THIS WARRANT AGREEMENT is entered into as of March ____ , 2000 by and between
The Boeing Corporation, a Delaware corporation ("Boeing" or the "Holder"), and
World Airways, Inc., a Delaware corporation (the "Company").
In furtherance of that certain Letter Agreement between Boeing and the Company
dated as of August 4, 1999 (the "Letter Agreement"), the Company agrees to grant
Boeing warrants (the "Warrants") to purchase 1,000,000 shares of the Company's
common stock, par value $.001 per share ("Common Stock"), on the terms and
conditions stated herein. Each Warrant shall entitle the Holder thereof to
purchase upon the exercise thereof one share of the Company's Common Stock;
provided, however that such number of shares may be adjusted from time to time
pursuant to Section 9 below (the shares of Common Stock issuable upon exercise
of the Warrants being referred to herein as "Warrant Shares").
NOW THEREFORE, in consideration of the premises and the mutual agreements herein
and for other good and valuable consideration, the parties hereto agree as
follows:
1. ISSUANCE AND EXERCISABILITY OF WARRANTS: FORM OF WARRANT CERTIFICATES. Boeing
is hereby granted 1,000,000 Warrants, which Warrants will be exercisable as of
the date hereof through the Expiration Date as hereinafter defined, at a
purchase price of $.01 for the warrant on each share totaling $10,000.00. The
Company will issue and deliver to Boeing a warrant certificate or warrant
certificates (individually a "Warrant Certificate" and collectively the "Warrant
Certificates") for the 1,000,000 warrants, promptly upon payment of the
$10,000.00 purchase price. The text of the Warrant Certificate shall be
substantially as set forth in Exhibit A hereto. The form of election to purchase
shares shall be substantially as set forth in Exhibit B hereto.
2. WARRANT REGISTER. The Warrant Certificates shall be numbered and shall be
registered in a Warrant Register as they are issued. The Company shall be
entitled to treat the registered holder of any Warrant Certificate on the
Warrant Register (the "Holder") as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrant Certificates which are registered or to be
registered in the name of a fiduciary or the nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration of transfer, or with knowledge of such
facts that its participation therein amounts to bad faith. The Warrant
Certificates to be issued to Boeing hereunder shall be registered initially in
the name of "The Boeing Company".
3. EXCHANGE OF WARRANT CERTIFICATE. Subject to any restriction upon transfer set
forth in this Warrant Agreement, each Warrant Certificate may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and
representing in the aggregate a like number of Warrants. Any Holder desiring to
exchange a Warrant Certificate or Warrant Certificates shall make such request
in writing delivered to the Company, and shall surrender, properly endorsed, the
Warrant Certificate or Warrant Certificates to be so exchanged. Thereupon, the
Company shall execute and deliver to the person entitled thereto a new Warrant
Certificate or Warrant Certificates, as the case may be, as so requested.
4. TRANSFER OF WARRANTS. Subject to compliance with state and federal securities
laws and the terms and conditions hereof, Boeing shall have the right to sell,
transfer, negotiate, assign or grant participation in all or any part of
Boeing's rights and obligations under this Warrant Agreement or under any
Warrant Certificate. The Warrant Certificates shall be transferable on the books
of the Company (the "Warrant Register") only upon delivery thereof duly endorsed
by the Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified, shall be
deposited with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited with the
Company in its discretion. Upon any registration of transfer, the Company shall
deliver a new Warrant Certificate or Warrant Certificates to the person entitled
thereto. Notwithstanding the foregoing, the Company shall have no obligation to
cause Warrant Certificates to be transferred on its books to any person unless
the Holder of such Warrant Certificates shall furnish to the Company evidence of
compliance with the Securities Act of 1933, as amended (the "Act"), in
accordance with the provisions of Section 11 of this Warrant Agreement. The text
of each new Warrant Certificate issued under Sections 3 or 4 and of the form of
election to purchase shares shall be as set forth in Exhibits A and B hereto and
shall be exchanged and transferred and subject to adjustment in the same manner
as if such new Warrant Certificate were the original Warrant Certificate issued
to the Holder. Any Holder who transfers Warrants shall be responsible for and
pay all costs and expenses associated with such transfer of Warrants to its
transferee.
5. TERM AND COMPLIANCE WITH GOVERNMENT REGULATIONS.
5.1 TERM OF WARRANTS: EXERCISE OF WARRANTS.
(a) Each Warrant entitles the registered Holder thereof to purchase
one share of Common Stock at any time until 5:00 pm Washington, DC time, August
____, 2004 (the "Warrant Expiration Date"), at a purchase price of $2.50 per
share, as such number of shares and purchase price per share may be adjusted
from time to time pursuant to Section 9 of this Warrant Agreement (such purchase
price per share, as adjusted, being referred to herein as the "Warrant Price").
(b) Subject to the provisions of this Warrant Agreement, each
registered Holder of Warrant Certificates shall have the right, which may be
exercised as expressed in such Warrant Certificates, to purchase from the
Company (and the Company shall issue and sell to such registered Holder) the
number of fully paid and nonassessable shares of Common Stock specified in such
Warrant Certificates, upon surrender to the Company, or its duly authorized
agent, of such Warrant Certificates, with the form of election to purchase duly
filled in and signed, and upon payment to the Company of the Warrant Price for
the number of shares in respect of which such Warrants are then exercised.
Payment of such Warrant Price may be made in cash or by certified or cashier's
check. No adjustment shall be made for any dividends on any shares of stock
issuable upon exercise of a Warrant.
(c) Upon such surrender of Warrant Certificates, and payment of the
Warrant Price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch to or upon the written order of the registered
Holder of such Warrant Certificates and (subject to receipt of evidence of
compliance with the Act in accordance with the provisions of Section 11 of this
Warrant Agreement) in such name or names as such registered Holder may
designate, a certificate or certificates for the number of full shares of stock
so purchased upon the exercise of such Warrants.
(d) If permitted by applicable law, such share certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
shares as of the date of the surrender of such Warrant Certificates and payment
of the Warrant Price as aforesaid. The rights of purchase represented by the
Warrant Certificates shall be exercisable, at the election of registered Holders
thereof, either as an entirety or from time to time for part only of the shares
specified therein and, in the event that any Warrant is exercised in respect of
less than all of the shares specified therein at any time prior to the date of
expiration of the Warrants, a new Warrant Certificate or Warrant Certificates
will be issued for the remaining whole number of shares specified in the Warrant
so surrendered.
5.2 COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that if
any shares of Common Stock required to be reserved for purposes of exercise of
Warrants require, under any Federal or state law or applicable governing rule or
regulations of any national securities exchange, registration with or approval
of any governmental authority, or listing on any such national securities
exchange before such shares may be issued upon exercise, the Company will as
expeditiously as possible endeavor to cause such shares to be duly registered,
approved or listed on the relevant national securities exchange, as the case may
be.
6. PAYMENT OF TAXES. The Company will pay all taxes (other than any income taxes
or other similar taxes), if any, attributable to the initial issuance of the
Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any other issuance or delivery
of any Warrants or the issuance of certificates for Warrant Shares, or the
transfer thereof; and, provided further, that no such issuance, delivery or
transfer shall be made unless and until the person requesting such issuance or
transfer has paid to the Company the amount of any such tax, or has established,
to the reasonable satisfaction of the Company, that no such tax is payable or
such tax has been paid.
7. MUTILATED OR MISSING WARRANTS. In case any of the Warrant Certificates shall
be mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction of such Warrant
Certificate and indemnity or bond, if requested, also reasonably satisfactory to
the Company. An applicant for such substitute Warrant Certificate shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Company may prescribe.
8. RESERVATION OF WARRANT SHARES. There has been reserved out of the authorized
and unissued shares of Common Stock, and the Company shall at all times keep
reserved out of its authorized and unissued shares of Common Stock, a number of
shares sufficient to provide for the exercise of the rights of purchase
represented by the Warrants, and the transfer agent for the Common Stock
("Transfer Agent") and every subsequent Transfer Agent for any shares of the
Company's Common Stock issuable upon the exercise of any of the rights of
purchase aforesaid are hereby irrevocably authorized and directed at all times
until the Expiration Date to reserve such number of authorized and unissued
shares as shall be requisite for such purpose. Concurrently with any corporate
action that might result in an increase in the number of shares for which any
Warrant may be exercised pursuant to Section 9 below, the Company shall reserve
out of its authorized and unissued Common Stock the maximum number of additional
shares that would be needed to provide for exercise of all outstanding Warrants
after any such increase. The Company will keep a copy of this Warrant Agreement
on file with the Transfer Agent and with every subsequent Transfer Agent for any
shares of the Company's Common Stock issuable upon the exercise of the rights of
purchase represented by the Warrants. The Company will supply such Transfer
Agent with duly executed stock certificates for such purpose. The Company will
furnish to such Transfer Agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each Holder pursuant to Section
9.13 hereof. All Warrant Certificates surrendered in the exercise of the rights
thereby evidenced shall be canceled.
9. ADJUSTMENTS. The number and kind of securities purchasable upon the exercise
of each Warrant and the Warrant Price shall be subject to adjustment from time
to time upon the happening of certain events, as hereinafter described.
9.1 DEFINITIONS.
(a) "Common Equity Securities" means any class or series of Common
Stock of the Company;
(b) "Convertible Security" means any evidence of indebtedness of the
Company, any share of stock of the Company (other than Common Stock), or any
other security of the Company that is convertible into Common Stock;
(c) "Option" means, subject to Section 9.12 hereof, any right, option
or warrant to purchase either Common Stock or Convertible Securities;
(d) "Other Security" means (i) any security of the Company (other
than Common Stock), (ii) any other security of the Company or any successor
entity which the Holder of a Warrant shall be entitled to purchase at any time,
or shall have purchased, upon exercise thereof in lieu of or in addition to
Common Stock, or (iii) any other security of the Company which at any time shall
be issuable or shall be issued in exchange for, or as a distribution with
respect to, Common Stock or other securities of the Company; and
(e) "Additional Shares of Common Stock" means all shares of Common
Stock (or Other Securities) issued (or, pursuant to Section 9.3 below, deemed to
be issued) by the Company after the date hereof.
9.2 ADJUSTMENTS OF WARRANT PRICE AND NUMBER OF WARRANT SHARES IN GENERAL.
Upon the occurrence of any of the events described in this Section 9, subject to
Sections 9.11 and 9.12 hereof, the Warrant Price shall be adjusted in the manner
and as of the time set forth in this Section 9. Upon each adjustment of such
Warrant Price pursuant to this Section 9, the Holder of each Warrant shall
thereafter prior to the Expiration Date thereof be entitled to purchase, at the
Warrant Price resulting from such adjustment, the number of Warrant Shares
obtained by multiplying the Warrant Price in effect immediately prior to such
adjustment by the number of Warrant Shares issuable upon exercise of such
Warrant immediately prior to such adjustment and dividing the product thereof by
the Warrant Price resulting from such adjustment.
9.3 ISSUE OF ADDITIONAL SHARES OF COMMON STOCK: ACTUAL AND DEEMED.
(a) Whenever the Company issues Additional Shares of Common Stock
(including Additional Shares of Common Stock deemed to be issued pursuant to
subsection 9.3(b) below) without consideration or for a consideration per share
less than the Closing Price on the date of such issuance, the Warrant Price
shall be reduced, concurrently with such issuance, to a price (calculated to the
nearest cent) determined by multiplying the Warrant Price by the sum of (i) the
number of shares of Common Stock outstanding immediately prior to such issuance
and (ii) the consideration, if any, received or receivable by the Company upon
such issue or sale divided by the Closing Price as determined at the time of
such issue or sale, and dividing the result by the number of shares of Common
Stock outstanding immediately after such issuance. For purposes of this
calculation, all shares of Common Stock issuable upon conversion of outstanding
Convertible Securities shall be deemed to be outstanding, and immediately after
any Additional Shares of Common Stock are deemed issued pursuant to subsection
9.3(b) below, such Additional Shares of Common Stock shall be deemed to be
outstanding.
(b) In the event that the Company, after the date hereof, issues any
Options or Convertible Securities, subject to Section 9.12 hereof, then the
maximum number of shares (as set forth in the instrument governing such Options
or Convertible Securities, without regard to any provisions contained therein
for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefore, such number of shares of Common Stock into which such Convertible
Securities may be converted, shall be deemed to be Additional Shares of Common
Stock issued as of the time of issuance, provided that Additional Shares of
Common Stock shall not be deemed to have been issued unless the consideration
per share (determined pursuant to subsection 9.5(a) below) of such Additional
Shares of Common Stock would be less than the Closing Price on the date of such
issuance. Throughout this Section 9, the terms "issue" and "issuance" and all
related forms thereof, when used in reference to issuance of Additional Shares
of Common Stock, include reference to deemed issuance under this subsection
9.3(b), except where the context requires otherwise.
9.4 READJUSTMENT In any case in which Additional Shares of Common Stock are
deemed or have been deemed issued in connection with the issuance of Options or
Convertible Securities, certain subsequent events shall require further
adjustment of the Warrant Price as set forth in this Section 9.4.
(a) No further adjustment in the Warrant Price shall be made as a
result of the subsequent issuance of any share of Common Stock upon the exercise
of any such Options or the conversion of any such Convertible Securities.
(b) If such Options or Convertible Securities by their terms provide,
with the passage of time or otherwise, for any decrease in the consideration
payable to the Company, or increase in the number of shares of Common Stock
issuable upon the exercise, conversion, or exchange thereof, the Warrant Price
computed upon the original issuance thereof, and any subsequent adjustments
based thereon, shall, upon any such decrease or increase becoming effective, be
recomputed to reflect such decrease or increase insofar as it affects such
Options or the rights of conversion or exchange under such Convertible
Securities. Notwithstanding any provision to the contrary in any instrument
governing such Options or Convertible Securities, however, there shall be no
such decrease or increase as a result of any recomputation of the Warrant Price
pursuant to this subsection 9.4(b).
(c) Upon the expiration of any Options or rights of conversion or
exchange under any Convertible Securities, if any thereof shall not have been
exercised, the Warrant Price shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) as if (A)
the only shares of Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such Options or conversions or
exchange rights under such Convertible Securities and (B) such shares of Common
Stock, if any, were issued or sold for the consideration actually received by
the Company upon such exercise plus the aggregated consideration, if any,
actually received by the Company for the issuance, sale or grant of all of such
Options or conversion or exchange rights under such Convertible Securities
whether or not exercised, provided, further that no such readjustment shall have
the effect of increasing the Warrant Price by an amount in excess of the amount
of the adjustment initially made, in respect to the issuance, sale or grant of
such Options, or conversion or exchange rights under such Convertible
Securities.
9.5 DETERMINATION OF CONSIDERATION. For purposes of this Section 9, the
consideration received or deemed to be received by the Company for the issuance
or deemed issuance of any Additional Shares of Common Stock shall be determined
according to this Section 9.5, but shall not include interest accrued and unpaid
on Convertible Securities.
(a) Options and Convertible Securities. The consideration per share
received by the Company for Additional Shares of Common Stock deemed to have
been issued pursuant to subsection 9.3(b) relating to Options and Convertible
Securities shall be determined by dividing
(x) the total amount, if any, received by the Company as consideration for
the issuance of such Options or Convertible Securities, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration) payable to the
Company upon the exercise of such Options or the conversion of such
Convertible Securities, by
(y) the maximum number of shares of Common Stock (as set forth in the
instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion of such Convertible Securities.
(b) Stock Dividends and Stock Subdivisions. Any additional shares of Common
Stock issued or deemed to have been issued pursuant to any stock dividend or
stock subdivision shall be deemed to have been issued for no consideration.
9.6 STOCK DIVIDENDS AND STOCK SPLITS.
(a) In the event the Company at any time or from time to time on or
after the date hereof shall, subject to Section 9.12 hereof, pay any dividend on
securities payable in Common Stock, or effect a subdivision of the outstanding
shares of Common Stock into a greater number of shares, Additional Shares of
Common Stock shall be deemed to have been issued for no consideration:
(i) in the case of any such dividend, immediately after the close of
business on the record date for determining the holders of any class
of securities entitled to received such dividend, or
(ii) in the case of any such subdivision, at the close of business on
the date immediately prior to the date upon which such corporate
action becomes effective.
In either case the number of Additional Shares of Common Stock deemed
to have been issued shall be the difference between the number of outstanding
shares of Common Stock immediately before such dividend or subdivision and the
number of shares of Common Stock outstanding immediately thereafter.
(b) In the event the Company at any time or from time to time after
the date hereof shall pay any dividend on securities payable in Convertible
Securities or other securities, an adjustment shall be made as if such dividend
were an issuance, for no consideration, of the total number of shares of Common
Stock issuable upon the exercise, conversion or exchange of the Convertible
Securities or other securities distributed in such dividend.
9.7 ADJUSTMENTS FOR COMBINATIONS OR CONSOLIDATION OF COMMON STOCK. In the
event the outstanding shares of Common Stock shall be combined or consolidated
into a lesser number of shares of Common Stock, the Warrant Price in effect
immediately prior to such combination or consolidation, concurrently with the
effectiveness of such combination or consolidation, shall be proportionately
increased. But in no event to greater than the aggregate Warrant Price of all
Warrant shares in effect on the date hereof, and the number of Warrant Shares
purchaseable hereunder shall be proportionately reduced.
9.8 ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In case of any
consolidation, merger, or business combination of the Company with or into
another corporation or the conveyance of all or substantially all of the assets
of the Company to another corporation, each Warrant hereunder, without any
further act or the execution of any further instrument whatsoever, shall become
a warrant to purchase or receive, at the Warrant Price, such shares of stock or
other securities or property as a holder of the number of Warrant Shares
purchasable upon exercise of such Warrant immediately prior thereto would have
been entitled to upon such consolidation, merger, business combination, sale or
conveyance, and appropriate adjustment (as reasonably determined by the Board of
Directors of the Company or the surviving corporation, as the case may be) shall
be made in the application of the provisions herein set forth with respect to
the rights of the holder of such Warrant, to the end that such provisions
(including provisions with respect to changes in and other adjustments of the
Warrant Price) shall thereafter be applicable, as nearly as reasonably may be,
in relation to any shares of stock or other property thereafter deliverable upon
exercise of such Warrant. The Company shall not effect any such consolidation,
merger, business combination, sale or conveyance unless prior to the
consummation thereof the successor (if other than the Company) resulting there
from, or the transferee of the assets, as the case may be, shall have assumed by
written instrument the obligation to deliver to each holder of a Warrant such
shares of stock or other securities or property as, in accordance with the
foregoing provisions and the provision of each Warrant, such holder may be
entitled to purchase or receive.
9.9 ADJUSTMENTS FOR CERTAIN DISTRIBUTIONS. In the event the Company shall
distribute to all holders of its Common Stock shares of its capital stock (other
than shares of Common Stock), evidences of indebtedness of the Company or assets
of the Company (excluding cash dividends or distributions out of earned surplus)
or rights or warrants to subscribe for securities of the Company (excluding
those referred to in Section 9.12), then in each case the Warrant Price shall be
adjusted to a price determined by multiplying the Warrant Price in effect
immediately prior to the record date mentioned below by a fraction, of which the
numerator shall be the Closing Price per share on the record date for
determination of shareholders entitled to receive such distribution, less the
fair market value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights or warrants which are
applicable to one share of Common Stock, and of which the denominator shall be
the Closing Price per share.
9.10 ADJUSTMENT OF WARRANT PRICE UPON ISSUANCE OF OTHER SECURITIES. In the
event Other Securities shall be issued or shall become subject to issuance upon
the conversion of any shares (or Other Securities) of the Company for a
consideration such as to diminish the aggregate fair market value of the Warrant
Shares purchasable upon exercise of any Warrant, adjustments of the Warrant
Price shall be made as nearly as possible in the manner provided in this Section
9 so as to maintain the aggregate fair market value of such Warrant Shares to
the extent reasonably possible.
9.11 MINIMUM ADJUSTMENT Notwithstanding anything in this Section 9 to the
contrary, the Company shall not be required to give effect to any adjustment in
the Warrant Price unless and until the cumulative effect of one or more
adjustments, determined as above provided, shall have required a change in the
Warrant Price by at least one cent ($.01), but when the cumulative effect of one
or more adjustments so determined shall be to change the Warrant Price by at
least one cent ($.01) such cumulative change in the Warrant Price shall
thereupon be given effect.
9.12 NO ADJUSTMENT. No adjustment in the Warrant Price shall be made:
(a) for a change in the par value of the Warrant Shares; or
(b) in the case of the Warrants issued pursuant hereto; or
(c) as a result of shares of Common Stock or Convertible Securities
being issued upon conversion or exchange of any Options, warrants, or
Convertible Securities of the Company outstanding on the date hereof; or
(d) solely on account of any warrants issued or deemed to be issued
in connection with an adjustment pursuant to the antidilution provisions of any
outstanding warrants of the Company on the date hereof; or
(e) in the case of shares of Common Stock or Convertible Securities
pursuant to any employee or director incentive or benefit plan or stock
ownership plan, agreement or arrangement, including any employment, severance or
consulting agreement of the Company or any subsidiary or affiliate of the
Company heretofore or hereafter adopted or approved, as the case may be, and any
modifications to, or amendments of, any such plans, agreements or arrangements.
For the purpose of any computation under this Section 9, the term "Closing
Price" shall mean the average of the daily sales price regular way for the
preceding ten (10) Trading Days before such day or, on the principal national
securities exchange on which the shares of Common Stock are listed or admitted
to trading or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices of the Common Stock in
the over-the-counter market as reported by Nasdaq or any comparable system for
the preceding ten (10) Trading Days before such day or, in the absence of one or
more such quotations, the average of the closing bid and asked prices for the
preceding ten (10) Trading Days before such day as furnished by any New York
Stock Exchange member firm selected from time to time by the Company for this
purpose. The term "Trading Day" shall mean a date on which the principal
national securities exchange on which the shares of Common Stock are listed or
admitted to trading or, if not listed or admitted to trading, Nasdaq (or any
successor to such exchange) is open for the transaction of business.
9.13 TREASURY SHARES. The number of shares of Common Stock outstanding at
any time shall not include shares owned or held by or for the account of the
Company or any of its subsidiaries, and the disposition (but not the
cancellation) of any such shares in tranches greater than 10,000 shall be
considered an issue or sale of the Common Stock for the purposes of Section 9.
9.14 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall promptly mail
by first class, postage prepaid, to each Holder notice of such adjustment or
adjustments and a certificate of a firm of independent certified public
accountants selected by the Board of Directors of the Company (who may be the
regular accountants employed by the Company) setting forth the number of Warrant
Shares purchasable upon the exercise of each Warrant and the Warrant Price of
such Warrant Shares after such adjustment, setting forth a brief statement of
the facts requiring such adjustment, setting forth the computation by which such
adjustment was made, and confirming that such adjustments and calculations have
been made in accordance with the terms hereof.
9.15 STATEMENT ON WARRANT CERTIFICATES. Irrespective of any adjustments in
the Warrant Price or the number or kind of shares purchasable upon the exercise
of the Warrants, Warrant Certificates theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the Warrant Certificates initially issuable pursuant to this Warrant
Agreement.
10. NO FRACTIONAL INTERESTS. No fractional Warrant Shares, or cash or other
property in lieu thereof, shall be issued upon the exercise of Warrants. The
Company shall make a payment in cash in respect of any fractional shares which
might otherwise be issuable upon exercise of these Warrants, calculated by
multiplying the fractional share amount by the Closing Bid price of the
Company's Common Stock on the date of exercise; provided that the exercise of
multiple Warrants shall be aggregated so that a cash payment in respect of
fractional shares pursuant to this Section 10 shall not be made as to a total
number greater than one for any single exercise.
11. REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND REGISTRATION RIGHTS.
Boeing represents and warrants to the Company that Boeing will not dispose of
any of its Warrants or Warrant Shares except pursuant to (i) an effective
registration statement under the Act, (ii) Rule 144 under the Act (or any
similar rule under the Act relating to the disposition of securities), or (iii)
an opinion of counsel that an exemption from such registration is available.
12. CERTIFICATES TO BEAR LEGENDS. The Warrants shall be subject to a
stop-transfer order and the Warrant Certificates therefor shall bear the
following legend by which each Holder shall be bound:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
(OR OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE, RULE 144
UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
The Warrant Shares (or Other Securities) issued upon exercise of the
Warrants shall be subject to a stop-transfer order and the Stock Certificate or
Stock Certificates evidencing any such Warrant Shares (or Other Securities)
shall bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE, RULE 144
UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
The Company covenants that it shall issue a new Warrant Certificate or
Warrant Certificates without the legends referred to above, evidencing the
Warrants or the Warrant Shares or Other Securities issued upon exercise of the
Warrants, in exchange for a Warrant Certificate or Warrant Certificates
evidencing such Warrants, Warrant Shares or Other Securities, and will remove
the stop-transfer order, in the event the Holder of such Warrants, Warrant
Shares or Other Securities shall deliver to the Company an opinion of counsel
reasonably satisfactory to the Company that an exemption from registration under
the Act is available with respect to such Warrants, Warrant Shares or Other
Securities.
13. REGISTRATION RIGHTS. The Company and Boeing agree that their respective
rights and obligations with respect to registration of the Warrants and Warrant
Shares under the Act are as hereinafter set forth.
13.1 REGISTRATION OF WARRANTS AND WARRANT SHARES.
(a) Boeing or a majority of the Holders of the Warrants shall have
the right, at any time to make written request to the Company to register under
the Act any of its or their Common Stock issued under the Warrant. Promptly upon
receipt of such request, the Company shall file with the Securities and Exchange
Commission a registration statement on the applicable form for the registration
of such Common Stock and shall use its best efforts to cause such registration
statement to become effective as soon as practicable to permit or facilitate the
sale and distribution of such Common Stock. Immediately upon receipt of a
request for registration pursuant to this Section 13.1(a), the Company shall
notify each of the other Holders of such request. The Company is obligated to
effect only one such registration pursuant to this Section 13.1(a).
(b) If the Company at any time proposes to register any of its Common
Stock under the Act for its own account or for the account of any Holder or any
other person (other than (i) any registration of an offering solely to employees
of the Company or its subsidiaries or (ii) any registration relating to a merger
or other business combination transaction), it shall promptly give written
notice to the Holder of its intention to do so, and the Company shall include in
such registration, subject to Section 13.2 hereof, all Warrant Shares that the
Holder shall specify in a written notice delivered to the Company within 30 days
after its receipt of the Company's notice of the proposed filing of the
registration statement, provided that the Company shall not be required to
include in such registration any Warrant Shares that a Holder shall so specify
if in the unqualified opinion of counsel to the Company reasonably acceptable to
the Holder so specifying, registration under the Act is not required for the
transfer of such Warrant Shares in the manner requested by such Holder or that a
post-effective amendment to an existing registration statement would be legally
sufficient for such transfer and the Company shall have obtained such a
post-effective amendment.
13.2 EXCLUSION. If the proposed registration pursuant to Section 13.1(b) is
to be underwritten (whether on a "best efforts" or a "firm commitment" basis),
the managing underwriter shall have the right to exclude all or any part of the
Warrant Shares of the Holder if the underwriter advises the Company in writing
that it reasonably believes that the inclusion of the Warrant Shares would
impair the success of the proposed offering. Any exclusion of Warrant Shares
shall be made pro rata among the Holder and all other persons (other than the
Company) participating in the registration in proportion to the respective
number of Warrant Shares or other securities for which such Holder and each such
other person have requested registration.
13.3 FURTHER OBLIGATIONS AND CONDITIONS RELATING TO REGISTRATION OF SHARES.
Registration of Warrant Shares pursuant to Section 13.1 shall be subject to the
following:
(i) Information, Documents, Assignments, etc. The Holder shall
furnish to the Company such material information as the Company may
reasonably request concerning the Holder and its holdings of
securities of the Company and the proposed method of sale or other
disposition of the Warrant Shares and such other information as shall
be required in connection with any registration, qualification or
compliance referred to herein. The Company shall permit counsel for
the Holder to participate in meetings in connection with the
preparation of any registration statement prepared pursuant to
Section 13.1 (but the Holder shall be under no obligation to
participate in any such meetings and shall incur no liability for its
failure to so participate). Before filing any such registration
statement or amendment or supplement thereto, the Company shall
furnish to the Holder copies of all such documents proposed to be
filed. The Company shall promptly deliver to the Holder copies of
each such registration statement and each amendment or supplement
thereto as filed with the Securities and Exchange Commission ("SEC").
The Company shall furnish to the Holder the number of prospectuses,
offering circulars or other documents, and all amendments or
supplements thereto, incident to each registration, qualification or
compliance as from time to time the Holder may reasonably request.
(ii) Underwriting Agreement. The Company and the Holder shall enter
into an underwriting agreement in customary form with respect to the
registration of Warrant Shares pursuant to Section 13.1 hereof with
the underwriter or underwriters selected for such underwriting by the
Company, which underwriting agreement shall provide for the
completion of the offering within 90 days of the effective date of
the registration statement, provided, however, that such underwriting
agreement shall not require any Holder to indemnify the underwriter
for any losses, claims, damages, liabilities or actions except those
arising out of or based on an untrue statement or omission made in
reliance upon and in conformity with written information furnished to
the underwriter by such Holder for specific use in the registration
statement, prospectus, preliminary prospectus, amendment or
supplement.
(iii) Filing of Amendments. The Company shall file such amendments
and supplements to the registration statement and the related
prospectus and take such other action as may be necessary to keep the
registration statement effective and to comply with the Act for such
period, not exceeding 90 days from the original effective date of the
registration statement.
(iv) Blue Sky. The Company shall do any and all acts and things which
may be necessary or advisable to enable the Holder to consummate the
sale, transfer or other disposition of Warrant Shares and take such
action under the securities laws of such states as the Holder shall
reasonably request, provided, however, that the Company shall not be
required to file any general consent to service of process, to
qualify to do business as a foreign corporation, or to otherwise
subject itself to taxation in connection with any such action, in any
state.
(v) Expenses. The Company shall pay all of the costs of registration
and all related blue sky costs, including, but not limited to,
printing expenses, registration and filing fees, and fees and
disbursements of counsel and accountants for the Company (subject,
however, to subsection (vi) below), except that the Holder shall pay
the fees and selling commissions applicable to its Warrant Shares and
the Company (or others) shall pay the fees and selling commissions
applicable to all other shares of Common Stock being sold. Such
sharing shall be in the proportion that the number of Warrant Shares
being registered for the Holders bears to the total number of other
shares of Common Stock being so registered.
(vi) Audits. The Company shall not be required to furnish any audited
financial statements at the request of the Holder other than those
statements customarily prepared at the end of its fiscal year, unless
the Holder shall agree to reimburse the Company of the out-of-pocket
costs incurred by the Company in the preparation of such other
audited financial statements. The Company shall, however, furnish,
without charge, copies of all such unaudited financial statements as
the Holder shall reasonably request.
(vii) Indemnification. The Company shall indemnify and hold harmless
the Holder, each person who under the Act is deemed a controlling
person of the Holder, each underwriter for the Holder and the
officers, directors, agents and employees of the foregoing against
any losses, claims, damages, costs, actions or liabilities to which
the Holder, controlling person, underwriter or any officers,
directors, agents or employees of the foregoing may become subject
under the Act or otherwise, insofar as such losses, claims, damages,
costs, actions or liabilities (or actions in respect thereof) shall
arise out of or be based upon any untrue or allegedly untrue
statement of any material fact contained in the registration
statement, upon any related prospectus or preliminary prospectus or
any amendment or supplement to the registration statement or any
prospectus or preliminary prospectus or upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and shall reimburse any legal or other expenses reasonably incurred
by each such indemnified person in connection with investigating or
defending against any such loss, claim, damage, liability, cost or
action; provided, however, that the Company shall not be liable to a
Holder, controlling person or underwriter for any losses, claims,
damages, liabilities, costs or actions insofar as the same shall
arise out of or be based upon any such untrue statement or omission
made in reliance upon and in conformity with written information
furnished by that person seeking indemnification hereunder to the
Company specifically for use in the registration statement,
prospectus, preliminary prospectus, amendment or supplement. The
Holder and each underwriter for the Holder shall similarly indemnify
and hold harmless the Company, and its controlling persons and
underwriters and the officers, directors, agents and employees of the
foregoing against any such losses, claims, damages, liabilities,
costs or actions but only insofar as the same shall arise out of or
be based upon any untrue statement or omission made in reliance upon
and in conformity with written information furnished by such
indemnifying person to the Company for use in the registration
statement, prospectus, preliminary prospectus, amendment or
supplement.
13.4 CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section 13.3 above
is due in accordance with its terms but is not permitted by applicable law, the
Company, the underwriters and each Holder shall contribute to the aggregate
losses, claims, damages, costs and liabilities (or actions in respect thereof)
to which any Holder, the underwriter or the Company may be subject in such
proportion as is appropriate to reflect the relative fault committed in
connection with the statements or omissions which resulted in such losses,
claims, damages, costs or liabilities as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company the underwriter or the Holder and their
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. In no event, however, shall the
indemnifying party be required to contribute to any losses, claims, damages,
costs or liabilities that arise solely out of or are based upon written
information furnished by such indemnitee for specific use in the registration
statement, prospectus, preliminary prospectus, amendment or supplement.
13.5 CHANGE IN SEC PROCEDURES OR FORMS. If the SEC adopts new procedures or
forms for public resales of restricted securities, the Company shall take such
action as may be demanded by the Holder in order to permit public resales of the
Warrants and/or Warrant Shares pursuant to such new procedures or forms so long
as the economic or other burden of compliance is not materially greater than the
burden contemplated by Sections 13.1 to 13.4 above.
13.6 TRANSFER OF REGISTRATION RIGHTS. It is expressly understood and agreed
that Boeing may transfer all or any portion of its registration rights hereunder
to any person or enter into any agreement providing for the joint exercise of
the registration rights granted hereunder, provided, that Boeing shall notify
the Company of any such transfer and any transferee of Holder, shall, if such
transferee Holder desires to exercise registration rights hereunder, agree to be
bound with respect to such registration rights by the terms of this Warrant
Agreement.
14. NO RIGHTS AS STOCKHOLDERS; NOTICES TO HOLDERS. Nothing contained in this
Warrant Agreement or in any of the Warrants shall be construed as conferring
upon the Holders or their transferees the right to vote or to receive dividends
or to consent to or receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. The Company shall
provide to the Holders all information it provides to shareholders, including,
without limitation, notices, proxy statements and financial statements. If,
however, at any time prior to the Expiration Date and prior to the exercise of
the Warrants, any of the following events shall occur:
(a) the Company shall declare any dividend payable in any securities upon
its shares of Common Stock or make any distribution (other than a cash dividend
in the ordinary course) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares of Common Stock
any additional shares of Common Stock or securities convertible into or
exchangeable for shares of Common Stock or any right to subscribe to or purchase
any thereof; or
(c) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation, merger, sale or transfer or lease of all or
substantially all of its property, assets, and business as an entirety) shall be
proposed; then in any one or more of said events the Company shall (i) give
notice in writing of such event to the Holders as provided in Section 15 hereof
and (ii) if there are more than 100 Holders, cause notice of such event to be
published once in The Wall Street Journal (national edition), such giving of
notice and publication to be completed at least 20 days (or 10 days in any case
specified in paragraphs (a) and (b) above) prior to the date fixed as a record
date or the date of closing and transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be.
15. NOTICES. Any notice pursuant to this Warrant Agreement to be given or made
by the registered Holder of any Warrant to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows:
If to the Company:
World Airways, Inc.
00000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President and Chief Operating Officer
If to Boeing:
Notices or demands authorized by this Warrant Agreement to be given or made by
the Company to or on any registered Holder of any Warrant shall be sufficiently
given or made (except as otherwise provided in this Warrant Agreement) if sent
by first-class mail, postage prepaid, addressed to such Holder at the address of
such Holder as shown on the Warrant Register. Each party hereto may from time to
time change the address to which notices to it are delivered or mailed hereunder
by notice in writing to the other party.
16. SUPPLEMENTS AND AMENDMENTS. The Company and all of the Holders may from time
to time supplement or amend this Warrant Agreement in order to cure any
ambiguity or to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Holders may deem necessary or desirable and which shall not be
inconsistent with the provisions of the Warrants and which shall not adversely
affect the interests of the Holders.
17. SUCCESSORS. All the covenants and provisions of this Warrant Agreement by or
for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
18. BENEFITS OF THIS WARRANT AGREEMENT. Nothing in this Warrant Agreement shall
be construed to give to any person or corporation other than the Company and the
Holders, any legal or equitable right, remedy or claim under this Warrant
Agreement, but this Warrant Agreement shall be for the sole and exclusive
benefit of the Company and the Holders of the Warrants and Warrant Shares.
19. CAPTIONS. The captions of the Sections and subsections of this Warrant
Agreement have been inserted for convenience only and shall not affect the
construction hereof.
20. COUNTERPARTS. This Warrant Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
21. CONSTRUCTION. This Agreement incorporates the entire understanding of the
parties and supersedes all previous agreements and shall be governed by, and
construed in accordance with, the laws of the State of New York as applied to
contracts made and performed in such State, without giving effect to principles
of conflict of law. The Company hereby irrevocably submits the exclusive
jurisdiction of the Federal and New York State courts located in the City of New
York in connection with any suit, action or proceeding related to this Agreement
or any of the matters contemplated hereby, irrevocably waive any defense of lack
of personal jurisdiction and irrevocably agree that all claims in respect of any
such suit, action or proceeding may be heard and determined in any such court.
The Company irrevocably waives, to the fullest extent they may effectively do so
under applicable law, any objection which they may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought in any such court
and any claim that any such suite, action or proceeding brought in any such
court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be
duly executed on the date first set forth above.
WORLD AIRWAYS, INC.
By: ____________________________________
Title: ____________________________________
THE BOEING COMPANY
By: ____________________________________
Title: ____________________________________
EXHIBIT A
TO
WARRANT AGREEMENT
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK (OR
OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT
(OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES),
OR (iii) AN OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT
AGREEMENT REFERRED TO HEREIN.
NO. ____ ____________ WARRANTS
VOID AFTER 5:00 PM WASHINGTON, DC TIME
March ___, 2005
WORLD AIRWAYS, INC.
Warrant Certificate
THIS CERTIFIES THAT for value received_________ the registered holder hereof or
registered assigns (the "Holder"), is the owner of the number of Warrants set
forth above, each of which entitles the owner thereof to purchase at any time
after issuance until 5:00 PM, Washington, DC time on March ____, 2005, one fully
paid and nonassessable share of the common stock (the "Common Stock"), $.001 par
value per share, of World Airways, Inc. (the "Company"), as such number of
shares may be adjusted pursuant to the Warrant Agreement referred to below at
the purchase price of $2.50 per share (the "Warrant Price"), as such Warrant
Price may be adjusted pursuant to the Warrant Agreement.
This Warrant Certificate is subject to, and entitled to the benefits of all of
the terms, provisions and conditions of a warrant agreement dated as of March
___, 2000 (the "Warrant Agreement") by and between the Company and The Boeing
Company ("Boeing"), and which Warrant Agreement is hereby incorporated herein by
reference and made a part hereof and to which Warrant Agreement reference is
hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Company and the Holders of
the Warrant Certificates. Copies of the Warrant Agreement are on file at the
principal office of the Company.
The Holder hereof may be treated by the Company and all other persons dealing
with this Warrant Certificate as the absolute owner hereof for any purpose and
as the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer on such books, the Company may treat
the Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates, upon
surrender at the principal office of the Company, may be exchanged for another
Warrant Certificate or Warrant Certificates of like tenor and date evidencing
Warrants entitling the Holder to purchase a like aggregate number of shares of
Common Stock as the Warrants evidenced by the Warrant Certificate or Warrant
Certificates surrendered entitled such Holder to purchase. If this Warrant
Certificate shall be exercised in part, the Holder shall be entitled to receive
upon surrender hereof, another Warrant Certificate or Warrant Certificates for
the number of whole Warrants not exercised.
No fractional shares of Common Stock shall be issued upon the exercise of any
Warrant but the Company shall pay the cash value of any fraction upon the
exercise of the Warrant.
No Holder shall be entitled to vote or receive dividends or be deemed the holder
of Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained in
the Warrant Agreement or herein be construed to confer upon such Holder, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue of stock, reclassification of stock, change of
par value or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or, except as provided in the Warrant Agreement, to receive notice
of meetings, or to receive dividends or subscription rights or otherwise, until
the Warrant or Warrants evidenced by this Warrant Certificate shall have been
exercised and the shares of Common Stock purchasable upon the exercise thereof
shall have become deliverable as provided in the Warrant Agreement.
IN WITNESS WHEREOF, World Airways, Inc. has caused the manual or facsimile
signature of its President and Chief Operating Officer or Chairman of the Board
of Directors to be printed hereon, under its corporate seal, affixed or in
facsimile, attested by the manual or facsimile signature of the Secretary or an
Assistant Secretary of the Company.
DATE: __________________ WORLD AIRWAYS, INC.
By: ______________________________
[SEAL] Title: ______________________________
Attest:
By: ______________________________
Title: ______________________________
EXHIBIT B
PURCHASE FORM
[To be executed upon exercise of Warrant]
To World Airways, Inc.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the Warrant Certificate(s) within for, and to purchase
thereunder, __________ shares of Common Stock as provided for therein.
Please issue a certificate or certificates for such shares of Common Stock
in the name of _________________________________ .
PLEASE INSERT SOCIAL SECURITY Name
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE ____________________________________
Address
------------------------------------
Signature
------------------------------------
NOTE: The above signature
should correspond exactly
with the name on the face
of this Warrant Certificate
or with the name of
assignee appearing in the
assignment form below.
AND, if said number of Shares shall not be all the Shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance of the whole number of Shares
purchasable thereunder.
Dated: _______________
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, _____________________, a _____________________ corporation
("Assignor") hereby sells, assigns and transfers unto
____________________________________ the within Warrant Certificate, together
with all right, title and interest therein, and does hereby irrevocably
constitute and appoint __________________________ attorney, to transfer said
Warrant Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Date: _____________
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK (OR
OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT
(OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES),
OR (iii) AN OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT
AGREEMENT REFERRED TO HEREIN.
NO. 1 1,000,000 WARRANTS
VOID AFTER 5:00 PM WASHINGTON, DC TIME
March ____, 2005
WORLD AIRWAYS, INC.
Warrant Certificate
THIS CERTIFIES THAT for value received The Boeing Company, a Delaware
corporation ("Boeing"), the registered holder hereof or registered assigns (the
"Holder"), is the owner of the number of Warrants set forth above, each of which
entitles the owner thereof to purchase at any time after issuance until 5:00 pm,
Washington, DC time on March ____, 2005, one fully paid and nonassessable share
of the common stock (the "Common Stock"), $.001 par value per share, of World
Airways, Inc. (the "Company"), as such number of shares may be adjusted pursuant
to the Warrant Agreement referred to below at the purchase price of $2.50 per
share (the "Warrant Price"), as such Warrant Price may be adjusted pursuant to
the Warrant Agreement referred to below.
This Warrant Certificate is subject to, and entitled to the benefits of, all of
the terms, provisions and conditions of a warrant agreement dated as of March
___, 2000 (the "Warrant Agreement") by and between the Company and Boeing, and
which Warrant Agreement is hereby incorporated herein by reference and made a
part hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Company and the Holders of the Warrant Certificates.
Copies of the Warrant Agreement are on file at the principal office of the
Company.
The Holder hereof way be treated by the Company and all other persons dealing
with this Warrant Certificate as the absolute owner hereof for any purpose and
as the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer on such books, the Company may treat
the Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates, upon
surrender at the principal office of the Company, may be exchanged for another
Warrant Certificate or Warrant Certificates of like tenor and date evidencing
Warrants entitling the Holder to purchase a like aggregate number of shares of
Common Stock as the Warrants evidenced by the Warrant Certificate or Warrant
Certificates surrendered entitled such Holder to purchase. If this Warrant
Certificate shall be exercised in part, the Holder shall be entitled to receive
upon surrender hereof, another Warrant Certificate or Warrant Certificates for
the number of whole Warrants not exercised.
No fractional shares of Common Stock shall be issued upon the exercise of any
Warrant but the Company shall pay the cash value of any fraction upon the
exercise of the Warrant.
No Holder shall be entitled to vote or receive dividends or be deemed the holder
of Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained in
the Warrant Agreement or herein be construed to confer upon such Holder, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue of stock, reclassification of stock, change of
par value or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or, except as provided in the Warrant Agreement, to receive notice
of meetings, or to receive dividends or subscription rights or otherwise, until
the Warrant or Warrants evidenced by this Warrant Certificate shall have been
exercised and the shares of Common Stock purchasable upon the exercise thereof
shall have become deliverable as provided in the Warrant Agreement.
IN WITNESS WHEREOF, World Airways, Inc. has caused the manual or facsimile
signature of its President and Chief Operating Officer or Chairman of the Board
of Directors to be printed hereon, under its corporate seal, affixed or in
facsimile, attested by the manual or facsimile signature of the Secretary or an
Assistant Secretary of the Company.
DATE: March ____, 2000 WORLD AIRWAYS, INC.
By: ____________________________________
Title: ____________________________________
[SEAL]
Attest:
By: ____________________________________
Title: ____________________________________
