EXHIBIT 99.9
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
WORLD AIRWAYS, INC.
AS THE ISSUER, AND THE
HOLDERS REFERRED TO HEREIN OF
WARRANTS TO PURCHASE COMMON STOCK, $.001 PAR VALUE PER SHARE
DATED AS OF DECEMBER 30, 2003
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of December 30, 2003 by and between WORLD AIRWAYS, INC., a
Delaware corporation (the "Company"), and the Warrant Holders (as hereinafter
defined).
WHEREAS, the Company and the Warrant Holders have entered into
certain agreements; and
WHEREAS, in order to induce the Warrant Holders to enter into
such agreements with the Company, the Company agreed to issue to the Warrant
Holders the Warrants (as hereinafter defined) and to provide the registration
rights set forth in this Agreement to the Warrant Holders and their respective
direct and indirect transferees.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"AFFILIATE": An affiliate of any specified person shall mean
any other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the purposes
of this definition, "control," when used with respect to any person, means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"AGREEMENT": This Registration Rights Agreement, as the same
may be amended, supplemented or modified from time to time in accordance with
the terms hereof.
"BUSINESS DAY": Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"COMMON STOCK": The common stock, $.001 par value per share,
of the Company or shares of any class or classes resulting from any
recapitalization, reorganization, or reclassification thereof.
"COMPANY": World Airways, Inc., a Delaware corporation, and
any successor entity thereto.
"DEMAND REGISTRATION": As defined in Section 2(a) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"HOLDER": Each owner of any Registrable Securities.
"INDEMNIFIED HOLDER": As defined in Section 5(a) hereof.
"PROSPECTUS": The prospectus included in the Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed in reliance upon Rule
430A), as amended or supplemented by any prospectus supplement, with respect to
the resale of any of the Registrable Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
"REGISTRABLE SECURITIES": The shares of Common Stock issued or
issuable upon exercise of the Warrants (including any shares of Common Stock
issued or issuable thereon upon any stock split, stock combination, stock
dividend or the like or as a result of any anti-dilution adjustments under the
Warrants), upon original issuance thereof and at all times subsequent thereto,
and associated related rights, if any, until the earliest of (i) the date on
which the resale thereof has been effectively registered under the Securities
Act and such securities have been disposed of in accordance with the
Registration Statement relating thereto, (ii) the date on which such securities
have been distributed to the public pursuant to Rule 144 or are saleable
pursuant to paragraph (k) of Rule 144 (assuming for purposes hereof that a
Warrant Holder having the right to exercise Warrants for 10% or more of the
outstanding Common Stock shall be deemed to be an affiliate), or (iii) the date
on which such securities cease to be outstanding.
"REGISTRATION STATEMENT": Any registration statement of the
Company filed with the SEC pursuant to the Securities Act that covers the resale
of any Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus (including pre- and post-effective amendments), all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
"REQUIRED HOLDERS": Holders (including through the holding of
Warrants) of more than 50% of the Registrable Securities. For purposes of the
preceding sentence, Registrable Securities owned, directly or indirectly, by the
Company or its Affiliates (other than persons who are Affiliates solely by
virtue of being holders of the Registrable Securities) shall not be deemed
outstanding.
"REQUISITE INFORMATION": As defined in Section 2(d) hereof.
"RULE 144": Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"RULE 144A": Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"RULE 415": Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"RULE 424": Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
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"RULE 430A": Rule 430A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"SEC": The Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
"SECURITIES ACT": The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"TRANSFER AGENT": The registrar and transfer agent for the
Company's Common Stock.
"WARRANTS": The warrants issued to the Air Transportation
Stabilization Board to purchase an aggregate of 2,378,223 shares of Common Stock
as set forth on Schedule I hereto.
"WARRANT HOLDERS": The initial holders of the Warrants set
forth on Schedule I hereto.
SECTION 2. REGISTRATION STATEMENT.
(a) DEMAND REGISTRATION UNDER THE SECURITIES ACT. The
Required Holders will be entitled to demand, from time to time, upon written
request, that the Company file a Registration Statement under the Securities Act
to effect the registration of all or part of their Registrable Securities on, at
the option of the Company, Form S-1 or any similar long-form registration, or
Form S-2 or S-3 or any similar short-form registration, if available, for an
offering to be made either on a continuous basis pursuant to Rule 415 or by
means of an underwriting. Each request for a Demand Registration (as defined
below) shall specify the approximate number of Registrable Securities requested
to be registered.
(i) Within ten (10) days after receipt of any
such request, the Company will give written notice of such requested
registration to all other Holders of Registrable Securities and will
include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein
within twenty (20) days after the receipt of the Company's notice. All
registrations requested pursuant to this paragraph 2(a) are referred to
herein as "Demand Registrations". The Company shall use its best
efforts to prepare and file any Registration Statement pursuant to a
Demand Registration and have any such Registration Statement declared
effective as promptly as reasonably practicable, but in no event later
than (i) 180 days with respect to a Registration Statement regarding
resales of Registrable Securities on a continuous basis pursuant to
Rule 415 and (ii) 240 days with respect to a Registration Statement
regarding an underwritten offering, in each case, after the request for
such Demand Registration was made. Nothing in this Section 2 shall
operate to limit the right of a Holder of Registrable Securities to
request the registration of Registrable Securities issuable upon
exercise of the Warrants held by such Holder notwithstanding the fact
that at the time of request, such Holder holds only Warrants.
(ii) The Company will not be obligated to effect
a Registration Statement pursuant to a Demand Registration made within
ninety (90) days after the
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effective date of a Registration Statement effected pursuant to a
previous Demand Registration. The Company will not be obligated to
effect more than three (3) Demand Registrations.
(iii) If Required Holders of Registrable
Securities requesting registration under this Section 2(a) intend to
distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as part of their
request pursuant to this Section 2(a), and the Company shall include
such information in the written notice sent to the Holders of
Registrable Securities pursuant to this Section 2(a). In such event,
the right of a Holder to registration pursuant to this Section 2(a)
shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting and upon the completion by the Holder of all
questionnaires, powers of attorney, indemnities and other documents
reasonably required under the terms of such underwriting arrangements.
The Company shall, together with all Holders of Registrable Securities
requesting to distribute their securities through such underwriting,
enter into an underwriting agreement in customary form with the
managing underwriter. If a Holder has requested inclusion in such
registration as provided above but does not agree to the terms of any
such underwriting, such Holder's Registrable Securities shall be
excluded therefrom by written notice from the Company or the managing
underwriter. The selection of investment banker(s) and manager(s),
which investment banker(s) and manager(s) shall be nationally
recognized, shall be made by the Holders of a majority of the
Registrable Securities being so registered, subject to approval of the
Company, which approval will not be unreasonably withheld or delayed.
(iv) If, without the prior written consent of the
Required Holders, the Company grants to any person any rights to
request the Company to register any equity securities of the Company
(including the registration rights granted concurrently to the holders
of the New Debentures (as hereinafter defined)), or any securities
convertible or exchangeable into or exercisable for such securities,
that are more favorable than the rights granted pursuant to this
Agreement (as determined by the Required Holders), without any action
on the part of the Company or the Holders, this Agreement shall be
deemed to provide the same or equivalent rights to the Holders.
(v) The Holders of Registrable Securities
demanding a Demand Registration pursuant to this Section 2(a) may, at
any time prior to the effective date of any Registration Statement
filed pursuant to this Section 2(a), revoke such request by providing
written notice to the Company, in which case such request will not
count toward the three (3) Demand Registrations permitted under this
Section 2(a). Any underwritten offering commenced but not completed due
to a suspension of sales by the Company pursuant to Section 2(e) will
not count toward the three (3) Demand Registrations permitted under
this Section 2(a).
(vi) Whenever the Company shall effect a
registration pursuant to this Section 2(a), except as required pursuant
to registration rights granted prior to the date hereof by the Company,
no securities other than Registrable Securities shall be included among
the securities covered by such registration unless the Holders of not
less than
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66-2/3% of all Registrable Securities to be covered by such
registration shall have consented in writing to the inclusion of such
other securities.
(b) PIGGYBACK REGISTRATION RIGHTS. The Company shall
afford each Holder of Registrable Securities the opportunity to include such
Registrable Securities in any registration statement filed for purposes of a
public offering of securities of the Company of the same class as the
Registrable Securities or which are convertible into or exercisable for such
class of securities (including, without limitation a public offering made on a
continuous basis pursuant to Rule 415) (other than (i) registration statements
for which the Company has contractually agreed not to grant such rights with the
prior consent of the Required Holders, and (ii) other than a registration on
Form S-4 or Form S-8, or any successor or other forms promulgated for similar
purposes); provided, however, that in the event any Holder of Registrable
Securities elects to include Registrable Securities in the shelf registration
statement to be filed by the Company for the registration of its six-year 8%
Convertible Senior Subordinated Debentures (the "New Debentures"), to be issued
concurrently with the Warrants, and of the shares of Common Stock issuable upon
conversion of the New Debentures, in lieu of including such Registrable
Securities in the shelf registration statement, the Company may elect to file a
separate shelf registration statement for the benefit of the requesting Holder
(which registration statement shall not count as a Demand Registration). If, in
the written opinion of the managing underwriter of any such offering in the case
of an underwritten offering of the Company's securities to be offered for the
Company's own account and/or for the account of holders that will have exercised
contractual demand registration rights, the total amount of securities to be so
registered including such Registrable Securities, will exceed the maximum amount
of the Company's securities which can be marketed without adversely affecting
the offering, then the Company shall be entitled to reduce the number of shares
of Registrable Securities to be included in such offering to zero. Any such
reduction shall be allocated among all such Holders and other holders of
piggyback registration rights in proportion (as nearly as practicable) to the
amount of registrable securities owned by each holder at the time of filing the
registration statement. Each Holder desiring to include the Registrable
Securities held by it in any such registration statement shall notify the
Company in writing within 15 days after receipt of notice from the Company of
its intent to file such a registration statement. If a Holder decides not to
include all of the Registrable Securities held by it in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements (other than
registration statements for which the Company has contractually agreed not to
grant such rights) as may be filed by the Company with respect to offerings of
its securities (including, without limitation a public offering made on a
continuous basis pursuant to Rule 415), all upon the terms and conditions set
forth herein. No registration effected under this Section 2(b) shall relieve the
Company of its obligation to effect any Demand Registration under Section 2(a)
hereof.
(c) SUPPLEMENTS AND AMENDMENTS. The Company shall use
best efforts to keep any Registration Statement regarding Registrable Securities
continuously effective by supplementing and amending such Registration Statement
(including to register additional Registrable Securities resulting from any
anti-dilution adjustment) if so required by the rules, regulations or
instructions applicable to the registration form used for such Registration
Statement, by the Securities Act, or, if reasonably requested by the Required
Holders or by any
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underwriter of such Registrable Securities and in any event for a period not to
exceed the earlier of (i) 270 days or (ii) the date on which the sale of the
Registrable Securities covered by such Registration Statement is complete,
unless such Registration Statement relates to securities offered on a continuous
basis pursuant Rule 415 in which case the Company's obligations under this
paragraph shall continue until the sale of the Registrable Securities covered by
such Registration Statement is complete. If a Registration Statement under
Section 2(a) ceases to be available for use by the Holders because the Company
no longer qualifies to use such form of registration statement, the Company
shall be required to file, as promptly as reasonably practicable, a new
Registration Statement on an appropriate form and its obligations hereunder
shall continue to apply in all respects.
(d) SELLING SECURITYHOLDER INFORMATION. Each Holder
wishing to sell Registrable Securities pursuant to a Registration Statement and
related Prospectus shall furnish to the Company, in a timely manner, such
information regarding itself and the distribution of its Registrable Securities
as is required by the rules and regulations of the Securities Act to be
disclosed by the Holder in the Registration Statement (the "Requisite
Information"). The Company shall not be required to include in the Registration
Statement and related Prospectus the Registrable Securities of any Holder that
does not provide the Company with the Requisite Information in accordance with
this Section 2(d). Each Holder requesting registration hereunder shall promptly
notify the Company of any material changes to the Requisite Information provided
to the Company by such Holder, and the Company shall use best efforts to file,
as soon as practicable after the receipt of any changes in the Requisite
Information with respect to such Holder (including, without limitation, any
changes in the plan of distribution), a Prospectus supplement pursuant to Rule
424 or otherwise amend or supplement such Registration Statement to include in
the Prospectus the Requisite Information as to such Holder (and the Registrable
Securities held by such Holder), and the Company shall provide such Holder a
copy of such Prospectus as so amended or supplemented containing the Requisite
Information in order to permit such Holder to comply with the Prospectus
delivery requirements of the Securities Act in a timely manner with respect to
any proposed disposition of such Holder's Registrable Securities and to file the
same with the SEC. Notwithstanding the foregoing, following the effective date
of any Registration Statement, the Company shall not be required to file more
than one such supplement or post-effective amendment to reflect changes in the
amount of Common Stock constituting Registrable Securities held by any
particular Holder at the request of such Holder in any 30-day period. The
Company may take reasonable steps to aggregate the addition of Registrable
Securities of more than one Holder for purposes of filing amendments to any
Registration Statement or supplements to the Prospectus so as to reduce the need
for multiple amendments or supplements; provided that the Company shall not use
this sentence to delay the filing of any amendment or supplement beyond any such
30-day period.
(e) MATERIAL EVENTS; SUSPENSION OF SALES. Notwithstanding
the provisions contained in this Section 2, with respect to any Registration
Statement, the Company may (for a period not to exceed 60 consecutive days, and
not in any event to exceed 90 days in the aggregate during any 12 month period)
suspend use of such Registration Statement at any time if (and for so long as)
the continued use thereof would require the Company to disclose a material
financing, acquisition, other transaction or other material non-public
information, which disclosure the Board of Directors of the Company shall have
determined in good faith is not in the best interests of the Company and the
Company's stockholders. The Company shall
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notify each registered Holder, the Transfer Agent and the managing underwriters,
if any, that the use of the Prospectus is to be suspended until the Company
shall deliver a written notice that the use of the Prospectus may be resumed.
During such suspension, the use of the Prospectus shall be suspended, and the
Company shall not be required to maintain the effectiveness of, or amend or
update the Registration Statement, or amend or supplement the Prospectus.
(f) ADDITIONAL AGREEMENTS OF HOLDERS. Each Holder agrees
not to dispose of Registrable Securities pursuant to any Registration Statement
without complying with the prospectus delivery requirements under the Securities
Act and the provisions of Section 2(e) hereof regarding use of the Prospectus.
Each Holder further agrees that it will comply fully with applicable federal and
state securities laws in connection with the distribution of any Registrable
Securities pursuant to the Registration Statement.
(g) HOLDBACK AGREEMENT. Each Holder of Registrable
Securities covered by a Registration Statement pursuant to the registration
rights provided by this Agreement relating to an underwritten public offering
agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, of any equity securities of the
Company, or of any security convertible into or exchangeable or exercisable for
any equity security of the Company, within seven (7) days before, and during
such period as the underwriting agreement may require of the Company or other
holders selling securities in the public offering (or such lesser period as the
managing underwriters may permit) after, the effective date of such registration
statement, except as part of such underwritten public offering.
SECTION 3. REGISTRATION PROCEDURES. In connection with the
Company's registration obligations hereunder, and subject to and in accordance
with the provisions of Section 2 hereof, the Company shall effect such
registrations on the appropriate form selected by the Company to permit the
resale of Registrable Securities in accordance with the Holder's intended method
or methods of disposition thereof, and pursuant thereto the Company shall as
expeditiously as reasonably possible:
(a) Furnish to the Holders and the managing underwriters,
if any, copies of all such documents proposed to be filed (excluding, unless
requested, those documents incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested) and use its best efforts
to reflect in each such document, when so filed with the SEC, such comments
regarding a Holder as have been reasonably proposed and delivered by such Holder
to the Company in a timely manner. The Company shall not file any Registration
Statement or related Prospectus or any amendments or supplements thereto
(excluding any document that would be incorporated or deemed incorporated by
reference) to which the representative of the Required Holders or the managing
underwriters, if any, shall reasonably object in writing (by hand delivery,
courier guaranteeing overnight delivery or telecopy) within five Business Days
after the receipt of such documents. Notwithstanding the foregoing, the Company
shall not be required to furnish to the Holders or the managing underwriters, if
any, any amendments or supplements to the Registration Statement or Prospectus
filed solely to reflect changes to the amount of Common Stock constituting
Registrable Securities held by any particular Holder or immaterial revisions to
the information contained therein.
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(b) Prepare and file with the SEC such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable time period set forth in Section 2(c) hereof; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement and Prospectus during such period in accordance with the
intended method or methods of disposition by the Holder set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented
including, without limitation, the filing of any Prospectus supplement pursuant
to Rule 424 in order to add or change any selling security holder information
(including any such supplements or amendments pursuant to Section 2(d) hereof,
provided such Holder to which such change applies complies with the Requisite
Information requirements of Section 2(d) hereof in a timely manner).
(c) Notify the Holders and the managing underwriters, if
any, promptly and, if requested by any such person, confirm such notice in
writing:
(i) (A) when a Prospectus or any Prospectus
supplement or post-effective amendment is filed and (B) with respect to
a Registration Statement or any post-effective amendment, when the same
has become effective;
(ii) regarding any Registration Statement filed
pursuant to Section 2(a) hereof, of any written comments from the SEC
with respect to any filing and of any request by the SEC or any other
Federal or state governmental authority for amendments or supplements
to such Registration Statement or related Prospectus or for additional
information related thereto;
(iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of
any stop order, order or injunction suspending or enjoining the use or
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of qualification or
exemption from qualification of any of the Registrable Securities for
sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose;
(v) of the existence of any fact or the
happening of any event that makes any statement of material fact made
in such Registration Statement or related Prospectus untrue in any
material respect, or that requires the making of any changes in such
Registration Statement or Prospectus so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
that, in the case of the Prospectus, such Prospectus will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated
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therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vi) of the determination by the Company that a
post effective amendment to the Registration Statement will be filed
with the SEC.
(d) Use best efforts to obtain the withdrawal of any stop
order or order enjoining or suspending the use or effectiveness of a
Registration Statement or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) If reasonably requested by the Required Holders, or
managing underwriters, if any, (i) promptly include in a Prospectus supplement
or post-effective amendment such information as the Required Holders (only
regarding the Required Holders) or managing underwriters, if any, may reasonably
request to be included therein; and (ii) make all required filings of such
Prospectus supplement or such post effective amendment as soon as reasonably
practicable after the Company has received notification of such matters to be
included in such Prospectus supplement or post effective amendment.
(f) Furnish to each Holder participating in such
registration who so requests, and each managing underwriter, if any, without
charge, at least one copy of the Registration Statement and each amendment
thereto (but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits, unless requested in writing
by such Holder or any managing underwriter and then only to the person who so
requested).
(g) Deliver to each Holder participating in such
registration and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of Prospectus) and each
amendment or supplement thereto as such persons may reasonably request; and,
unless the Company shall have given notice to such Holder or underwriter
pursuant to Section 2(e), the Company hereby consents to the use of such
Prospectus, and each amendment or supplement thereto, by each of the selling
Holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, use all reasonable efforts to (i) register or qualify, or cooperate
with the Holders of Registrable Securities to be sold or the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any Holder or underwriter
reasonably requests in writing, (ii) keep each such registration or
qualification (or exemption therefrom) effective during the period the
Registration Statement is required to be kept effective and (iii) do any and all
other acts or things legally necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified,
take any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject.
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(i) In connection with any sale or transfer of
Registrable Securities that will result in such securities no longer being
Registrable Securities, cooperate with the Holders and the managing
underwriters, if any, to (i) facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends, unless required by applicable securities
laws and (ii) enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders may
reasonably request at least two Business Days prior to any sale of Registrable
Securities.
(j) Upon the occurrence of any event contemplated by
Section 3(c)(v) hereof, as promptly as reasonably practicable (subject to any
suspension of sales pursuant to Section 2(e) hereof), prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, such Prospectus will
not contain an untrue statement of a material fact or omit to state 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
(except, upon occurrence of an event contemplated by Section 3(c)(v) hereof, to
the extent that the Company determines in good faith that the disclosure of such
event at such time would not be in the best interests of the Company and the
Company's stockholders provided that any such delay in disclosure pursuant to
this Section 3(j) shall be considered a suspension of the Registration Statement
subject to the limitation in Section 2(e)).
(k) Enter into such agreements (including any
underwriting agreements in form, scope and substance as may be reasonably
requested and as are customary in underwritten offerings, which may include
indemnification and contribution provisions in favor of underwriters and other
persons in addition to, or in substitution for, the provisions of Section 5
hereof) and take all such other appropriate actions in connection therewith
(including those reasonably requested by the managing underwriters, if any, or
the Holders of a majority in interest of the Registrable Securities being sold)
in order to expedite or facilitate the sale of such Registrable Securities. In
connection with any underwritten offering, the Company will:
(i) make such representations and warranties to
the Holders of such Registrable Securities and the underwriters, with
respect to the business of the Company and its subsidiaries (including
with respect to businesses or assets acquired or to be acquired by any
of them), and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same
if and when requested;
(ii) obtain, as may reasonably be required,
opinions of counsel to the Company (which may include in-house counsel)
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters), addressed to each selling Holder of Registrable
Securities and each of the underwriters, covering the matters
customarily covered in opinions requested in underwritten offerings
(including any such matters as may be reasonably requested by such
underwriters);
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(iii) obtain, as may reasonably be required,
customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed (where
reasonably possible) to each selling Holder of Registrable Securities
and each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings; and
(iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in interest of
the Registrable Securities being sold and the underwriters, to evidence
the continued validity of the representations and warranties made
pursuant to clause (i) of this Section 3(k) and to evidence compliance
with any customary conditions contained in the underwriting agreement
or other agreements entered into by the Company.
(l) Make available for inspection by a representative of
the Holders of Registrable Securities being sold, any underwriter participating
in any such disposition of Registrable Securities, if any, and any attorney,
consultant or accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries (other than records and documents that the Company and its
subsidiaries agreed contractually not to disclose and the disclosure of which
would violate such contractual arrangement) as they may reasonably request, and
cause the officers, directors, agents and employees of the Company and its
subsidiaries to supply all information (other than information that the Company
and its subsidiaries agreed contractually not to disclose and the disclosure of
which would violate such contractual arrangement) in each case reasonably
requested by any such representative, underwriter, attorney, consultant or
accountant in connection with such Registration Statement and as shall be
reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Holders and the other parties thereto by one
counsel designated by and on behalf of such Holders and other parties and
provided further, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company as confidential at the time of delivery or inspection (as the case
may be) of such information shall be kept confidential by such persons, unless
(i) disclosure of such information is required by court or administrative order
or is necessary to respond to inquiries of regulatory authorities; (ii)
disclosure of such information is required by law; (iii) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by any such person; or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not known to be bound by a confidentiality agreement.
(m) (i) list all shares of Common Stock covered by any
Registration Statements on any securities exchange on which the Common Stock is
then listed; or (ii) authorize for quotation on the National Market of the
National Association of Securities Dealers
-11-
Automated Quotation System or the Nasdaq Small Cap Market ("Nasdaq") all Common
Stock covered by all such Registration Statements if the Common Stock is then so
authorized for quotation.
(n) Use its best efforts to cause Registrable Securities
covered by a Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities.
(o) Make all reasonable efforts to provide such
information as is required for any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD").
SECTION 4. REGISTRATION EXPENSES. All fees and expenses
incident to the performance of or compliance with this Agreement by the Company
shall be borne by it whether or not any Registration Statement is filed or
becomes effective. The fees and expenses referred to in the foregoing sentence
shall include:
(a) all registration, filing, securities exchange
(including Nasdaq) listing, rating agency and stock exchange (including Nasdaq)
fees and expenses;
(b) printing expenses (including, without limitation,
printing Prospectuses if the printing of Prospectuses is required by the
managing underwriters, if any, or by the Holders of a majority in interest of
the Registrable Securities);
(c) messenger, copying, telephone and delivery expenses;
(d) reasonable fees and disbursements of counsel for the
Company;
(e) fees and disbursements of all independent certified
public accountants referred to in Section 3(k)(iii) including, without
limitation, the expenses of any special audits or "cold comfort" letters
required by Section 3(k)(iii);
(f) fees and expenses of all other persons retained by
the Company;
(g) all registration, filing, qualification and other
fees and expenses of complying with securities or blue sky laws of all
jurisdictions in which the Registrable Securities are to be registered in
accordance with Section 3(h) hereof, and any legal fees and expenses incurred in
connection with the blue sky qualifications of the Registrable Securities and
the determination of their eligibility for investment under the laws of all such
jurisdictions; and
(h) the reasonable fees and disbursements incurred by the
Holders of the Registrable Securities being registered (including, without
limitation, the reasonable fees and disbursements for one counsel or firm of
counsel selected by the Holders of a majority in interest of the Registrable
Securities being registered). Notwithstanding anything in this Agreement to the
contrary, the Holders shall be responsible for all expenses customarily borne by
selling securityholders (including underwriting discounts, commissions and fees
and expenses of
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counsel to the selling Holders to the extent not required to be paid by the
Company pursuant to this Section 4(h)).
SECTION 5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Holder and former Holder (an "Indemnified Holder") of Registrable
Securities, such Indemnified Holder's affiliates, and their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls any Indemnified Holder of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all loss, liability, claim or damage arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim or damage arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information concerning such Indemnified Holder of Registrable
Securities which information is furnished to the Company by or on behalf of such
Indemnified Holder of Registrable Securities or any person, if any, who controls
any such Indemnified Holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); provided, further,
that this indemnity agreement shall not apply to any loss, liability, claim or
damage (i) arising from an offer or sale of Registrable Securities occurring
during any suspension of sales pursuant to Section 2(e) (provided that the
Company has given to the Indemnified Holder notice of such suspension prior to
such offer or sale), or (ii) if the Indemnified Holder fails to deliver at or
prior to the written confirmation of sale, the most recent Prospectus, as
amended or supplemented, and such Prospectus, as amended or supplemented, would
have corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact (provided that the Company has delivered to such
Indemnified Holder, or otherwise given notice to such Indemnified Holder of the
existence of, such most recent Prospectus, as supplemented or amended). Any
amounts advanced by the Company to an indemnified party pursuant to this
Agreement shall be returned to the Company if it shall be finally determined in
a judgment by a court of competent jurisdiction not subject to appeal, that such
indemnified party was not entitled to indemnification.
(b) In connection with the preparation of the
Registration Statement in which an Indemnified Holder of Registrable Securities
is participating in furnishing information relating to such Indemnified Holder
of Registrable Securities to the Company for use in such Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto, each such Indemnified Holder agrees, severally and not jointly, to
indemnify and hold harmless any other Indemnified Holders of Registrable
Securities, the Company, its affiliates and their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls such other Indemnified Holders or the Company within the meaning of
either such Section, against any and all loss, liability, claim or damage
described in the indemnity contained in Section 5(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration
-13-
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information concerning such Indemnified Holder of
Registrable Securities which information is furnished to the Company by or on
behalf of such Indemnified Holder of Registrable Securities or any person, if
any, who controls any such Indemnified Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder unless it is materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. The indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel), for the Indemnified Holders of Registrable
Securities, and all persons, if any, who control the Indemnified Holders of
Registrable Securities within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, collectively (unless representation of
all Indemnified Holders and such parties by the same counsel would be
inappropriate due to actual or potential differing interests between or among
them), and (b) the fees and expenses of more than one separate firm (in addition
to any local counsel), for the Company and each person, if any, who controls the
Company within the meaning of either such Section, and that all fees and
expenses payable under (a) and (b) above shall be reimbursed as they are
incurred. In the case of any such separate firm for the Indemnified Holders of
Registrable Securities, and control persons of the Indemnified Holders of
Registrable Securities, such firm shall be designated by the Indemnified Holders
of a majority in interest of the Registrable Securities and shall be reasonably
acceptable to the Company. In the case of any such separate firm for the Company
and control persons of the Company, such firm shall be reasonably acceptable to
the Indemnified Holders of a majority in interest of the Registrable Securities.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the
-14-
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 5 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. No indemnified party shall,
without the prior written consent of the indemnifying party, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 (whether or
not the indemnified parties are actual or potential parties thereto).
(d) If the indemnification to which an indemnified party
is entitled under this Section 5 is for any reason unavailable to or
insufficient although applicable in accordance with its terms to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company on the one hand and the
Holders of the Registrable Securities on the other hand shall be
determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
the Company or by the Holder of the Registrable Securities and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in
this Section 5(d). The aggregate amount of losses, liabilities, claims,
damages, and expenses incurred by an indemnified party and referred to
above in this Section 5(d) shall be deemed to include any out-of-pocket
legal or other expenses reasonably incurred by such indemnified party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Holder
shall be required to indemnify or contribute any amount in excess of
the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any
-15-
damages that such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission to alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The remedies provided in this Section 5 are not exclusive and
shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
For purposes of this Section 5(d), each person, if any, who
controls any Holder of Registrable Securities within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Holder, and each
person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company. No party shall be
liable for contribution with respect to any action, suit, proceeding or
claim settled, compromised, or with respect to which the party
requesting contribution consented to the entry of a judgment, without
such party's written consent, which consent shall not be unreasonably
withheld or delayed.
(e) The agreements contained in this Section 5 shall
survive the transfer or sale of the Registrable Securities and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
SECTION 6. INFORMATION REQUIREMENTS.
(a) The Company agrees that, if at any time until the
Registrable Securities cease to be Registrable Securities the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and use reasonable efforts to take
such further reasonable action as any Holder of Registrable Securities may
reasonably request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A, if available, under the
Securities Act (or any similar rule or regulation hereafter adopted by the SEC)
and customarily taken in connection with sales pursuant to such exemptions,
including, without limitation, making available adequate current public
information within the meaning of paragraph (c)(2) of Rule 144 and delivering,
upon request, the information required by paragraph (d) of Rule 144A.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
(b) The Company shall file reports required to be filed
by it under the Exchange Act and any securities exchange (including Nasdaq) on
which the Common Stock is listed.
-16-
SECTION 7. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. Subject in all cases to
Section 2(a)(vi) hereof, the Company may in the future grant registration rights
that would permit any person that is a third party the right to piggy-back on a
Registration Statement to be filed pursuant to Section 2(a); provided, however,
that if the managing underwriter, if any, of such offering notifies the Holders
that the total amount of Registrable Securities which they and the holders of
such piggy-back rights intend to include in such Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then the amount, the number or
kind of securities offered for the account of holders of such piggy-back rights
will be reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number or kind recommended by the
managing underwriter before the amount of Registrable Securities to be included
is reduced.
(b) NO INCONSISTENT AGREEMENTS. The Company has not
entered and shall not enter into any agreement that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(c) NO ADVERSE ACTION AFFECTING THE REGISTRABLE
SECURITIES. The Company will not take any action with respect to the Registrable
Securities with an intent to adversely affect the ability of any of the Holders
to include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(d) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof, may not be given, without the written consent of the Company
and the Required Holders. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Registrable Securities are being sold
pursuant to the Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of a majority in
interest of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement, provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(d), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(e) NOTICES. All notices and other communications
provided for herein or permitted hereunder shall be made in writing by
hand-delivery, courier guaranteeing overnight delivery, certified first-class
mail, return receipt requested, or telecopy and shall be deemed
-17-
given (i) when made, if made by hand delivery, (ii) upon confirmation, if made
by telecopier, (iii) one Business Day after being deposited with such courier,
if made by overnight courier or (iv) on the date indicated on the notice of
receipt, if made by first-class mail, to the parties as follows:
(i) if to a Holder, to the address of such
Holder as it appears in Schedule I, or, if not so specified, in the
Common Stock or Warrants register of the Company, as applicable.
Failure to mail a notice or communication to a Holder or any defect in
such notice or communication shall not affect its sufficiency with
respect to other Holders.
(ii) if to the Company to:
World Airways, Inc.
The HLH Building
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
(iii) If to a Warrant Holder, to the address of
such Warrant Holder set forth on Schedule I.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of each existing and future
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of the Holders of a majority in interest of the
Registrable Securities, other than by operation of law pursuant to a merger or
consolidation or reorganization to which the Company is a party.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts by the parties hereto, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH FEDERAL LAW, IF AND TO THE
-18-
EXTENT SUCH FEDERAL LAW IS APPLICABLE, AND OTHERWISE IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(i) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(j) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(k) ENTIRE AGREEMENT. This Agreement (together with
Section 7 of the Warrants) is intended by the parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company with
respect to the Registrable Securities. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties solely with respect to such registration rights.
(l) TERMINATION. This Agreement and the obligations of
the parties hereunder shall terminate when all of the securities issued or
issuable upon exercise of the Warrants cease to be Registrable Securities,
except for any liabilities or obligations under Sections 4 or 5 hereof.
(m) SPECIFIC PERFORMANCE. The parties agree that, to the
extent permitted by law, (i) the obligations imposed on them in this Agreement
are special, unique and of an extraordinary character, and that in the event of
a breach by any such party, damages would not be an adequate remedy; and (ii)
each of the other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity.
-19-
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the date first written above.
WORLD AIRWAYS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxxxx X. Xxxxxx, Xx.
Chief Financial Officer
AIR TRANSPORTATION STABILIZATION
BOARD
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxxxx
Chief Administrative Officer
[_______________]
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
[_______________]
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
[_______________]
SCHEDULE I
1. SCHEDULE OF WARRANT HOLDERS AND NOTICE INFORMATION
Air Transportation Stabilization Board
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Executive Director
With a Copy to:
United States Department of the Treasury
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Deputy Assistant Secretary
(Government Financial Policy)
2. WARRANTS ISSUED TO THE AIR TRANSPORTATION
STABILIZATION BOARD
Warrant to purchase 1,269,022 shares of Common Stock
at an exercise price of $0.78 per share expiring on
December 30, 2008.
Warrant to purchase 111,111 shares of Common Stock at
an exercise price of $2.50 per share expiring on
August 23, 2004.
Warrant to purchase 111,111 shares of Common Stock at
an exercise price of $2.50 per share expiring on
March 29, 2005.
Warrant to purchase 886,979 shares of Common Stock at
an exercise price of $3.20 per share expiring on
December 30, 2009.
