EXHIBIT 1.1
DEALER MANAGER AGREEMENT
July 23, 2003
Xxxxxx Xxxxxx & Co. Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. The Offer. World Airways, Inc., a Delaware corporation ("World
Airways" or the "Company"), proposes to make an exchange offer (hereinafter
referred to, together with any amendments, supplements or extensions thereof, as
the "Offer") to exchange up to $40.5 million aggregate principal amount of its
8% Convertible Senior Subordinated Debentures Due 2009 (the "Exchange
Debentures") for $40.5 million aggregate principal amount of the Company's
issued and outstanding 8% Convertible Senior Subordinated Debentures Due 2004
(the "Existing Debentures"), on the terms and subject to the conditions set
forth in the Offer Materials described in Section 4, copies of which have been
delivered to you.
2. Appointment as Dealer Manager. The Company hereby appoints you,
exclusively, and you hereby accept that appointment, as the Dealer Manager (the
"Dealer Manager") in connection with the Offer, and authorizes you to act as
such in connection with the Offer. As Dealer Manager, you agree, in accordance
with your customary practice and consistent with general industry standards, to
solicit tenders of Existing Debentures pursuant to the Offer, communicating
generally regarding the Offer with brokers, dealers, commercial banks and trust
companies and similar holders of the Existing Debentures. In such capacity, you
shall act as an independent contractor, and each of your duties arising out of
your engagement pursuant to this Agreement shall be owed solely to the Company.
The Company further authorizes you to communicate with Wachovia Bank,
N.A., in its capacity as exchange agent (the "Exchange Agent"), with respect to
matters relating to the Offer. The Company has instructed the Exchange Agent to
advise you at least daily as to the face amount of the Existing Debentures which
have been tendered pursuant to the Offer and as to such other matters in
connection with the Offer as you may request.
Notwithstanding the foregoing, nothing set forth in this Agreement
shall require you to continue to perform your obligations hereunder (i) for the
period of time during which any restraining, injunctive or other similar order
shall remain in effect with respect to the Offer or with respect to any of the
transactions in connection with, or contemplated by, the Offer or this Agreement
if, after consultation with the Company, in your good faith judgment, you
believe it is inadvisable for you to render your services as Dealer Manager
hereunder, or (ii) if your continuing so to act would, after consultation with
the Company, in your good faith judgment, violate any statute, regulation or
other law of the United States or any state or other jurisdiction thereof
applicable to the Offer.
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3. No Liability for Acts of Dealers, Banks and Trust Companies. You
shall have no liability to the Company or any other person for any losses,
claims, damages, liabilities and expenses, including but not limited to
attorneys' fees and expenses (each a "Loss" and collectively, the "Losses"),
arising from any act or omission on the part of any broker or dealer in
securities (a "Dealer"), bank or trust company, or any other person, and neither
you nor any of your affiliates shall be liable for any Losses arising from your
own acts or omissions in performing your obligations as Dealer Manager hereunder
or otherwise in connection with the Offer, except for any such Losses which are
finally judicially determined to have resulted primarily and directly from your
bad faith or gross negligence. In soliciting or obtaining tenders, no Dealer,
bank or trust company is to be deemed to be acting as your agent or the agent of
the Company or any of its affiliates, and you, as Dealer Manager, are not to be
deemed the agent of any Dealer, bank or trust company or the agent or fiduciary
of the Company or any of its affiliates, equity holders, creditors or of any
other person. You shall not be and shall not be deemed for any purpose to act as
a partner or joint venturer of or a member of a syndicate or group with the
Company or any of its affiliates in connection with the Offer, any exchange of
the Existing Debentures, or otherwise, and neither the Company nor any of its
affiliates shall be deemed to act as your agent. The Company shall have sole
authority for the acceptance or rejection of any and all tenders.
4. The Offer Materials. The Company agrees to furnish you, at its
expense, with as many copies as you may request of the transmittal letter to be
used in connection with the Offer (the "Transmittal Letter") and any of the
other Offer Materials (as hereinafter defined) as required. The definitive forms
of the registration statement on Form S-4 (the "Registration Statement") in
respect of the Exchange Debentures filed with the Securities and Exchange
Commission (the "Commission") (as it may be amended from time to time before it
becomes effective) and any post-effective amendment thereto and including all
exhibits thereto and all documents incorporated by reference into the prospectus
contained therein (the "Prospectus"), the Transmittal Letter, any schedule to be
filed in connection with the Offer and any other documents or materials
ancillary to any of the foregoing (including, without limitation, press
releases, advertisements and other communications), all statements and other
documents filed or to be filed with the Commission or any other federal, state,
local or foreign governmental or regulatory authorities or any court (each an
"Other Agency" and collectively, the "Other Agencies") and any amendments or
supplements to any such statements and documents, are hereinafter collectively
referred to as the "Offer Materials". You are authorized to use copies of the
Offer Materials in connection with the Offer. The Offer Materials have been or
will be prepared and approved by, and are the sole responsibility of, the
Company, which is also responsible for the distribution of the Offer Materials
to the holders of the Existing Debentures.
You hereby agree, as Dealer Manager, that you will not disseminate any
written material for tenders of the Existing Debentures pursuant to the Offer
other than the Offer Materials, and you agree that you will not make any
statements other than the statements that are set forth in the Offer Materials
or as otherwise authorized by the Company.
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The Company agrees that no Offer Materials will be used in connection
with the Offer or filed with the Commission or any Other Agency with respect to
the Offer without first obtaining your prior approval, which approval shall not
be unreasonably withheld. The Company also agrees that no amendment will be made
to any of the Offer Materials, and no filing with the Commission will be made
for the purpose of making any such amendment, unless copies of the proposed
amendments are furnished to you a reasonable time prior to the amendment or
proposed filing date. In the event that the Company uses or permits the use of
any Offer Materials in connection with the Offer, makes any amendment to the
Offer Materials or makes any such filing with the Commission or any Other Agency
without your prior approval, then you shall be entitled to withdraw as Dealer
Manager in connection with the Offer without any liability or penalty to you or
any Indemnified Person (as hereinafter defined), and you shall remain entitled
to the indemnification provided in Section 11 hereof and to receive the payment
of all fees and expenses payable under this Agreement which have accrued to the
date of such withdrawal or would otherwise be due to you on such date. If you
withdraw as Dealer Manager, the reimbursement for your expenses through the date
of such withdrawal shall be paid to you promptly after such date.
5. Compensation. The Company agrees to pay you pursuant to the letter
agreement between you and the Company dated December 20, 2002 as compensation
for your services as Dealer Manager in connection with the Offer.
6. Expenses of Dealer Manager and Others. In addition to your
compensation for your services hereunder pursuant to Section 5 hereof, the
Company agrees to pay directly, or promptly reimburse you in the event you pay
any such item on behalf of the Company, as the case may be, for (i) all expenses
relating to the preparation, printing, filing, mailing and publishing of all
Offer Materials, (ii) all fees and expenses of the Exchange Agent, (iii) all
advertising charges in connection with the Offer, including those of any public
relations firm or other person or entity rendering services in connection
therewith, (iv) all fees, if any, payable to Dealers (including you), and banks
and trust companies as reimbursement for their customary mailing and handling
expenses incurred in forwarding the Offer Materials to their customers and (v)
all other fees and expenses in connection with the Offer or otherwise in
connection with the performance of your services hereunder (including, without
limitation, attorneys' fees and disbursements and any expenses incurred as a
result of presenting testimony or evidence, or preparing to present testimony or
evidence in connection with any court or government proceeding arising out of
the Offer). All payments to be made by the Company pursuant to this Section 6
shall be made promptly against delivery to the Company of statements therefor.
The Company shall be liable for the foregoing payments whether or not the Offer
is commenced, withdrawn, terminated or canceled prior to the exchange of any
Existing Debentures or whether the Company or any of its subsidiaries or
affiliates acquires any Existing Debentures pursuant to the Offer or whether you
withdraw pursuant to Section 4 hereof.
7. Debenture Holder Lists. The Company will cause you to be provided
with cards or lists or other records in such form as you may reasonably request
showing the names and addresses of, and the face amount of Existing Debentures
held by, the holders of Existing
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Debentures as of a recent date and will cause you to be advised from day to day
during the period of the Offer as to any transfers of record of Existing
Debentures.
8. Representations and Warranties of the Company. The Company
represents and warrants to you that:
a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to be in
good standing, considering all such cases in the aggregate, would not
have a material adverse effect on the business, properties, financial
position or results of operations of the Company and all of its
subsidiaries and affiliates taken as a whole, as the case may be.
b) The Company has full corporate power and authority to take
and has duly taken all necessary corporate action to authorize (i) the
Offer, (ii) the exchange by the Company of the Existing Debentures
pursuant to the Offer and (iii) the execution, delivery and performance
of this Agreement, and this Agreement has been duly executed and
delivered on behalf of the Company and, assuming due authorization,
execution and delivery of this Agreement by you, is a legal, valid and
binding obligation of the Company enforceable against it in accordance
with its terms, except that the enforceability hereof may be limited by
(x) bankruptcy, insolvency, reorganization, moratorium and other laws
now or hereafter in effect relating to creditors' rights generally and
(y) general principles of equity.
c) The Company has duly filed, or will have duly filed at
commencement of the Offer, the Registration Statement and any schedule
or other document, in each case pursuant to the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission under such acts
(collectively, with such rules and regulations, the "Securities Act"
and the "Exchange Act", respectively), copies of which (including the
documents filed or to be filed therewith as exhibits thereto) in the
form filed or to be filed, have been or will be promptly furnished to
you. The aforementioned documents comply, and all forms of all such
other Offer Materials to be filed with the Commission or published or
distributed to holders of the Existing Debentures will comply, in all
material respects, with the applicable provisions of the Securities Act
and the Exchange Act, and none of such Offer Materials contains or at
the closing of the Offer will contain any untrue statement of a
material fact or at the closing of the Offer omits or will omit to
state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under
which they are made, not misleading; provided, however, that no
representation is made with respect to any statements contained in, or
any matter omitted from, the schedule or any other Offer Materials in
reliance upon and in conformity with information furnished or confirmed
in writing by you to the Company expressly for use therein.
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d) The Company will file, as required, any and all necessary
amendments or supplements to such Offer Materials filed with the
Commission relating to the Offer and will promptly furnish to you true
and complete copies of each such amendment and supplement upon the
filing thereof.
e) The Offer, the exchange by the Company of the Existing
Debentures pursuant to the Offer, and the execution, delivery and
performance of this Agreement by the Company, comply and will comply
with all applicable requirements of federal, state, local and foreign
law, including, without limitation, any applicable regulations of the
Commission and Other Agencies, and all applicable judgments, orders or
decrees; and no consent, authorization, approval, order, exemption,
registration, qualification or other action of, or filing with or
notice to, the Commission or any Other Agency is required in connection
with the execution, delivery and performance of this Agreement by the
Company, the making or consummation by the Company of the Offer or the
consummation of the other transactions contemplated by this Agreement,
except for (i) the filing of the Offer Materials and any proxy
statement with respect to a special meeting of the shareholders to
approve the exchange offer with the Commission and the Nasdaq Stock
Market and the registration of the Exchange Debentures under the
Securities Act, (ii) any state securities filings or notifications and
(iii) where the failure to obtain or make such consent, authorization,
approval, order, exemption, registration, qualification or other action
or filing or notification would not materially adversely affect the
ability of the Company to execute, deliver and perform this Agreement
or to commence and consummate the Offer in accordance with its terms.
All such required consents, authorizations, approvals, orders,
exemptions, registrations, qualifications and other actions of and
filings with and notices to the Commission and the Other Agencies will
have been obtained, taken or made, as the case may be, and all
statutory or regulatory waiting periods will have elapsed, prior to the
exchange of the Existing Debentures pursuant to the Offer.
f) The Offer, the exchange of the Existing Debentures for the
Exchange Debentures by the Company pursuant to the Offer, and the
execution, delivery and performance of this Agreement by the Company,
do not and will not (i) conflict with or result in a violation of any
of the provisions of the certificate of incorporation or by-laws (or
similar organizational documents) of the Company, (ii) conflict with or
violate in any material respect any law, rule, regulation, order,
judgment or decree applicable to the Company or by which any property
or asset of the Company or any of its subsidiaries is or may be bound
or (iii) result in a breach of any of the material terms or provisions
of, or constitute a default (with or without due notice and/or lapse of
time) under, any loan or credit agreement, indenture, mortgage, note or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which any of them or any of their
respective properties or assets is or may be bound.
g) No stop order, restraining order or denial of an
application for approval has been issued and no investigation,
proceeding or litigation has been commenced or, to the best of the
Company's knowledge, threatened before the Commission or any Other
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Agency with respect to the making or consummation of the Offer or the
consummation of the other transactions contemplated by this Agreement
or with respect to the ownership of the Existing Debentures by the
Company or any of its subsidiaries or affiliates.
h) There is no material fact or information concerning the
Company or any of its subsidiaries, or the operations, assets,
condition (financial or otherwise) or prospects of the Company or any
of its subsidiaries, which is required to be made generally available
to the public and which has not been, or is not being, or will not be,
made generally available to the public through the Offer Materials or
otherwise.
i) The Company and its subsidiaries, taken as a whole, have
not sustained since the date of the latest audited financial statements
included in, or incorporated by reference into, the Prospectus any
material loss or interference with their business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company and its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the Prospectus.
j) The Exchange Debentures, when issued, will conform to the
description under the caption "Description of Exchange Debentures,"
contained in, or incorporated by reference into, the Prospectus.
k) The Exchange Debentures have been duly authorized and, when
issued and delivered in exchange for the Existing Debentures, will be
duly authorized and validly issued.
l) The Company is not, nor will it be as a result of the
exchange by the Company of the Existing Debentures that it may become
obligated to exchange pursuant to the terms of the Offer, an
"investment company" under the Investment Company Act of 1940, as
amended, and the rules and regulations promulgated by the Commission
thereunder.
m) KPMG LLP, whose report will be filed with the Commission as
part of the Registration Statement, are independent public accountants
as required by the Securities Act and the rules and regulations
thereunder.
n) Each of the representations and warranties set forth in
this Agreement will be true and correct on and as of the date on which
the Offer is commenced and on and as of the date on which any Existing
Debentures are exchanged pursuant to the Offer.
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o) The Company acknowledges that you are relying upon the
truth and accuracy of the representations and warranties contained in
this Section 8 in agreeing to act as the Dealer Manager in connection
with the Offer, and that without these representations and warranties
you would not agree to serve as the Dealer Manager.
9. Opinions of Company's Counsel. The Company shall deliver to you an
opinion addressed to you and dated the date hereof of Powell, Goldstein, Xxxxxx
& Xxxxxx LLP, counsel to the Company, with respect to the matters set forth in
Exhibit A.
10. Notification of Certain Events. The Company shall advise you
promptly of (i) the occurrence of any event which could cause the Company to
withdraw, rescind or terminate the Offer or would permit it to exercise any
right not to exchange the Existing Debentures tendered under the Offer, (ii) the
occurrence of any event, or the discovery of any fact, the occurrence or
existence of which it believes would require the making of any change in any of
the Offer Materials then being used or would cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect, (iii) any proposal or requirement to make, amend or supplement any
filing required by the Securities Act or the Exchange Act in connection with the
Offer or to make any filing in connection with the Offer pursuant to any other
applicable law, rule or regulation, (iv) the issuance by the Commission or any
Other Agency of any comment, communication or order (including, without
limitation, any stop order), or the taking of any other action concerning the
Offer (and, if in writing, will furnish you with a copy thereof), (v) any
material developments in connection with the Offer or the financing thereof,
including, without limitation, the commencement of any lawsuit concerning the
Offer and (vi) any other information relating to the Offer, the Offer Materials
or this Agreement which you may from time to time reasonably request.
11. Indemnification.
a) The Company agrees to hold harmless and indemnify you
(including any affiliated companies) and any officer, director,
partner, shareholder, employee or agent (including, for the purposes of
this Section 11, any broker-dealer acting on your behalf and at your
request in connection with the Offer) of you or any of such affiliated
companies and any entity or person controlling (within the meaning of
Section 20(a) of the Exchange Act) you, including any affiliated
companies (collectively, the "Indemnified Persons"), from and against
any and all Losses whatsoever (including, but not limited to, any and
all expenses incurred in investigating, preparing or defending against
any litigation or proceeding, commenced or threatened, or any claims
whatsoever whether or not resulting in any liability) (i) arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any of the Offer Materials or in any other
material used by the Company, or authorized by the Company for use in
connection with the Offer or the transactions contemplated thereby, or
arising out of or based upon the omission or alleged omission to state
in any such document a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (other than statements or
omissions made in reliance on information furnished by you to the
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Company expressly for use therein), (ii) arising out of or based upon
any withdrawal by the Company of, or failure by the Company to make or
consummate, the Offer or the transactions contemplated thereby or any
other failure to comply with the terms and conditions specified in the
Offer Materials, (iii) arising out of the breach or alleged breach by
the Company of any representation, warranty or covenant set forth in
this Agreement, (iv) arising out of, relating to or in connection with
any other action taken or omitted to be taken by an Indemnified Person
or (v) otherwise arising out of, relating to or in connection with the
Offer, the other transactions described in the Offer Materials or your
services as Dealer Manager hereunder. The Company shall not, however,
be responsible for any Loss pursuant to clauses (iv) or (v) of the
preceding sentence of this Section 11(a) which has been finally
judicially determined to have resulted primarily and directly from the
bad faith or gross negligence on the part of any Indemnified Person,
other than any Loss arising out of or resulting from actions performed
at the request of, with the consent of, or in conformity with actions
taken or omitted to be taken by, the Company.
b) The Company and you agree that if any indemnification
sought by any Indemnified Person pursuant to this Section 11 is
unavailable for any reason or insufficient to hold you harmless, then
the Company and you shall contribute to the Losses for which such
indemnification is held unavailable or insufficient in such proportion
as is appropriate to reflect the relative benefits received (or
anticipated to be received) by the Company, on the one hand, and
actually received by you, on the other hand, in connection with the
transactions contemplated by this Agreement or, if such allocation is
not permitted by applicable law, not only such relative benefits but
also the relative faults of the Company, on the one hand, and you, on
the other hand, as well as any other equitable considerations, subject
to the limitation that in any event the aggregate contribution by you
to all Losses with respect to which contribution is available hereunder
shall not exceed the fees actually received by you in connection with
your engagement hereunder. It is hereby agreed that the relative
benefits to the Company, on the one hand, and you, on the other hand,
with respect to the Offer and the transactions contemplated thereby
shall be deemed to be the same proportion as (i) the total value paid
or proposed to be paid to holders of the Existing Debentures pursuant
to the Offer (whether or not the Offer or such transactions are
consummated) bears to (ii) the fees actually received by you from the
Company in connection with your engagement hereunder.
c) The foregoing rights to indemnity and contribution shall be
in addition to any other right which you and the other Indemnified
Persons may have against the Company at common law or otherwise. If any
litigation or proceeding is brought against any Indemnified Person in
respect of which indemnification may be sought against the Company
pursuant to this Section 11, such Indemnified Person shall promptly
notify the Company in writing of the commencement of such litigation or
proceeding, but the failure so to notify the Company shall relieve the
Company from any liability which it may have hereunder only if, and to
the extent that, such failure results in the forfeiture by the Company
of substantial rights and defenses, and will not in any event relieve
the
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Company from any other obligation or liability that they may have to
any Indemnified Person other than under this Agreement. In case any
such litigation or proceeding shall be brought against any Indemnified
Person and such Indemnified Person shall notify the Company in writing
of the commencement of such litigation or proceeding, the Company shall
be entitled to participate in such litigation or proceeding, and, after
written notice from the Company to such Indemnified Person, to assume
the defense of such litigation or proceeding with counsel of its choice
at its expense; provided, however, that such counsel shall be
satisfactory to the Indemnified Person in the exercise of its
reasonable judgment. Notwithstanding the election of the Company to
assume the defense of such litigation or proceeding, such Indemnified
Person shall have the right to employ separate counsel and to
participate in the defense of such litigation or proceeding, and the
Company shall bear the reasonable fees, costs and expenses of such
separate counsel and shall pay such fees, costs and expenses at least
quarterly (provided that with respect to any single litigation or
proceeding or with respect to several litigations or proceedings
involving substantially similar legal claims, the Company shall not be
required to bear the fees, costs and expenses of more than one such
counsel) if (i) in the reasonable judgment of such Indemnified Person
the use of counsel chosen by the Company to represent such Indemnified
Person would present such counsel with a conflict of interest, (ii) the
defendants in, or targets of, any such litigation or proceeding include
both an Indemnified Person and the Company, and such Indemnified Person
shall have been advised by its counsel that representation of such
Indemnified Person and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them (in which case the
Company shall not have the right to direct the defense of such action
on behalf of the Indemnified Person), (iii) the Company shall not have
employed counsel satisfactory to such Indemnified Person, in the
exercise of the Indemnified Person's reasonable judgment, to represent
such Indemnified Person within a reasonable time after notice of the
institution of such litigation or proceeding or (iv) the Company shall
authorize in writing such Indemnified Person to employ separate counsel
at the expense of the Company. In any action or proceeding the defense
of which the Company assumes, the Indemnified Person shall have the
right to participate in such litigation and retain its own counsel at
such Indemnified Person's own expense. The Company and you agree to
notify the other promptly of the assertion of any claim against it, any
of its officers or directors or any entity or person who controls it
within the meaning of Section 20(a) of the Exchange Act in connection
with the Offer. The foregoing indemnification commitments shall apply
whether or not the Indemnified Person is a formal party to such
litigation or proceeding.
d) The Company also agrees to reimburse each Indemnified
Person for all expenses (including fees and disbursements of counsel)
as they are incurred by such Indemnified Person in connection with
investigating, preparing for, defending or providing evidence
(including appearing as a witness) with respect to any action, claim,
investigation, inquiry, arbitration or other proceeding referred to in
this Section 11 or enforcing this Agreement, whether or not in
connection with pending or threatened litigation in which any
Indemnified Person is a party.
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e) The Company agrees that it will not, without your prior
written consent, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification may be sought hereunder (whether or
not you, any other Indemnified Person or the Company is an actual or
potential party), unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Person from all
liability arising out of such claim, action or proceeding.
12. Conditions to Obligations of the Dealer Manager. Your obligations
hereunder shall at all times be subject to the conditions that (a) all
representations, warranties and other statements of the Company contained herein
are now, and at all times during the period of the Offer shall be, true and
correct in all material respects and (b) the Company at all times shall have
performed in all material respects all of its obligations hereunder theretofore
to be performed.
13. Termination. This Agreement shall terminate upon the expiration,
termination or withdrawal of the Offer or upon withdrawal by you as Dealer
Manager pursuant to Section 4 hereof, it being understood that Sections 3, 5, 6,
11, 13 and 14 hereof shall survive any termination of this Agreement.
14. Notices. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be given (and
shall be deemed to have been given upon receipt) by delivery in person, by
cable, by telecopy, by telegram, by telex, by registered or certified mail
(postage prepaid, return receipt requested) or by recognized overnight delivery
service (such as Federal Express) to the applicable part at the addresses
indicated below:
a) if to you:
Xxxxxx Xxxxxx & Co. Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy No.: 000-000-0000
Attention: Xxxx Xxxxxx
with a copy to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: 000-000-0000
Attention: Xxxxxx Xxxx Xxxxxxxx, Esq.
b) if to the Company:
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World Airways, Inc.
HLH Building
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Attention: Xxxxx Xxxxxxx
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy No.: 000-000-0000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
15. Consent to Jurisdiction: Service of Process. The Company hereby (a)
submits to the jurisdiction of any New York State or Federal court sitting in
the City of New York with respect to any actions and proceedings arising out of
or relating to this Agreement, (b) agrees that all claims with respect to such
actions or proceedings may be heard and determined in such New York State or
Federal court, (c) waives the defense of an inconvenient forum, (d) agrees not
to commence any action or proceeding relating to this Agreement other than in a
New York State or Federal court sitting in the City of New York and (e) agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
16. Joint and Several Obligations, Etc. The representations,
warranties, covenants and agreements of the Company hereunder are joint and
several. In the event that the Company makes the Offer through one or more of
its affiliates, each reference in this Agreement to the Company shall be deemed
to be a reference to the Company and any such affiliates, and the
representations, warranties, covenants and agreements of the Company and any
such affiliates hereunder shall be joint and several.
17. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
18. Amendment. This Agreement may not be amended except in writing
signed by each party to be bound thereby.
19. Governing Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED IN AND TO BE PERFORMED IN
THAT STATE WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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20. Waiver of Jury Trial. THE COMPANY HEREBY AGREES ON ITS OWN BEHALF
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY
HOLDERS, TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
COUNTERCLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE OFFER).
21. Counterparts; Severability. This Agreement may be executed in two
or more separate counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. Any term or
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.
22. Parties in Interest. This Agreement, including rights to indemnity
and contribution hereunder, shall be binding upon and inure solely to the
benefit of each party hereto, the Indemnified Persons and their respective
successors, heirs and assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
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Please indicate your willingness to act as Dealer Manager and your
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to us a copy of this Agreement so signed,
whereupon this Agreement and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
WORLD AIRWAYS, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Chief Financial Officer
Accepted as of the
date first above written:
XXXXXX XXXXXX & CO. INC.
By: /s/ R. Xxxxxxx Xxxxxx
----------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Director
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Exhibit A
Matters to be Addressed in the Opinion of Counsel
a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
b) The Company has full corporate power and authority to take and has duly
taken all necessary corporate action to authorize (i) the Offer, (ii)
the exchange by the Company of Existing Debentures pursuant to the
Offer and (iii) the execution, delivery and performance of this
Agreement, and this Agreement has been duly executed and delivered on
behalf of each of the Company and, assuming due authorization,
execution and delivery of this Agreement by Xxxxxx Xxxxxx, is a legal,
valid and binding obligation of the Company enforceable against it in
accordance with its terms, except that the enforceability thereof may
be limited by (x) bankruptcy, insolvency, reorganization, moratorium
and other laws now or hereafter in effect relating to creditors' rights
generally and (y) general principles of equity.
c) The Registration Statement (including the Prospectus contained therein)
and the related Offer Materials (apart from the financial and market
data and statistical information contained or incorporated by reference
therein, as to which such counsel has not been requested to express an
opinion) appear on their face to comply in all material respects with
the applicable provisions of the Securities Act and the Exchange Act,
as applicable.
d) The Offer, the exchange of the Existing Debentures by the Company
pursuant to the Offer, and the execution, delivery and performance of
this Agreement by the Company, do not and will not (i) conflict with or
result in a violation of any of the provisions of the certificate of
incorporation or by-laws (or similar organizational documents) of the
Company, or (ii) conflict with or violate in any material respect any
law, rule or regulation, or any order, judgment or decree known to such
counsel to be applicable to the Company or by which any property or
asset of the Company or any of its subsidiaries is or may be bound.
e) The Offer, the exchange by the Company of the Existing Debentures
pursuant to the Offer, and the execution, delivery and performance of
this Agreement by the Company, comply in all material respects with all
applicable requirements of federal, state and local law, including,
without limitation, any applicable regulations of the Commission and
Other Agencies, and all applicable judgments, orders or decrees, and
except for filings with the Commission, the Nasdaq Stock Market and any
State securities commission in connection with the Offer, the
registration of the Exchange Debentures and any shareholders meeting to
approve the Offer, no consent, authorization, approval, order,
exemption, registration, qualification or other action of, or filing
with or notice to, the Commission or any Other Agency is required in
connection with the execution, delivery
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and performance of this Agreement by the Company, the making or
consummation by the Company of the Offer or the consummation of the
other transactions contemplated by this Agreement, except where the
failure to obtain or make such consent, authorization, approval, order,
exemption, registration, qualification or other action or filing or
notification would not materially adversely affect the ability of the
Company to execute, deliver and perform this Agreement or to commence
and consummate the Offer in accordance with its terms.
f) To the best of such counsel's knowledge, no stop order, restraining
order or denial of an application for approval has been issued and no
investigation, proceeding or litigation has been commenced or
threatened before the Commission or any Other Agency with respect to
the making or consummation of the Offer or the consummation of the
other transactions contemplated by this Agreement.
g) The Company is not, nor will it be as a result of the exchange by it of
the Existing Debentures that it may become obligated to exchange
pursuant to the terms of the Offer, an "investment company" under the
Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder.
h) Assuming the Exchange Debentures are issued in conformity with the form
of Exchange Debenture as an exhibit to the Registration Statement, the
Exchange Debentures, when issued, will conform to the description under
the caption "Description of Exchange Debentures," contained in the
Prospectus. The description of the Common Stock of the Company set
forth in the Registration Statement and the Prospectus conforms to the
applicable provisions of the certificate of incorporation and the
by-laws of the Company.
(i) To the best of such counsel's knowledge, there is no action, suit or
governmental proceeding pending or threatened before or by any Federal
or state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is subject that if adversely
determined against the Company or any of its subsidiaries, would
individually or in the aggregate result in a material adverse change in
the condition (financial or otherwise), sales, properties, earnings,
net worth, prospects, results of operations or business of the Company
and its subsidiaries, taken as a whole, or that is required to be
disclosed in the Registration Statement or the Prospectus and in each
case is not adequately disclosed.
Such counsel shall also advise that no facts have come to its attention
which have caused it to believe that neither the Registration Statement nor the
related Offer Materials (apart from the financial and market data and
statistical information contained or incorporated by reference therein, as to
which such counsel expresses no opinion) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
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