8.26
7.18
6.69
10.11
8.38
7.82
6.98
6.10
5.94
5.47
5.19
4.92
4.75
9.87
8.27
7.76
6.91
6.04
205,389
196,594
159,152
112,009
90,532
1,120
1,129
1,186
1,358
1,339
139.5
127.8
106.5
77.5
60.6
$
2.98
$
2.09
$
1.99
$
1.61
$
1.06
453
444
377
303
241
76.7
%
75.7
%
79.1
%
77.5
%
75.4
%
9,895
9,909
9,265
8,326
6,413
(6)
Excludes results of operations and employees of LiveTV, LLC,
which are unrelated to our airline operations and are immaterial
to our consolidated operating results.
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25
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ITEM 7.
MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
26
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27
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28
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Year Ended December 31,
Percent
2008
2007
Change
(in cents)
4.17
2.91
43.1
%
2.14
2.03
5.2
.62
.57
8.8
.63
.55
14.7
.40
.39
2.5
.47
.38
23.4
.39
.33
18.4
1.29
1.22
6.6
10.11
8.38
20.6
%
29
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30
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Year Ended December 31,
Percent
2007
2006
Change
(in cents)
2.91
2.63
10.7
%
2.03
1.94
5.1
.57
.55
2.5
.55
.53
4.2
.39
.36
7.2
.38
.36
4.3
.33
.30
8.8
1.22
1.15
6.2
8.38
7.82
7.1
%
31
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32
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Three Months Ended
March 31,
June 30,
September 30,
December 31,
2008
2008
2008
2008
$
816
$
859
$
902
$
811
308
370
394
280
178
168
173
175
51
49
52
48
45
46
54
60
32
32
33
32
39
42
38
33
33
32
32
30
113
99
104
104
799
838
880
762
17
21
22
49
(30
)
(31
)
(26
)
(98
)
(13
)
(10
)
(4
)
(49
)
(5
)
(3
)
8
$
(8
)
$
(7
)
$
(4
)
$
(57
)
2.2
%
2.4
%
2.4
%
6.1
%
(1.5
)%
(1.2
)%
(0.5
)%
(6.0
)%
5,518
5,637
5,657
5,108
6,563
6,756
6,848
5,904
8,395
8,383
8,154
7,510
78.2
%
80.6
%
84.0
%
78.6
%
82.2
%
84.1
%
89.7
%
80.6
%
12.9
12.6
11.7
11.2
$
135.64
$
138.13
$
142.55
$
141.37
11.40
11.53
11.78
12.23
8.92
9.29
9.89
9.62
9.72
10.24
11.07
10.80
9.51
9.99
10.80
10.14
5.84
5.59
5.96
6.42
9.37
9.69
10.56
9.86
52,265
52,236
51,125
49,763
1,131
1,138
1,132
1,075
136.3
139.6
142.2
139.9
$
2.65
$
3.17
$
3.42
$
2.67
117
116
115
105
76.7
%
77.2
%
76.9
%
75.7
%
10,165
9,856
9,398
9,895
(1)
During the third quarter, we wrote off $8 million related
to our temporary terminal facility at JFK.
33
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(2)
During the second, third and fourth quarters, we sold a total of
nine aircraft, which resulted in gains of $13 million,
$2 million and $8 million, respectively.
(3)
During the third and fourth quarters, we recorded an additional
$5 million and $8 million, respectively, in interest
expense related to the early conversion of a portion of our 5.5%
convertible debentures due 2038. Additionally, in the third and
fourth quarters, we recognized $12 million and
$6 million in interest income related to the gain on
extinguishment of debt, respectively. In the fourth quarter, we
recorded a net
other-than-temporary
impairment of $53 million related to the write-down in the
value of our ARS.
(4)
Excludes results of operations and employees of LiveTV, LLC,
which are unrelated to our airline operations and are immaterial
to our consolidated operating results.
34
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35
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Payments due in
Total
2009
2010
2011
2012
2013
Thereafter
$
4,055
$
301
$
533
$
292
$
283
$
473
$
2,173
2,021
223
201
186
166
139
1,106
4,975
350
300
465
925
960
1,975
120
120
3,645
182
141
154
188
205
2,775
$
14,816
$
1,176
$
1,175
$
1,097
$
1,562
$
1,777
$
8,029
(1)
Includes actual interest and estimated interest for
floating-rate debt based on December 31, 2008 rates.
36
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(2)
Amounts include noncancelable commitments for the purchase of
goods and services.
37
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38
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39
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40
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ITEM 7A.
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
41
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ITEM 8.
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
CONSOLIDATED BALANCE SHEETS
(In millions, except share data)
December 31,
2008
2007
$
561
$
190
10
644
86
92
30
26
78
91
111
106
53
962
1,116
3,832
3,547
163
238
3,995
3,785
406
336
3,589
3,449
487
475
134
130
353
345
533
452
5
528
452
4,470
4,246
244
8
21
69
53
270
162
591
236
$
6,023
$
5,598
42
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CONSOLIDATED BALANCE SHEETS
(In millions, except share data)
43
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CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share amounts)
Year Ended December 31,
2008
2007
2006
$
3,056
$
2,636
$
2,223
332
206
140
3,388
2,842
2,363
1,352
929
752
694
648
553
199
180
158
205
176
151
129
124
103
151
121
104
127
106
87
422
389
328
3,279
2,673
2,236
109
169
127
(232
)
(225
)
(173
)
48
43
27
(1
)
54
28
(185
)
(128
)
(118
)
(76
)
41
9
23
10
$
(76
)
$
18
$
(1
)
$
(0.34
)
$
0.10
$
$
(0.34
)
$
0.10
$
44
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CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
Year Ended December 31,
2008
2007
2006
$
(76
)
$
18
$
(1
)
(1
)
23
10
189
161
136
21
19
18
16
15
21
(41
)
(9
)
(8
)
(149
)
53
(70
)
4
(14
)
(12
)
(10
)
3
(28
)
19
86
97
15
36
33
13
20
8
(17
)
358
274
(654
)
(617
)
(996
)
(49
)
(128
)
(106
)
(142
)
(242
)
(149
)
299
100
154
12
19
(11
)
(23
)
24
15
(69
)
(654
)
(1,002
)
397
719
797
1
72
(30
)
(9
)
(16
)
(247
)
(734
)
(1,307
)
320
26
28
716
376
855
26
183
406
17
48
45
163
138
242
179
(673
)
(265
)
(390
)
(52
)
(44
)
(71
)
(20
)
(10
)
(15
)
635
556
1,037
EQUIVALENTS
371
180
4
190
10
6
$
561
$
190
$
10
45
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Accumulated
Additional
Other
Common
Common
Treasury
Treasury
Paid-In
Retained
Comprehensive
Shares
Stock
Shares
Stock
Capital
Earnings
Income (Loss)
Total
173
2
764
145
911
(1
)
(1
)
(7
)
(7
)
(8
)
3
11
11
21
21
2
17
17
178
2
813
144
(7
)
952
18
18
7
7
19
19
44
2
8
8
14
14
2
18
18
182
$
2
$
$
853
$
162
$
19
$
1,036
(76
)
(76
)
(72
)
(72
)
(31
)
(31
)
(103
)
(103
)
(8
)
(8
)
8
8
(179
)
1
1
1
16
16
2
9
9
43
301
301
44
1
1
17
76
76
17
$
289
$
3
17
$
$
1,256
$
86
$
(84
)
$
1,261
46
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December 31, 2008
Note 1
Summary
of Significant Accounting Policies
47
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Estimated Useful Life
Residual Value
25 years
20
%
12 years
0
%
Fleet life
10
%
Lease term
0
%
3-10 years
0
%
Lower of 15 years or lease term
0
%
Lease term
0
%
48
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49
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Note 2
Long-term
Debt, Short-term Borrowings and Capital Lease
Obligations
2008
2007
$
659
4.5
%
$
724
6.7
%
296
4.0
%
321
5.6
%
373
2.8
%
373
5.7
%
49
7.1
%
49
8.3
%
102
8.5
%
1,075
5.9
%
778
6.7
%
85
6.0
%
85
6.0
%
53
177
250
126
1
175
141
5.4
%
148
6.2
%
3,035
3,005
(152
)
(417
)
$
2,883
$
2,588
(1)
Interest rates adjust quarterly or semi-annually based on the
London Interbank Offered Rate, or LIBOR, plus a margin.
(2)
In November 2006, we completed a public offering of
$124 million of pass-through certificates to finance
certain of our owned aircraft spare parts. Separate trusts were
established for each class of these certificates. The entire
principal amount of the
Class G-1
and
Class B-1
certificates is scheduled to be paid in a lump sum on the
applicable maturity date. The interest rate for all certificates
is based on three month LIBOR plus a margin. Interest is payable
quarterly.
(3)
In November 2004 and March 2004, we completed public offerings
of $498 million and $431 million, respectively, of
pass-through certificates to finance the purchase of 28 new
Airbus A320 aircraft delivered through 2005. Separate trusts
were established for each class of these certificates. Quarterly
principal payments are required on the
Class G-1
certificates. The entire principal amount of the
Class G-2
certificates is scheduled to be paid in a lump sum on the
applicable maturity dates. In June and November
50
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2008, we fully repaid the principal balances of the Class C
certificates. In February 2008, we entered into interest rate
swap agreements that have effectively fixed the interest rate
for the remaining term of our
Class G-1
certificates for the November 2004 offering. These certificates
had a balance of $141 million at December 31, 2008 and
an effective interest rate of 4.6%. The interest rate for all
other certificates is based on three month LIBOR plus a margin.
Interest is payable quarterly.
(4)
In December 2006, the New York City Industrial Development
Agency issued special facility revenue bonds for JFK and, in
November 2005, the Greater Orlando Aviation Authority issued
special purpose airport facilities revenue bonds, in each case
for reimbursement to us for certain airport facility
construction and other costs. We have recorded the issuance of
$39 million (net of $1 million discount) and
$45 million (net of $2 million discount),
respectively, principal amount of these bonds as long-term debt
on our consolidated balance sheet because we have issued a
guarantee of the debt payments on the bonds. This fixed rate
debt is secured by leasehold mortgages of our airport facilities.
(5)
On December 10, 2008, we entered into the UBS auction rate
security loan program under a credit line agreement with UBS
Securities LLC and UBS Financial Services Inc, or UBS, which
provides us with a no net cost loan in the principal amount of
$53 million. However, this credit line agreement calls for
all interest income earned on the ARS being held by UBS to be
automatically transferred to UBS. This line of credit is secured
by approximately $85 million in par value of our ARS being
held by UBS. The term of the credit line is through at least
June 30, 2010.
(6)
In March 2005, we completed a public offering of
$250 million aggregate principal amount of
3
3
/
4
%
convertible unsecured debentures due 2035, which are currently
convertible into 14.6 million shares of our common stock at
a price of approximately $17.10 per share, or
58.4795 shares per $1,000 principal amount of debentures,
subject to further adjustment. Upon conversion, we have the
right to deliver, in lieu of shares of our common stock, cash or
a combination of cash and shares of our common stock.
At any time, we may irrevocably elect to satisfy our conversion
obligation with respect to the principal amount of the
debentures to be converted with a combination of cash and shares
of our common stock. At any time on or after March 20,
2010, we may redeem any of the debentures for cash at a
redemption price of 100% of their principal amount, plus accrued
and unpaid interest. Holders may require us to repurchase the
debentures for cash at a repurchase price equal to 100% of their
principal amount plus accrued and unpaid interest, if any, on
March 15, 2010, 2015, 2020, 2025 and 2030, or at any time
prior to their maturity upon the occurrence of a specified
designated event. Interest is payable semi-annually on March 15
and September 15.
In 2008, we repurchased a total of $73 million principal
amount of the debentures for $54 million. The
$18 million net gain from these transactions is recorded in
interest income and other in the accompanying consolidated
statements of operations.
(7)
On June 4, 2008, we completed a public offering of
$100.6 million aggregate principal amount of 5.5%
Series A convertible debentures due 2038, or the
Series A Debentures, and $100.6 million aggregate
principal amount of 5.5% Series B convertible debentures
due 2038, or the Series B Debentures, and collectively with
the Series A Debentures, the Debentures. The Debentures are
general senior obligations secured in part by an escrow account
for each series. We deposited approximately $32 million of
the net proceeds from the offering, representing the first six
scheduled semi-annual interest payments on the Debentures, into
escrow accounts for the exclusive benefit of the holders of each
series of Debentures. The total net proceeds of the offering
were approximately $165 million, after deducting
underwriting fees and other transaction related expenses as well
as the $32 million escrow deposit. Interest on the
Debentures is payable semi-annually on April 15 and
October 15.
Holders of the Series A Debentures may convert them into
shares of our common stock at any time at a conversion rate of
220.6288 shares per $1,000 principal amount of
Series A Debenture. Holders of the Series B Debentures
may convert them into shares of our common stock at any time at
a conversion rate of 225.2252 shares per $1,000 principal
amount of Series B Debenture. The conversion rates are
subject to adjustment should we declare common stock dividends
or effect any common stock splits or similar transactions. If
the holders convert the Debentures in connection with any
fundamental corporate change that occurs prior to
October 15, 2013 for the Series A Debentures or
October 15, 2015 for the Series B Debentures, the
applicable conversion rate may be increased depending upon our
then current common
51
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stock price. The maximum number of shares of common stock into
which all Debentures are convertible, including pursuant to this
make-whole fundamental change provision, is 54.4 million
shares. Holders who convert their Debentures prior to
April 15, 2011 will receive, in addition to the number of
shares of our common stock calculated at the applicable
conversion rate, a cash payment from the escrow account for
Debentures of the series converted equal to the sum of the
remaining interest payments that would have been due on or
before April 15, 2011 in respect of the converted
Debentures.
We may redeem any of the Debentures for cash at a redemption
price of 100% of their principal amount, plus accrued and unpaid
interest at any time on or after October 15, 2013 for the
Series A Debentures and October 15, 2015 for the
Series B Debentures.
Holders may require us to repurchase the Debentures for cash at
a repurchase price equal to 100% of their principal amount plus
accrued and unpaid interest, if any, on October 15, 2013,
2018, 2023, 2028, and 2033 for the Series A Debentures and
October 15, 2015, 2020, 2025, 2030, and 2035 for the
Series B Debentures; or at any time prior to their maturity
upon the occurrence of a specified designated event.
On June 4, 2008, in conjunction with the public offering of
the Debentures described above, we also entered into a share
lending agreement with Morgan Stanley & Co.
Incorporated, an affiliate of the underwriter of the offering,
or the share borrower, pursuant to which we loaned the share
borrower approximately 44.9 million shares of our common
stock. Under the share lending agreement, the share borrower
sold the borrowed shares of JetBlue common stock in a registered
public offering and used the short position resulting from the
sale of the shares of our common stock to facilitate the
establishment of hedge positions by investors in the Debentures
offering. The common stock was sold at a price of $3.70 per
share. Under the share lending agreement, the share borrower is
required to return the borrowed shares when the debentures are
no longer outstanding. We did not receive any proceeds from the
sale of the borrowed shares by the share borrower, but we did
receive a nominal lending fee of $0.01 per share from the share
borrower for the use of borrowed shares.
We evaluated the various embedded derivatives within the
supplemental indenture for bifurcation from the Debentures under
the applicable provisions. Based upon our detailed assessment,
we concluded these embedded derivatives were either
(i) excluded from bifurcation as a result of being clearly
and closely related to the Debentures or are indexed to our
common stock and would be classified in stockholders
equity if freestanding or (ii) the fair value of the
embedded derivatives was determined to be immaterial.
The net proceeds from our public offering of the Debentures
described above were used for the repurchase of substantially
all of our $175 million principal amount of 3.5%
convertible notes due 2033, issued in July 2003, which became
subject to repurchase at the holders option on
July 15, 2008 (see (8) below).
Through December 31, 2008, approximately $76 million
principal amount of the Debentures were voluntarily converted by
holders. As a result, we issued 16.9 million shares of our
common stock. Cash payments from the escrow accounts related to
these conversions were $11 million, and borrowed shares
equivalent to the number of shares of our common stock issued
upon these conversions were returned to us pursuant to the share
lending agreement described above. At December 31, 2008,
the remaining principal balance is $126 million, which is
currently convertible into 28.0 million shares of our
common stock. At December 31, 2008, the amount remaining in
these escrow accounts was $17 million, which is reflected
as restricted cash on our condensed consolidated balance sheets.
(8)
In July 2003, we sold $175 million aggregate principal
amount of 3.5% convertible unsecured notes due 2033, which are
currently convertible into 6.2 million shares of our common
stock at a price of approximately $28.33 per share, or
35.2941 shares per $1,000 principal amount of notes,
subject to further adjustment and certain conditions on
conversion. In July 2008, holders required us to repurchase
approximately $174 million principal amount of the notes at
par, plus accrued interest upon the first repurchase date.
Interest is payable semi-annually on January 15 and July 15.
(9)
At December 31, 2008 and 2007, four capital leased Airbus
A320 aircraft are included in property and equipment at a cost
of $152 million with accumulated amortization of
$9 million and $4 million, respectively. The future
minimum lease payments under these noncancelable leases are
$15 million per year through 2011, $14 million per
year in 2012 and 2013 and $138 million in the years
thereafter. Included in the future minimum lease payments is
$70 million representing interest, resulting in a present
52
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value of capital leases of $141 million with a current
portion of $7 million and a long-term portion of
$134 million.
$
152
388
160
161
361
53
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Carrying
Estimated
Value
Fair Value
$
296
$
189
373
196
49
30
85
43
177
134
126
217
1
1
659
547
1,075
1,022
Note 3
Operating
Leases
Aircraft
Other
Total
$
179
$
44
$
223
158
43
201
146
40
186
130
36
166
109
30
139
719
387
1,106
$
1,441
$
580
$
2,021
54
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Note 4
JFK
Terminal 5
55
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Note 5
Stockholders
Equity
Note 6
Earnings
(Loss) Per Share
2008
2007
2006
$
(76
)
$
18
$
(1
)
226,262
179,766
175,113
4,483
11
226,262
184,260
175,113
56
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Note 7
Stock-Based
Compensation
Stock Options
2008
2007
2006
6.0
4.1-6.8
4.1-7.0
47.7
%
42.5
%
44.1
%
3.0
%
4.6
%
4.8
%
$
3.45
$
4.91
$
5.32
57
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CSPP
2006
0.5-2.0
44.5
%
5.0
%
$
3.75
Weighted
Average
Grant Date
Shares
Fair Value
71,418
$
10.42
1,799,849
6.12
(23,805
)
10.42
(111,791
)
6.35
1,735,671
$
6.22
Table of Contents
2008
2007
2006
Weighted
Weighted
Weighted
Average
Average
Average
Exercise
Exercise
Exercise
Shares
Price
Shares
Price
Shares
Price
29,731,932
$
12.30
31,089,745
$
12.13
31,086,422
$
11.52
54,000
7.03
2,926,250
10.94
4,360,949
11.43
(718,226
)
1.12
(1,823,903
)
4.25
(3,011,260
)
3.75
(461,316
)
11.79
(737,127
)
11.87
(344,398
)
12.11
(1,364,275
)
14.62
(1,723,033
)
15.73
(1,001,968
)
15.20
27,242,115
12.47
29,731,932
12.30
31,089,745
12.13
22,464,451
12.38
22,537,850
12.19
24,881,786
11.86
19,867,014
12,589,744
6,022,883
(1)
On January 1, 2009, the number of shares reserved for
issuance was increased by 10,870,200 shares.
Options Outstanding
Options Vested and Exercisable
Weighted
Weighted
Average
Weighted
Aggregate
Average
Weighted
Aggregate
Remaining
Average
Intrinsic
Remaining
Average
Intrinsic
Range of
Contractual
Exercise
Value
Contractual
Exercise
Value
Shares
Life (years)
Price
(millions)
Shares
Life (years)
Price
(millions)
3,614,114
2.2
$
1.86
$
18
3,614,114
2.2
$
1.86
$
18
23,628,001
5.7
14.10
18,850,337
5.3
14.40
$
27,242,115
5.2
12.47
$
18
22,464,451
4.8
12.38
$
18
59
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2008
2007
2006
Weighted
Weighted
Weighted
Shares
Average
Shares
Average
Shares
Average
20,076,845
16,908,852
13,706,245
5,447,803
5,328,277
5,178,659
(1,974,266
)
$
4.65
(2,160,284
)
$
8.15
(1,976,052
)
$
8.73
23,550,382
20,076,845
16,908,852
Note 8
LiveTV
Note 9
Income
Taxes
2008
2007
2006
$
(1
)
$
18
$
9
5
1
$
(1
)
$
23
$
10
60
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2008
2007
2006
$
(27
)
$
14
$
3
(4
)
3
1
3
4
2
2
2
4
23
1
1
1
$
$
23
$
10
2008
2007
$
213
$
231
23
18
60
38
54
21
24
41
(26
)
(3
)
369
325
(453
)
(463
)
(13
)
(453
)
(476
)
$
(84
)
$
(151
)
61
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$
2
6
$
8
Note 10
Employee
Retirement Plan
Note 11
Commitments
62
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Note 12
Contingencies
63
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Note 13
Fair
Value, Financial Instruments and Risk Management
Level 1
quoted prices in active markets for identical assets or
liabilities;
Level 2
quoted prices in active markets for similar assets and
liabilities and inputs that are observable for the asset or
liability; or
Level 3
unobservable inputs for the asset or liability, such as
discounted cash flow models or valuations.
64
Table of Contents
Level 1
Level 2
Level 3
Total
$
409
$
$
$
409
140
140
244
244
14
14
$
549
$
$
258
$
807
$
$
128
$
$
128
10
$
10
$
$
128
$
10
$
138
Auction Rate
Put Option
Interest Rate
Securities
related to ARS
Swaps
Total
$
$
$
$
255
255
(67
)
14
(53
)
(10
)
(10
)
56
56
$
244
$
14
$
(10
)
$
248
65
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66
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2008
2007
$
(128
)
$
33
12
9
870
1,506
2008
2007
2006
$
48
$
35
$
(4
)
4
5
(5
)
38
%
59
%
64
%
67
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Note 14
Quarterly
Financial Data (Unaudited)
First
Second
Third
Fourth
Quarter
Quarter
Quarter
Quarter
$
816
$
859
$
902
$
811
17
21
22
49
(8
)
(7
)
(4
)
(57
)
$
(0.04
)
$
(0.03
)
$
(0.02
)
$
(0.24
)
$
(0.04
)
$
(0.03
)
$
(0.02
)
$
(0.24
)
$
608
$
730
$
765
$
739
(13
)
73
79
30
(22
)
21
23
(4
)
$
(0.12
)
$
0.12
$
0.13
$
(0.02
)
$
(0.12
)
$
0.11
$
0.12
$
(0.02
)
(1)
During the second, third and fourth quarters of 2008, we sold a
total of nine Airbus A320 aircraft, which resulted in gains of
$13 million, $2 million and $8 million,
respectively. During the third quarter of 2008, we wrote-off
$8 million related to our temporary terminal facility at
JFK. During the fourth quarter of 2008, we recorded a net
other-than-temporary impairment charge of $53 million
related to the value of our auction rate securities as described
more fully in Note 13.
(2)
During the third and fourth quarters of 2007, we sold a total of
three Airbus A320 aircraft, which resulted in gains of
$2 million and $5 million, respectively.
68
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69
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70
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ITEM 9.
CHANGES
AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
71
Table of Contents
Completed a full wall-to-wall physical inventory count;
Reinstated appropriate routine daily cycle count procedures;
Provided related training to staff to help ensure that these
procedures are properly performed; and
Corrected the inherent programming error within our inventory
management system subsequent to December 31, 2008.
ITEM 10.
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
ITEM 11.
EXECUTIVE
COMPENSATION
72
Table of Contents
ITEM 12.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
Number of securities
remaining available
for future issuance
Weighted-average
under equity
Number of securities to
exercise price of
compensation plans
be issued upon exercise
outstanding
(excluding securities
of outstanding options,
options, warrants
reflected in first
warrants and rights
and rights
column)
29,047,786
$
12.08
43,417,396
29,047,786
$
12.08
43,417,396
ITEM 13.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
ITEM 14.
PRINCIPAL
ACCOUNTING FEES AND SERVICES
73
ITEM 15.
EXHIBITS AND
FINANCIAL STATEMENT SCHEDULES
Financial statements:
Consolidated Balance SheetsDecember 31, 2008 and
December 31, 2007
Consolidated Statements of OperationsFor the years ended
December 31, 2008, 2007 and 2006
Consolidated Statements of Cash FlowsFor the years ended
December 31, 2008, 2007 and 2006
Consolidated Statements of Stockholders EquityFor
the years ended December 31, 2008, 2007 and 2006
Notes to Consolidated Financial Statements
Reports of Independent Registered Public Accounting Firm
Financial Statement Schedule:
Schedule IIValuation of Qualifying Accounts and
Reserves
S-1
All other schedules have been omitted because they are
inapplicable, not required, or the information is included
elsewhere in the consolidated financial statements or notes
thereto.
Exhibits: See accompanying Exhibit Index included after the
signature page of this report for a list of the exhibits filed
or furnished with or incorporated by reference in this report.
74
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By:
Executive Vice President and Chief Financial Officer
(principal financial officer and principal accounting officer)
Chief Executive Officer and Director
(principal executive officer)
February 13, 2009
Executive Vice President and Chief Financial Officer (principal
financial officer and principal accounting officer)
February 13, 2009
Director
February 13, 2009
Director
February 13, 2009
Director
February 13, 2009
Director
February 13, 2009
Director
February 13, 2009
Director
February 13, 2009
Director
February 13, 2009
Chairman of the Board
February 13, 2009
Director
February 13, 2009
Vice Chairman of the Board
February 13, 2009
75
Table of Contents
Membership Interest Purchase Agreement among Harris Corporation
and Thales Avionics In-Flight Systems, LLC and In-Flight
Liquidating, LLC and Glenn S. Latta and Jeffrey A. Frisco and
Andreas de Greef and JetBlue Airways Corporation, dated as of
September 9, 2002 relating to the interests in LiveTV,
LLCincorporated by reference to Exhibit 2.1 to our Current
Report on Form 8-K dated September 27, 2002.
Amended and Restated Certificate of Incorporation of JetBlue
Airways Corporationincorporated by reference to Exhibit
3.5 to our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2008.
Fifth Amended and Restated Bylaws of JetBlue Airways
Corporationincorporated by reference to Exhibit 3.6 of our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2008.
Certificate of Designation of Series A Participating Preferred
Stock dated April 1, 2002incorporated by reference to
Exhibit 3.2 to our Current Report on Form 8-K dated July 10,
2003.
Specimen Stock Certificateincorporated by reference to
Exhibit 4.1 to the Registration Statement on Form S-1, as
amended (File No. 333-82576).
Amended and Restated Registration Rights Agreement, dated as of
August 10, 2000, by and among JetBlue Airways Corporation and
the Stockholders named thereinincorporated by reference to
Exhibit 4.2 to the Registration Statement on Form S-1, as
amended (File No. 333-82576).
Amendment No. 1, dated as of June 30, 2003, to Amended and
Restated Registration Rights Agreement, dated as of August 10,
2000, by and among JetBlue Airways Corporation and the
Stockholders named thereinincorporated by reference to
Exhibit 4.2 to the Registration Statement on Form S-3, filed on
July 3, 2003, as amended on July 10, 2003 (File No. 333-106781).
Amendment No. 2, dated as of October 6, 2003, to Amended and
Restated Registration Rights Agreement, dated as of August 10,
2000, by and among JetBlue Airways Corporation and the
Stockholders named thereinincorporated by reference to
Exhibit 4.9 to the Registration Statement on Form S-3, filed on
October 7, 2003 (File No. 333-109546).
Amendment No. 3, dated as of October 4, 2004, to Amended and
Restated Registration Rights Agreement, dated as of August 10,
2000, by and among JetBlue Airways Corporation and the
Stockholders named thereinincorporated by reference to
Exhibit 4.1 to our Current Report on Form 8-K/A dated October 4,
2004.
Amendment No. 4, dated as of June 22, 2006, to Amended and
Restated Registration Rights Agreement, dated as of August 10,
2000, by and among JetBlue Airways Corporation and the
Stockholders named thereinincorporated by reference to
Exhibit 4.19 to our Registration Statement on Form S-3 ARS,
filed on June 30, 2006 (File No. 333-135545).
Registration Rights Agreement, dated as of July 15, 2003, among
the Company and Morgan Stanley & Co. Incorporated, Raymond
James & Associates, Inc. and Blaylock & Partners,
L.P.incorporated by reference to Exhibit 4.2 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2003.
Summary of Rights to Purchase Series A Participating Preferred
Stockincorporated by reference to Exhibit 4.4 to the
Registration Statement on Form S-1, as amended (File No.
333-82576).
Stockholder Rights Agreementincorporated by reference to
Exhibit 4.3 to our Annual Report on Form 10-K for the year ended
December 31, 2002.
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Amendment to the Stockholder Rights Agreement, dated as of
January 17, 2008, by and between JetBlue Airways Corporation and
Computershare Trust Company, N.A.incorporated by reference
to Exhibit 4.5(a) to our Current Report on Form 8-K dated
January 23, 2008.
Indenture, dated as of July 15, 2003, between JetBlue Airways
Corporation and Wilmington Trust Company, as Trustee, relating
to the Companys
3
1
/
2
% Convertible
Notes due 2033incorporated by reference to Exhibit 4.1 to
our Quarterly Report on Form 10-Q for the quarter ended June 30,
2003.
Form of Three-Month LIBOR plus 0.375% JetBlue Airways Pass
Through Certificate Series 2004-1G-1-Oincorporated by
reference to Exhibit 4.1 to our Current Report on Form 8-K dated
March 24, 2004.
Form of Three-Month LIBOR plus 0.420% JetBlue Airways Pass
Through Certificate Series 2004-1G-2-Oincorporated by
reference to Exhibit 4.2 to our Current Report on Form 8-K dated
March 24, 2004.
Form of Three-Month LIBOR plus 4.250% JetBlue Airways Pass
Through Certificate Series 2004-1C-Oincorporated by
reference to Exhibit 4.3 to our Current Report on Form 8-K dated
March 24, 2004.
Pass Through Trust Agreement, dated as of March 24, 2004,
between JetBlue Airways Corporation and Wilmington Trust
Company, as Pass Through Trustee, made with respect to the
formation of JetBlue Airways Pass Through Trust, Series
2004-1G-1-O and the issuance of Three-Month LIBOR plus 0.375%
JetBlue Airways Pass Through Trust, Series 2004-1G-1-O, Pass
Through Certificatesincorporated by reference to Exhibit
4.4 to our Current Report on Form 8-K dated March 24, 2004(1).
Revolving Credit Agreement (2004-1G-1), dated as of March 24,
2004, between Wilmington Trust Company, as Subordination Agent,
as agent and trustee for the JetBlue Airways 2004-1G-1 Pass
Through Trust, as Borrower, and Landesbank Hessen-Thüringen
Girozentrale, as Primary Liquidity Providerincorporated by
reference to Exhibit 4.5 to our Current Report on Form 8-K dated
March 24, 2004.
Revolving Credit Agreement (2004-1G-2), dated as of March 24,
2004, between Wilmington Trust Company, as Subordination Agent,
as agent and trustee for the JetBlue Airways 2004-1G-2 Pass
Through Trust, as Borrower, and Landesbank Hessen-Thüringen
Girozentrale, as Primary Liquidity Providerincorporated by
reference to Exhibit 4.6 to our Current Report on Form 8-K dated
March 24, 2004.
Revolving Credit Agreement (2004-1C), dated as of March 24,
2004, between Wilmington Trust Company, as Subordination Agent,
as agent and trustee for the JetBlue Airways 2004-1C Pass
Through Trust, as Borrower, and Landesbank Hessen-Thüringen
Girozentrale, as Primary Liquidity Providerincorporated by
reference to Exhibit 4.7 to our Current Report on Form 8-K dated
March 24, 2004.
Deposit Agreement (Class G-1), dated as of March 24, 2004,
between Wilmington Trust Company, as Escrow Agent, and HSH
Nordbank AG, New York Branch, as Depositaryincorporated by
reference to Exhibit 4.8 to our Current Report on Form 8-K dated
March 24, 2004.
Deposit Agreement (Class G-2), dated as of March 24, 2004,
between Wilmington Trust Company, as Escrow Agent, and HSH
Nordbank AG, New York Branch, as Depositaryincorporated by
reference to Exhibit 4.9 to our Current Report on Form 8-K dated
March 24, 2004.
Deposit Agreement (Class C), dated as of March 24, 2004, between
Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG,
New York Branch, as Depositaryincorporated by reference to
Exhibit 4.10 to our Current Report on Form 8-K dated March 24,
2004.
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Escrow and Paying Agent Agreement (Class G-1), dated as of March
24, 2004, among Wilmington Trust Company, as Escrow Agent,
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Citigroup Global Markets Inc.
and Credit Lyonnais Securities (USA) Inc., as Underwriters,
Wilmington Trust Company, as Pass Through Trustee for and on
behalf of JetBlue Airways Corporation Pass Through Trust
2004-1G-1-O, as Pass Through Trustee, and Wilmington Trust
Company, as Paying Agentincorporated by reference to
Exhibit 4.11 to our Current Report on Form 8-K dated March 24,
2004.
Escrow and Paying Agent Agreement (Class G-2), dated as of March
24, 2004, among Wilmington Trust Company, as Escrow Agent,
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Citigroup Global Markets Inc.
and Credit Lyonnais Securities (USA) Inc., as Underwriters,
Wilmington Trust Company, as Pass Through Trustee for and on
behalf of JetBlue Airways Corporation Pass Through Trust
2004-1G-2-O, as Pass Through Trustee, and Wilmington Trust
Company, as Paying Agentincorporated by reference to
Exhibit 4.12 to our Current Report on Form 8-K dated March 24,
2004.
Escrow and Paying Agent Agreement (Class C), dated as of March
24, 2004, among Wilmington Trust Company, as Escrow Agent,
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Citigroup Global Markets Inc.
and Credit Lyonnais Securities (USA) Inc., as Underwriters,
Wilmington Trust Company, as Pass Through Trustee for and on
behalf of JetBlue Airways Corporation Pass Through Trust
2004-1C-O, as Pass Through Trustee, and Wilmington Trust
Company, as Paying Agentincorporated by reference to
Exhibit 4.13 to our Current Report on Form 8-K dated March 24,
2004.
ISDA Master Agreement, dated as of March 24, 2004, between
Morgan Stanley Capital Services Inc., as Above Cap Liquidity
Facility Provider, and Wilmington Trust Company, as
Subordination Agent for the JetBlue Airways Corporation Pass
Through Trust 2004-1G-1-Oincorporated by reference to
Exhibit 4.14 to our Current Report on Form 8-K dated March 24,
2004(2).
Schedule to the ISDA Master Agreement, dated as of March 24,
2004, between Morgan Stanley Capital Services Inc., as Above Cap
Liquidity Facility Provider, and Wilmington Trust Company, as
Subordination Agent for the JetBlue Airways Corporation Pass
Through Trust
2004-1G-1-Oincorporated
by reference to Exhibit 4.15 to our Current Report on Form 8-K
dated March 24, 2004.
Schedule to the ISDA Master Agreement, dated as of March 24,
2004, between Morgan Stanley Capital Services, Inc., as Above
Cap Liquidity Facility Provider, and Wilmington Trust Company,
as Subordination Agent for the JetBlue Airways Corporation Pass
Through Trust
2004-1G-2-Oincorporated
by reference to Exhibit 4.16 to our Current Report on Form 8-K
dated March 24, 2004.
Schedule to the ISDA Master Agreement, dated as of March 24,
2004, between Morgan Stanley Capital Services, Inc., as Above
Cap Liquidity Facility Provider, and Wilmington Trust Company,
as Subordination Agent for the JetBlue Airways Corporation Pass
Through Trust
2004-1C-Oincorporated
by reference to Exhibit 4.17 to our Current Report on Form 8-K
dated March 24, 2004.
Class G-1 Above Cap Liquidity Facility Confirmation, dated March
24, 2004, between Morgan Stanley Capital Services Inc., as Above
Cap Liquidity Facility Provider, and Wilmington Trust Company,
as Subordination Agentincorporated by reference to Exhibit
4.18 to our Current Report on Form 8-K dated March 24, 2004.
Class G-2 Above Cap Liquidity Facility Confirmation, dated March
24, 2004, between Morgan Stanley Capital Services Inc., as Above
Cap Liquidity Facility Provider, and Wilmington Trust Company,
as Subordination Agentincorporated by reference to Exhibit
4.19 to our Current Report on Form 8-K dated March 24, 2004.
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Class C Above Cap Liquidity Facility Confirmation, dated March
24, 2004, between Morgan Stanley Capital Services Inc., as Above
Cap Liquidity Facility Provider, and Wilmington Trust Company,
as Subordination Agentincorporated by reference to Exhibit
4.20 to our Current Report on Form 8-K dated March 24, 2004.
Guarantee, dated March 24, 2004, of Morgan Stanley Capital
Services Inc. with respect to the Class G-1 Above Cap Liquidity
Facilityincorporated by reference to Exhibit 4.21 to our
Current Report on Form 8-K dated March 24, 2004.
Guarantee, dated March 24, 2004, of Morgan Stanley Capital
Services Inc. with respect to the Class G-2 Above Cap Liquidity
Facilityincorporated by reference to Exhibit 4.22 to our
Current Report on Form 8-K dated March 24, 2004.
Guarantee, dated March 24, 2004, of Morgan Stanley Capital
Services Inc. with respect to the Class C Above Cap Liquidity
Facilityincorporated by reference to Exhibit 4.23 to our
Current Report on Form 8-K dated March 24, 2004.
Insurance and Indemnity Agreement, dated as of March 24, 2004,
among MBIA Insurance Corporation, as Policy Provider, JetBlue
Airways Corporation and Wilmington Trust Company, as
Subordination Agentincorporated by reference to Exhibit
4.24 to our Current Report on Form 8-K dated March 24, 2004.
MBIA Insurance Corporation Financial Guaranty Insurance Policy,
dated March 24, 2004, bearing Policy Number 43567(1) issued to
Wilmington Trust Company, as Subordination Agent for the Class
G-1 Certificatesincorporated by reference to Exhibit 4.25
to our Current Report on Form 8-K dated March 24, 2004.
MBIA Insurance Corporation Financial Guaranty Insurance Policy,
dated March 24, 2004, bearing Policy Number 43567(2) issued to
Wilmington Trust Company, as Subordination Agent for the Class
G-2 Certificatesincorporated by reference to Exhibit 4.26
to our Current Report on Form 8-K dated March 24, 2004.
Intercreditor Agreement, dated as of March 24, 2004, among
Wilmington Trust Company, as Pass Through Trustee, Landesbank
Hessen- Thüringen Girozentrale, as Primary Liquidity
Provider, Morgan Stanley Capital Services, Inc., as Above-Cap
Liquidity Provider, MBIA Insurance Corporation, as Policy
Provider, and Wilmington Trust Company, as Subordination
Agentincorporated by reference to Exhibit 4.27 to our
Current Report on Form 8-K dated March 24, 2004.
Note Purchase Agreement, dated as of March 24, 2004, among
JetBlue Airways Corporation, Wilmington Trust Company, in its
separate capacities as Pass Through Trustee, as Subordination
Agent, as Escrow Agent and as Paying Agentincorporated by
reference to Exhibit 4.28 to our Current Report on Form 8-K
dated March 24, 2004.
Form of Trust Indenture and Mortgage between JetBlue Airways
Corporation, as Owner, and Wilmington Trust Company, as
Mortgageeincorporated by reference to Exhibit 4.29 to our
Current Report on Form 8-K dated March 24, 2004.
Form of Participation Agreement among JetBlue Airways
Corporation, as Owner, and Wilmington Trust Company, in its
separate capacities as Mortgagee, as Pass Through Trustee and as
Subordination Agentincorporated by reference to Exhibit
4.30 to our Current Report on Form 8-K dated March 24, 2004.
Form of Three-Month LIBOR plus 0.375% JetBlue Airways Pass
Through Certificate Series 2004-2G-1-O, with attached form of
Escrow Receiptincorporated by reference to Exhibit 4.1 to
our Current Report on Form 8-K dated November 9, 2004.
Form of Three-Month LIBOR plus 0.450% JetBlue Airways Pass
Through Certificate Series 2004-2G-2-O, with attached form of
Escrow Receiptincorporated by reference to Exhibit 4.2 to
our Current Report on Form 8-K dated November 9, 2004.
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Form of Three-Month LIBOR plus 3.100% JetBlue Airways Pass
Through Certificate Series 2004-2C-O, with attached form of
Escrow Receiptincorporated by reference to Exhibit 4.3 to
our Current Report on Form 8-K dated November 9, 2004.
Pass Through Trust Agreement, dated as of November 15, 2004,
between JetBlue Airways Corporation and Wilmington Trust
Company, as Pass Through Trustee, made with respect to the
formation of JetBlue Airways Pass Through Trust, Series
2004-2G-1-O and the issuance of Three-Month LIBOR plus 0.375%
JetBlue Airways Pass Through Trust, Series 2004-2G-1-O, Pass
Through Certificatesincorporated by reference to Exhibit
4.4 to our Current Report on Form 8-K dated November 9, 2004(3).
Revolving Credit Agreement (2004-2G-1), dated as of November 15,
2004, between Wilmington Trust Company, as Subordination Agent,
as agent and trustee for the JetBlue Airways 2004-2G-1 Pass
Through Trust, as Borrower, and Landesbank
Baden-Württemberg, as Primary Liquidity
Providerincorporated by reference to Exhibit 4.5 to our
Current Report on Form 8-K dated November 9, 2004.
Revolving Credit Agreement (2004-2G-2), dated as of November 15,
2004, between Wilmington Trust Company, as Subordination Agent,
as agent and trustee for the JetBlue Airways 2004-2G-2 Pass
Through Trust, as Borrower, and Landesbank
Baden-Württemberg, as Primary Liquidity
Providerincorporated by reference to Exhibit 4.6 to our
Current Report on Form 8-K dated November 9, 2004.
Revolving Credit Agreement (2004-2C), dated as of November 15,
2004, between Wilmington Trust Company, as Subordination Agent,
as agent and trustee for the JetBlue Airways 2004-2C Pass
Through Trust, as Borrower, and Landesbank
Baden-Württemberg, as Primary Liquidity
Providerincorporated by reference to Exhibit 4.7 to our
Current Report on Form 8-K dated November 9, 2004.
Deposit Agreement (Class G-1), dated as of November 15, 2004,
between Wilmington Trust Company, as Escrow Agent, and HSH
Nordbank AG, New York Branch, as Depositaryincorporated by
reference to Exhibit 4.8 to our Current Report on Form 8-K dated
November 9, 2004.
Deposit Agreement (Class G-2), dated as of November 15, 2004,
between Wilmington Trust Company, as Escrow Agent, and HSH
Nordbank AG, New York Branch, as Depositaryincorporated by
reference to Exhibit 4.9 to our Current Report on Form 8-K dated
November 9, 2004.
Deposit Agreement (Class C), dated as of November 15, 2004,
between Wilmington Trust Company, as Escrow Agent, and HSH
Nordbank AG, New York Branch, as Depositaryincorporated by
reference to Exhibit 4.10 to our Current Report on Form 8-K
dated November 9, 2004.
Escrow and Paying Agent Agreement (Class G-1), dated as of
November 15, 2004, among Wilmington Trust Company, as Escrow
Agent, Morgan Stanley & Co. Incorporated, Citigroup Global
Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan
Securities, Inc., as Underwriters, Wilmington Trust Company, as
Pass Through Trustee for and on behalf of JetBlue Airways
Corporation Pass Through Trust 2004-2G-2-O, as Pass Through
Trustee, and Wilmington Trust Company, as Paying
Agentincorporated by reference to Exhibit 4.11 to our
Current Report on Form 8-K dated November 9, 2004.
Escrow and Paying Agent Agreement (Class G-2), dated as of
November 15, 2004, among Wilmington Trust Company, as Escrow
Agent, Morgan Stanley & Co. Incorporated, Citigroup Global
Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan
Securities, Inc., as Underwriters, Wilmington Trust Company, as
Pass Through Trustee for and on behalf of JetBlue Airways
Corporation Pass Through Trust 2004-2G-2-O, as Pass Through
Trustee, and Wilmington Trust Company, as Paying
Agentincorporated by reference to Exhibit 4.12 to our
Current Report on Form 8-K dated November 9, 2004.
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Escrow and Paying Agent Agreement (Class C), dated as of
November 15, 2004, among Wilmington Trust Company, as Escrow
Agent, Morgan Stanley & Co. Incorporated, Citigroup Global
Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan
Securities, Inc., as Underwriters, Wilmington Trust Company, as
Pass Through Trustee for and on behalf of JetBlue Airways
Corporation Pass Through Trust 2004-2C-O, as Pass Through
Trustee, and Wilmington Trust Company, as Paying
Agentincorporated by reference to Exhibit 4.13 to our
Current Report on Form 8-K dated November 9, 2004.
ISDA Master Agreement, dated as of November 15, 2004, between
Citibank, N.A., as Above Cap Liquidity Facility Provider, and
Wilmington Trust Company, as Subordination Agent for the JetBlue
Airways Corporation Pass Through Trust
2004-2G-1-Oincorporated by reference to Exhibit 4.14 to
our Current Report on Form 8-K dated November 9, 2004(4).
Schedule to the ISDA Master Agreement, dated as of November 15,
2004, between Citibank, N.A., as Above Cap Liquidity Facility
Provider, and Wilmington Trust Company, as Subordination Agent
for the JetBlue Airways Corporation Pass Through Trust
2004-2G-1-Oincorporated
by reference to Exhibit 4.15 to our Current Report on Form 8-K
dated November 9, 2004.
Schedule to the ISDA Master Agreement, dated as of November 15,
2004, between Citibank, N.A., as Above Cap Liquidity Facility
Provider, and Wilmington Trust Company, as Subordination Agent
for the JetBlue Airways Corporation Pass Through Trust
2004-2G-2-Oincorporated
by reference to Exhibit 4.16 to our Current Report on Form 8-K
dated November 9, 2004.
Schedule to the ISDA Master Agreement, dated as of November 15,
2004, between Citibank, N.A., as Above Cap Liquidity Facility
Provider, and Wilmington Trust Company, as Subordination Agent
for the JetBlue Airways Corporation Pass Through Trust
2004-2C-Oincorporated
by reference to Exhibit 4.17 to our Current Report on Form 8-K
dated November 9, 2004.
Class G-1 Above Cap Liquidity Facility Confirmation, dated
November 15, 2004, between Citibank, N.A., as Above Cap
Liquidity Facility Provider, and Wilmington Trust Company, as
Subordination Agentincorporated by reference to Exhibit
4.18 to our Current Report on
Form 8-K
dated November 9, 2004.
Class G-2 Above Cap Liquidity Facility Confirmation, dated
November 15, 2004, between Citibank, N.A., as Above Cap
Liquidity Facility Provider, and Wilmington Trust Company, as
Subordination Agentincorporated by reference to Exhibit
4.19 to our Current Report on
Form 8-K
dated November 9, 2004.
Class C Above Cap Liquidity Facility Confirmation, dated
November 15, 2004, between Citibank, N.A., as Above Cap
Liquidity Facility Provider, and Wilmington Trust Company, as
Subordination Agentincorporated by reference to Exhibit
4.20 to our Current Report on
Form 8-K
dated November 9, 2004.
Insurance and Indemnity Agreement, dated as of November 15,
2004, among MBIA Insurance Corporation, as Policy Provider,
JetBlue Airways Corporation and Wilmington Trust Company, as
Subordination Agent and Trusteeincorporated by reference
to Exhibit 4.21 to our Current Report on Form 8-K dated November
9, 2004.
MBIA Insurance Corporation Financial Guaranty Insurance Policy,
dated November 15, 2004, bearing Policy Number 45243 issued to
Wilmington Trust Company, as Subordination Agent for the Class
G-1 Certificatesincorporated by reference to Exhibit 4.22
to our Current Report on Form 8-K dated November 9, 2004.
MBIA Insurance Corporation Financial Guaranty Insurance Policy,
dated November 15, 2004, bearing Policy Number 45256 issued to
Wilmington Trust Company, as Subordination Agent for the Class
G-2 Certificatesincorporated by reference to Exhibit 4.23
to our Current Report on Form 8-K dated November 9, 2004.
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Intercreditor Agreement, dated as of November 15, 2004, among
Wilmington Trust Company, as Pass Through Trustee, Landesbank
Baden-Württemberg, as Primary Liquidity Provider, Citibank,
N.A., as Above-Cap Liquidity Provider, MBIA Insurance
Corporation, as Policy Provider, and Wilmington Trust Company,
as Subordination Agentincorporated by reference to Exhibit
4.24 to our Current Report on Form 8-K dated November 9, 2004.
Note Purchase Agreement, dated as of November 15, 2004, among
JetBlue Airways Corporation, Wilmington Trust Company, in its
separate capacities as Pass Through Trustee, as Subordination
Agent, as Escrow Agent and as Paying Agentincorporated by
reference to Exhibit 4.25 to our Current Report on Form 8-K
dated November 9, 2004.
Form of Trust Indenture and Mortgage between JetBlue Airways
Corporation, as Owner, and Wilmington Trust Company, as
Mortgageeincorporated by reference to Exhibit 4.26 to our
Current Report on Form 8-K dated November 9, 2004.
Form of Participation Agreement among JetBlue Airways
Corporation, as Owner, and Wilmington Trust Company, in its
separate capacities as Mortgagee, as Pass Through Trustee and as
Subordination Agentincorporated by reference to Exhibit
4.27 to our Current Report on Form 8-K dated November 9, 2004.
Indenture, dated as of March 16, 2005, between JetBlue Airways
Corporation and Wilmington Trust Company, as Trustee, relating
to the Companys debt securitiesincorporated by
reference to Exhibit 4.1 to our Current Report on Form 8-K dated
March 10, 2005.
First Supplemental Indenture to the Indenture filed as Exhibit
4.9 to this report, dated as of March 16, 2005, between JetBlue
Airways Corporation and Wilmington Trust Company, as Trustee,
relating to the Companys
3
3
/
4
% Convertible
Debentures due 2035incorporated by reference to Exhibit
4.2 to our Current Report on Form 8-K dated March 16, 2005.
Second Supplemental Indenture to the Indenture filed as Exhibit
4.9 to this report, dated as of June 4, 2008, between JetBlue
Airways Corporation and Wilmington Trust Company, as Trustee,
relating to the Companys 5.5% Convertible Debentures
due 2038incorporated by reference to Exhibit 4.1 to our
Current Report on Form 8-K dated June 5, 2008.
Third Supplemental Indenture to the Indenture filed as Exhibit
4.9 to this report, dated as of June 4, 2008, between
JetBlue Airways Corporation and Wilmington Trust Company, as
Trustee, relating to the Companys 5.5% Convertible
Debentures due 2038incorporated by reference to Exhibit
4.2 to our Current Report on Form 8-K dated June 5, 2008.
Pass Through Trust Agreement, dated as of November 14, 2006,
between JetBlue Airways Corporation and Wilmington Trust
Company, as Pass Through Trustee, made with respect to the
formation of JetBlue Airways (Spare Parts) G-1 Pass Through
Trust, and the issuance of Three-Month LIBOR plus 0.230% JetBlue
Airways (Spare Parts) G-1 Pass Through
Certificateincorporated by reference to Exhibit 4.1 to our
Current Report on Form 8-K dated November 14, 2006.
Pass Through Trust Agreement, dated as of November 14, 2006,
between JetBlue Airways Corporation and Wilmington Trust
Company, as Pass Through Trustee, made with respect to the
formation of JetBlue Airways (Spare Parts) B-1 Pass Through
Trust, and the issuance of Three-Month LIBOR plus 2.875% JetBlue
Airways (Spare Parts) B-1 Pass Through
Certificateincorporated by reference to Exhibit 4.2 to our
Current Report on Form 8-K dated November 14, 2006.
Revolving Credit Agreement, dated as of November 14, 2006,
between Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the JetBlue Airways (Spare Parts) G-1 Pass
Through Trust, as Borrower, and Landesbank Hessen-Thüringen
Girozentrale, as Primary Liquidity Providerincorporated by
reference to Exhibit 4.3 to our Current Report on Form 8-K dated
November 14, 2006.
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ISDA Master Agreement, dated as of November 14, 2006, between
Morgan Stanley Capital Services Inc., as Above Cap Liquidity
Provider, and Wilmington Trust Company, as Subordination Agent
for the JetBlue Airways (Spare Parts) G-1 Pass Through
Trustincorporated by reference to Exhibit 4.4 to our
Current Report on Form 8-K dated November 14, 2006.
Schedule to the ISDA Master Agreement, dated as of November 14,
2006, between Morgan Stanley Capital Services Inc., as Above Cap
Liquidity Provider, and Wilmington Trust Company, as
Subordination Agent for the JetBlue Airways (Spare parts) G-1
Pass Through Trustincorporated by reference to Exhibit 4.5
to our Current Report on Form 8-K dated November 14, 2006.
Class G-1 Above Cap Liquidity Facility Confirmation, dated
November 14, 2006, between Morgan Stanley Capital Services Inc.,
as Above Cap Liquidity Provider, and Wilmington Trust Company,
as Subordination Agentincorporated by reference to Exhibit
4.6 to our Current Report on Form 8-K dated November 14, 2006.
Insurance and Indemnity Agreement, dated as of November 14,
2006, among MBIA Insurance Corporation, as Policy Provider,
JetBlue Airways Corporation and Wilmington Trust Company, as
Subordination Agent and Trusteeincorporated by reference
to Exhibit 4.7 to our Current Report on Form 8-K dated November
14, 2006.
Guarantee, dated as of November 14, 2006, by Morgan Stanley,
relating to the Above-Cap Liquidity Facilityincorporated
by reference to Exhibit 4.8 to our Current Report on
Form 8-K dated November 14, 2006.
MBIA Insurance Corporation Financial Guaranty Insurance Policy,
dated November 14, 2006, bearing Policy Number 487110 issued to
Wilmington Trust Company, as Subordination Agent for the Class
G-1 Certificatesincorporated by reference to Exhibit 4.9
to our Current Report on Form 8-K dated November 14, 2006.
Intercreditor Agreement, dated as of November 14, 2006, among
Wilmington Trust Company, as Pass Through Trustee, Landesbank
Hessen-Thüringen Girozentrale, as Primary Liquidity
Provider, Morgan Stanley Capital Services, Inc., as Above-Cap
Liquidity Provider, MBIA Insurance Corporation, as Policy
Provider, and Wilmington Trust Company, as Subordination
Agentincorporated by reference to Exhibit 4.10 to our
Current Report on Form 8-K dated November 14, 2006.
Note Purchase Agreement, dated as of November 14, 2006, among
JetBlue Airways Corporation, Wilmington Trust Company, in its
separate capacities as Pass Through Trustee, as Subordination
Agent and as Mortgageeincorporated by reference to Exhibit
4.11 to our Current Report on Form 8-K dated November 14, 2006.
Trust Indenture and Mortgage, dated November 14, 2006, between
JetBlue Airways Corporation, as Owner, and Wilmington Trust
Company, as Mortgageeincorporated by reference to
Exhibit 4.12 to our Current Report on Form 8-K dated
November 14, 2006.
Collateral Maintenance Agreement, dated as of November 14, 2006,
among, JetBlue Airways Corporation, MBIA Insurance Corporation,
as Initial Policy Provider, Wilmington Trust Company, as
Mortgagee, and Additional Policy Provider(s), if any, which may
from time to time hereafter become partiesincorporated by
reference to Exhibit 4.13 to our Current Report on Form 8-K
dated November 14, 2006.
Reference Agency Agreement, dated November 14, 2006, among
JetBlue Airways Corporation, Wilmington Trust Company as
Subordination Agent and Mortgagee and Reference
Agentincorporated by reference to Exhibit 4.14 to our
Current Report on Form 8-K dated November 14, 2006.
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Form of JetBlue Airways (Spare Parts) G-1 Pass Through
Certificate (included in Exhibit 4.10)incorporated by
reference to Exhibit 4.15 to our Current Report on Form 8-K
dated November 14, 2006.
Form of JetBlue Airways (Spare Parts) B-1 Pass Through
Certificate (included in Exhibit 4.10(a))incorporated
by reference to Exhibit 4.16 to our Current Report on Form 8-K
dated November 14, 2006.
Form of JetBlue Airways (Spare Parts) G-1 Equipment
Noteincorporated by reference to Exhibit 4.17 to our
Current Report on Form 8-K dated November 14, 2006.
Form of JetBlue Airways (Spare Parts) B-1 Equipment
Noteincorporated by reference to Exhibit 4.18 to our
Current Report on Form 8-K dated November 14, 2006.
Stock Purchase Agreement, dated as of December 13, 2007, between
JetBlue Airways Corporation and Deutsche Lufthansa
AGincorporated by reference to Exhibit 4.11 to our Current
Report on Form 8-K dated December 13, 2007.
Amendment No. 1, dated as of January 22, 2008, to the Stock
Purchase Agreement, dated as of December 13, 2007, between
JetBlue Airways Corporation and Deutsche Lufthansa
AGincorporated by reference to Exhibit 4.11(a) to our
Current Report on Form 8-K dated January 23, 2008.
Registration Rights Agreement, dated as of January 22, 2008, by
and between JetBlue Airways Corporation and Deutsche Lufthansa
AGincorporated by reference to Exhibit 4.12 to our Current
Report on Form 8-K dated January 23, 2008.
Supplement Agreement, dated as of May 27, 2008, between JetBlue
Airways Corporation and Deutsche Lufthansa AG incorporated
by reference to Exhibit 4.12 to our Current Report on Form 8-K
dated May 28, 2008.
Second Supplemental Indenture dated as of June 4, 2008 between
JetBlue Airways Corporation and Wilmington Trust Company, as
Trusteeincorporated by reference to Exhibit 4.1 to Current
Report on Form 8-K filed on June 5, 2008.
Third Supplemental Indenture dated as of June 4, 2008 between
JetBlue Airways Corporation and Wilmington Trust Company, as
Trusteeincorporated by reference to Exhibit 4.2 to Current
Report on Form 8-K filed on June 5, 2008.
Form of Global Debenture 5.50% Convertible Debenture
due 2038 (Series A) (included as part of Exhibit
4.1)incorporated by reference to Exhibit 4.3 to Current
Report on Form 8-K filed on June 5, 2008.
Form of Global Debenture 5.50% Convertible Debenture
due 2038 (Series B) (included as part of Exhibit
4.2)incorporated by reference to Exhibit 4.4 to Current
Report on Form 8-K filed on June 5, 2008.
Airbus A320 Purchase Agreement dated as of April 20, 1999,
between AVSA, S.A.R.L. and JetBlue Airways Corporation,
including Amendments No. 1 through 11 and Letter Agreements No.
1 through No. 10incorporated by reference to Exhibit 10.1
to the Registration Statement on Form S-1, as amended (File
333-82576).
Amendment No. 12 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated April 19,
2002incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2002.
Amendment No. 13 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated November 22,
2002incorporated by reference to Exhibit 10.3 to our
Annual Report on Form 10-K for the year ended December 31, 2002.
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Amendment No. 14 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated December 18,
2002incorporated by reference to Exhibit 10.4 to our
Annual Report on Form 10-K for the year ended December 31, 2002.
Amendment No. 15 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated February 10,
2003incorporated by reference to Exhibit 10.5 to our
Annual Report on Form 10-K for the year ended December 31, 2002.
Amendment No. 16 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated April 23,
2003incorporated by reference to Exhibit 10.1 to our
Current Report on Form 8-K dated June 30, 2003.
Amendment No. 17 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated October 1,
2003incorporated by reference to Exhibit 10.7 to our
Annual Report on Form 10-K for the year ended December 31, 2003.
Amendment No. 18 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated November 12,
2003incorporated by reference to Exhibit 10.8 to our
Annual Report on Form 10-K for the year ended December 31, 2003.
Amendment No. 19 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated June 4,
2004incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2004.
Amendment No. 20 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated June 7,
2004incorporated by reference to Exhibit 10.2 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2004.
Amendment No. 21 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated November 19,
2004incorporated by reference to Exhibit 10.1 to our
Current Report on Form 8-K dated November 19, 2004.
Amendment No. 22 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L., and JetBlue Airways Corporation, dated February 17,
2005incorporated by reference to Exhibit 10.22(b) to our
Annual Report on Form 10-K for the year ended December 31, 2006.
Amendment No. 23 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L., and JetBlue Airways Corporation, dated March 31,
2005incorporated by reference to Exhibit 10.22(b) to our
Annual Report on Form 10-K for the year ended December 31, 2006.
Amendment No. 24 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L., and JetBlue Airways Corporation, dated July 21,
2005incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended September
30, 2005.
Amendment No. 25 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L., and JetBlue Airways Corporation, dated November 23,
2005incorporated by reference to Exhibit 10.1(n) to our
Annual Report on Form 10-K for the year ended December 31, 2005.
Amendment No. 26 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated February 27,
2006incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2006.
Amendment No. 27 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated April 25,
2006incorporated by reference to Exhibit 10.2 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2006.
Amendment No. 28 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated July 6,
2006incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended September
30, 2006.
Table of Contents
Amendment No. 29 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L., and JetBlue Airways Corporation, dated December 1,
2006incorporated by reference to Exhibit 10.22(b) to our
Annual Report on Form 10-K for the year ended December 31, 2006.
Amendment No. 30 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L., and JetBlue Airways Corporation, dated March 26,
2007incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2007.
Amendment No. 31 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated January 21,
2008incorporated by reference to Exhibit 10.3 to our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2008.
Amendment No. 32 to Airbus A320 Purchase Agreement between AVSA,
S.A.R.L. and JetBlue Airways Corporation, dated May 23,
2008incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2008.
Letter Agreement, dated April 23, 2003, between AVSA, S.A.R.L.
and JetBlue Airways Corporationincorporated by reference
to Exhibit 10.2 to our Current Report on Form 8-K dated June 30,
2003.
V2500 General Terms of Sale between IAE International Aero
Engines AG and NewAir Corporation, including Side Letters No. 1
through No. 3 and No. 5 through No. 9incorporated by
reference to Exhibit 10.2 to the Registration Statement on Form
S-1, as amended (File No. 333-82576).
Side Letter No. 10 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
April 25, 2002incorporated by reference to Exhibit 10.2 to
our Quarterly Report on Form 10-Q for the quarter ended June 30,
2002.
Side Letter No. 11 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
February 10, 2003incorporated by reference to Exhibit 10.8
to our Annual Report on Form 10-K for the year ended December
31, 2002.
Side Letter No. 12 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
March 24, 2003incorporated by reference to Exhibit 10.1 to
our Quarterly Report on Form 10-Q for the quarter ended March
31, 2003.
Side Letter No. 13 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
April 23, 2003incorporated by reference to Exhibit 10.3 to
our Current Report on Form 8-K dated June 30, 2003.
Side Letter No. 14 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
October 3, 2003incorporated by reference to Exhibit 10.15
to our Annual Report on Form 10-K for the year ended December
31, 2003.
Side Letter No. 15 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
November 10, 2003incorporated by reference to Exhibit
10.16 to our Annual Report on Form 10-K for the year ended
December 31, 2003.
Side Letter No. 16 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
February 20, 2004incorporated by reference to Exhibit 10.1
to our Quarterly Report on Form 10-Q for the quarter ended March
31, 2004.
Side Letter No. 17 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated June
11, 2004incorporated by reference to Exhibit 10.3 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2004.
Side Letter No. 18 to V2500 General Terms of Sale between IAE
International Aero Engines AG and NewAir Corporation, dated
November 19, 2004incorporated by reference to
Exhibit 10.2 to our Current Report on Form 8-K dated
November 19, 2004.
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Side Letter No. 19 to V2500 General Terms of Sale between IAE
International Aero Engines AG and New Air Corporation, dated
July 21, 2005incorporated by reference to Exhibit 10.2 to
our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005.
Side Letter No. 20 to V2500 General Terms of Sale between IAE
International Aero Engines AG and New Air Corporation, dated
July 6, 2006incorporated by reference to Exhibit 10.3 to
our Quarterly Report on Form 10-Q for the quarter ended June 30,
2006.
Side Letter No. 21 to V2500 General Terms of Sale between IAE
International Aero Engines AG and New Air Corporation, dated
January 30, 2007incorporated by reference to Exhibit 10.2
to our Quarterly Report on Form 10-Q for the quarter ended March
31, 2007.
Side Letter No. 22 to V2500 General Terms of Sale between IAE
International Aero Engines AG and New Air Corporation, dated
March 27, 2007incorporated by reference to Exhibit 10.3 to
our Quarterly Report on Form 10-Q for the quarter ended March
31, 2007.
Side Letter No. 23 to V2500 General Terms of Sale between IAE
International Aero Engines AG and New Air Corporation, dated
December 18, 2007incorporated by reference to
Exhibit 10.3(n) to our Annual Report on Form 10-K, as
amended, for the year ended December 31, 2007.
Side Letter No. 24 to V2500 General Terms of Sale between IAE
International Aero Engines and New Air Corporation, dated April
2, 2008incorporated by reference to Exhibit 10.2 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2008.
Side Letter No. 25 to V2500 General Terms of Sale between IAE
International Aero Engines and New Air Corporation, dated May
27, 2008incorporated by reference to Exhibit 10.3 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2008.
Amendment and Restated Agreement between JetBlue Airways
Corporation and LiveTV, LLC, dated as of December 17, 2001,
including Amendments No. 1, No. 2 and 3incorporated by
reference to Exhibit 10.4 to the Registration Statement on Form
S-1, as amended
(File No. 333-82576).
GDL Patent License Agreement between Harris Corporation and
LiveTV, LLC, dated as of September 2, 2002incorporated by
reference to Exhibit 10.1 to our Quarterly Report on
Form 10-Q for quarter ended September 30, 2002.
Agreement between John Owen and JetBlue Airways Corporation,
dated March 6, 2007incorporated by reference to Exhibit
10.10 to our Annual Report on Form 10-K for the year ended
December 31, 2007.
1999 Stock Option/Stock Issuance Planincorporated by
reference to Exhibit 10.16 to the Registration Statement on Form
S-1, as amended (File No. 333-82576).
Amended and Restated Crewmember Stock Purchase Plan, dated April
2, 2007incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended
June 30, 2007.
2002 Crewmember Stock Purchase Planincorporated by
reference to Exhibit 10.18 to the Registration Statement on Form
S-1, as amended (File No. 333-82576).
Amended and Restated JetBlue Airways Corporation 401(k)
Retirement Plan, dated March 31, 2005incorporated by
reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q
for the quarter ended June 30, 2005.
Amendment to JetBlue Airways Corporation 401(k) Retirement Plan,
dated November 21, 2006incorporated by reference to
Exhibit 10.18(a) to our Annual Report on Form 10-K for the year
ended December 31, 2006.
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Form of Director/Officer Indemnification
Agreementincorporated by reference to Exhibit 10.20
to the Registration Statement on
Form S-1,
as amended (File No. 333-82576) and referenced as Exhibit 10.19
in our Current Report on Form 8-K dated February 12, 2008.
Form of Letter Agreement between JetBlue Airways Corporation,
the Weston Presidio Funds and Quantum Industrial Partners
LDCincorporated by reference to Exhibit 10.21 to the
Registration Statement on Form S-1, as amended (File No.
333-82576).
EMBRAER-190 Purchase Agreement DCT-025/2003, dated June 9, 2003,
between Embraer-Empresa Brasileira de Aeronautica S.A. and
JetBlue Airways Corporation incorporated by reference to
Exhibit 10.4 to our Current Report on Form 8-K dated June 30,
2003.
Amendment No. 1 to Purchase Agreement DCT-025/2003, dated as of
July 8, 2005, between Embraer-Empresa Brasileria de Aeronautica
S.A. and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q
for the quarter ended September 30, 2005.
Amendment No. 2 to Purchase Agreement DCT-025/2003, dated as of
January 5, 2006, between Embraer-Empresa Brasileria de
Aeronautica S.A. and JetBlue Airways
Corporationincorporated by reference to Exhibit 10.22(b)
to our Annual Report on Form 10-K for the year ended December
31, 2005.
Amendment No. 3 to Purchase Agreement DCT-025/2003, dated as of
December 4, 2006, between Embraer-Empresa Brasileria de
Aeronautica S.A. and JetBlue Airways
Corporationincorporated by reference to Exhibit 10.21( c)
to our Annual Report on
Form 10-K
for the year ended December 31, 2006.
Amendment No. 4 to Purchase Agreement DCT-025/2003, dated as of
October 17, 2007, between Embraer-Empresa Brasileria de
Aeronautica S.A. and JetBlue Airways
Corporationincorporated by reference to Exhibit 10.17(d)
to our Annual Report on Form 10-K for the year ended December
31, 2007.
Amendment No. 5 to Purchase Agreement DCT-025/2003, dated as of
July 18, 2008, between Embraer-Empresa Brasileira de Aeronautica
S.A. and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q
for the quarter ended September 30, 2008.
Letter Agreement DCT-026/2003, dated June 9, 2003, between
Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue
Airways Corporationincorporated by reference to Exhibit
10.5 to our Current Report on Form 8-K dated June 30, 2003.
Amendment No. 1, dated as of July 8, 2005, to Letter Agreement
DCT-026/2003, between Embraer-Empresa Brasileira de Aeronautica
S.A. and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.4 to our Quarterly Report on Form 10-Q
for the quarter ended September 30, 2005.
Amendment No. 2, dated as of January 5, 2006, to Letter
Agreement DCT-026/2003, between Embraer-Empresa Brasileira de
Aeronautica S.A. and JetBlue Airways
Corporationincorporated by reference to Exhibit 10.22(b)
to our Annual Report on Form 10-K for the year ended December
31, 2006.
Amendment No. 3, dated as of December 4, 2006, to Letter
Agreement DCT-026/2003, between Embraer-Empresa Brasileira de
Aeronautica S.A. and JetBlue Airways
Corporationincorporated by reference to Exhibit 10.22( c)
to our Annual Report on Form 10-K for the year ended December
31, 2006.
Amendment No. 4, dated as of October 17, 2007, to Letter
Agreement DCT-026/2003, between Embraer-Empresa Brasileria de
Aeronautica S.A. and JetBlue Airways
Corporationincorporated by reference to Exhibit 10.18(d)
to our Annual Report on Form 10-K for the year ended December
31, 2007.
Table of Contents
Amendment No. 5 to Letter Agreement DCT-026/2003, dated as of
March 6, 2008, between Embraer-Empresa Brasileira de Aeronautica
S.A. and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q
for the quarter ended September 30, 2008.
Amendment No. 6 to Letter Agreement DCT-026/2003, dated as of
July 18, 2008, between Embraer-Empresa Brasileira de Aeronautica
S.A. and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q
for the quarter ended September 30, 2008.
Agreement of Lease (Port Authority Lease No. AYD-265), dated as
of November 1, 2002, between The Port Authority of New York and
New Jersey and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.1 to our Current Report on Form 8-K
dated March 24, 2004.
Agreement of Lease (Port Authority Lease No. AYD-350), dated
November 22, 2005, between The Port Authority of New York and
New Jersey and JetBlue Airways Corporationincorporated by
reference to Exhibit 10.30 to our Annual Report on Form 10-K for
the year ended December 31, 2005.
Amended and Restated 2002 Stock Incentive Plan, dated November
7, 2007, and form of award agreement.
JetBlue Airways Corporation Executive Change in Control
Severance Plan, dated as of June 28, 2007incorporated by
reference to Exhibit 10.1 to our Current Report on Form 8-K,
dated June 28, 2007.
Employment Agreement, dated February 11, 2008, between JetBlue
Airways Corporation and David Bargerincorporated by
reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q
for the quarter ended March 31, 2008.
Employment Agreement, dated February 11, 2008, between JetBlue
Airways Corporation and Russell Chewincorporated by
reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q
for the quarter ended March 31, 2008.
Share Lending Agreement, dated as of May 29, 2008 between
JetBlue Airways Corporation and Morgan Stanley Capital Services,
Inc. incorporated by reference to Exhibit 10.1 to our
Current Report on Form 8-K filed on May 30, 2008.
Pledge and Escrow Agreement (Series A Debentures) dated as of
June 4, 2008 among JetBlue Airways Corporation, Wilmington Trust
Company, as Trustee, and Wilmington Trust Company, as Escrow
Agentincorporated by reference to Exhibit 10.1 to our
Current Report on Form 8-K filed on June 5, 2008.
Pledge and Escrow Agreement (Series B Debentures) dated as of
June 4, 2008 among JetBlue Airways Corporation, Wilmington Trust
Company, as Trustee, and Wilmington Trust Company, as Escrow
Agentincorporated by reference to Exhibit 10.2 to our
Current Report on Form 8-K filed on June 5, 2008.
Computation of Ratio of Earnings to Fixed Charges.
List of Subsidiaries.
Consent of Ernst & Young LLP.
Rule 13a-14(a)/15d-14(a) Certification of the Chief Executive
Officer, furnished herewith.
Rule 13a-14(a)/15d-14(a) Certification of the Chief Financial
Officer, furnished herewith.
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Section 1350 Certifications.
Letter of Approval from the City of Long Beach Department of
Public Works, dated May 22, 2001, approving City Council
Resolution C-27843 regarding Flight Slot Allocation at Long
Beach Municipal Airportincorporated by reference to
Exhibit 99.2 to the Registration Statement on Form S-1, as
amended (File No. 333-82576).
*
Compensatory plans in which the directors and executive officers
of JetBlue participate. The agreement filed as
Exhibit 10.10 was previously listed as having been filed as
an exhibit to our Quarterly Report on
Form 10-Q
for the quarterly period ended March 31, 2007, but was
inadvertently omitted from such prior filing.
**
Pursuant to 17 CFR 240.24b-2, confidential information has
been omitted and has been filed separately with the Securities
and Exchange Commission pursuant to a Confidential Treatment
Request filed with and approved by the Commission.
(1)
Documents substantially identical in all material respects to
the document filed as Exhibit 4.4 to our Current Report on
Form 8-K
dated March 24, 2004 (which exhibit relates to formation of
JetBlue Airways Pass Through Trust,
Series 2004-1G-1-O
and the issuance of Three-Month LIBOR plus 0.375% JetBlue
Airways Pass Through Trust,
Series 2004-1G-1-O,
Pass Through Certificates) have been entered into with respect
to formation of each of JetBlue Airways Pass Through Trusts,
Series 2004-1G-2-O
and
Series 2004-1C-O
and the issuance of each of Three-Month LIBOR plus 0.420%
JetBlue Airways Pass Through Trust, Series
2004-1G-2-O
and Three-Month LIBOR plus 4.250% JetBlue Airways Pass Through
Trust,
Series 2004-1C-O.
Pursuant to Instruction 2 of Item 601 of
Regulation S-K,
Exhibit 99.1, incorporated by reference to our Current
Report on
Form 8-K
dated March 24, 2004, sets forth the terms by which such
substantially identical documents differ from
Exhibit 4.7(c).
(2)
Documents substantially identical in all material respects to
the document filed as Exhibit 4.14 our Current Report on
Form 8-K
dated March 24, 2004 (which exhibit relates to an above-cap
liquidity facility provided on behalf of the JetBlue Airways
Corporation Pass Through
Trust 2004-1G-1-O)
have been entered into with respect to the above-cap liquidity
facilities provided on behalf of the JetBlue Airways Corporation
Pass Through Trust
2004-1G-2-O
and the JetBlue Airways Corporation Pass Through
Trust 2004-1C-O.
Pursuant to Instruction 2 of Item 601 of
Regulation S-K,
Exhibit 99.2, incorporated by reference to our Current
Report on
Form 8-K
dated March 24, 2004, sets forth the terms by which such
substantially identical documents differ from
Exhibit 4.7(m).
(3)
Documents substantially identical in all material respects to
the document filed as Exhibit 4.4 to our Current Report on
Form 8-K
dated November 9, 2004 (which exhibit relates to formation
of JetBlue Airways Pass Through Trust,
Series 2004-2G-1-O
and the issuance of Three-Month LIBOR plus 0.375% JetBlue
Airways Pass Through Trust,
Series 2004-2G-1-O,
Pass Through Certificates) have been entered into with respect
to formation of each of the JetBlue Airways Pass Through Trusts,
Series 2004-2G-2-O
and
Series 2004-2C-O
and the issuance of each of Three-Month LIBOR plus 0.450%
JetBlue Airways Pass Through Trust, Series
2004-2G-2-O
and Three-Month LIBOR plus 3.100% JetBlue Airways Pass Through
Trust,
Series 2004-2C-O.
Pursuant to Instruction 2 of Item 601 of
Regulation S-K,
Exhibit 99.1, incorporated by reference to our Current
Report on
Form 8-K
dated November 9, 2004, sets forth the terms by which such
substantially identical documents differ from
Exhibit 4.8(c).
(4)
Documents substantially identical in all material respects to
the document filed as Exhibit 4.14 to our Current Report on
Form 8-K
dated November 9, 2004 (which exhibit relates to an
above-cap liquidity facility provided on behalf of the JetBlue
Airways Corporation Pass Through
Trust 2004-2G-1-O)
have been entered into with respect to the above-cap liquidity
facilities provided on behalf of the JetBlue Airways Corporation
Pass Through Trust
2004-2G-2-O
and the JetBlue Airways Corporation Pass Through
Trust 2004-2C-O.
Pursuant to Instruction 2 of Item 601 of
Regulation S-K,
Exhibit 99.2, incorporated by reference to our Current
Report on
Form 8-K
dated November 9, 2004, sets forth the terms by which such
substantially identical documents differ from
Exhibit 4.8(m).
Table of Contents
Additions
Balance at
Charged to
Charged to
beginning of
Costs and
Other
Balance at end
Description
period
Expenses
Accounts
Deductions
of period
$
2,237
6,090
$
3,172
(1)
$
5,155
2,358
1,826
4,184
3,078
22,501
25,579
1,608
1,659
1,030
(1)
2,237
1,667
691
2,358
2,796
259
23
(2)
3,078
1,180
1,155
727
(1)
1,608
997
670
1,667
1,695
847
254
(2)
2,796
(1)
Uncollectible accounts written off, net of recoveries.
(2)
Attributable to deferred tax assets, the benefit of which was
recorded to equity.
S-1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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A-2
A-3
A-4
A-5
A-6
(A) | Grant of DSUs . The Corporation hereby grants to the Recipient [NUMBER] DSUs, subject to the terms and conditions of the Plan and this Award Agreement. Each DSU represents the unsecured right to receive one share of Common Stock in the future. |
(B) | Vesting and Settlement of DSUs . |
(1) | One hundred percent (100%) of the DSUs shall be vested as of the Date of Grant. |
(2) | Each vested DSU shall be settled through the delivery of one share of Common Stock on the last business day of the sixth month following the date on which your separation from Service occurs (the Settlement Date ). |
(3) | The shares of Common Stock delivered to the Recipient on the Settlement Date shall not be subject to transfer restrictions and shall be fully paid, non-assessable and registered in the Recipients name. |
(C) | Change in Control . Notwithstanding any provision contained in the Plan or this Award Agreement to the contrary, if, prior to the Settlement Date, a Change in Control or Hostile Take-Over occurs, all DSUs shall settle immediately upon the effective date of the Change in Control. |
(D) | Transferability . DSUs are not transferable other than by last will and testament, by the laws of descent and distribution pursuant to a domestic relations order, or as otherwise permitted under the Plan. Further, except as set forth in the Plan, a Recipients rights under the Plan shall be exercisable during the Recipients lifetime only by the Recipient, or in the event of the Recipients legal incapacity, the Recipients legal guardian or representative. |
(E) | Miscellaneous . |
(1) | The Plan provides a complete description of the terms and conditions governing all awards granted thereunder, and is incorporated into this Award Agreement by reference. This Award Agreement and the rights of the Recipient hereunder are subject to the terms and conditions of the Plan, as amended from time to time, and to such rules and regulations as may be adopted under the Plan. If there is any inconsistency between the terms of this Award Agreement and the terms of the Plan, the Plans terms shall supersede and replace the conflicting terms of this Award Agreement. |
(2) | The Board shall have the right to impose such restrictions on any shares acquired pursuant to DSUs as it deems necessary or advisable under applicable federal securities laws, the rules and regulations of any stock exchange or market upon which such shares are then listed and/or traded, and/or under any blue sky or state securities laws applicable to such shares. It is expressly understood that the Board is authorized to administer, construe, and make all determinations necessary or appropriate to administer the Plan and this Award Agreement, all of which shall be binding upon the Recipient. |
(3) | The Board may at any time, or from time to time, amend or modify the Plan or this Award Agreement at any time; provided , however , that no such amendment or modification shall materially and adversely alter or impair the rights of the Recipient under this Award Agreement, without the Recipients written consent. |
(4) | If the Corporation determines that any provision of this Award Agreement or the Plan contravenes Section 409A or could cause the Recipient, a beneficiary or any other person to incur any tax, interest or penalties under Section 409A, the Board may, in its sole |
2
discretion and without the Recipients consent, modify such provision in the manner that the Board may reasonably and in good faith determine to be necessary or advisable to comply with Section 409A and/or to avoid the imposition of such tax, interest or penalties. This Section E(4) does not create an obligation on the part of the Board or the Corporation to amend or modify the Plan or this Award Agreement, nor does it guarantee that the DSUs will not be subject to taxes, interest or penalties under Section 409A. |
(5) | Delivery of the shares of Common Stock underlying the DSUs upon settlement is subject to the Recipient satisfying all applicable federal, state, local and foreign taxes. The Corporation shall have the power and the right to (i) deduct or withhold from all amounts payable to the Recipient pursuant to the DSUs or otherwise, or (ii) require the Recipient to remit to the Corporation an amount sufficient to satisfy any applicable taxes required by law. Further, the Corporation may permit or require the Recipient to satisfy the tax obligations, in whole or in part, by withholding shares that would otherwise be received upon settlement of the DSUs. |
(6) | This Award Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required, or the Board determines are advisable. The Recipient agrees to take all steps the Corporation determines are necessary to comply with all applicable provisions of federal and state securities law in exercising his or her rights under this Award Agreement. |
(7) | All obligations of the Corporation under the Plan and this Award Agreement, with respect to the DSUs, shall be binding on any successor to the Corporation, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Corporation. |
(8) | Any notice required by the terms of the Plan or this Award Agreement shall be given in writing and shall be deemed effective upon personal delivery or upon deposit in the mail, by registered or certified mail. Notice to the Corporation shall be delivered to JetBlue Airways Corporation, Legal Department, 118-29 Queens Boulevard, Forest Hills, NY 11375, and to the Recipient at the address that the Recipient has most recently provided to the Corporation; provided , however , that the Corporation may provide |
3
notices to the Recipient by email, intranet postings or other electronic means that are generally used by the Corporation for communications with its service providers. |
(9) | Nothing in the Plan or this Award Agreement should be construed as providing the Recipient with financial, tax, legal or other advice with respect to the DSUs. The Corporation recommends that the Recipient consult with his or her financial, tax, legal and other advisors for advice in connection with the DSUs. |
(10) | Nothing in the Plan or this Award Agreement shall confer upon the Recipient any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Corporation (or any Parent or Subsidiary retaining the Recipient) or of the Recipient, which rights are hereby expressly reserved by each, to terminate the Recipients Service at any time for any reason, with or without cause. |
(11) | To the extent not preempted by federal law, this Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. |
(F) | Acceptance of Award . The Recipient acknowledges his or her understanding and acceptance of the terms and conditions of the Plan and this Award Agreement. The Plan and this Award Agreement represents the entire understanding of the parties, and supersedes all prior understandings, with respect to the DSUs. If the Recipient, however, desires to refuse the DSUs, the Recipient must notify the Corporation in writing in accordance with Section E(8) of this Award Agreement no later than 30 days after receipt of this Award Agreement. If the Recipient refuses the DSUs, he or she will not be entitled to any additional compensation or remuneration in replacement of the DSUs. If the Recipient does not refuse the DSUs, the Recipient will be deemed to agree to all of the terms of the Plan and this Award Agreement. |
By: | ||||
Name: | ||||
Title: | ||||
4
(A) | Grant of RSUs . The Company hereby grants to the Participant [NUMBER] RSUs, subject to the terms and conditions of the Plan and this Award Agreement. Each RSU represents the unsecured right to receive one share of Common Stock in the future. |
(B) | Vesting and Settlement of RSUs . |
(1) | Subject to the Participants continued employment with the Company and its Subsidiaries (the Company Group ), one hundred percent (100%) of the RSUs shall vest in equal installments on each of the first, second and third anniversaries of the Date of Award (the Vesting Date ). Any unvested RSUs at time of Recipients cessation of service will be forfeited. |
(2) | Each vested RSU shall be settled through the delivery of one share of Common Stock no later than the last business day of the month in which the Vesting Date occurs (or as soon as administratively practicable thereafter, but in no event later than March 15 th of the calendar year immediately following the calendar year in which the vesting date occurs (the Settlement Date )). |
A-1
(3) | The shares of Common Stock delivered to the Participant on the Settlement Date (or such earlier date determined in accordance with section (C)) shall not be subject to transfer restrictions and shall be fully paid, non-assessable and registered in the Participants name. |
(C) | Termination of Employment . |
If, prior to the Vesting Date, the Participants employment with the Company Group terminates for any reason, including Death, Permanent Disability or Involuntary Termination, the unvested RSUs shall be cancelled immediately and the Participant shall immediately forfeit any rights to, and shall not be entitled to receive any payments with respect to, the unvested RSUs. |
(D) | Change in Control . Notwithstanding any provision contained in the Plan or this Award Agreement to the contrary, if, prior to the Settlement Date, a Change of Control occurs, the RSUs shall vest and settle immediately upon the effective date of the Change in Control. |
(E) | Transferability . RSUs are not transferable other than by last will and testament, by the laws of descent and distribution pursuant to a domestic relations order, or as otherwise permitted under the Plan. Further, except as set forth in the Plan, a Participants rights under the Plan shall be exercisable during the Participants lifetime only by the Participant, or in the event of the Participants legal incapacity, the Participants legal guardian or representative. |
(F) | Miscellaneous . |
(1) | The Plan provides a complete description of the terms and conditions governing all RSUs granted thereunder. This Award Agreement and the rights of the Participant hereunder are subject to the terms and conditions of the Plan, as amended from time to time, and to such rules and regulations as the Primary Committee and Secondary Committee may adopt for the administration of the Plan. If there is any inconsistency between the terms of this Award Agreement and the terms of the Plan, the Plans terms shall supersede and replace the conflicting terms of this Award Agreement. |
(2) | The Primary Committee and Secondary Committee shall have the right to impose such restrictions on any shares acquired pursuant to RSUs as it deems necessary or advisable under applicable federal securities laws, the rules and regulations of any stock exchange or market upon which such shares are then listed and/or traded, and/or under any blue sky or state securities laws applicable to |
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such shares. It is expressly understood that the Primary Committee and Secondary Committee are authorized to administer, construe, and make all determinations necessary or appropriate to administer the Plan and this Award Agreement, all of which shall be binding upon the Participant. |
(3) | The Board may at any time, or from time to time, terminate, amend, modify or suspend the Plan, and the Board or the Primary Committee and Secondary Committee may amend or modify this Award Agreement at any time; provided , however , that no termination, amendment, modification or suspension shall materially and adversely alter or impair the rights of the Participant under this Award Agreement, without the Participants written consent. |
(4) | Payments contemplated with respect to the RSUs are intended to comply with the short-term deferral exemption under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder ( Section 409A ). Notwithstanding the forgoing of any provisions of the Plan or this Award Agreement, if the Company determines that such exemption is not applicable to the RSUs, or any provision of this Award Agreement or the Plan contravenes Section 409A or could cause the Participant to incur any tax, interest or penalties under Section 409A, the Primary Committee and Secondary Committee may, in their sole discretion and without the Participants consent, modify such provision to (i) comply with, or avoid being subject to, Section 409A, or to avoid the incurrence of any taxes, interest and penalties under Section 409A, and/or (ii) maintain, to the maximum extent practicable, the original intent and economic benefit to the Participant of the applicable provision without materially increasing the cost to the Company or contravening the provisions of Section 409A. This Section F(4) does not create an obligation on the part of the Company to modify the Plan or this Award Agreement and does not guarantee that the RSUs will not be subject to taxes, interest and penalties under Section 409A. |
(5) | Delivery of the shares of Common Stock underlying the RSUs upon settlement is subject to the Participant satisfying all applicable federal, state, local and foreign taxes (including the Participants FICA obligation). The Company shall have the power and the right to (i) deduct or withhold from all amounts payable to the Participant pursuant to the RSUs or otherwise, or (ii) require the Participant to remit to the Company, an amount sufficient to satisfy any applicable taxes required by law. Further, the Company may permit or require the Participant to satisfy, in |
A-3
whole or in part, the tax obligations by withholding shares that would otherwise be received upon settlement of the RSUs. |
(6) | This Award Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required, or the Primary Committee and Secondary Committee determine are advisable. The Participant agrees to take all steps the Company determines are necessary to comply with all applicable provisions of federal and state securities law in exercising his or her rights under this Award Agreement. |
(7) | All obligations of the Company under the Plan and this Award Agreement, with respect to the Awards, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. |
(8) | To the extent not preempted by federal law, this Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. |
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Year Ended December 31, | ||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||
Earnings:
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Income (loss) before income taxes
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$ | (76 | ) | $ | 41 | $ | 9 | $ | (24 | ) | $ | 75 | ||||||||
Less: capitalized interest
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(48 | ) | (43 | ) | (27 | ) | (16 | ) | (9 | ) | ||||||||||
Add:
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Fixed charges
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$ | 347 | 333 | 263 | 172 | 113 | ||||||||||||||
Amortization of capitalized interest
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2 | 1 | 1 | 1 | 1 | |||||||||||||||
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Adjusted earnings
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$ | 225 | $ | 332 | $ | 246 | $ | 133 | $ | 180 | ||||||||||
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Fixed charges:
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Interest expense
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$ | 218 | $ | 221 | $ | 169 | $ | 104 | $ | 52 | ||||||||||
Amortization of debt costs
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14 | 5 | 4 | 3 | 1 | |||||||||||||||
Rent expense representative of interest
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115 | 107 | 90 | 65 | 60 | |||||||||||||||
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Total fixed charges
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$ | 347 | $ | 333 | $ | 263 | $ | 172 | $ | 113 | ||||||||||
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Ratio of earnings to fixed charges (1)
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| | | | 1.59 | |||||||||||||||
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(1) | Earnings were inadequate to cover fixed charges by $122 million, $1 million, $17 million, and $39 million for the years ended December 31, 2008, 2007, 2006 and 2005, respectively. |
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
c) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
d) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ DAVID BARGER
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Chief Executive Officer
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a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
c) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
d) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ EDWARD BARNES
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Executive Vice President and Chief Financial Officer
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Date:
February 13, 2009
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By: | /s/ DAVID BARGER | ||
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David Barger
Chief Executive Officer |
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Date:
February 13, 2009
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By: | /s/ EDWARD BARNES | ||
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Edward Barnes | |||
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Executive Vice President and | |||
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Chief Financial Officer |